Page:Hachette Book Group v. Internet Archive (2023).pdf/33

 The Court of Appeals rejected this argument. It explained that the measures ReDigi took to avoid increasing the total number of copies in existence did “not rebut or nullify the fact that” ReDigi’s program unquestionably created new copies of each work and involved unauthorized reproduction. at 657. As the court explained, in language that applies equally to IA: “We are not free to disregard the terms of [Section 109(a)] merely because the entity performing an unauthorized reproduction makes efforts to nullify its consequences by the counterbalancing” removal from circulation of the preexisting copies. at 658.

IA accepts that forecloses any argument it might have under Section 109(a). But in pressing its first sale argument under the guise of fair use, IA ignores that also rejected the fair use defense. at 660–64. The ReDigi software was not transformative because the company “ma[d]e no change in the copyrighted work[s],” but merely “provide[d] a market for the resale of digital music files, which resales compete[d] with sales of the same recorded music by the rights holder.” at 661. The same is true of IA’s online library. IA in no way transforms the use of the Works in Suit. It merely creates derivative ebooks that, when lent to the public, compete with those authorized by the Publishers. The promise of a one-to-one