Case 1:20-cv-04160-JGK-OTWDocument 215Filed 08/11/23Page 4 of 5
Case 1:20-cv-04160-JGK-OTWDocument 214-1Filed 08/11/23Page 5 of 6
U.S.C. § 121(d)(3), provided that such use meets the statutory conditions of 17 U.S.C §§ 121 or 121A, or is consistent with fair use, for example as set forth in Authors Guild v. Hathitrust, 755 F.3d 87 (2d Cir. 2014); or
d)
Notwithstanding the foregoing definition of a Covered Book as including a portion thereof, an Internet Archive Party’s use of Covered Books for the purpose of distribution, public display, or public performance of short portions of a Covered Book, provided that such use is consistent with fair use, for example as set forth in Authors Guild v. Google, Inc., 804 F.2d 202 (2d Cir. 2015) and Andy Warhol Foundation v. Goldsmith, 143 S. Ct. 1258 (2023).
5.
By way of clarification:
a)
nothing herein constitutes a grant to the Internet Archive Parties or any other person of a license, right, permission, consent, or authorization with respect to any copyrighted works, whether any Covered Books or otherwise;
b)
nothing herein means that acts outside the scope of the specific prohibitions in Paragraph 2 are non-infringing or excused under any of the exceptions or limitations set forth in the United States Copyright Act or that Plaintiffs waive any claims regarding such acts; and
c)
nothing herein impacts any right of Plaintiffs to seek to recover damages under 17 U.S.C. § 504, or costs, including attorneys’ fees, under 17 U.S.C. § 505.
6.
By way of further clarification and without modifying Paragraph 2(d) or 2(e) of this Permanent Injunction, nothing herein (i) limits any Internet Archive Party’s ability to assert that it is not liable for monetary relief, or injunctive or other equitable relief, with respect to any infringement of copyright that arises from acts described in 17 U.S.C. § 512(a)–(e) (“Section 512”), or (ii) enjoins any act which qualifies for a limitation on remedies under Section 512.
7.
Nothing herein limits the Internet Archive’s right to appeal the finding of liability for copyright infringement as addressed in the Opinion and Order and as incorporated into any final judgment.
8.
Nothing herein limits the Internet Archive’s right to appeal this Permanent Injunction on the ground that Internet Archive should not have been held liable for copyright infringement. Further, nothing herein limits any Party from appealing the Court’s resolution of the Parties’ dispute concerning whether the definition of Covered Book in Paragraph E(1) of this Consent
