Electronic Frontier Foundation

Protecting Rights and Promoting Freedom on the Electronic FroOOe"

October27, 2006
Via
Facsimile
to
(415)
788-2019
and
U.S.
Mail
Amy
Briggs
Steefel,
Levitt
&
Weiss
One Embarcadero Center, 30th Floor
San
Francisco,
CA
94111
RE: Subpoenato Internet Archive

Dear Ms. Briggs:

I
am
an
attorney
with
the
Electronic
Frontier
Foundation
("EFF"),
a
public
interest
law
finD and civil liberties organization. I write in response to the subpoena your client,
Landmark
Education,
LLC
("Landmark")
caused
to
be
issued
to
the
Internet
Archive
("Archive")
on
October
19,
2006.
The
subpoena
seeks
documents
sufficient
to
allow
identification
of
an
individual,
"Asatgiaire,"
who
you
believe
uploaded
several
videos
to
the Archive. EFF represents the Archive in connection with this matter.

on October
As
you
may
know,
6,
2006,
the
Internet
Archive
received
a
letter
from
Art
Schreiber,GeneralCounselfor Landmark,alleging that the videos infringed Landmark's
copyrightsand containedlibelous material. The letter threatenedimmediatelegal action
if
the
material
was
not
removed
from
the
Archive
website.
In
reliance
upon
Mr.
Schreiber's
representations
that
the
material
infringed
Landmark's
copyright,
the
Archive
removed
the
videos.
On
further
review
of
the
videos
and
registration
referenced,
however,
we
have
deterDlinedthat the allegationof infringementof Landmark'scopyright hasno merit. As
an initial matter,it is clear that the videosdo not contain a copy of a "Landmark forum
leadersmanual" (TXu-I-I20-461) referencedin Landmark'sletters. Rather,it is a news
documentarycritical of the Landmarkorganizationin France. Further,evenif
Landmark's
copyrighted
works
were
visible
in
the
documentary,
any
such
limited
and
transforDlative
use
of
a
copyrighted
work
for
purpose
of
criticism,
commentary
and
news
reporting is self-evidently fair use and, therefore, noninfringing. See 17 § 107; V.S.C.

4 Nimmer on Copyright § 13.05. Indeed, the use is so evidently fair use under the law
that
it
is
difficult
to
see
how
the
declaration
claiming
infringement
accompanying
your
subpoena
could
be
consistent
with
Rule
11.
In
keeping
with
this
deterDlination,
we
must
declineto comply with the October 19 subpoena.Pleaseseethe attachedObjections.
Moreover,and without waiving our Objections,pleasenote that the InternetArchive does
not maintain logs of IP addressesusedto uploadfiles.

454 ShotwellStreet. San Frandsco,CA 94110 USA

. +14154369333 0 +14154369993 0 www.eff.orgG informatlon@eff.org
Amy
Briggs
October 27, 2006
Page 2
In
addition,
we
request
that
yom
client
immediately
withdraw
the
threats
of
litigation
contained
in
its
October
6,
2006,
letter.
As
set
forth
above,
the
videos
do
not
infringe
any
Landmark copyright. Further, 47 U.S.C. § 230 protectsInternetserviceproviderssuchas
the
Archive
from
liability
for
allegedly
harmful
comments
written
by
others.
See
e.g.
Zeran v. America Online, Inc., 129 F.3d 327,330 (4th Cir. 1997), cert. denied, 524 U.S.
937 (1998) ("By its plain language, § 230 creates a federal immunity to any cause of
action that would make service providers liable for information originating with a third-
party user of the service"); Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003); Cara/ano v.
Metrosplash.com, Inc, 339 F.3d 1119 (9th Cir. 2003). Therefore, please confirm in
writing,
by
November
15,
2006,
that
Landmark
does
not
intend
to
pursue
litigation
against the Archive for copyright infringement or defamation.
If
Landmark
refuses
to
make
this
commitment,
the
Archive
will
have
no
choice
but
to
exploreits legal options,including, but not limited to, an action for declaratoryrelief and
damagespursuantto 17 V.S.C.§ 512(t).

If you haveany questions,pleasedo not hesitateto contactme.

