23-1260

Hachette Book Group, Inc. v. Internet Archive

 

In the

United States Court of Appeals

For the Second Circuit

August Term, 2023

Argued: June 28, 2024 Decided: September 4, 2024

Docket No. 23-1260

HACHETTE BOOK GROUP, INC., HARPERCOLLINS PUBLISHERS L.L.C., JOHN WILEY &

SONS, INC., PENGUIN RANDOM HOUSE LLC, 

Plaintiffs-Appellees,

–v.– 

INTERNET ARCHIVE, 

Defendant-Appellant, 

DOES 1–5, INCLUSIVE, 

Defendants.*

Before: MENASHI, ROBINSON, and KAHN, Circuit Judges. 

* The Clerk’s office is directed to amend the caption as reflected above. 
2 

Defendant-Appellant Internet Archive appeals from a judgment of 

the United States District Court for the Southern District of New York 

(Koeltl, J.) denying its motion for summary judgment and granting 

Plaintiffs-Appellees’ motion for summary judgment.

Internet Archive creates digital copies of print books and posts those 

copies on its website where users may access them in full, for free, in a 

service it calls the “Free Digital Library.” Other than a period in 2020, 

Internet Archive has maintained a one-to-one owned-to-loaned ratio for its 

digital books: Initially, it allowed only as many concurrent “checkouts” of a 

digital book as it has physical copies in its possession. Subsequently, 

Internet Archive expanded its Free Digital Library to include other libraries, 

thereby counting the number of physical copies of a book possessed by 

those libraries toward the total number of digital copies it makes available 

at any given time. 

Plaintiffs-Appellees―four book publishers―sued Internet Archive in 

2020, alleging that its Free Digital Library infringes their copyrights in 127 

books and seeking damages and declaratory and injunctive relief. Internet 

Archive asserted a defense of fair use under Section 107 of the Copyright 

Act. The district court rejected that defense and entered summary judgment 

for Plaintiffs. 

This appeal presents the following question: Is it “fair use” for a 

nonprofit organization to scan copyright-protected print books in their 

entirety, and distribute those digital copies online, in full, for free, subject to 

a one-to-one owned-to-loaned ratio between its print copies and the digital 

copies it makes available at any given time, all without authorization from 

the copyright-holding publishers or authors? Applying the relevant 

provisions of the Copyright Act as well as binding Supreme Court and 

Second Circuit precedent, we conclude the answer is no. We therefore 

AFFIRM. 

ELIZABETH A. MCNAMARA, Davis Wright 

Tremaine LLP, New York, NY (Linda J. Steinman, 

John M. Browning, Jesse M. Feitel, Carl Mazurek, 

Davis Wright Tremaine LLP, New York, NY; Scott 
3 

A. Zebrak, Matthew J. Oppenheim, Danae Tinelli, 

Oppenheim + Zebrak, Washington, D.C., on the 

brief), for Plaintiffs-Appellees. 

 

 JOSEPH C. GRATZ, Morrison & Foerster LLP, San 

Francisco, CA (Joseph R. Palmore, Diana L. Kim, 

Aditya V. Kamdar, Morrison & Foerster LLP, 

Washington, D.C.; Corynne M. McSherry, 

Electronic Frontier Foundation, San Francisco, 

CA, on the brief), for Defendant-Appellant. 

Jason M. Schultz, Sunoo Park (admission 

pending), Jake Karr, Technology Law and Policy 

Clinic, New York University School of Law, New 

York, NY, for Amici Curiae Copyright Scholars 

Jonathan Askin, Patricia Aufderheide, Dr. Patrick 

Goold, Stacey M. Lantagne, Sari Mazzurco, Sunoo 

Park, Aaron Perzanowski, Blake E. Reid, Jason 

Schultz, Pamela Samuelson, and Jessica Silbey, in 

support of Defendant-Appellant. 

Christopher T. Bavitz, Cyberlaw Clinic, Harvard 

Law School, Cambridge, MA, for Amici Curiae

Kevin L. Smith and William M. Cross, in support 

of Defendant-Appellant. 

Jennifer M. Urban, Samuelson Law, Technology 

& Public Policy Clinic, U.C. Berkeley School of 

Law, Berkeley, CA, for Amicus Curiae Center for 

Democracy & Technology, Library Freedom 

Project, and Public Knowledge, in support of 

Defendant-Appellant. 

Rachel Brooke Leswing, Authors Alliance, Inc., 

Berkeley, CA, for Amicus Curiae Authors Alliance, 

Inc., in support of Defendant-Appellant. 

Max Rodriguez, Pollock Cohen LLP, New York, 
4 

NY, for Amici Curiae Former and Current Law 

Library Directors, Professors, and Academics, in 

support of Defendant-Appellant. 

Yuliya M. Ziskina, eBook Study Group, 

Biddeford, ME, for Amici Curiae eBook Study 

Group, Library Futures Project, The EveryLibrary 

Institute, ReadersFirst, The Scholarly Publishing 

and Academic Resources Coalition, Association of 

Southeastern Research Libraries, Boston Library 

Consortium, Partnership for Academic Library 

Collaboration & Innovation, Urban Librarians 

Unite, and 218 Librarians, in support of DefendantAppellant. 

Catherine R. Gellis, Sausalito, CA, for Amicus 

Curiae Floor64, Inc. D/B/A the Copia Institute, in 

support of Defendant-Appellant. 

Rebecca Tushnet, Cambridge, MA, for Amici 

Curiae Patricia Aufderheide, Mark Bartholomew, 

Michael A. Carrier, Zachary Catanzaro, Bryan H. 

Choi, Christine Haight Farley, Jim Gibson, Patrick 

Goold, James Grimmelmann, Laura A. Heymann, 

Michael Karanicolas, Edward Lee, Yvette Joy 

Liebesman, Glynn S. Lunney, Jr., Mark P. 

McKenna, Amanda Reid, and Rebecca Tushnet, in 

support of Defendant-Appellant. 

Jef Pearlman, USC Gould School of Law, IP & 

Technology Law Clinic, Los Angeles, CA, for 

Amici Curiae Wikimedia Foundation, Creative 

Commons, and Project Gutenberg Literary 

Archive Foundation, in support of DefendantAppellant. 

Matthew J. Keeley, Michael Best & Friedrich, 

Washington, D.C., for Amici Curiae International 
5 

Publishers Association, Federation of European 

Publishers, International Association of Scientific, 

Technical and Medical Publishers, International 

Confederation of Societies of Authors and 

Composers, International Federation of Film 

Producers Associations, International Video 

Federation, IFPI, Association of Canadian 

Publishers, Brazilian Book Chamber, Sindicato 

Nacional dos Editores de Livros, and Syndicat 

national de l’édition, in support of PlaintiffsAppellees. 

Elaine J. Goldenberg, Sarah Weiner, Munger, 

Tolles & Olson LLP, Washington, D.C., for Amici 

Curiae Recording Industry Association of 

America, National Music Publishers’ Association, 

Motion Picture Association, Inc., and

News/Media Alliance, in support of PlaintiffsAppellees. 

Joshua J. Simmons, Kirkland & Ellis LLP, New 

York, NY, for Amici Curiae 24 Former Government 

Officials, Former Judges, and IP Scholars, in 

support of Plaintiffs-Appellees. 

Jacqueline C. Charlesworth, Charlesworth Law, 

Sherman Oaks, CA, for Amici Curiae Professors 

and Scholars of Copyright and Intellectual 

Property Law, in support of Plaintiffs-Appellees. 

Nancy E. Wolff, Elizabeth Safran, Cowan, 

DeBaets, Abrahams & Sheppard LLP, New York, 

NY, for Amicus Curiae Copyright Alliance, in 

support of Plaintiffs-Appellees. 

Roberta Clarida, Reitler Kailas & Rosenblatt LLP, 

New York, NY, for Amici Curiae the Authors 

Guild, Inc., American Photographic Artists, 
6 

American Society for Collective Rights Licensing, 

American Society of Media Photographers, Inc. 

Association of American Literary Agents, 

Canadian Authors Association, Dramatists Guild 

of America, European Visual Artists, the 

European Writers’ Council – Fédération des 

Associations Européennes d’Ecrivains, 

International Authors Forum, National Press 

Photographers Association, National Writers 

Union, North American Nature Photography 

Association, Romance Writers of America, Sisters 

in Crime, Society of Authors, and Writers’ Union 

of Canada, in support of Plaintiffs-Appellees. 

Brandon C. Butler, Jaszi Butler PLLC, 

Washington, D.C., for Amicus Curiae American 

Library Association and Association of Research 

Libraries, in support of neither party. 

Joseph Petersen, Sara K. Stadler, Kilpatrick 

Townsend & Stockton LLP, New York, NY, for 

Amicus Curiae HathiTrust, in support of neither 

party.

ROBINSON, Circuit Judge: 

Defendant-Appellant Internet Archive appeals from a judgment of the 

United States District Court for the Southern District of New York (Koeltl, J.) 

denying its motion for summary judgment and granting Plaintiffs-Appellees’ 

motion for summary judgment.
7 

Internet Archive creates digital copies of print books and posts those copies 

on its website where users may access them in full, for free, in a service it calls the 

“Free Digital Library.” Other than a period in 2020, Internet Archive has 

maintained a one-to-one owned-to-loaned ratio for its digital books: Initially, it 

allowed only as many concurrent “checkouts” of a digital book as it has physical 

copies in its possession. Through its Open Libraries Project, Internet Archive 

subsequently expanded its Free Digital Library to include partner libraries’ 

collections, thereby counting physical copies of a book possessed by partner 

libraries towards the total number of digital copies it makes available at any given 

time. 

Plaintiffs-Appellees―four book publishers―sued Internet Archive in 2020, 

alleging that its Free Digital Library infringed their copyrights in 127 books and 

seeking damages and declaratory and injunctive relief. Internet Archive asserted 

a defense of fair use under Section 107 of the Copyright Act. The district court 

rejected that defense and entered summary judgment for Plaintiffs. 

This appeal presents the following question: is it “fair use” for a nonprofit 

organization to scan copyright-protected print books in their entirety and 

distribute those digital copies online, in full, for free, subject to a one-to-one 

owned-to-loaned ratio between its print copies and the digital copies it makes 
8 

available at any given time, all without authorization from the copyright-holding 

publishers or authors? Applying the relevant provisions of the Copyright Act as 

well as binding Supreme Court and Second Circuit precedent, we conclude the 

answer is no. We therefore AFFIRM. 

