Page:Hachette Book Group v. Internet Archive (2023).pdf/37

 Under the third fair use factor, courts consider “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. § 107(3). IA copied the entire Works in Suit and made the copies available for lending. Wholesale copying like this “tends to disfavor a finding of fair use.”, 910 F.3d at 662; , , 246 F.3d 152, 175 (2d Cir. 2001); , 2015 WL 11170727, at *5.

It is true that copying an entire work is sometimes necessary to make a fair use of the work. , 448 F.3d 605, 613 (2d Cir. 2006). In and, for example, it was “reasonably necessary” for the defendants “to make use of the entirety of the works in order to enable” the transformative uses of portions of the underlying works. , 804 F.3d at 221;, 755 F.3d at 98. In this case, however, IA copied the Works in Suit wholesale for no transformative purpose and created ebooks that, as explained below, competed directly with the licensed ebooks of the Works in Suit. IA’s wholesale copying therefore cannot be excused, and the third factor weighs strongly in the Publishers’ favor.