Although they do not provide empirical data of their own, Publishers assert
that they (1) have suffered market harm due to lost eBook licensing fees and (2)
will suffer market harm in the future if IA’s practices were to become widespread.
IA argues that Publishers cannot rely on the “common-sense inference” of market harm without data to back that up, citing American Society for Testing & Materials v. Public.Resource.Org, Inc., 82 F.4th 1262 (D.C. Cir. 2023) (“ASTM II”). Appellant’s Br. at 55–56. We agree with Publishers’ assessment of market harm.
-p.53
Publishers need not present empirical data of their own in connection
with IA’s asserted affirmative defense.
-p.57
