Case 1:20-cv-04160-JGK-OTW Document 188 Filed 03/24/23 Page 23 of 47
contributory copyright infringement based on its sale of Betamax machines to customers who could then copy programs to be viewed at a later time even though the customers could have viewed the programs for free when they were broadcast. 464 U.S. at 421, 448–55. The Supreme Court held that customers who used the Betamax machines to “time-shift” satisfied the first fair use factor, because “time-shifting for private home use” was a “noncommercial, nonprofit activity” and the Betamax machine “merely enable[d] a viewer to see such a work which he had been invited to witness in its entirety free of charge.” Id. at 449. IA argues that its digital lending is “at least as transformative as the use at issue in Sony,” because IA and its Partner Libraries already paid for print copies of the Works in Suit and because a patron who digitally borrows one of IA’s ebooks is “the one person in the world who is then borrowing that particular … library book.” Def.’s Memo., ECF No. 106, at 1718.
But Sony is plainly inapposite. IA is not comparable to the parties in Sony -- either to Sony, the alleged contributory copyright infringer, or to the home viewers who used the Betamax machine for the noncommercial, nonprofit activity of watching television programs at home. Unlike Sony, which only sold the machines, IA scans a massive number of copies of books and makes
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