BACKGROUND1

Plaintiffs-Appellees Hachette Book Group, Inc., HarperCollins Publishers 

LLC, John Wiley & Sons, Inc., and Penguin Random House LLC (“Publishers”) are 

four of the leading book publishers in the United States. They obtain from authors 

the exclusive right to publish their works in multiple formats, including 

hardcover, paperback, and eBook. Publishers and their authors profit from this 

arrangement via sales in each format. 

In addition to selling traditional print books, Publishers collectively invest

millions of dollars in developing new formats and markets suited for the digital 

age, including the eBook market. Publishers distribute eBooks in two principal 

ways. First, they sell eBooks direct to consumer through electronic retail platforms

such as the Amazon Kindle Store. Second, Publishers―via commercial 

distributors such as OverDrive―license eBooks to libraries under a one-copy, one1 Unless otherwise noted, the facts are drawn from the parties’ respective Rule 56.1 statements 

and are undisputed.
9 

user model that allows each eBook to be “checked out” by one patron at a time, in 

a similar fashion to traditional library lending of print books. Library patrons 

access eBooks through distributors’ online platforms, like OverDrive’s Libby app. 

Publishers require that libraries lend each eBook only to their own verified library 

members, who are residents of the geographical areas served by the library. 

The library eBook lending market is thriving. Checkouts of eBooks on 

OverDrive by library patrons increased dramatically between 2010 and 2020. This 

surge in lending translates to greater profits for Publishers, some of whom find 

library eBook licenses occupying an increasing percentage of their overall eBook 

revenues. With more than 93% of public libraries participating in eBook lending,

Publishers and their authors have tapped in to a profitable, growing market. 

The story is a bit more complicated for libraries. When libraries acquire 

print books, they may circulate those books for as much time and as many borrows 

as they desire, until the books wear down beyond usefulness. At first, Publishers 

offered eBook licenses to libraries on a perpetual basis, allowing them to lend 

eBooks in a similar manner to print books, though without the same concerns for 

wear and tear. Now, Hachette offers two-year licenses, Penguin offers two-year 

and pay-per-use licenses, HarperCollins offers 26-borrows and pay-per-use 

licenses, and Wiley offers perpetual licenses and licenses for a set number of days 
10 

or uses. Although Hachette, Penguin, and HarperCollins still offer perpetual 

licenses to academic libraries, they stopped offering perpetual licenses to public

libraries in 2019, 2018, and 2011, respectively. While some Publishers price their 

eBook licenses the same as print books, others price their licenses higher than the 

suggested retail price of print books or even consumer eBooks.2 For libraries, the 

result is regular renegotiation of eBook licenses that often come at a steeper price 

and for a shorter term than print copies of the same books.

Enter Internet Archive: a nonprofit whose stated mission “is to provide 

universal access to all knowledge.” App’x 5778. Internet Archive (“IA”) “works

with libraries, museums, universities, and the public to preserve and offer free 

online access to texts, audio, moving images, software, and other cultural 

artifacts.” Id. at 5779. One of IA’s longest running projects is the “Wayback 

Machine,” which archives public webpages that might otherwise be lost to history. 

In 2011, IA launched the project at issue in this appeal: the “Free Digital Library.” 

Appellant’s Br. at 5. 

2 Wiley prices their library eBook licenses the same as their print books. HarperCollins prices 

their licenses slightly higher than the suggested retail price of print books. Penguin prices their 

licenses higher than print books and consumer eBooks. The record is unclear regarding 

Hachette’s library eBook licensing pricing as compared to its print and consumer eBook pricing. 
11 

Starting in 2011, IA partnered with the Open Library of Richmond, a 

nonprofit, and Better World Books (“BWB”), a for-profit used bookstore, to acquire 

print books for digitizing and posting on IA’s website. The Open Library of 

Richmond buys or accepts donations of print books―primarily from BWB―and 

sends those books to IA scanning centers, where operators scan each page using a 

book-digitization device. The Open Library of Richmond holds legal title to and 

maintains physical possession of the print books, which are placed in shipping 

containers and kept out of circulation after scanning. 

Once IA scans a book, it posts the digital copy3 on its website, where IA 

account holders may access it in full, for free. IA does not charge a fee to open an 

account or for any subsequent service, including digital book borrowing. Account 

holders may check out up to ten digital books at a time for up to fourteen days 

each, and may read those copies on IA’s BookReader web browser platform or 

download an encrypted PDF or EPUB version of the digital book. IA represents 

that it secures these downloadable versions with software that “allows only the 

authorized patron to download and read the borrowed book . . . and prevents the 

3 Publishers call these copies “eBooks” or “bootleg” eBooks. See, e.g., Appellees’ Br. at 39. IA, 

meanwhile, refers to its scans as “digital cop[ies]” or “books.” See, e.g., Appellant’s Br. at 6. For 

ease of distinguishing between IA’s and Publishers’ respective services, and because the 

terminology is ultimately irrelevant to our holding, we refer to IA’s scans as “digital books” or 

“digital copies.” 
12 

patron from copying or further distributing the book or from accessing it after their 

loan has ended.” App’x 5788. 

Other than a period in 2020, IA has maintained a one-to-one owned-toloaned ratio for its digital books: Prior to 2018, it allowed only as many concurrent

“checkouts” of a digital book as it has physical copies in storage. IA refers to this 

practice as “Controlled Digital Lending” or “CDL,” which it likens to traditional 

library lending of print books. 

In 2018, IA launched the “Open Libraries Project,” allowing libraries to 

“contribute” their noncirculating print books to the number of concurrent

checkouts available on IA’s website. Participating libraries send a catalog of their 

noncirculating books to IA, which then runs an “overlap analysis.” App’x 6095. 

If the library’s catalog includes a book for which IA already has a digital copy, IA 

increases the number of available concurrent checkouts by one.4 Participating 

libraries may, in turn, integrate links to IA’s digital books in their own catalogs. 

IA asserts that the Open Libraries Project allows it to expand its lending capacity

while remaining within the confines of CDL. In other words, IA still maintains a 

4 Even if a partner library owns multiple copies of a book, IA adds only one additional concurrent 

checkout per library. 
13 

one-to-one owned-to-loaned ratio, but the category of books “owned” now 

includes those books owned by participating libraries.

In 2020, in response to the COVID-19 pandemic, IA launched the “National 

Emergency Library” (the “NEL”). Out of concern for a potential lack of access to 

books due to the closure of schools and libraries, IA lifted its one-to-one ownedto-loaned ratio, allowing its digital books to be checked out by up to 10,000 users 

at a time, without regard to the corresponding number of physical books in storage

or in partner libraries’ possession―a practice IA acknowledges was a “deviat[ion] 

from controlled digital lending.” Appellant’s Br. at 9. The NEL ran from March 

24, 2020, to June 16, 2020, when IA reinstated its lending controls after this lawsuit 

was filed. 

IA markets its lending services to libraries as a free alternative to Publishers’ 

print books and eBook licenses. For example, in a presentation to libraries, IA’s 

Director of Open Libraries noted that the Open Libraries Project “ensures 

[libraries] will not have to buy the same content over and over, simply because of 

a change in format.” App’x 6099. Another presentation advertising the Open 

Libraries Project bore the title: “Maximizing institutional investments in print 

resources through controlled digital lending,” with the subtitle, “Or, You Don’t 

Have to Buy it Again!” Id. at 6099. In another instance, a vendor acting on behalf 
14 

of IA emailed libraries asking whether they “would like to participate [in the 

Project] and get free ebooks.” Id. at 6100; see also Appellant’s Br. at 5 (referring to 

its lending services as the “Free Digital Library”). As of December 2021, 62 partner 

libraries participated in the Open Libraries Project. 

IA hosts over 3.2 million digital copies of copyrighted books on its website. 

Its 5.9 million users effectuate about 70,000 book “borrows” a day―approximately 

25 million per year. Critically, IA and its users lack permission from copyright 

holders to engage in any of these activities. They do not license these materials 

from publishers, nor do they otherwise compensate authors in connection with the 

digitization and distribution of their works. 

On June 1, 2020, Publishers sued IA and five Doe defendants in the Southern 

District of New York, alleging that IA infringed their copyrights in 127 books (the 

“Works” or the “Works in Suit”). The Works in Suit are published fiction and 

nonfiction books ranging from Sandra Cisneros’ The House on Mango Street (1984), 

Sylvia Plath’s The Bell Jar (1963), and J.D. Salinger’s The Catcher in the Rye (1951), to 

Les Carter’s Enough About You, Let’s Talk About Me: How to Recognize and Manage 

the Narcissists in Your Life (2005), and Ian Woofenden’s Wind Power for Dummies

(2009). The authors of the Works in Suit each assigned to one of the Publishers the 

exclusive right to publish their works in print and eBook formats. All 127 Works 
15 

are available as authorized eBooks that may be purchased by consumers or 

licensed to libraries; and, at the time of the complaint, all 127 Works were available 

as free digital copies on IA’s website. 

IA answered the complaint, denying that its practices violate Publishers’ 

copyrights and asserting an affirmative defense of fair use under the Copyright 

Act.5 See 17 U.S.C. § 107. Following extensive discovery, the parties cross-moved 

for summary judgment. 

On March 24, 2023, the district court granted summary judgment to 

Publishers, concluding that Publishers established the elements of copyright 

infringement and that IA’s infringement was not excused by the defense of fair 

use. Hachette Book Group, Inc. v. Internet Archive, 664 F. Supp. 3d 370, 378, 391 

(S.D.N.Y. 2023). In evaluating the four statutory fair use factors set forth in Section

107, the district court found that: (1) IA’s use of the Works in Suit is (a) nontransformative because IA reproduces the Works in full and its digital copies serve 

the same purpose as the originals; and (b) commercial because, despite IA’s 

nonprofit status, it exploits the Works by soliciting donations on its website and

taking a cut of the proceeds when users buy a physical book from BWB using a 

link embedded on IA’s website; (2) the Works are original fiction and nonfiction 

5 IA asserted numerous other affirmative defenses not at issue in this appeal. 
16 

books “close to the core of intended copyright protection”; (3) IA copies the books 

wholesale; and (4) IA “brings to the marketplace a competing substitute” for 

library eBook licenses, “usurping a market that properly belongs to the copyrightholder.” Id. at 380–91 (alterations adopted). As each factor favored Publishers, the 

district court concluded that IA’s fair use defense failed as a matter of law. Id. at 

391. It further determined that the above analysis applied “even more forcefully 

to the NEL.” Id.

