Case 23-1260, Document 102, 12/21/2023, 3599894, Page1 of 38
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`23-1260-cv
`
`United States Court of Appeals
`for the
`Second Circuit
`
`
`
`
`
`HACHETTE BOOK GROUP, INC., HARPERCOLLINS PUBLISHERS L.L.C.,
`JOHN WILEY & SONS, INC., PENGUIN RANDOM HOUSE LLC,
`
`– v. –
`
`INTERNET ARCHIVE,
`
`DOES 1-5, inclusive,
`
`Plaintiffs-Appellees,
`
`Defendant-Appellant,
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`Defendants.
`
`––––––––––––––––––––––––––––––
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`BRIEF FOR AMICUS CURIAE
`AUTHORS ALLIANCE, INC. IN SUPPORT OF APPELLANT
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`RACHEL BROOKE LESWING, ESQ.
`AUTHORS ALLIANCE, INC.
`Attorneys for Amicus Curiae
`2705 Webster Street, Suite 5805
`Berkeley, California 94705
`(703) 217-4968
`
`(800) 4-APPEAL • (713177)
`
`

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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page2 of 38
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`CORPORATE DISCLOSURE STATEMENT
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`
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`Authors Alliance, Inc., a 501(c)(3) nonprofit organization, has no parent corporation.
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`There is no publicly held corporation that owns 10% or more of Authors Alliance’s
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`stock.
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`
`
`Dated: December 21, 2023
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`s/Rachel Brooke Leswing
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`i
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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page3 of 38
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`TABLE OF CONTENTS
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`II.
`
`CORPORATE DISCLOSURE STATEMENT .......................................................... i
`TABLE OF AUTHORITIES .................................................................................. iii
`INTEREST OF AMICUS CURIAE ........................................................................... 1
`ARGUMENT ............................................................................................................ 3
`Controlled Digital Lending Maintains Copyright’s Balance of Interests
`I.
`and Does Not Reduce Financial Incentives for Authors. ............................ 8
`Controlled Digital Lending Promotes Broad Public Availability to Books
`in a Format Relevant to Readers. .............................................................. 16
`III. Controlled Digital Lending Ensures that Books Are Preserved. ............... 20
`IV. Controlled Digital Lending Facilitates Author Research. ......................... 24
`CONCLUSION ....................................................................................................... 30
`CERTIFICATE OF COMPLIANCE ...................................................................... 31
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`ii
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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page4 of 38
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`TABLE OF AUTHORITIES
`
`Cases
`Am. Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1995) ...................... 28
`Am. Soc’y Testing & Materials v. Pub.Resource.Org,
`82 F.4th 1262 (D.C. Cir. 2023) ............................................................... 10, 17, 26
`Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith,
`11 F.4th 26 (2d Cir. 2021) ..................................................................................... 3
`
`Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith,
`143 S. Ct. 1258 (2023) ........................................................................................ 10
`Authors Guild, Inc. v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) ........................ 3, 5
`Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014) ....................... 3, 7, 16
`Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ................................... 3, 9
`Capitol Records LLC v. ReDigi, 910 F.3d 649 (2d Cir. 2018) ................................ 11
`Fox Film Corp. v. Doyal, 286 U.S. 123 (1932) ..................................................... 7, 9
`Fox News Network v. TVEyes, Inc., 883 F.3d 169 (2d Cir. 2018) .............. 11, 25, 28
`Harper & Row Publishers v. Nation Enters., 471 U.S. 539 (1985) .......................... 3
`Random House, Inc. v. Rosetta Books LLC,
`150 F. Supp. 2d 613 (S.D.N.Y. 2011) ................................................................. 23
`Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984) .... 3, 6, 7, 16
`Sundeman v. Seajay Soc’y, Inc., 142 F.3d 194 (4th Cir. 1998) ............................... 28
`
`Twentieth Century Music Corp. v. Aiken, 422 U. S. 151 (1975) ............................. 16
`U.S. v. Bertelsmann SE & Co. KGAA, 1:21-cv-02886 (D.D.C. Nov. 15, 2022) ....... 4
`
`Statutes
`17 U.S.C. § 107 ................................................................................................... 8, 28
`
`
`
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`iii
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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page5 of 38
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`Other Authorities
`Andrew Albanese, Survey Says Library Users Are Your Best Customers,
`PUBLISHERS WEEKLY, Oct. 28, 2011, https://www.publishersweekly.com/pw/by-
`topic/industry-news/publishing-and-marketing/article/49316-survey-says-
`library-users-are-your-best-customers.html ........................................................ 13
`Authors Guild Model Trade Book Contract, AUTHORS GUILD,
`https://go.authorsguild.org/contract_sections/4 .................................................. 14
`
`AUTHORS GUILD, http://www.authorsguild.org, last accessed Dec. 18, 2023 ......... 17
`Authors Speak Out: An Update on the Wiley eBook Situation, AUTHORS ALL., Oct.
