Case 1:20-cv-04160-JGK-OTW Document 188 Filed 03/24/23 Page 34 of 47
“owned-to-loaned ratio,” whether cast under Section 109 or fair use, is no defense. *** The crux of IA’s first factor argument is that an organization has the right under fair use to make whatever copies of its print books are necessary to facilitate digital lending of that book, so long as only one patron at a time can borrow the book for each copy that has been bought and paid for. See Oral Arg. Tr. 31:10–15. But there is no such right, which risks eviscerating the rights of authors and publishers to profit from the creation and dissemination of derivatives of their protected works. See 17 U.S.C. §§ 106(1), (2). IA’s wholesale copying and unauthorized lending of digital copies of the Publishers’ print books does not transform the use of the books, and IA profits from exploiting the copyrighted material without paying the customary price. The first fair use factor strongly favors the Publishers.
B.
The second fair use factor directs courts to consider “the nature of the copyrighted work.” Id. § 107(2). “[S]ome works are closer to the core of intended copyright protection than others,” and “fair use is more difficult to establish when the former works are copied.” Campbell, 510 U.S. at 586. Two distinctions
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