The district court entered judgment on August 11, 2023, including a 

permanent injunction barring IA from, among other things, distributing or 

reproducing Publishers’ copyrighted works, including but not limited to the 

Works in Suit. The district court specifically limited its judgment to print books 

that, like the 127 Works at issue in the suit, are also “available for electronic 

licensing.” No. 1:20-cv-04160-JGK, Dkt. 216, at 3. IA timely appealed. 

DISCUSSION

“We review without deference the district court’s grant of summary 

judgment when, as here, the parties filed cross-motions for summary judgment 

and the district court granted one motion but denied the other.” Loomis v. ACE 

American Insurance Company, 91 F.4th 565, 572 (2d Cir. 2024) (internal quotation 

marks omitted). Summary judgment should be granted if “there is no genuine 
17 

dispute as to any material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). Although fair use “presents a mixed question of law 

and fact, it may be resolved on summary judgment where, as here, the material 

facts are not in dispute.” Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, 

11 F.4th 26, 36 (2d Cir. 2021) (“Warhol I”), aff’d, 598 U.S. 508 (2023).

The Constitution empowers Congress to enact copyright laws “[t]o promote 

the Progress of Science and useful Arts.” U.S. Const. art. I, § 8, cl. 8. To that end, 

the Copyright Act of 1976 grants the author of an original work “a bundle of 

exclusive rights,” Harper & Row Publishers, Inc. v Nation Enterprises, 471 U.S. 539, 

546 (1985), including the rights “to reproduce the copyrighted work,” “to prepare 

derivative works,” to distribute copies of the work via sale, rental, lease, or 

lending, and, in the case of literary works, “to display the copyrighted work 

publicly,” 17 U.S.C. § 106. The Act defines derivative works “largely by example, 

rather than explanation.” Authors Guild v. Google, Inc., 804 F.3d 202, 215 (2d Cir. 

2015) (hereinafter “Google Books”). Those examples include “translation, musical 

arrangement, dramatization, fictionalization, motion picture version, sound 

recording, art reproduction, abridgment, condensation, or any other form in which 

a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. Copyright 
18 

infringement occurs when a person or entity “violates any of the exclusive rights 

of the copyright owner.” 17 U.S.C. § 501(a). 

The monopoly created by the Copyright Act “rewards the individual author 

in order to benefit the public”; the idea being that authors and inventors will be 

more motivated to produce new works if they know those works will be protected, 

and the public will benefit from both restricted access to those works in the short 

term and unfettered access in the long term, once the period of exclusive control 

expires. Harper & Row, 471 U.S. at 546. The Act therefore “reflects a balance of 

competing claims upon the public interest: Creative work is to be encouraged and 

rewarded, but private motivation must ultimately serve the cause of promoting 

broad public availability of literature, music, and the other arts.” Twentieth 

Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

This “balancing act” is reflected throughout the Copyright Act. Andy Warhol 

Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 526 (2023) (“Warhol 

II”). For instance, Section 109 codifies the first sale doctrine, which allows the 

owner of a physical copy of a work to “sell or otherwise dispose of” it without the 

copyright owner’s permission. 17 U.S.C. § 109(a). Section 108 permits libraries 

and archives to make a small number of copies of a protected work for certain 

limited purposes, including preservation and replacement. 17 U.S.C. § 108.
19 

The Act also allows for certain “fair” uses of copyrighted works. Section 107 

provides: “[n]otwithstanding the provisions of sections 106 and 106A, the fair use 

of a copyrighted work . . . for purposes such as criticism, comment, news reporting, 

teaching (including multiple copies for classroom use), scholarship, or research, is 

not an infringement of copyright.” 17 U.S.C. § 107 (emphasis added). The statute 

sets out four non-exclusive factors for courts to consider in determining whether 

a particular use is “fair”:

(1) the purpose and character of the use, including whether such use 

is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the 

copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the 

copyrighted work.

Id. The fair use defense thus excuses what might otherwise be considered 

infringing behavior, allowing courts to “avoid rigid application” of the Copyright 

Act when it would “stifle the very creativity” the Act is meant to promote. Stewart 

v. Abend, 495 U.S. 207, 236 (1990). Given the diverse array of copyrightable 

material, fair use is a “flexible” concept, whose application varies depending on 

the context. Google LLC v. Oracle America, Inc., 593 U.S. 1, 20 (2021); Harper & Row, 

471 U.S. at 560 (“The factors enumerated in [Section 107] are not meant to be 
20 

exclusive: Since the doctrine is an equitable rule of reason, no generally applicable 

definition is possible, and each case raising the question must be decided on its 

own facts.” (internal quotation marks omitted and alteration adopted)). 

On appeal, IA does not challenge the district court’s conclusion that 

Publishers met their affirmative burden of establishing the elements of copyright 

infringement. Rather, it argues as a defense to the infringement claim that its 

lending practices constitute fair use under Section 107 of the Copyright Act. 

Applying the fair use factors as set forth below, we conclude that the challenged 

practices―IA’s lending of its “own” digital books that “are commercially available 

for sale or license in any electronic text format,” the Open Libraries Project, and 

the NEL―are not fair use. No. 1:20-cv-04160-JGK, Dkt. 216 at 2 (internal quotation 

marks omitted).6 

I. The purpose and character of the use

The first fair use factor is “the purpose and character of the use, including 

whether such use is of a commercial nature or is for nonprofit educational 

purposes.” 17 U.S.C. § 107(1). In assessing the first factor, courts consider two 

sub-factors: (i) the extent to which the secondary use is transformative and (ii) 

6 Unless otherwise noted, the ensuing analysis applies to each of the challenged practices. We 

address specific practices only where necessary to our assessment of the fair use factors. 
21 

whether the secondary use is commercial in nature. Warhol I, 11 F.4th at 37. 

Though we consider both transformativeness and commerciality, 

transformativeness is the “central” question. Warhol II, 598 U.S. at 528; Warhol I, 

11 F.4th at 37 (“[O]ur assessment of this first factor has focused chiefly on the 

degree to which the use is ‘transformative.’”); Fox News Network, LLC v. TVEyes, 

Inc., 883 F.3d 169, 176 (2d Cir. 2018) (describing transformativeness as the “primary 

inquiry”).

A. Transformativeness

The first fair use factor focuses primarily on the extent to which the 

secondary use is transformative; that is, whether the new work merely supplants

the original, “or instead adds something new, with a further purpose or different 

character, altering the [original] with new expression, meaning, or message.” 

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). The use of a work to 

achieve “a purpose that is the same as, or highly similar to, that of the original” is 

more likely to substitute or supplant the original work, and less likely to be 

considered transformative. Warhol II, 598 U.S. at 528.

Paradigmatic examples of transformative uses are those listed in the 

preamble to Section 107: criticism, comment, news reporting, teaching, 

scholarship, and research. 17 U.S.C. § 107. But transformative uses are not limited 
22 

to those examples. Parodies of an original work are “routinely held 

transformative.” Warhol I, 11 F.4th at 37; Campbell, 510 U.S. at 583. Likewise, a 

secondary use may be transformative if it “improve[s] the efficiency of delivering 

[original] content,” see TVEyes, 883 F.3d at 177–78 (service that allowed users to 

view segments of TV programs responsive to their interests “at least somewhat 

transformative” because it improved the efficiency of delivering content), or 

expands the utility of the original, see Google Books, 804 F.3d at 214 (scanning books 

to create a full-text searchable database was transformative because it expanded 

the utility of the originals). Whether the use finds its approval in the preamble to 

Section 107 or in our decisions, each of these examples contemplate the use of a

work to “communicate[] something new and different from the original or 

expand[] its utility, thus serving copyright’s overall objective of contributing to 

public knowledge.” Google Books, 804 F.3d at 214. 

However, “[n]ot every instance will be clear cut.” Warhol II, 598 U.S. at 528. 

Whether a secondary use has a different purpose or character from the original “is 

a matter of degree.” Id. Though “[m]ost copying has some further purpose” and 

“[m]any secondary works add something new,” that alone “does not render such 

uses fair.” Id. The word “transformative,” then, “cannot be taken too literally.” 

Google Books, 804 F.3d at 214. While the right of copyright owners to prepare 
23 

derivative works is “subject to” fair use, an “overbroad concept of transformative 

use . . . that includes any further purpose, or any different character, would 

[improperly] narrow the copyright owner’s exclusive right to create derivative 

works.” Warhol II, 598 U.S. at 529 (emphases added). To preserve that right, the 

degree of transformation must “go beyond that required to qualify as a 

derivative.” Id.

IA argues that its Free Digital Library is transformative because it uses 

technology “to make lending more convenient and efficient” and “deliver[s] the 

work only to one already entitled to view it―the one person borrowing the book 

at a time.” Appellant’s Br. at 30–32 (citing Sony Corp. of America v. Universal City 

Studios, Inc., 464 U.S. 417, 488–50 (1984)); TVEyes, 883 F.3d at 178; Capitol Records, 

LLC v. ReDigi Inc., 910 F.3d 649, 661 (2d Cir. 2018)). Additionally, IA asserts that 

its Free Digital Library “enables uses not possible with print books and physical 

borrowing,” such as allowing “authors writing online articles [to] link directly to” 

a digital book in IA’s library. Id. at 32. Thus, IA concludes, each digital book

“serves a new and different function from the original work and is not a substitute 

for it.” Id. (quoting Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014)).

Publishers, meanwhile, argue that IA’s Free Digital library “does nothing 

‘more than repackage or republish’ the Works.” Appellees’ Br. at 26 (quoting 
24 

HathiTrust, 755 F.3d at 96). They assert that IA does not copy the Works to provide 

criticism, commentary, or information, but to serve the same purpose as the 

originals. Id. In Publishers’ view, to hold IA’s use transformative would “destroy 

the value of [their] exclusive right to prepare derivative works,” including the 

right to publish their authors’ works as eBooks. Id. at 27. Nor does IA’s adherence 

to CDL render its use transformative: “[W]ithout a different purpose from the 

original,” Publishers argue, “IA’s ebooks are not transformative.” Id.

We conclude that IA’s use of the Works is not transformative. IA creates 

digital copies of the Works and distributes those copies to its users in full, for free. 

Its digital copies do not provide criticism, commentary, or information about the 

originals. Nor do they “add[] something new, with a further purpose or different 

character, altering the [originals] with new expression, meaning or message.” 

