Page:Hachette Book Group v. Internet Archive (2023).pdf/36

 than more fictional pieces” or pieces whose “expressive elements” are “dominant features of the works”).

IA argues that because most of the Works in Suit were published more than five years before IA copied them, IA has not interfered with the authors’ “right to control the first public appearance of [their] expression.” Def.’s Memo. at 22 (citing, 471 U.S. at 562). IA is correct that the unpublished nature of a work tends to negate a defense of fair use. , 471 U.S. at 554. However, “the converse is not necessarily true; neither nor any principle of fair use counsels that the publication of the copyrighted work weighs in favor of fair use.”, 983 F.3d 443, 456 (9th Cir. 2020). Published works do not lose copyright protection after five years.

Finally, although the second factor is not “likely to help much in separating the fair use sheep from the infringing goats” in cases involving transformative copying,, 510 U.S. at 586, IA has not made transformative use of the Works in Suit. IA has simply copied the Works in Suit wholesale and made the copies available for lending. That this dispute involves original works close to the core of copyright protection further counsels against a finding of fair use.