Page:Hachette Book Group v. Internet Archive (2023).pdf/46

 substitutes for the originals. Because that is what IA has done with respect to the Works in Suit, its defense of fair use fails as a matter of law.

IA also argues that it made fair use of the Publishers’ copyrights during the National Emergency Library. The analysis above applies even more forcefully to the NEL, during which IA amplified its unauthorized lending of ebook versions of the Works in Suit by lifting the one-to-one owned-to-loaned ratio. IA’s defense of fair use with respect to the NEL therefore also fails.

Finally, IA asks that statutory damages be remitted if the Court rejects IA’s fair use defense. Def.’s Memo. at 35–36. Section 504 of the Copyright Act directs courts to remit statutory damages where, as relevant here, the infringer is a “nonprofit educational institution, library, or archives,” or one of its agents or employees, and the defendant “infringed by reproducing the work in copies” and “believed and had reasonable grounds for believing” that its use of the work was fair use. 17 U.S.C. § 504(c)(2). At this point, IA’s statutory remittance argument is premature. IA may renew the argument in connection with the formation of an appropriate judgment.