Campbell, 510 U.S. at 579. Instead, IA’s digital books serve the same exact purpose 

as the originals: making authors’ works available to read. IA’s Free Digital Library

is meant to―and does―substitute for the original Works. Warhol II, 598 U.S. at 

528 (“The use of an original work to achieve a purpose that is the same as, or highly 

similar to, that of the original work is more likely to substitute for, or supplant, the 

work.” (cleaned up)). As we have said, “[w]hen all or a substantial portion of text 

that contains protectable expression is included in another work, solely to convey 
25 

the original text to the reader without adding any comment or criticism, the second 

work may be said to have supplanted the original because a reader of the second 

work has little reason to buy a copy of the original.” Ringgold v. Black Entm’t TV, 

Inc., 126 F.3d 70, 79 (2d Cir. 1997). Though “[n]ot every instance will be clear cut,” 

this one is. Warhol II, 598 U.S. at 528.

True, there is some “change” involved in the conversion of print books to

digital copies. See Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 n.2 (2d Cir. 

1998) (“[A] change in format . . . is not technically a transformation.”). But the 

degree of change does not “go beyond that required to qualify as derivative.” 

Warhol II, 598 U.S. at 529. Unlike transformative works, derivative works 

“ordinarily are those that re-present the protected aspects of the original work, i.e., 

its expressive content, converted into an altered form.” Google Books, 804 F.3d at 

225. To be transformative, a use must do “something more than repackage or 

republish the original copyrighted work.” Authors Guild, Inc. v. HathiTrust, 755 

F.3d 87, 96 (2d Cir. 2014); see also TVEyes, 883 F.3d at 177 (“[A] use of copyrighted 

material that merely repackages or republishes the original is unlikely to be 

deemed a fair use.” (internal quotation marks omitted)). Changing the medium of 

a work is a derivative use rather than a transformative one. Warhol II, 598 U.S. at 

529. In fact, we have characterized this exact use―“the recasting of a novel as an 
26 

e-book”―as a “paradigmatic” example of a derivative work. Google Books, 804 F.3d 

at 215. Digitizing physical copies of written work is not transformative, because 

the act “merely transforms the material object embodying the intangible article that 

is the copyrighted original work.” American Geophysical Union v. Texaco Inc., 60 

F.3d 913, 923 (2d Cir. 1994).

To construe IA’s use of the Works as transformative would significantly 

narrow―if not entirely eviscerate―copyright owners’ exclusive right to prepare

(or not prepare) derivative works. See Warhol II, 598 U.S. at 528–29; 17 U.S.C. § 

106(2). The Supreme Court has cautioned against such an “overbroad concept of 

transformative use.” Warhol II, 598 U.S. at 529. In Google Books, we identified a fair 

use in Google’s “snippet view” search function, which allowed users to search the 

text and view snippets of it online, 804 F.3d at 217–218, but we noted that had the

Plaintiffs’ claim been “based on Google’s converting their books into a digitized 

form and making that digitized version accessible to the public, their claim would 

[have been] strong,” id. at 225. As the district court noted here, that is “precisely 

what the Publishers allege in this case.” Hachette, 664 F. Supp. 3d at 381. 

IA’s arguments to the contrary are unpersuasive. IA argues that the format 

change alone is not what makes its use transformative. Rather, its use of the Works 

is transformative because of “the sort of lending the scanning enables,” namely, 
27 

(1) making lending more efficient, and (2) enabling other uses not possible with 

print books and physical borrowing. Appellant’s Br. at 33. Neither of these 

justifications render IA’s use of the Works transformative because the underlying 

purpose of making the Works available in a derivative format is still the same. 

IA argues that its use of the Works is transformative because it “make[s] 

lending more convenient and efficient” and “uses technology to deliver the work 

only to one already entitled to view it―the one person borrowing the book at a 

time.” Id. at 31–32. IA derives this argument from three cases: Sony, TVEyes, and 

ReDigi. In Sony, the defendant manufactured and sold home video tape recorders 

that allowed users to record TV programs broadcast at set times over the airwaves

so they could watch them later. 464 U.S. at 422–23. The Supreme Court, in a 

decision that predated our use of the word “transformative” as a term of art, 

concluded that “time-shifting for private home use . . . [is] a noncommercial, 

nonprofit activity” that “merely enables a viewer to see such a work which [they] 

had [already] been invited to witness in its entirety free of charge.” Id. at 449. For 

those reasons, the Court concluded that the first fair use factor favored the 

defendant. Id.

 We contextualized Sony within the modern fair use framework in TVEyes. 

There, the defendant recorded vast quantities of live TV programs, compiled those 
28 

recordings into a text-searchable database in which they would be held for thirtytwo days before being deleted, and allowed its paying subscribers to search for 

and watch up to ten-minute video clips of recordings that featured their terms of 

interest. 883 F.3d at 173–74. In assessing whether the use was transformative, we 

reframed the Supreme Court’s discussion from Sony: 

While Sony was decided before “transformative” became a term of 

art, the apparent reasoning was that a secondary use may be a fair use 

if it utilizes technology to achieve the transformative purpose of 

improving the efficiency of delivering content without unreasonably 

encroaching on the commercial entitlements of the rights holder.

Id. at 177. Expanding on that reasoning, although we ultimately rejected TVEyes’ 

fair use claim, we concluded that the use at issue was at least “somewhat 

transformative” because it “enhanc[ed] efficiency” by enabling users to view 

programming that discussed topics of interest to them “without having to monitor 

thirty-two days of programming in order to catch each relevant discussion.” Id. at 

177.

Later that same year, we addressed the fair use defense of a defendantwebsite that hosted an online platform for reselling digital music files. ReDigi, 910 

F.3d at 652–54. We repeated our characterization of Sony from TVEyes, adding: 

In Sony, the “apparent reasoning was that a secondary use may be a 

fair use if it utilizes technology to achieve the transformative purpose 

of improving the efficiency of delivering content without 

unreasonably encroaching on the commercial entitlements of the 
29 

rights holder” because the improved delivery was to one entitled to receive 

the content. 

Id. at 661 (quoting TVEyes, 883 F.3d at 177) (emphasis added). Still, we determined 

that the use in ReDigi was not transformative. Id. The website provided “neither 

criticism, commentary, nor information about” the original music files, nor did it 

“deliver the content in more convenient and usable form to one who has acquired 

an entitlement to receive the content.” Id. Instead, it effectively “provide[d] a 

market for the resale of digital music files, which . . . compete[d] with sales of the 

same recorded music by the rights holder.” Id. For that reason, the first fair use 

factor favored the plaintiffs. Id.

The “efficiencies” identified in Sony and TVEyes are distinct from the 

purported efficiencies offered by IA’s Free Digital Library. Sony was decided long 

before modern technology made it possible for one to view virtually any content 

at any time. Put in context, the “time-shifting” permitted by the defendant’s tape 

recorders in Sony was a unique efficiency not widely available at the time, and 

certainly not offered by the plaintiff-television producer. 464 U.S. at 449. The 

defendant in TVEyes likewise offered a uniquely efficient service: allowing users 

to watch short clips of television programs featuring their selected search terms. 

883 F.3d at 173–74. 
30 

Here, by contrast, IA’s Free Digital Library offers few efficiencies beyond 

those already offered by Publishers’ own eBooks. IA argues that its use is more 

efficient because it “replace[s] the burdens of physical transportation with the 

benefits of digital technology,” but this ignores the fact that IA’s digital books

compete directly with Publishers’ eBooks―works derivative of the original print 

books. Appellant’s Br. at 32. Understood this way, IA’s Free Digital Library does 

not “improv[e] the efficiency of delivering content” without unreasonably 

encroaching on the rights of the copyright holder; it offers the same efficiencies as 

Publishers’ derivative works while greatly impinging on their exclusive right to 

prepare those works. TVEyes, 883 F.3d at 177; ReDigi, 910 F.3d at 661. In Sony, 

“timeshifting merely enable[d] a viewer to see such a work which [the viewer] had 

been invited to witness in its entirety free of charge” by the broadcasters, Sony, 464 

U.S. at 449, and therefore did not “unreasonably encroach[] on the commercial 

entitlements of the rights holder,” TVEyes, 883 F.3d at 177 (characterizing Sony). 

The Publishers in this case never “invited” readers to read their books for free from 

an unlicensed digital library. Sony, 464 U.S. at 449.

Nor does IA’s asserted adherence to CDL render its use transformative. IA 

maintains that it delivers each Work “only to one already entitled to view 

[it]”―i.e., the one person who would be entitled to check out the physical copy of 
31 

each Work. Appellant’s Br. at 32. But this characterization confuses IA’s practices 

with traditional library lending of print books. IA does not perform the traditional 

functions of a library; it prepares derivatives of Publishers’ Works and delivers 

those derivatives to its users in full. That Section 108 allows libraries to make a 

small number of copies for preservation and replacement purposes does not mean 

that IA can prepare and distribute derivative works en masse and assert that it is 

simply performing the traditional functions of a library. 17 U.S.C. § 108; see also, 

e.g., ReDigi, 910 F.3d at 658 (“We are not free to disregard the terms of the statute 

merely because the entity performing an unauthorized reproduction makes efforts 

to nullify its consequences by the counterbalancing destruction of the preexisting 

phonorecords.”). Whether it delivers the copies on a one-to-one owned-to-loaned 

basis or not, IA’s recasting of the Works as digital books is not transformative. 

Google Books, 804 F.3d at 215.

IA also argues that its use is transformative “because it enables uses not 

possible with print books and physical borrowing,” such as allowing “authors 

writing online articles [to] link directly to [IA’s digital books].” Appellant’s Br. at 

32. We rejected a similar argument in TVEyes. There, the defendant argued that 

its provision of reproduced content identified through targeted search tools was 

transformative “because it allow[ed] clients to conduct research and analysis of 
32 

television content by enabling them to view [video] clips responsive to their 

research needs[,] [and] [r]esearch . . . [was] a purpose not shared by users of the 

original content.” TVEyes, 883 F.3d at 178 n.4. Although we concluded that 

TVEyes’ use was at least “somewhat transformative,” id. at 178, we rejected the 

research-based argument, explaining that simply because “a secondary use can 

facilitate research does not itself support a finding that the secondary use is 

transformative,” id. at 178 n.4. To deem a use transformative on that basis would 

extend the concept of transformativeness “beyond recognition.” Id. So too here. 

