Case 1:20-cv-04160-JGK-OTW Document 188 Filed 03/24/23 Page 21 of 47
a second holding in HathiTrust: that fair use allowed the defendant to provide “print-disabled patrons with versions of all the works contained in its digital archive in formats accessible to them.” 755 F.3d at 101. But HathiTrust’s endorsement of this distribution of complete ebooks was carefully limited to print-disabled readers. See id. at 102 (relying on the Supreme Court’s and Congress’ endorsement of “[m]aking the copy of a copyrighted work for the convenience of a blind person” as an example of fair use); see also 17 U.S.C. § 121 (Limitations on exclusive rights: Reproductions for blind or other people with disabilities). HathiTrust reiterated that outside this context, when a defendant “recasts copyrighted works into new formats,” it appears to “creat[e] derivative works over which the author ordinarily maintains control.” 755 F.3d at 101. IA’s ebooks are available to the general public, not only to the print-disabled. HathiTrust’s second holding therefore does not begin to support IA’s copying and distribution of the Works in Suit.
The principal argument IA raised in its papers was that it expands the “utility” of the Works in Suit. See TVEyes, 883 F.3d at 176. By scanning print books and lending them one at a time over the Internet while retaining a copy of the print originals, IA claims that it performs the transformative function of making the delivery of library books more efficient and convenient.
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