Publishers Weekly has tweeted breaking news about a decision in the publishers’ suit against the Internet Archive:

A copy of the decision can be downloaded from CourtListener: gov.uscourts.nysd.537900.188.0.pdf (courtlistener.com)

EXCERPTS FROM THE DECISION. John G. Koeltl, District Judge of the U.S. Southern District of New York, granted summary judgment based on the record, as was requested by both sides. His analysis of the case is illustrated in the following quotes from the decision.

The plaintiffs in this action, four book publishers, allege that the defendant, an organization whose professed mission is to provide universal access to all knowledge, infringed the plaintiffs’ copyrights in 127 books (the “Works in Suit”) by scanning print copies of the Works in Suit and lending the digital copies to users of the defendant’s website without the plaintiffs’ permission. The defendant contends that it is not liable for copyright infringement because it makes fair use of the Works in Suit.

…In the two years after the NEL, IA’s user base increased from 2.6 million to about 6 million…. As of 2022, IA hosts about 70,000 daily ebook “borrows.” …

…IA argues, however, that this infringement is excused by the doctrine of fair use. This doctrine allows some unauthorized uses of copyrighted works “to fulfill copyright’s very purpose, ‘[t]o promote the Progress of Science and useful Arts.’” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994). While rooted in the common law, fair use is a statutory exception to copyright infringement. The Copyright Act of 1976 provides that “the fair use of a copyrighted work” for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Id. § 107. “In determining whether the use made of a work in any particular case is a fair use,” the Copyright Act directs courts to consider the following factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. The four factors are not exclusive, but each must be considered in a “case-by-case analysis,” with the results “weighed together[] in light of the purposes of copyright.” Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169, 176 (2d Cir. 2018). Fair use presents a mixed question of law and fact and may be resolved on summary judgment where, as here, the material facts are undisputed.

FIRST FACTOR. In this Circuit, consideration of the first factor focuses chiefly on the degree to which the secondary use is “transformative.” Id. A transformative use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message, rather than merely superseding the original work.”

…There is nothing transformative about IA’s copying and unauthorized lending of the Works in Su