That authors of online articles may embed links to IA’s Free Digital Library does 

not render the Library a significantly transformative secondary use of the Works. 

In sum, because IA’s Free Digital Library primarily supplants the original 

Works without adding meaningfully new or different features that avoid unduly 

impinging on Publishers’ rights to prepare derivative works, its use of the Works 

is not transformative. TVEyes, 883 F.3d at 177 (“Although transformative use is 

not absolutely necessary for a finding of fair use, transformative works lie at the 

heart of the fair use doctrine, and a use of copyrighted material that merely 

repackages or republishes the original is unlikely to be deemed a fair use.” 

(cleaned up)). 
33 

B. Commerciality

We next consider “whether [the] use is of a commercial nature or is for 

nonprofit educational purposes.” 17 U.S.C. § 107(1). The commercial nature of a 

secondary use generally weighs against a finding of fair use, especially where the 

secondary use is only “modest[ly] transformative.” TVEyes, 883 F.3d at 178. 

However, we assess commerciality “with caution” since “nearly all of the 

illustrative uses listed in the preamble to Section 107 are generally conducted for 

profit in this country.” Warhol I, 11 F.4th at 44 (cleaned up). “The crux of the 

profit/nonprofit distinction,” then, “is not whether the sole motive of the use is 

monetary gain[,] but whether the user stands to profit from exploitation of the 

copyrighted material without paying the customary price.” Harper & Row, 471 U.S. 

at 562.

Importantly, commerciality is only one part of the first factor inquiry and 

the broader fair use analysis. See, e.g., Sony, 464 U.S. at 448–49 (noting that the 

commercial or nonprofit character of a work is “not conclusive” but rather a factor 

to be “weighed [alongside the others] in any fair use decision”). Accordingly, “the 

mere fact that a use is educational and not for profit does not insulate it from a 

finding of infringement, any more than the commercial character of a use bars a 

finding of fairness.” Campbell, 510 U.S. at 584; see also Google Books, 804 F.3d at 219 
34 

n.20 (“[T]here is . . . no reason to presume categorically that a nonprofit educational 

purpose should qualify as a fair use.”).

Here, the district court concluded that IA’s use of the Works is commercial 

for two principal reasons. Hachette, 664 F. Supp. 3d at 383–84. Though it 

acknowledged IA’s nonprofit status, it determined that IA still “exploits the Works 

in Suit without paying the customary price” by (1) soliciting donations on its 

website and (2) taking a cut of the proceeds when users buy a physical book from 

BWB using a link embedded on IA’s website. Id. at 383–84. The district court

found “largely irrelevant” the fact that IA distributes its digital books for free, 

instead emphasizing that “[w]hat matters is whether IA profited from copying the 

Works.” Id. at 384.

IA objects to the district court’s “expansive” understanding of 

commerciality, asserting that it “receives no profit or other private benefit” from 

its use of the Works. Appellant’s Br. at 21, 23. Publishers argue that IA’s use is

commercial in nature because IA reaps some economic advantages from its 

partnership with BWB and obtains “other non-monetary calculable benefits” from 

its use of the Works, including advancing its mission of ensuring universal access 

to all knowledge. Appellees’ Br. at 39. However, Publishers “do not contend that 

a non-profit . . . is commercial merely because it solicits donations.” Id. at 38 n.12.
35 

We conclude, contrary to the district court, that IA’s use of the Works is not 

commercial in nature. It is undisputed that IA is a nonprofit entity and that it 

distributes its digital books for free. Of course, IA must solicit some funds to keep 

the lights on: its website includes a link to “Donate” to IA, and it has previously 

received grant funding to support its various activities. App’x 6091. But unlike 

the defendant in TVEyes, who charged users a fee to use its text-searchable 

database, IA does not profit directly from its Free Digital Library. 883 F.3d at 175. 

It offers this service free of charge. See American Society for Testing and Materials v. 

Public.Resource.Org, Inc., 896 F.3d 437, 449 (D.C. Cir. 2018) (“ASTM I”) (concluding 

that use was not commercial where there was no evidence that nonprofit 

organization profited from its dissemination of reproduced industry standards 

that had been incorporated into law). 

We therefore disagree with the district court that IA’s partnership with BWB 

renders its use commercial. When users read a digital book on IA’s web browser 

platform, a “Purchase at Better World Books” button appears at the top of their 

screens. This button links to BWB’s website, where users may buy a used print 

copy of the book they were just reading, or any other book in BWB’s library. BWB 

compensates IA whenever someone buys a book via the “Purchase at Better World 

Books” link; although the exact profits IA earns from this arrangement is disputed. 
36 

Any link between the funds IA receives from its partnership with BWB and 

its use of the Works is too attenuated for us to characterize the use as commercial

on that basis. See Swatch Group Management Services Ltd. v. Bloomberg L.P., 756 F.3d 

73, 83 (2d Cir. 2014). In Swatch, Bloomberg posted a recording of a Swatch 

conference call on its website for access by its paying subscribers. Id. at 78–79. 

Although the recording―like other Bloomberg content―could be accessed only 

by paying subscribers, we concluded that “the link between the defendant’s 

commercial gain and its copying [was] attenuated such that it would be 

misleading to characterize the use as commercial exploitation.” Id. at 83 (cleaned 

up). Unlike in TVEyes, where the defendant charged a fee in direct connection 

with its use of the works, Bloomberg’s subscription fee covered a broad range of

services, including access to the recording. Compare id., with TVEyes, 883 F.3d at 

175. Because “it would strain credulity to suggest that providing access to [the 

recording] more than trivially affected the [overall] value of [Bloomberg’s] 

service[s],” we assigned the commercial nature of Bloomberg’s use “little weight.” 

Swatch, 756 F.3d at 83. 

IA does not charge a fee for any of its services, let alone the Free Digital 

Library. While IA may incidentally profit from its use of the Works when account 

holders check out a digital book via the BookReader platform, click on the 
37 

“Purchase at Better World Books” link, and purchase a book from BWB, the link 

between this commercial gain and IA’s use of the Works to create the Free Digital 

Library is “attenuated[,] such that it would be misleading to characterize the use 

as commercial exploitation.” Id. (internal quotation marks omitted). Although IA 

exploits the Works in Suit without paying the customary price, it does not profit 

directly from that exploitation. See Harper & Row, 471 U.S. at 562.

We likewise reject the proposition that IA’s solicitation of donations renders 

its use of the Works commercial. IA does not solicit donations specifically in 

connection with its digital book lending services―nearly every page on IA’s 

website contains a link to “Donate” to IA. App’x 6091. Thus, as with its 

partnership with BWB, any link between the funds IA receives from donations and 

its use of the Works is too attenuated to render the use commercial. Swatch, 756 

F.3d at 83. To hold otherwise would greatly restrain the ability of nonprofits to 

seek donations while making fair use of copyrighted works. See ASTM I, 896 F.3d 

at 449 (rejecting the argument that because free distribution of copyrighted 

industry standards enhanced a nonprofit organization’s fundraising appeal, the 

use was commercial).

Finally, to the extent Publishers argue that IA’s use is commercial because it

derives “other non-monetary calculable benefits” from the Free Digital Library, 
38 

we disagree. Appellees’ Br. at 39. It is true that the “profit/non-profit distinction 

is context specific, not dollar dominated,” such that the “absence of a dollars and 

cents profit” will not necessarily exclude a finding of commerciality. Weissmann 

v. Freeman, 868 F.2d 1313, 1324 (2d Cir. 1989). Indeed, in Weissmann we refused to 

weigh the first fair use factor against the plaintiff where the defendant 

appropriated her unpublished research article and presented it as his own. Id. at 

1316. Despite the apparent lack of economic profit, the defendant “stood to gain 

recognition among his peers in the profession . . . without paying the usual price 

that accompanies scientific research and writing, that is to say, by the sweat of his 

brow.” Id. at 1324. In this context, however, IA does not stand to gain the direct 

reputational benefits that accompany presenting another’s work as one’s own. 

Rather, it obtains only those nonmonetary benefits that attend most other 

legitimate, secondary uses, including advancing its mission and bolstering its 

reputation. Characterizing these general benefits as commercial profits would 

render commercial the activities of virtually any nonprofit organization that 

bolsters its reputation through its own nonprofit activities.

IA does not profit directly from its exploitation of the Works in Suit. For 

that reason, its use of the Works is non-commercial in nature. But the nonprofit 

character of IA’s use is not conclusive, Sony, 464 U.S. at 448, and 
39 

transformativeness remains the “central” focus of the first factor, Warhol II, 598 

U.S. at 542. Thus, because IA’s use of the Works is not transformative, the first fair 

use factor favors Publishers. See TVEyes, 883 F.3d at 177–78. 

II. The nature of the copyrighted works

The second fair use factor is “the nature of the copyrighted work.” 17 U.S.C. 

§ 107(2). In assessing the second factor, courts consider (i) whether the work is 

expressive or creative, with “greater leeway being allowed to a claim of fair use 

where the work is factual or informational”; and (ii) “whether the work is 

published or unpublished, with the scope of fair use involving unpublished works 

being considerably narrower.” Blanch v. Koons, 467 F.3d 244, 256 (2d Cir. 2006). 

This factor recognizes that “some works are closer to the core of intended 

copyright protection than others.” Campbell, 510 U.S. at 586. However, it “rarely 

play[s] a significant role in the determination of a fair use dispute.” Google Books, 

804 F.3d at 220; see also HathiTrust, 755 F.3d at 98 (“The second fair-use factor . . . is 

not dispositive.”).

IA argues that this factor weighs neutrally because the Works, though

published, include both fiction and nonfiction books. Although we have 

previously stated that the second factor tends to favor fair use when the copied 

works are factual, rather than fictional, that general statement is an 
40 

oversimplification of the Works in this case. While the Works in Suit include both 

fiction and nonfiction books, even the nonfiction books contain original expression 

“close[] to the core of intended copyright protection.” Campbell, 510 U.S. at 586. 

The Copyright Act “does not protect facts or ideas set forth in a work, [but] it does

protect that author’s manner of expressing those facts and ideas.” Google Books, 

804 F.3d at 220 (emphasis added). Wind Power for Dummies may contain factual 

information regarding the mechanics of wind power, but the author’s compilation 

of those facts into a book suitable for the average “dummy” is an original 

expression that the Copyright Act protects. 