`14, 2022, https://www.authorsalliance.org/2022/10/14/authors-speak-out-an-
`update-on-the-wiley-ebook-situation/ ............................................................. 4, 19
`Blake Brittan, Authors Group Blast Publishers in Legal Fight with Internet
`Archive, REUTERS, Sept. 29, 2022,
`https://www.reuters.com/legal/litigation/author-coalition-blasts-publishers-legal-
`fight-with-internet-archive-2022-09-29/ ............................................................... 6
`Brief for Library Futures as Amicus Curiae Supporting Defendants, Hachette Book
`Group, Inc. v. Internet Archive, No. 20-cv-4160 (S.D.N.Y. Mar. 24, 2023) .. 8, 27
`Caity Weaver, Does ‘The Da Vinci Code’ Writer Have a Secret?, N.Y. TIMES, July
`29, 2021, https://www.nytimes.com/2021/07/29/style/dan-brown-advice-
`book.html ............................................................................................................ 24
`
`CORNELL UNIVERSITY LIBRARY, REPORT OF THE COLLECTION DEVELOPMENT
`EXECUTIVE COMMITTEE TASK FORCE ON PRINT COLLECTION USAGE (2010),
`https://ecommons.cornell.edu/handle/1813/45424 ............................................. 18
`Craig Joyce, The Statute of Anne: Yesterday and Today, 47 HOUSTON L. R. 779
`(2010) .................................................................................................................... 9
`Dept. Com. Internet Policy Task Force, White Paper on Remixes, First Sale, and
`Statutory Damages: Copyright Policy, Creativity, and Innovation in the Digital
`Economy (2016) .................................................................................................. 21
`Geoffrey A. Fowler, Want to Borrow that E-book from the Library? Sorry, Amazon
`Won’t Let You., WASH. POST, Mar. 10, 2021,
`https://www.washingtonpost.com/technology/2021/03/10/amazon-library-
`ebook-monopoly/ ................................................................................................ 18
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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page6 of 38
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`H.R. Rep. No. 94–1476 (1976) ........................................................................... 8, 21
`Heather Kelly, E-Books at Libraries are a Huge Hit, Leading to Long Waits,
`Reader Hacks and Worried Publishers, WASH. POST, Nov. 16, 2019,
`https://www.washingtonpost.com/technology/2019/11/26/e-books-libraries-are-
`huge-hit-leading-long-waits-reader-hacks-worried-publishers/ .......................... 26
`Herbert Mitgang, Authors Seek Pay for Loan of Books, N.Y. TIMES, Jan. 2, 1985,
`https://www.nytimes.com/1985/01/02/books/authors-seek-pay-for-loan-of-
`books.html ........................................................................................................... 12
`
`Human Rights Organizations Call On 2024 Congress to Investigate Big Tech and
`Publishing’s Stranglehold Over Digital Books, FIGHT FOR THE FUTURE,
`https://www.battleforlibraries.com/congress/, last accessed December 19, 2023 5
`Jane Friedman, The Book P&L: How Publishers Make Decisions About What to
`Publish, JANE FRIEDMAN BLOG, last updated Sept. 30, 2021,
`https://www.janefriedman.com/book-pl/ ............................................................ 15
`Jim Milliot, Writing Books Remains a Tough Way to Make a Living, PUBLISHERS
`WEEKLY, Sept. 29, 2023, https://www.publishersweekly.com/pw/by-
`topic/industry-news/publisher-news/article/93301-author-incomes-post-small-
`gains.html ............................................................................................................ 16
`Judy Rosen, The Day the Music Burned, N.Y. TIMES, June 11, 2019,
`https://www.nytimes.com/2019/06/11/magazine/universal-fire-master-
`recordings.html .................................................................................................... 23
`LEGAL AID SOCIETY, http://www.legalaidnyc.org, last accessed Dec. 18, 2023 ..... 17
`Lis Hartman, Breaking Down 2021’s Bestsellers by Publisher, PUBLISHERS
`WEEKLY, Jan. 14, 2022, https://www.publishersweekly.com/pw/by-
`topic/industry-news/publisher-news/article/88301-breaking-down-2021-s-
`bestsellers-by-publisher.html .............................................................................. 13
`National Writers Union et al., FAQ on Controlled Digital Lending, Aug. 2019, at
`18, https://nwu.org/wp-content/uploads/2019/08/CDL-FAQ-15AUG2019-
`v104.pdf .............................................................................................................. 12
`Pamela Samuelson, Possible Futures of Fair Use, 90 WASH. L. REV. 815 (2015) . 21
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`Press Release, U.S. Dep’t of Justice, Justice Department Reaches Settlement with
`Macmillan in E-Books Case, Feb. 8, 2013,
`https://www.justice.gov/opa/pr/justice-department-reaches-settlement-
`macmillan-e-books-case. ....................................................................................... 5
`Press Release, U.S. Dep’t of Justice, Justice Department Reaches Settlement with
`Three of the Largest Book Publishers and Continues to Litigate Against Apple
