Case 1:20-cv-04160-JGK-OTW Document 188 Filed 03/24/23 Page 18 of 47
There is nothing transformative about IA’s copying and unauthorized lending of the Works in Suit.[1] IA does not reproduce the Works in Suit to provide criticism, commentary, or information about them. See 17 U.S.C. § 107. IA’s ebooks do not “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. IA simply scans the Works in Suit to become ebooks and lends them to users of its Website for free. But a copyright holder holds the “exclusive[] right” to prepare, display, and distribute “derivative works based upon the copyrighted work.” 17 U.S.C. § 106. An ebook recast from a print book is a paradigmatic example of a derivative work. Authors Guild v. Google, Inc., 804 F.3d 202, 215 (2d Cir. 2015) (”Google Books”) (citing 17 U.S.C. § 101). And although the changes involved in preparing a derivative work “can be described as transformations, they do not involve the kind of transformative purpose that favors a fair use finding.” Id.; see also Penguin Grp. (USA) v. Am. Buddha, No. 13-cv-2017, 2015 WL 11170727, at
- ↑ The Publishers do not challenge certain uses IA makes of the Works in Suit, including “indexing them for the purpose of searching, displaying short excerpts in response to searches and citations, and supporting research in text and data mining.” Def.’s Memo., ECF No. 106, at 16–17. The Publishers limit their claims to IA’s digital lending of entire ebook versions of the Works in Suit.
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