Page:Hachette Book Group v. Internet Archive (2023).pdf/31

 F. at 777. By its terms, does little to help IA, which seeks permission to do far more than replace for personal use the cover and binding of print books it already owns.

Moreover, the Court of Appeals has cautioned courts against relying on “the purported breadth of the first sale doctrine as originally articulated by the courts” in older cases, given Section 109(a)’s narrower reach. , 910 F.3d at 664 (citing, 211 F. 379, 381–82 (W.D. Wash. 1914), which found no infringement, in light of the first sale doctrine, where reseller re-bound used books and held them out as new books). In, the Court of Appeals plainly held that the first sale doctrine has now been codified in Section 109(a), that it does not include a right of reproduction, and that any broader scope of the first sale doctrine should be sought from Congress, not the courts.

Nor does IA’s promise not to lend simultaneously its lawfully acquired print copies and its unauthorized reproductions help its case. As an initial matter, IA has not kept its promise. Although the Open Library’s print copies of the Works in Suit are non-circulating, IA concedes that it has no way of verifying whether Partner Libraries remove their physical copies from circulation after partnering with IA. Pls.’ 56.1 ¶¶ 495–496. To the contrary, IA knows that some Partner Libraries do not remove