[Publisher response to Internet Archive motion for discovery]

“Plaintiffs have produced a vast wealth of detailed sales and related financial data concerning the Works in Suit, totaling over 670,000 rows of data in Excel. Now, after the close of document discovery and on the eve of depositions, IA seeks to compel the production of “commercial performance data,” broken down by month, distribution channel, price and income, for all other books published by the Plaintiffs since 2011 – an undertaking that would involve a massive amount of data concerning more than 500,000 titles. And IA makes this extraordinary demand in order to rifle through an enormous reservoir of highly proprietary data concerning books that are not the Works in Suit, all in an effort to somehow select “for each work in suit, one or more comparable books that were not available for digital lending” on IA’s system. Dkt. 47, 2. In other words, because the significant financial data already provided concerning the Works in Suit apparently does not support IA’s theory on market harm, IA wants access to millions of data points concerning Plaintiffs’ entire book catalogues. IA argues it is entitled to do this in order to see if any evidence might exist to support the inherently incredible theory that copying entire books and distributing them to any member of the public worldwide upon demand does not compete with Plaintiffs’ sales of the same books. Even worse, IA’s quest rests on the palpably false theory that it can quantify the harm caused by its infringement by comparing the sales of completely different books. Books are not interchangeable widgets and marketplace performance is driven by countless indeterminate and changing facts. In short, Defendant’s letter motion should be denied because the enormous and costly burden to Plaintiffs far outweighs the negligible value (if any) of the evidence sought, especially given the lack of legally relevant results that it will yield and the delays it will cause to the case….”

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