The nonfiction Works here are therefore unlike the copyrighted materials in 

Swatch, one of the few cases in which the second fair use factor bore some 

significance. There, as noted above, Bloomberg obtained a sound recording and 

transcript of a private conference call between Swatch executives and a group of 

securities analysts and posted both online for access by its paying subscribers. 

Swatch, 756 F.3d at 78–79. Swatch sued Bloomberg, obtaining a copyright to cover 

the statements made by Swatch executives during the meeting. Id. at 79. In 

concluding that the second factor favored fair use, we remarked on the “thinness” 

of Swatch’s copyright: the copyrighted statements were of a “manifestly factual 
41 

character,” intended to “convey financial information about the company,” not to 

showcase any original expression. Id. at 89.

Here, while the nonfiction Works undoubtedly convey factual information

and ideas, they also represent the authors’ original expressions of those facts and 

ideas—and those “subjective descriptions and portraits” reflect “the author’s 

individualized expression.” Harper & Rowe, 471 U.S. at 563. Thus, because the 

Works in Suit are “of the type that the copyright laws value and seek to protect,” 

the second fair use factor favors Publishers. HathiTrust, 755 F.3d at 98. 

III. The amount and substantiality of the use

The third fair use factor is “the amount and substantiality of the portion 

used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). 

Generally, a finding of fair use is more likely when “small amounts, or less 

important passages [of the work] are copied than when the copying is extensive, 

or encompasses the most important parts of the original.” Google Books, 804 F.3d 

at 221. The third and fourth factors are interrelated, as the greater the amount and 

substantiality of the use, “the greater the likelihood that the secondary work might 

serve as an effectively competing substitute for the original.” Id.

Still, there is no bright line rule separating permissible from impermissible 

copying. Warhol I, 11 F.4th at 46. Sometimes it is necessary to copy the entirety of 
42 

a work in order to achieve a legitimate, transformative secondary purpose. See, 

e.g., Google Books, 804 F.3d at 221–22 (copying entirety of books necessary to create 

transformative search function and snippet view); HathiTrust, 755 F.3d at 98–99 

(copying entirety of books necessary to create transformative search function). 

Other times, “taking even a small percentage of the original work [is] unfair use.” 

Rogers v. Koons, 960 F.2d 301, 311 (2d Cir. 1992). The relevant consideration, then, 

is not the amount of copyrighted material used by the copier, but “the amount of 

copyrighted material made available to the public.” TVEyes, 883 F.3d at 179.

Here, it is undisputed that IA copies the Works in their entirety and 

distributes those copies to the public in full. Still, IA argues that the third factor 

weighs neutrally because “copying the entire work is necessary for Controlled 

Digital Lending.” Appellant’s Br. at 43 (cleaned up). As IA itself recognizes, this 

argument hinges entirely on its assumption that its use of the Works is 

transformative.7 But IA does not scan the Works in their entirety to achieve a 

7 IA faults the district court for improperly “collaps[ing] the first and third factors.” Appellant’s 

Br. at 44. But IA itself acknowledges―on the same page of its brief―the interrelatedness of the 

first and third factors in this case. See id. (“[T]he district court’s transformativeness analysis was 

wrong (and failed to consider other justifications for copying). Its third-factor analysis thus is 

wrong for the same reasons.”). The Supreme Court has explained that the “enquiry” with respect 
43 

transformative secondary purpose; it scans the Works in their entirety to substitute

IA’s digital books for Publishers’ print books and eBooks. 

IA’s use is therefore unlike the copying that took place in HathiTrust and 

Google Books. In those cases, the defendants scanned copyrighted books to create, 

among other things, searchable databases that allowed users to view snippets of 

text pertaining to their search terms, or to learn on which pages and with what 

frequency their search terms appeared in any given book. HathiTrust, 755 F.3d at 

91; Google Books, 804 F.3d at 208–10. Though the defendants copied the books in 

their entirety, doing so was necessary to achieve a transformative, secondary 

purpose―the searchable databases. HathiTrust, 755 F.3d at 98–99; Google Books, 

804 F.3d at 221–23. And critically, while the defendants “ma[de] an unauthorized 

digital copy of the entire book, [they did] not reveal that digital copy to the public.” 

Google Books, 804 F.3d at 221 (second emphasis added). 

to the third factor “will harken back to the first of the statutory factors, for . . . the extent of the 

copying varies with the purpose and character of the use.” Campbell, 510 U.S. at 586-87; see also 

A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 642 (2d Cir. 2009) (faulting the plaintiffs for 

“fail[ing] to recognize the overlap that exists between the [first and third] fair use factors”). Thus 

here, even if features of IA’s offerings were transformative insofar as they facilitate research by 

allowing the insertion of links, IA’s use would not be “tailored to further its transformative 

purpose.” Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006). IA allows 

the entirety of the Works to be available to millions of users, the vast majority of whom are not 

using the digital copies to insert links into articles.
44 

Here, IA makes unauthorized digital copies of the Works and reveals those 

copies to the public in their entirety. The “amount and substantiality” of the 

copying is not necessary to achieve a transformative secondary purpose, but

serves to substitute Publishers’ books. 17 U.S.C. § 107(3). For that reason, the third 

fair use factor favors Publishers. See ReDigi, 910 F.3d at 662 (third factor favored 

plaintiffs where the defendant made available “identical copies of the whole of 

Plaintiffs’ copyrighted sound recordings.”); TVEyes, 883 F.3d at 179 (third factor

favored plaintiff where the defendant made available “virtually the entirety of the 

[plaintiff’s] programming that TVEyes users want[ed] to see and hear.”). 

IV. The effect of the use on the potential market for or value of the 

works

The fourth and final fair use factor is “the effect of the use upon the potential 

market for or value of the copyrighted work.” 17 U.S.C. § 107(4). This factor 

“focuses on whether the copy brings to the marketplace a competing substitute for 

the original, or its derivative, so as to deprive the rights holder of significant 

revenues because of the likelihood that potential purchasers may opt to acquire

the copy [rather than] the original.” Google Books, 804 F.3d at 223. Analysis of this 

factor “requires us to balance the benefit the public will derive if the use is 

permitted” against “the personal gain the copyright owner will receive if the use 
45 

is denied.” Warhol I, 11 F.4th at 48. The fourth factor is “undoubtedly the single 

most important element of fair use.” Harper & Row, 471 U.S. at 566.

In assessing the fourth factor, we consider “not only the market harm caused 

by the particular actions of the alleged infringer, but also the market harm that 

would result from unrestricted and widespread conduct of the same sort.” 

TVEyes, 883 F.3d at 179 (cleaned up); Campbell, 510 U.S. at 590. We ask not

“whether the second work would damage the market for the first (by, for example, 

devaluing it through parody or criticism), but whether it usurps the market for the 

first by offering a competing substitute.” Warhol I, 11 F.4th at 48. This inquiry 

encompasses both the market for the original work and the market for any 

derivative works the rightsholder might develop. Campbell, 510 U.S. at 590. The 

first and fourth factors are closely related, as the more copying is done to achieve 

a purpose that is the same as or substantially similar to the original, the more likely 

it is that the copy will serve as a “satisfactory substitute for the original.” Google 

Books, 804 F.3d at 223. Ultimately, the “burden of proving that the secondary use 

does not compete in the relevant market is . . . borne by the party asserting the 

defense.” Warhol I, 11 F.4th at 49.

Before discussing the parties’ arguments, we must identify the relevant 

market in which IA’s Free Digital Library allegedly competes. Publishers focus on
46 

harm to their markets for eBooks, including consumer eBooks and licensed 

eBooks. IA, meanwhile, argues that we should consider harm (or lack of harm) to 

Publishers’ eBook and print book markets. 

In this case, the relevant market for purposes of analyzing the fourth fair use 

factor is the market for the Works in general, without regard to format. The 

Copyright Act protects authors’ works in whatever format they are produced. See

generally 17 U.S.C. § 106 (granting copyright owners the exclusive right to 

reproduce their works in numerous formats). Even if we consider the print 

editions to be the “original” forms of the Works in this case―and we recognize 

that the concept of a singular “original” form may be difficult to grasp in the digital 

age―the Act recognizes that presentation of the same content in a different 

medium is a derivative work subject to the same legal protections as the purported 

original. 17 U.S.C. § 106(2). Here, Publishers obtained from authors the exclusive 

right to publish their Works in numerous formats, including print and eBooks, and 

it is this exclusive right that IA is alleged to have violated via its Free Digital 

Library. For that reason, the relevant harm―or lack thereof―is to Publishers’ 

markets for the Works in any format.
47 

A. IA does not disprove market harm

IA argues that its Free Digital Library causes no harm to Publishers’ markets 

for the Works because IA’s lending “offers a distinct service” from Publishers’ 

eBooks, not a substitute; and “all available evidence shows that IA’s lending 

caused no harm at all” to Publishers’ markets for the Works. Appellant’s Br. at 45. 

We address each point in turn.

IA’s first argument is a simple one: because its Free Digital Library is a 

transformative use of the Works, it cannot serve as a substitute for the originals. 

This argument, like numerous other arguments raised by IA in this appeal, is 

premised on its assumption that its use of the Works is transformative. But there 

is nothing transformative about IA’s use of the Works or its adherence to CDL―its 

digital copies serve the same purpose as the originals. And the more copying is 

done to achieve a purpose that is the same as the original, the more likely it is that 

the copy will compete in the market as a “satisfactory substitute for the original.” 

Google Books, 804 F.3d at 223.

Google Books and HathiTrust underscore this point. In HathiTrust, the fourth 

factor supported a finding of fair use because the ability to search the text of a book 

to determine whether it includes select words did not “serve as a substitute for the 

books [themselves].” 755 F.3d at 100. Likewise, in Google Books, the ability to view 
48 

small fragments of books pertaining to particular search terms did not “provide a 

significant substitute for the purchase of the [actual] book[s].” 804 F.3d at 224–25. 

Critical to our conclusions in those cases was the interrelatedness of the first and 

fourth factors: because the copying was “done to achieve a purpose that differ[ed] 

from the purpose of the original[s],” it was unlikely that the secondary uses would 

“serve as a satisfactory substitute for the original[s].” Id. at 223.

