Case 1:20-cv-04160-JGK-OTW Document 188 Filed 03/24/23 Page 26 of 47
Works in Suit, which strongly suggests that the first fair use factor favors the Publishers.
2.
The first factor also directs courts to consider whether the secondary use “is of a commercial nature or is for nonprofit educational purposes.” 17 U.S.C. § 107(1).
IA argues that its library is “wholly noncommercial” because IA is a non-profit organization that does not charge patrons to borrow books and because private reading is noncommercial in nature. Def.’s Memo. at 16. However, IA’s non-profit status and decision not to charge patrons are not dispositive. See Weissmann v. Freeman, 868 F.3d 1313, 1324 (2d Cir. 1989) (“The absence of a dollars and cents profit does not inevitably lead to a finding of fair use.”). “The crux of the profit/nonprofit distinction 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.
IA exploits the Works in Suit without paying the customary price. IA uses its Website to attract new members, solicit donations, and bolster its standing in the library community. See Pls.’ 56.1 ¶¶ 379–388. Better World Books also pays IA whenever a patron buys a used book from BWB after clicking on the “Purchase
26