`Inc. and Two Other Publishers to Restore Price Competition and Reduce E-book
`Prices, Apr. 11, 2012, https://www.justice.gov/opa/pr/justice-department-
`reaches-settlement-three-largest-book-publishers-and-continues-litigate ............ 5
`Rachel Deahl, Could Publishers and Agents Agree on a Flat Royalty Rate?,
`PUBLISHERS WEEKLY, June 3, 2016, https://www.publishersweekly.com/pw/by-
`topic/industry-news/publisher-news/article/70565-could-publishers-and-agents-
`agree-on-a-flat-royalty-rate.html ......................................................................... 14
`Rebecca Rosen, The Missing 20th Century: How Copyright Protection Makes
`Books Vanish, ATLANTIC, Mar. 30, 2012,
`https://www.theatlantic.com/technology/archive/2012/03/the-missing-20th-
`century-how-copyright-protection-makes-books-vanish/255282/ ...................... 22
`Sarah Nicholas, How Much Do Authors Make Per Book?, BOOK RIOT, May 11,
`2021, https://bookriot.com/how-much-do-authors-make-per-book/ ................... 13
`Search Results: The Elements of Style By Strunk and White, AMAZON KINDLE
`STORE,
`https://www.amazon.com/s?k=elements+of+style+by+strunk+and+white&i=dig
`ital-text, last accessed Dec. 18, 2023 .................................................................. 27
`Search Results: The Elements of Style, INTERNET ARCHIVE,
`https://archive.org/details/inlibrary?query=the+elements+of+style, last accessed
`Dec. 18, 2023 ...................................................................................................... 28
`The Consolidation of Publishing Houses, Past and Present, AUTHORS ALL., Dec. 8,
`2021, https://www.authorsalliance.org/2021/12/08/the-consolidation-of-
`publishing-houses-past-and-present/ ................................................................... 22
`WIKIPEDIA, http://www.wikipedia.org, last accessed Dec. 18, 2023 ...................... 17
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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page8 of 38
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`
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`INTEREST OF AMICUS CURIAE1
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`Authors Alliance is a 501(c)(3) nonprofit that seeks to advance the interests
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`of authors who want to serve the public good by sharing their creations broadly.
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`Authors Alliance has over 2,500 members, including academic authors, novelists,
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`narrative nonfiction authors, journalists, and other authors who share its mission.
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`Its Advisory Board includes two Nobel Laureates, a Poet Laureate of the United
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`States, three MacArthur Fellows, and distinguished professors from leading
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`institutions from across the United States.2
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`Authors Alliance has an interest in this case because our members rely
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`heavily on libraries such as the Internet Archive, both to make their own works
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`available to readers and to access other literary works for their own research. We
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`think it reasonable and expected that libraries will implement systems—such as
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`controlled digital lending (“CDL”)—to adapt how they lend books in light of
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`
`
` 1
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` All parties have consented to the filing of this brief. Fed. R. App. P. 29(a)(2). No
`counsel for any party authored this brief in whole or in part, and no person other than
`amici or their counsel contributed money intended to fund the preparation or
`submission of this brief. Fed. R. App. P. 29(a)(4)(E)
`
` 2
`
` Although no Advisory Board members had a role with this brief, nor does the
`Advisory Board have any decision-making authority for Authors Alliance, in an
`abundance of caution we disclose that Brewster Kahle serves as one member of
`Authors Alliance’s 31-person Advisory Board. The Authors Alliance Board of
`Directors
`and
`its Advisory Board
`are
`publicly
`listed
`here:
`https://www.authorsalliance.org/about/
`
`
`
`1
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`

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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page9 of 38
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`current technology, and to ensure that authors reach readers. A negative ruling in
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`this case on the legality of CDL would chill those efforts and severely restrict the
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`reach and impact of our work.
