Case 1:20-cv-04160-JGK-OTW Document 188 Filed 03/24/23 Page 25 of 47
<ref follow=p24>prohibitively inconvenient or inefficient means.” Id. at 177. IA appropriately does not analogize its library to the service in TVEyes: The court ultimately held that any modest transformative uses were easily outweighed by the harm to the rights holders’ market under the fourth fair use factor. Id. at 180–81. By providing Fox’s copyrighted programming to its clients “without payment to Fox, TVEyes … usurped a market that properly belong[ed] to the copyright-holder.” Id. at 180. As discussed below, the same is true here. Any “efficiency” IA offers by giving users instant, unauthorized access to the Works in Suit is easily outweighed by the harm that this access inflicts on the Publishers’ commercial entitlements as the copyright holders to market the ebooks that IA produces and provides.Finally, IA argues that its digital lending is transformative because it “facilitates new and expanding interactions between library books and the web.” Def.’s Memo. at 18. For example, “writers of Wikipedia articles” can “borrow books from the Internet Archive’s collection, and then link from their article to a particular page” on IA’s Website, and librarians can “curate, and make available online, collections of banned books.” Id.; see also Def.’s 56.1 ¶¶ 60–65. But these purported uses are not transformative. “[A] use does not become transformative by making an invaluable contribution to the progress of science and cultivation of the arts.” HathiTrust, 755 F.3d at 96. Instead, “a transformative work is one that serves a new and different function from the original work and is not a substitute for it.” Id. IA offers no transformative use of the
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