Page:Hachette Book Group v. Internet Archive (2023).pdf/32

 the physical books from their shelves, and even if a Partner Library puts a physical book into a non-circulating reference collection, it could be read in the library while the ebook equivalent is checked out. ¶¶ 494, 497. IA also does not inform Partner Libraries when an ebook in its collection is checked out, and Partner Libraries do not tell IA when their physical copies are circulating. ¶ 498. IA admits it has never taken action against a Partner Library that did not suppress circulation properly. ¶ 499.

Even full enforcement of a one-to-one owned-to-loaned ratio, however, would not excuse IA’s reproduction of the Works in Suit. is instructive. The defendant in that case created a computer program that allowed users to resell lawfully acquired digital music files. 910 F.3d at 652–54. ReDigi sought to ensure that its files never existed in more than one place at once by deleting the original file from the seller’s computer once a copy was made on ReDigi’s servers. at 656. Echoing CDL’s core principle -- that a physical book should not be in use at the same time as its digital copy -- ReDigi argued that, under the first sale doctrine, it did not unlawfully reproduce new copies but merely facilitated the transfer of copies lawfully acquired. ID.