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`2
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`

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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page10 of 38
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`ARGUMENT
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`Authors Alliance submits this brief to present the Court with a broader picture
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`of authors’ incentives and motivations, and to explain why many authors support
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`Internet Archive’s controlled digital lending (“CDL”) program and others like it.
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`The main question on appeal is whether CDL is permissible under the doctrine
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`of fair use. Because fair use requires an analysis of its factors “in light of the purposes
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`of copyright,” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994) and
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`because one of the primary purposes of the Copyright Act is to provide authors with
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`incentives to create, Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417,
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`480 (1984), we believe the views of our members and other authors are particularly
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`relevant.
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`We believe that the district court failed to pay adequate attention to author
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`interests in its opinion, focusing on publishers’ role in the publishing ecosystem
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`without critically considering whether author and publisher views are consistently
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`aligned. Indeed, the word “author” is mentioned just 10 times in the court’s 10,000+
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`word, 47-page decision, outside of case names.3 While commercial publishers may
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`
`
` 3
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` See SPA-7 (twice); SPA-15; SPA-18 (quoting Authors Guild, Inc. v. HathiTrust,
`755 F.3d 87, 95 (2d Cir. 2014)); SPA-25 (quoting Authors Guild, Inc. v. Google,
`Inc., 804 F.3d 202, 216 (2d Cir. 2015); SPA-26 (quoting HathiTrust, 755 F.3d at
`101; SPA-33 (quoting Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith,
`11 F.4th 26, 44 (2d Cir. 2021)); SPA-39; SPA-40 (quoting Harper & Row Publishers
`v. Nation Enters., 471 U.S. 539, 563 (1985)); SPA-41.
`
`
`
`3
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`

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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page11 of 38
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`be unified in their belief that CDL is a lost opportunity at obtaining maximum profit,
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`authors themselves have a far more nuanced view.
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`In fact, many authors strongly oppose the actions of the publishers in bringing
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`this suit because they support libraries and their ability to innovate. Authors rely on
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`libraries to reach readers and many are proud to have their works preserved and made
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`available through libraries in service of the public. Because these publishers have
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`such concentrated market power, see U.S. v. Bertelsmann SE & Co. KGAA, 1:21-
`
`cv-02886 (D.D.C. Nov. 15, 2022) (documenting oligopoly in trade book publishing),
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`authors that want to reach wide audiences rarely have the negotiating power to retain
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`sufficient control from publishers to independently authorize public access like that
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`at issue here. These publishers have demonstrated in this suit and elsewhere that their
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`interests diverge from authors’ on the importance of providing access to readers
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`through libraries. See Authors Speak Out: An Update on the Wiley eBook Situation,
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`AUTHORS ALL., Oct. 14, 2022, https://www.authorsalliance.org/2022/10/14/authors-
`
`speak-out-an-update-on-the-wiley-ebook-situation/ (authors objecting to Wiley’s
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`unilateral decision to remove 1,300+ licensed ebooks from library collections with
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`little notice). Authors thus depend on courts like this one to take seriously their
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`interests and those of the public.4
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`
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` 4
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` Though our brief is focused on the interests of authors, we note that the publishers’
`stance in this case has raised significant privacy and censorship concerns that
`
`
`
`4
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`

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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page12 of 38
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`Publishers make much of Internet Archive (“IA”) disrupting the “ecosystem”
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`and “market equilibrium” for the sale of books online. A-112; A-122. That
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`ecosystem has long been out of balance, due not to the IA’s activities, but to these
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`publishers’ leveraging of their power to insist on a marketplace in which they
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`exercise almost absolute control over access, preservation, and research.5 The
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`Copyright Act has never accorded rightsholders the sweeping control that publishers
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`seek, as “in certain circumstances, giving authors [or rightsholders] absolute control
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`over all copying from their works would tend in some circumstances to limit, rather
`
`than expand, public knowledge.” Authors Guild v. Google, 804 F.3d at 211-112. The
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`doctrine of fair use steps in to strike a balance, preserving incentives for authors to
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`
`
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`negatively affect the broader public interest, as expressed most recently in a joint
`letter from 25 leading human rights organizations. Human Rights Organizations Call
`On 2024 Congress to Investigate Big Tech and Publishing’s Stranglehold Over
`FIGHT
`FUTURE,
`Digital
`Books,
`FOR
`THE
`https://www.battleforlibraries.com/congress/, last accessed December 19, 2023.