Here, not only is IA’s Free Digital Library likely to serve as a substitute for 

the originals, the undisputed evidence suggests it is intended to achieve that exact 

result. IA copies the Works in full and makes those copies available to the public 

in their entirety. It does not do this to achieve a transformative secondary purpose, 

but to supplant the originals. IA itself advertises its digital books as a free 

alternative to Publishers’ print and eBooks. See, e.g., App’x 6099 (“[T]he Open 

Libraries Project ensures [libraries] will not have to buy the same content over and 

over, simply because of a change in format.” (internal quotation marks omitted)); 

id. at 6100 (marketing the Free Digital Library as a way for libraries to “get free 

ebooks”); id. at 6099 (“You Don’t Have to Buy it Again!”). IA offers effectively the 

same product as Publishers―full copies of the Works―but at no cost to consumers 

or libraries. At least in this context, it is difficult to compete with free. IA’s nontransformative use of the Works is a strong indicator that its digital books “usurp[] 
49 

the market for the [originals] by offering a competing substitute.” Warhol I, 11 

F.4th at 48 (emphasis omitted). 

Still, even where a secondary use serves the same purpose as the originals, 

the defendant may present evidence of a lack of market harm to support their

defense of fair use. IA presents data that purportedly show a lack of harm to 

Publishers’ print and eBook markets, and faults Publishers for failing to provide 

empirical data of their own. 

IA’s expert, Dr. Rasmus Jørgensen, examined OverDrive checkouts of the

Works before, during, and after the National Emergency Library (IA’s COVID-era 

program pursuant to which it lifted its one-to-one owned-to-loaned ratio, allowing

each digital book to be checked out by up to 10,000 users at a time without regard 

to the corresponding number of physical books in storage or in partner libraries’ 

possession) to assess potential harm to Publishers’ eBook licensing market. If IA’s 

lending were indeed a substitute for Publishers’ library eBook licenses, he 

theorized, then the shutdown of the NEL and reinstitution of IA’s lending controls

should correspond to an increase in demand for the Works on OverDrive (the 

commercial service used by many libraries who license eBooks). But Dr. Jørgensen 

found the opposite: OverDrive checkouts of the Works decreased following the 

shutdown of the NEL in June 2020. From this, IA concludes that its lending “has 
50 

no effect on demand for borrowing on OverDrive” and, therefore, there is “no 

reason to imagine, much less assume, that digital lending affects Publishers’ ebook 

license revenue at all.” Appellant’s Br. at 51.

Dr. Jørgensen used the same methodology to analyze the effect of IA’s 

lending on Hachette’s8 monthly print and eBook sales of the Works. Once again, 

he theorized that if IA’s lending were a substitute for Hachette’s consumer print 

and eBooks, then the closure of the NEL should correspond to an increase in 

Hachette’s sales of the Works in those mediums. But it did not: at the same time 

IA reinstituted its lending controls in June 2020, Hachette’s print and eBook sales 

decreased by 21% and 29%, respectively. 

IA also submits the expert report of Dr. Imke Reimers, who examined the 

effect of IA’s lending on Amazon sales rankings for print copies of the Works. Dr. 

Reimers analyzed whether Amazon sales rankings changed when IA (1) first 

added the Work to its Free Digital Library, (2) launched the NEL, or (3) removed 

the Work from its Free Digital Library in response to this lawsuit. She found “no 

statistically significant evidence” that either inclusion in IA’s library or increased 

8 In discovery, while Hachette produced monthly sales data for 2020, the remaining Publishers 

provided only annual sales data. As the NEL ran for a matter of months in 2020, Dr. Jørgensen 

concluded it was impossible to assess the effect of the NEL on HarperCollins, Penguin, and 

Wiley’s print and eBook sales. 
51 

lending through the NEL harmed print sales rankings on Amazon, and that 

removal of the Works from IA’s Free Digital Library actually correlated with a 

decrease in sales rankings of the Works on Amazon. App’x 4934. From this and 

Dr. Jørgensen’s report, IA concludes that its Free Digital Library has no effect on 

Publishers’ markets for print and eBooks. 

This evidence does not satisfy IA’s “burden of proving that the secondary 

use does not compete in the relevant market[s].” Warhol I, 11 F.4th at 49. Dr. 

Jørgensen’s report shows, at best, a weak correlation between the closure of the 

NEL and a decline in Publishers’ checkouts and sales. As Publishers’ expert Dr. 

Jeffrey Prince points out, Dr. Jørgensen “does not even have a[n] [empirical]

model,” let alone a model that accounts for the effect of various other causal factors 

on Publishers’ sales. App’x 5476. Instead, Dr. Jørgensen simply analyzes “two 

points in time during a period where major macroeconomic events were 

occurring,” id. at 5382, and “say[s] any difference that you see is because of the 

takedown of the NEL,” id. at 5530.

But “[j]ust because one event follows another doesn’t mean it was caused 

by the prior event.” Id. at 5383. There were a broad range of factors at play in June 

2020 for which Dr. Jørgensen’s report fails to account, including the “COVIDrelated surge in ebook sales” which “slowed down by summer 2020” as public 
52 

spaces began to reopen. Id. at 5469. Dr. Jørgensen’s own graph reveals that 

checkouts spiked for OverDrive and IA between March 2020 and June 2020, 

followed by a steady decline for both as checkouts reverted to pre-pandemic 

levels. Id. at 4850. In short, Dr. Jørgensen’s report does not indicate, let alone 

prove, the effect of IA’s Free Digital Library on Publishers’ markets for the Works. 

Dr. Reimers’ report suffers from deeper infirmities. First, her report is of 

limited relevance as it analyzes Amazon sales rankings for print editions of the 

Works in Suit, not print revenues, eBook Amazon sales rankings, or eBook 

revenues. As Dr. Prince explains, Amazon sales rankings are not necessarily a 

proxy for revenues, and the sales rankings of print books tell us nothing about the 

impact of IA’s lending practices on sales and checkouts of eBooks. Id. at 5397–98. 

Moreover, the Amazon algorithm that determines the rankings is “vague” and 

reportedly “susceptible to manipulation.” Id. at 5474. This makes it difficult to 

discern whether and to what extent those rankings correspond to sales revenues. 

For that reason, the conclusions drawn by IA from Dr. Reimers’ report regarding 

the impact of their lending services on Publishers’ sales are ill supported.

Although they do not provide empirical data of their own, Publishers assert 

that they (1) have suffered market harm due to lost eBook licensing fees and (2) 

will suffer market harm in the future if IA’s practices were to become widespread. 
53 

IA argues that Publishers cannot rely on the “common-sense inference” of market 

harm without data to back that up, citing American Society for Testing & Materials 

v. Public.Resource.Org, Inc., 82 F.4th 1262 (D.C. Cir. 2023) (“ASTM II”). Appellant’s 

Br. at 55–56. 

We agree with Publishers’ assessment of market harm. “It is indisputable 

that, as a general matter, a copyright holder is entitled to demand a royalty for 

licensing others to use its copyrighted work, and that the impact on potential 

licensing revenues is a proper subject for consideration in assessing the fourth 

factor.” Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 614 (2d Cir. 

2006). While “only an impact on potential licensing revenues for traditional, 

reasonable, or likely to be developed markets should be legally cognizable” when 

evaluating market harm, here, Publishers’ library eBook licensing market is both 

reasonable and developed. TVEyes, 883 F.3d at 180 (cleaned up). And it is 

undisputed that IA appropriated the Works “without payment of [the] customary 
54 

licensing fee.”9 Ringgold, 126 F.3d at 81. IA has thus “usurped a market that 

properly belongs to the copyright holder.”10 TVEyes, 883 F.3d at 180 (cleaned up). 

We are likewise convinced that “unrestricted and widespread conduct of 

the sort engaged in by [IA] would result in a substantially adverse impact on the 

potential market for [the Works in Suit].” Campbell, 510 U.S. at 590 (cleaned up). 

IA’s Free Digital Library serves as a satisfactory substitute for the original Works. 

Were we to approve IA’s use of the Works, there would be little reason for 

consumers or libraries to pay Publishers for content they could access for free on 

IA’s website. See Warhol I, 11 F.4th at 50. Though Publishers have not provided 

empirical data to support this observation, we routinely rely on such logical 

inferences where appropriate in assessing the fourth fair use factor. See, e.g., Google 

Books, 804 F.3d at 223–25 (relying on logical inferences rather than empirical data 

to conclude that the secondary use did not serve as a competing substitute for the 

originals); ReDigi, 910 F.3d at 662–63 (relying on logical inferences rather than 

empirical data to conclude that the secondary use served as a competing substitute 

9 It is “of no moment” that IA approached Publishers to purchase their eBooks on a perpetual 

basis and was rebuffed; “the failure to strike a deal satisfactory to both parties does not give [IA] 

the right to copy [Publishers’] copyrighted material without payment.” TVEyes, 883 F.3d at 180. 

10 This is true even though Publishers’ revenues have increased in recent years. That Publishers 

are both profitable and have lost potential licensing fees as a result of IA’s infringement are not 

mutually exclusive; both can be, and here are, true at the same time.
55 

for the originals); Warhol I, 11 F.4th at 50 (relying on “self-evident” harm that 

would result if the defendant’s use were to become widespread). Thus, we 

conclude it is “self-evident” that if IA’s use were to become widespread, it would 

adversely affect Publishers’ markets for the Works in Suit. Warhol I, 11 F.4th at 50. 

ASTM II does not convince us otherwise. That D.C. Circuit case involved 

various private organizations that promulgate, copyright, and sell copies of

standards establishing best practices for their respective industries, which are 

often incorporated by reference into federal agency rules and state and local 

regulations. ASTM II, 82 F.4th at 1265. Three of those standard-setting

organizations sued nonprofit Public.Resource.Org (“PR”), alleging that it 

infringed their copyrights in numerous standards that had been incorporated into 

government regulations by posting those standards on its website for users to 

access for free. Id. at 1266. The district court determined that PR’s use of the 

standards was a fair use, and the organizations appealed. Id. at 1265. 

The D.C. Circuit affirmed, concluding that the first three fair use factors 

strongly favored PR. Id. at 1267. With regard to market harm, the organizations 

pressed the “common-sense” argument that, if users can download an identical 

copy of a standard for free, few will pay to buy the standard. Id. at 1271. The court 

rejected this argument for two reasons. First, PR published only versions of the 
56 

regulations that had been incorporated into government regulations. Id. Because 

the organizations regularly update their standards, and government agencies are 

slow to incorporate those new standards, if builders, engineers, or other 

consumers wanted the most up-to-date version of a regulation, they would have 

to purchase the organization’s copy. Id. Thus, there was reason to doubt the 

“common-sense inference” that PR’s activities would usurp the market for the 

organizations’ standards. Id.

