Internet Archive's Responses to Landmark Education LLC's October 19, 2006, Subpoena



INTERNET ARCHIVE'S RESPONSES TO LANDMARK EDUCATION LLC'S OCTOBER 19, 2006, SUBPOENA, CASE NO C06-80303-MISC

Nonparty Internet Archive hereby answers, objects, and response 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 though 6 of 6) as described in the letter of notification in Exhibit A." as follows:

 INTRODUCTORY STATEMENT

Internet Archive's investigation into this matter is ongoing and not yet complete. All the Responses contained herein are based only upon such information and documents that are currently available and specifically known to the Internet Archive and his/her attorneys and disclose only those contentions that 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. Internet Archive reserves the right to change any and all Responses herein as additional facts are ascertained, analyses are made, review of documents is furthered, legal research is continued, and/or contentions are made.

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 oppressive in that it is invalid. The subpoena was issued based on a letter of notification that asserts that the seven disputed videos contain infringing materials. The use of the materials in question is self-evidently fair use and, therefore, noninfringing.

Internet Archive further objects to the subpoena on the ground that it is unduly burdensome in that it demands a response less than ten (10) days following issuance of the subpoena.

Internet Archive further objects to the subpoena on the ground that it is overbroad in that it seeks information that is neither relevant to the subject matter of any possible litigation nor reasonably calculated to lead to the discovery of admissible evidence.

Internet Archive further objects to the subpoena on the ground that it seeks to obtain the identity of an anonymous speaker without meeting the requirements 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 information is sought of the pending loss of anonymity; and (6) the magnitude of the harms that would be caused to the competing interests. ''See Highfields Capital Mgmt. L.P. v. Doe'', 385 F. Supp. 2d 969 (N.D. Cal. 2004); Doe v. 2theMart.com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001).

Internet Archive further objects to the subpoena on the ground that it is premised upon a declaration that appears to violate Federl Rule of Civil Procedure 11

Internet Archive further objects to the subpoena on the ground that it is vague.

DATED: October 27, 2006

By [signature]

Kurt Opsahl (SBN 191303)

Corynne McSherry (SBN 221504)

ELECTRONIC FRONTIER FOUNDATION

454 Shotwell Street

San Francisco, CA 94110

Telephone: (415) 436-9333 x122

Facsimile: (415) 436-9993

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