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, 471 U.S. 539, 565, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)).

Finally, the fourth factor “focus[es] on whether the secondary use usurps demand for the protected work by serving as a market substitute[.]”, 839 F.3d at 186 (citing , 510 U.S. at 592, 114 S.Ct. 1164). This factor is concerned with a secondary use that, “by offering a substitute for the original, usurp[s] a that properly belongs the copyright holder.”, 150 F.3d 104, 110 (2d Cir. 1998) (emphasis added). “In weighing this factor, a court properly looks to ‘not only the extent of market harm caused by the particular actions of the alleged infringer, but also whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original.’ ”, 839 F.3d at 186 (quoting , 510 U.S. at 590, 114 S.Ct. 1164).

The question is whether the allegedly infringing work serves as a “market substitute” for the allegedly infringed work, not merely whether the market for the allegedly infringed work was harmed. , 510 U.S. at 592, 114 S.Ct. 1164 (nothing that critical parodies may legitimately aim at harming the market for a copyrighted work, and that “a lethal parody, like a scathing theater review, kills demand for the original [but] does not produce a harm cognizable under the Copyright Act.”);, 246 F.3d at 175 (“[I]f the secondary work harms the market for the original through criticism or parody, rather than by offering a market substitute for the original that supersedes it, it does not produce a harm cognizable under the Copyright Act.”); , 235 F.3d 18, 24 (1st Cir. 2000) (“[T]o the extent that the copying damages a work’s marketability by parodying it or criticizing it, the fair use finding is unaffected.”). Accordingly, “the role of the courts is to distinguish between biting criticism that merely suppresses demand and copyright infringement, which usurps it.”, 510 U.S. at 592, 114 S.Ct. 1164 (internal quotations and alterations omitted). If the allegedly infringing work is not properly considered a “market substitute” for the allegedly infringed work, the fourth factor weighs in favor of the defendant. ,, 804 F.3d at 223–24 (holding that the “snippet view” of books digitized as part of the Google Books project did not constitute an effectively competing substitute to the original works); , 364 F.3d at 482 (“[A]s a general matter, criticisms of a seminar or organization cannot substitute for the seminar or organization itself or hijack its market.”).


 * c.

The Digital Millennium Copyright Act (“DMCA”) governs the means by which copyright holders can notify online service providers that their sites host or provide access to allegedly infringing material. The DMCA provides that such notices, commonly referred to as “takedown notices,” must include,, a “statement that the complaining party has a that use of the material in the manner complained of is not authorized by the copyright owner[.]” 17 U.S.C. § 512(c)(3)(A)(v) (emphasis added). The DMCA further provides a mechanism, commonly referred to as a “counter notification,” through which creators of allegedly infringing work can effectively appeal a service provider’s decision to remove or otherwise disable access to their work. Similar to a takedown notice, a counter notification must include,, “a statement under penalty of perjury that the subscriber has a that