Regards,

f---
CorynneMcSherry
Staff Attorney

cc: Art Schreiber, Esq.

General Counsel, Landmark Education LLC
 INTERNET ARCHIVE'S RESPONSESTO
LANDMARK EDUCATION LLC'S OCTOBER 19,2006, SUBPOENA,
CASE NO C06-80303-MISC

Nonparty Internet Archive hereby answers, objects, and responds to the subpoena that

Landmark
Education
LLC
caused
to
be
issued
to
the
Internet
Archive
on
October
19,
2006,
seeking
"Documents
sufficient
to
allow
Landmark
Education
to
identify
the
infringer
'Asatgiaire'
who
posted
videos
labeled
'Introduction'
and
'Inside
the
Landmark
Forum'
(1 though6 of 6) as describedin the letter of notification in Exhibit A." asfollows:
INTRODUCTORYSTATEMENI

Internet Archive's investigationinto this matter is ongoing and not yet complete. All the
Responsescontained herein are based only upon such infonnation and documentsthat are
currently available and specifically known to the Internet Archive and his/her attorneysand
disclose only those contentionsthat currently occur to the Internet Archive and its attorneys.
Internet Archive anticipates that its continuing discovery, review, research, investigation, and
analysis
will
supply
additional
facts,
add
meaning
to
the
known
facts,
modify
Internet
Archive's
present analysis, and establish entirely new factual conclusions and legal contentions, all of

which
may
lead
to
substantial
additions
to,
changes
in
and
variations
from
the
contentions
herein
set forth. InternetArchive reservesthe right to changeany and all Responseshereinas additional
facts
are
ascertained,
analyses
are
made,
review
of
documents
is
furthered,
legal
research
is
continued,and/orcontentionsaremade.
Subject
to
these
qualifications
and
objections,
Internet
Archive
responds
as
follows:
OBJECTIONS AND RESPONSES
Internet
Archive
objects
to
the
subpoena
on
the
ground
that
it
is
unduly
burdensome
and
oppressivein that it is invalid.
The
subpoena
was
issued
based
on
a
letter
of
notification
that
assertsthat the sevendisputedvideos contain infringing materials. The use of the materialsin
questionis self-evidentlyfair useand,therefore,noninfringing.
Internet Archive further objects to the subpoenaon the ground that it is unduly
burdensome
in
that
it
demands
a
response
less
than
ten
(10)
days
following
issuance
of
the
1
subpoena.
InternetArchives further objectsto the subpoenaon the groundthat it is overbroadin that
it seeksinfonnation that is neither relevant to the subject matter of any possible litigation nor

reasonablycalculatedto leadto the discoveryof admissibleevidence

Internet Archive further objectsto the subpoenaon the ground that it seeksto obtain the

identity of an anonymous speaker without meeting the requirement that a court first evaluate (1)

whether Landmark has demonstrated that it has viable claims; (2) the specificity of the discovery
request;
(3)
the
existence
of
alternative
means
of
discovery;
(4)
the
seriousness
of
Landmark's
need
for
the
information;
(5)
whether
Landmark
has
attempted
to
notify
the
individuals
whose
infonnation is soughtof the pendingloss of anonymity; and (6) the magnitudeof the hannsthat
would be caused to the competing interests. See Highfields Capital Mgmt. L.P. v. Doe, 385 F.

Supp.
2d
969
(N.D.
Ca!.
2004);
Doe
v.
2theMart.com,
Inc.,
140
F.
Supp.
2d
1088,
1092
(W.D.
Wash. 2001).

InternetArchive further objectsto the subpoenaon the groundthat it is premisedupon a

declaration that appearsto violate Federal Rule of Civil Procedure 11

InternetArchive further objectsto the subpoenaon the groundthat it is vague.

/t
DATED: October 27, 2006

~,t7L(SBN 191303)
B Y t~'Q'psahl

Corynne McSherry (SBN 221504)

ELECTRONIC
FRONTIER
FOUND
A
nON
454 Shotwell Street
San Francisco,
CA
94110
Telephone: (415) 436-9333 xl22
Facsimile: (415) 436-9993