Case 1:20-cv-04160-JGK-OTW Document 188 Filed 03/24/23 Page 27 of 47
at Better World Books” button that appears on the top of webpages for ebooks on the Website. Id. ¶¶ 340, 346–347; see also id. ¶ 349 (testimony of IA’s Director of Finance that “every single page of the Archive is monetized”). IA receives these benefits as a direct result of offering the Publishers’ books in ebook form without obtaining a license. Although it does not make a monetary profit, IA still gains “an advantage or benefit from its distribution and use of” the Works in Suit “without having to account to the copyright holder[s],” the Publishers. Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1118 (9th Cir. 2000). The commercial-noncommercial distinction therefore favors the Publishers. See also, e.g., Weissmann, 868 F.2d at 1324 (finding commercial use where professor’s verbatim copying of academic work could allow him to “profit” by gaining authorship credit and recognition among his peers); Soc’y of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 61 (1st Cir. 2012) (church official’s posting of religious texts on website was “commercial” because he “benefitted by being able to provide, free of cost, the core text of the [copyrighted] Works to members of [his] faith, and by standing to gain at least some recognition within [his] religious community for providing electronic access”); Am. Buddha, 2015 WL 11170727, at *4 (finding commercial use where online library solicited donations and stood
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