Case 1:20-cv-04160-JGK-OTW Document 188 Filed 03/24/23 Page 40 of 47
the” Works in Suit. Andy Warhol Found., 11 F.4th at 48. IA could expand the Open Libraries project far beyond the current contributing partners, allowing new partners to contribute many more concurrent copies of the Works in Suit to increase the loan count. New organizations like IA also could emerge to perform similar functions, further diverting potential readers and libraries from accessing authorized library ebooks from the Publishers. This plainly risks expanded future displacement of the Publishers’ potential revenues. See, e.g., Gregory, 689 F.3d at 65 (“If anyone could freely access the Works, electronically or otherwise, the [plaintiff] would have no market in which to try and publish, disseminate, or sell its [Works].”); Am. Buddha, 2015 WL 11170727, at *6 (“[U]nrestricted and widespread conduct of the sort engaged in by American Buddha would essentially gut the potential market for the Works.”).[1]
- ↑ It is no answer for IA to argue that the Publishers have provided “no concrete evidence” of past market harm. Def.’s Memo. at 28. That is not the Publishers’ burden. A rightsholder bears only “some initial burden of identifying relevant markets.” Andy Warhol Found., 11 F.4th at 49; see also id. (“[W]e have never held that the rightsholder bears the burden of showing actual market harm. Nor would we so hold.”). In this case, the Publishers have met their burden by identifying the thriving library ebook licensing market, with its tens of millions of dollars in annual revenue, as a market that IA’s copying stands to harm. See Ringgold v. Black Ent. Television, Inc., 126 F.3d 70, 81 (2d Cir. 1997) (“Ringgold is not required to show a decline in the number of licensing requests for the ‘Church Picnic’ poster since the ROC episode was aired. The fourth factor will favor her if she can show a ‘traditional, reasonable, or likely to be developed’ market for licensing her work as set decoration.”).
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