Second, the organizations did not provide any empirical evidence of market 

harm, while PR introduced data indicating a lack of such harm. Id. The Court 

explained:

Public Resource has been posting incorporated standards for fifteen 

years. Yet the plaintiffs have been unable to produce any economic 

analysis showing that Public Resource's activity has harmed any 

relevant market for their standards. To the contrary, ASTM’s sales 

have increased over that time; NFPA’s sales have decreased in recent 

years but are cyclical with publications; and ASHRAE has not pointed 

to any evidence of its harm.

The plaintiffs’ primary evidence of harm is an expert report opining 

that Public Resource’s activities could put the plaintiffs’ revenues at 

risk. Yet although the report qualitatively describes harms the 

plaintiffs could suffer, it makes no serious attempt to quantify past or 

future harms. Like the district court, we find it telling that the 

plaintiffs do not provide any quantifiable evidence, and instead rely 

on conclusory assertions and speculation long after Public Resource 

first began posting the standards.
57 

Id. (cleaned up). The Court thereafter concluded that the “fourth fair-use factor 

does not significantly tip the balance one way or the other.” Id. at 1272.

IA urges us to adopt the same analysis of market harm. It argues that 

Publishers’ lack of data is similarly “telling,” and that we, like the D.C. Circuit,

should reject their common-sense claim that if users can download an identical 

copy of a Work for free, few will pay to buy or lease Publishers’ editions. 

Appellant’s Br. at 56. 

To the extent IA faults Publishers’ lack of empirical data, it forgets the 

burden of proof. Recall the broader context: Publishers have already established 

a prima facie case of copyright infringement. The only issue in this appeal is 

whether IA’s Free Digital Library constitutes a fair use of the Works. “Fair use is 

an affirmative defense; as such, the ultimate burden of proving that the secondary 

use does not compete in the relevant market is appropriately borne by the party 

asserting the defense: the secondary user.” Warhol I, 11 F.4th at 49. While the 

rightsholder may bear some initial burden of identifying relevant markets, “we 

have never held that the rightsholder bears the burden of showing actual market 

harm.” Id. Publishers need not present empirical data of their own in connection 

with IA’s asserted affirmative defense.
58 

Additionally, the nature of the works at issue in ASTM II was of a manifestly 

different character than the Works at issue here. The organizations in ASTM II

updated their standards frequently, such that their production of new copyrighted 

standards typically outpaced governments’ incorporation of those standards into 

law. ASTM II, 82 F.4th at 1271. Given that PR posted only standards that had been 

incorporated into law, its use did not usurp the organizations’ market for the most 

up-to-date version of the standards. Id. The interrelatedness of the first and fourth 

factors was apparently critical to the D.C. Circuit’s conclusion: because PR’s copies

did not replace the originals―i.e., the most up-to-date versions of the 

standards―it was unlikely that those copies would bring to the marketplace a 

competing substitute for the originals. Id. at 1271, 1268 (“[PR] publishes only what 

the law is, not what industry groups may regard as current best practices.”). This 

lack of usurpation made the organizations’ failure to quantify past or future harms 

“telling.”11 Id.

11 To the extent the D.C. Circuit faulted the plaintiff-organizations for failing to produce empirical 

evidence of market harm, we don’t understand that court to have shifted the burden of 

persuasion on the fair use defense. In any event, the law is clear in this Circuit that the burden of

producing persuasive evidence of the absence of market harms falls to the infringer that invokes

a fair use defense. Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, 11 F.4th 26, 49 (2d Cir. 

2021) (“[W]e have never held that the rightsholder bears the burden of showing actual market 

harm. Nor would we so hold. Fair use is an affirmative defense; as such, the ultimate burden of 

proving that the secondary use does not compete in the relevant market is appropriately borne 

by the party asserting the defense: the secondary user.”), aff’d, 598 U.S. 508 (2023). 
59 

Here, by contrast, IA’s use of the Works, which remain unchanged through 

time, is not transformative. Because IA’s Free Digital Library functions as a 

replacement for the originals, it is reasonable and logical to conclude not only that 

IA’s digital books currently function as a competing substitute for Publishers’ 

licensed editions of the Works, but also that, if IA’s practices were to become 

“unrestricted and widespread,” TVEyes, 883 F.3d at 179, it would decimate 

Publishers’ markets for the Works in Suit across formats. 

B. Any public benefits of IA’s Free Digital Library do not outweigh the harm 

to Publishers’ markets

Although IA cannot disprove market harm, we still “balance the benefit the 

public will derive if the use is permitted [against] the personal gain the copyright 

owner will receive if the use is denied.” Warhol I, 11 F.4th at 48. IA argues that its 

Free Digital Library provides “significant public benefits,” including expanding 

access to free literary materials. Appellant’s Br. at 59. It asserts that prohibiting

its CDL practices would cause harm “to those who have difficulty accessing 

physical libraries and to researchers and authors who use controlled digital 

lending in creating new works.” Id. 

We conclude that both Publishers and the public will benefit if IA’s use is 

denied.
60 

To be sure, expanding access to knowledge would, in a general sense, 

benefit the public. But “[a]ny copyright infringer may claim to benefit the public 

by increasing public access to the copyrighted work.” Harper & Row, 471 U.S. at 

569. That does not alone render the infringement lawful. Indeed, the Copyright 

Act and its empowering constitutional authority reflect a considered judgment 

that “the Progress of Science and useful Arts” is best promoted by laws that protect 

authors’ original works and permit authors to set the terms of engagement, at least 

for a limited time. See Sony, 464 U.S. at 429. Doing so benefits the public “by 

providing rewards for authorship.” Google Books, 804 F.3d at 212. This

monopolistic power is a feature, not a bug, of the Copyright Act. 

Within the framework of the Copyright Act, IA’s argument regarding the 

public interest is shortsighted. True, libraries and consumers may reap some 

short-term benefits from access to free digital books, but what are the long-term 

consequences? If authors and creators knew that their original works could be 

copied and disseminated for free, there would be little motivation to produce new 

works. And a dearth of creative activity would undoubtedly negatively impact 

the public. It is this reality that the Copyright Act seeks to avoid. 

While IA claims that prohibiting its practices would harm consumers and 

researchers, allowing its practices would―and does―harm authors. With each 
61 

digital book IA disseminates, it deprives Publishers and authors of the revenues 

due to them as compensation for their unique creations. Sandra Cisneros, an 

author who submitted a declaration in support of Publishers’ summary judgment 

motion, captured the effect of IA’s infringement: 

I worked hard to earn the financial security that I now have and which 

enables me to earn a living from my pen without fear of poverty. 

And, as my agent reminds me, the royalty revenues I receive from the 

sales of books I have written are precious and must be closely 

guarded because this is ultimately going to generate the money that 

supports me in old age. . . .

When I went on the Internet Archive’s website and saw that scans of 

my books were being distributed to anybody who wanted them for 

free―without my permission or any payment―I was appalled. I 

found the experience so viscerally upsetting that I could not stay on 

the website for long. It was like I had gone to a pawn shop and seen 

my stolen possessions on sale.

App’x 249–50. Though IA and its amici may lament the consolidation of editorial 

power and criticize Publishers for being motivated by profits, behind Publishers 

stand authors who are entitled to compensation for the reproduction of their 

works and whose “private motivation . . . ultimately serve[s] the cause of 

promoting broad public availability of literature, music, and the other arts.” 

Warhol II, 598 U.S. at 526 (quoting Twentieth Century Music Corp., 422 U.S. at 156). 

IA’s Free Digital Library undermines that motivation. 
62 

In sum, IA has not met its “burden of proving that the secondary use does 

not compete in the relevant market[s].” Warhol I, 11 F.4th at 49. Its empirical 

evidence does not disprove market harm, and Publishers convincingly claim both 

present and future market harm. Any short-term public benefits of IA’s Free 

Digital Library are outweighed not only by harm to Publishers and authors but 

also by the long-term detriments society may suffer if IA’s infringing use were 

allowed to continue. For these reasons, the fourth fair use factor favors Publishers.

V. Weighing the factors together

While fair use “presents a mixed question of law and fact, it may be resolved 

on summary judgment where, as here, the material facts are not in dispute.” 

Warhol I, 11 F.4th at 36. Having considered the four factors, we find that each 

favors Publishers. Even if certain tools associated with IA’s reproductions offer

some minor functional benefits not associated with the original works (such as 

linkability), because IA offers these functionalities by reproducing and making 

publicly available the copyrighted works in their entirety, those benefits are 

overwhelmingly outweighed by the other fair use considerations. See TVEyes, 883 

F.3d at 174 (concluding that even though TVEyes’ re-distribution of Fox’s 

audiovisual content had some transformative character, “because that redistribution makes available virtually all of Fox’s copyrighted audiovisual 
63 

content―including all of the Fox content that TVEyes’s clients wish to see and 

hear―and because it deprives Fox of revenue that properly belongs to the 

copyright holder, TVEyes has failed to show that the product it offers to its clients 

can be justified as a fair use.”).

Accordingly, IA’s defense of fair use fails as a matter of law.12 

CONCLUSION

The parties in this case represent potentially serious interests. On the one 

hand, eBook licensing fees may impose a burden on libraries and reduce access to 

creative work. On the other hand, authors have a right to be compensated in 

connection with the copying and distribution of their original creations. Congress 

balanced these “competing claims upon the public interest” in the Copyright Act. 

Twentieth Century Music Corp., 422 U.S. at 156. We must uphold that balance here. 

IA asks this Court to bless the large scale copying and distribution of 

copyrighted books without permission from or payment to the Publishers or 

authors. Such a holding would allow for widescale copying that deprives creators 

12 IA makes a final argument that, even if its Open Libraries project did not qualify as a fair use, 

we should restrict the injunction to the Open Libraries project and allow IA to continue CDL for 

books that IA itself owns. Appellant’s Br. at 62. In support of that argument, IA argues that the 

fourth factor analysis would be more favorable if CDL were limited to IA’s own books. Id. In 

our view, the fair use analysis would not be substantially different if limited to IA’s CDL of the 

books it owns, and the fourth factor still would count against fair use. So we decline IA’s 

invitation to narrow the scope of our holding or of the district court’s injunction.
64 

of compensation and diminishes the incentive to produce new works. This may 

be what IA and its amici prefer, but it is not an approach that the Copyright Act 

permits. 

For these reasons, we AFFIRM.