`
` 5
`
` At least three of these four same publishers have exercised their substantial market
`power to control the ebook market in ways that have limited readership and driven
`up costs for the public to access and use books. See, e.g., Press Release, U.S. Dep’t
`of Justice, Justice Department Reaches Settlement with Three of the Largest Book
`Publishers and Continues to Litigate Against Apple Inc. and Two Other Publishers
`to Restore Price Competition and Reduce E-book Prices Apr. 11, 2012,
`https://www.justice.gov/opa/pr/justice-department-reaches-settlement-three-
`largest-book-publishers-and-continues-litigate; Press Release, U.S. Dep’t of Justice,
`Justice Department Reaches Settlement with Macmillan in E-Books Case, Feb. 8,
`2013,
`https://www.justice.gov/opa/pr/justice-department-reaches-settlement-
`macmillan-e-books-case.
`
`
`
`5
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`

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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page13 of 38
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`create new works while enabling others to build on the knowledge these works
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`advance. Sony, 464 U.S. at 479.
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`After plaintiffs initiated these proceedings in district court, Authors Alliance
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`sought feedback from Authors Alliance members and other authors to investigate
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`how authors viewed CDL.6 What we heard was a diversity of views, including strong
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`support for CDL. Those views were later bolstered dramatically by an outpouring of
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`support from authors such as Neil Gaiman, Naomi Klein, Cory Doctorow and other
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`leading authors who signed a public petition from 1,000+ authors supporting
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`libraries’ ability to preserve books via CDL and demanding publishers drop this suit
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`and others against libraries. See Blake Brittan, Authors Group Blast Publishers in
`
`Legal Fight with
`
`Internet Archive, REUTERS,
`
`Sept.
`
`29,
`
`2022,
`
`https://www.reuters.com/legal/litigation/author-coalition-blasts-publishers-legal-
`
`fight-with-internet-archive-2022-09-29/.
`
`Authors Alliance thus submits this brief in order to demonstrate that neither
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`plaintiffs’ representations about authors and their incentives, nor the district court’s
`
`conclusion about the effect of CDL lending on authors, are accurate. We seek to
`
`offer a more nuanced perspective, demonstrating the myriad ways that CDL can help
`
`authors reach their goals: while some authors may share plaintiffs’ view of CDL as
`
`
`
` 6
`
` Authors Alliance launched a CDL survey to elicit feedback on CDL from members
`and other authors in February 2021 and collected responses through April 2022.
`
`
`
`6
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`

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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page14 of 38
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`inconsistent with their interests, authors are not a monolith, and many support it
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`strongly.
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`CDL accomplishes core objectives of the copyright system—objectives that
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`benefit authors and readers alike and that maintain the balance of rights as between
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`copyright owners and readers. CDL serves the interests of authors in at least four
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`distinct ways. First, CDL preserves copyright’s balance of interests without reducing
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`author incentives to create. Second, CDL enables broad public availability of literary
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`works, helping authors see their own works reach wide audiences and gain exposure.
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`Third, CDL facilitates the preservation of literary works, especially for works that
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`are no longer available commercially. Finally, CDL is an effective and efficient
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`research tool, helping authors access sources they need to create new works of
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`authorship.
`
`Copyright is designed to incentivize new creation while also ensuring that the
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`public benefits from the works of authors. Fox Film Corp. v. Doyal, 286 U.S. 123,
`
`127 (1932). The ways in which authors use and rely on CDL—enabling broad public
`
`availability, preservation, and research uses of their work—are favored under fair
`
`use. Facilitating access to ideas and creativity in literary works by making the works
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`broadly available is in the public interest, and weighs in favor of fair use. Sony, 464
`
`U.S. at 429; HathiTrust, 755 F.3d at 101. Preserving works for archival purposes is
`
`similarly consistent with fair use, ensuring copyrighted works do not disappear, H.R.
