Page:Hachette Book Group v. Internet Archive (2023).pdf/28

 to gain recognition and financial support by posting copyrighted books).

It is “largely irrelevant” that an IA patron’s private reading of an ebook provided by IA is noncommercial. , 39 F.4th 1214, 1224 (9th Cir. 2022);, 99 F.3d 1381, 1386 (6th Cir. 1996) (rejecting fair use defense where college-town copy shop copied portions of books and sold them to students in “coursepacks” intended for educational use). What matters is whether IA profited from copying the Works. And although the “commercial nature of a secondary use is of decreased importance when the use is sufficiently transformative such that the primary author should not reasonably expect to be compensated,”, 11 F.4th at 44, this is far from that situation. The Publishers reasonably expect to be compensated for the reproduction of their copyrighted works, and IA stands to profit from its non-transformative exploitation of the Works in Suit. The commercial-noncommercial distinction, like the transformativeness inquiry, therefore counsels against a finding of fair use.

IA makes a final argument that the first factor favors fair use because, according to IA, by reproducing and distributing