`
`
`
`7
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`

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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page15 of 38
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`Rep. No. 94–1476, at 73 (1976), and indeed this is precisely what CDL’s
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`preservation functions achieve. Finally, scholarly research is a prototypical fair use,
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`embedded as it is within the very language of the Copyright Act. 17 U.S.C. § 107
`
`(naming “criticism,” “scholarship” and “research” as fair uses). The noncommercial
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`nature of CDL further supports a finding of fair use.
`
`While the copyrighted works at issue in this case are books published by
`
`plaintiffs for which library ebook editions are available, we urge the Court to also
`
`consider controlled digital lending as a broader practice. In many cases, libraries
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`lend out CDL scans of a particular work because no library ebook edition exists. See
`
`Brief for Library Futures as Amicus Curiae Supporting Defendants at 13, Hachette
`
`Book Group, Inc. v. Internet Archive, No. 20-cv-4160 (S.D.N.Y. Mar. 24, 2023).
`
`And while that type of use is not at issue in this case, a negative ruling on the legality
`
`of CDL in this case would threaten those uses, doing untold harm to access to
`
`knowledge.
`
`
`
`
`
`I.
`
`Controlled Digital Lending Maintains Copyright’s Balance of
`Interests and Does Not Reduce Financial Incentives for Authors.
`
`Authors, not publishers, are at the core of copyright’s incentive structure. The
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`temporary monopoly that copyright grants, subject to certain exceptions and
`
`limitations, is intended to incentivize new creation while also ensuring the public
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`
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`8
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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page16 of 38
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`benefits “from the labor of authors.” Fox Film Corp., 286 U.S. at 127. While
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`publishers serve an important role in the dissemination of knowledge, their
`
`incentives and interests differ from authors’, and sometimes conflict. While authors
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`write books in order for their books to be read, commercial publishers sell books in
`
`order to reap profits. Indeed, the motivation for the passage of the world’s first
`
`copyright law in 1710 was to protect authors from unscrupulous action by stationers
`
`and publishers. Craig Joyce, The Statute of Anne: Yesterday and Today, 47 HOUSTON
`
`L. R. 779, 783 (2010). When the Supreme Court commanded that the fair use factors
`
`be balanced “in light of the purposes of copyright,” Campbell, 510 U. S., at 578, the
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`purposes to be considered surely include the effect of the use on authors.
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`In this case, the district court gave no meaningful consideration to those
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`interests or how CDL affects authors in reality. Instead, the court was content to base
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`its conclusions on a number of hypothetical harms that the publishers’ offered with
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`no evidentiary support. For example, the district court assumed that when publishers
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`receive revenue for library licensed ebooks, “authors generally are paid,” SPA-7
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`(citing A-5046), but, as discussed further below, under financial structure of today’s
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`publishing industry, that is often not the case.
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`CDL is a socially beneficial use that does not disincentivize the creation of
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`new works of authorship, and the traditional balance of interests and incentive
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`structure in copyright are unharmed by CDL for two main reasons. First, CDL loans
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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page17 of 38
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`are only possible when the lending institution has already purchased a print book,
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`for which an author receives royalties from their publisher if any are due. This
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`undermines plaintiffs’ claims that CDL causes market harm to authors by
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`diminishing royalties they receive from library sales, A-151; A-3734-3735, because
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`CDL requires that libraries only loan out the number of CDL copies as print books
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`that have been acquired. Authors have already been compensated for the sale of
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`those books in the traditional way authors have come to expect, with libraries left to
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`then freely distribute those books to users.
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`Indeed, plaintiffs’ filings in the district court did not identify or quantify any
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`concrete financial harm to authors that has occurred as a result of the IA’s CDL
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`program, instead assuming such harm. See A-3729 (“Given IA’s failure to pay
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`customary licensing fee, the fourth factor favors Publishers”)(citations omitted); Cf.
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`Am. Soc’y Testing & Materials v. Pub.Resource.Org, 82 F.4th 1262, 1272 (D.C. Cir.
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`2023) (disapproving of rightsholder’s failure to provide “quantifiable evidence” of
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`market harm); Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct.
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`1258, 1278-80 (2023) (specifying dollar amounts of lost licensing revenue to
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`demonstrate market harm). The district court adopted this conclusion despite the fact
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`that multiple economists gave evidence to the contrary. SPA-46-50; Brief for
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`Defendant-Appellant Internet Archive, ECF No. 60, at 23 (citing A-4823-4870; A-
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`4898-4944).
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`The district court concluded that CDL supplants sales and harms the market
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`for the original works under the fourth fair use factor because publishers would
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`prefer to license ebook editions to libraries. SPA-45. Of course publishers would
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`prefer reaping a profit through licensing rather than endorse a fair use that does not
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`lead directly to revenue. But it is not the case that a rightsholder is automatically
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`entitled to additional compensation with every new technical format. While some
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`format shifting may be impermissible under the law, fair use supports a wide variety
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`of instances in which users are allowed to shift content to “ ‘improv[e] the efficiency
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`of delivering content without unreasonably encroaching on the commercial
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`entitlements of the rights holder’ [when] the improved delivery was to one entitled
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`to receive the content.” Capitol Records LLC v. ReDigi, 910 F.3d 649, 661 (2d Cir.
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`2018) (quoting Fox News Network v. TVEyes, Inc., 883 F.3d 169, 177 (2d Cir.
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`2018)). Just because publishers have identified a potential monetizable event in the
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`lifecycle of a work does not mean that the Copyright Act must support their efforts
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`to exploit it. Fair use calls for a more probing analysis of the public benefit and
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`purpose of such copying. In this case, the district court gave scant attention to the
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`public benefits of CDL, SPA-49, and simply concluded that because publishers
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`license ebooks to libraries for a profit, CDL necessarily harmed the relevant market,
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`speculating about possible future harms that could arise “if IA’s conduct becomes
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`widespread,” or “New organizations like IA . . . emerge to perform similar
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`functions[.]” SPA-44-45.
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`The precise means and terms of lending to users have traditionally been left
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`to the library to decide; what matters is that each copy of a book that a library holds
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`is already paid for, and they are only using that one copy to the benefit of readers
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`and the public. U.S. law has never required libraries to gain permission or pay for
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`each loan they make, despite the wishes of some rightsholders. See National Writers
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`Union et al., FAQ on Controlled Digital Lending, Aug. 2019, at 18,
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`https://nwu.org/wp-content/uploads/2019/08/CDL-FAQ-15AUG2019-v104.pdf
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`(calling for the establishment of a national public lending right to “provide[]
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`remuneration [to] authors when books or e-books are borrowed from libraries.”);
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`Herbert Mitgang, Authors Seek Pay for Loan of Books, N.Y. TIMES, Jan. 2, 1985,
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`https://www.nytimes.com/1985/01/02/books/authors-seek-pay-for-loan-of-
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`books.html (describing proposed federal legislation that would establish a public
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`lending right, supported by rightsholder groups).
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`The system of free library lending has served authors well for decades, and
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`there is ample evidence that free library access actually drives sales for authors. See,
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`e.g., Andrew Albanese, Survey Says Library Users Are Your Best Customers,
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`PUBLISHERS WEEKLY, Oct. 28, 2011, https://www.publishersweekly.com/pw/by-
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`topic/industry-news/publishing-and-marketing/article/49316-survey-says-library-
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`Case 23-1260, Document 102, 12/21/2023, 3599894, Page20 of 38
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`users-are-your-best-customers.html (“Our data show that over 50% of all library
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`users report purchasing books by an author they were introduced to in the library . .
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`. This debunks the myth that when a library buys a book the publisher loses future
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`sales[.]”). Authors want and need libraries to purchase their books, but the copyright
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`system has never required libraries to pay for those books again and again in order
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`to provide readers with access in formats relevant to them in light of evolving
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`technology.
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`Second, even if publishers would fare better financially without the
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`availability of CDL programs like IA’s, most authors would not. While plaintiffs
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`comprise the bulk of the major U.S. trade publishers and thus dominate the trade
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`market, Lis Hartman, Breaking Down 2021’s Bestsellers by Publisher, PUBLISHERS
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`WEEKLY, Jan. 14, 2022, https://www.publishersweekly.com/pw/by-topic/industry-
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`news/publisher-news/article/88301-breaking-down-2021-s-bestsellers-by-
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`publisher.html, most working authors are not published by plaintiffs. Indeed,
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`plaintiffs purport to publish “the most successful and leading authors in the world,”
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`A-105, but these authors represent a vanishingly small percentage of working
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`authors. Sarah Nicholas, How Much Do Authors Make Per Book