I could go up to my local library with a dump truck and load it up with books if I wanted to, I'm not making copies, so I'm not violating copyright, period. Copyright protects the publisher's ability to proliferate the stock of books, not to police the use of existing stock.
Now, as far as I understand, it happened that no book was likely borrowed more times than the number of physical copies held by archive.org + the libraries they had partenere with. But the process they normally had in place to prevent this was explicitly decided to be ignored during the pandemic.
Does it matter what they might have done under different circumstances?
Even if they weren't checking the limits, if they got lucky and never exceeded the number of copies they had licenses to share, then how did they infringe anyone's copyright?
where is this stated
This is not their argument. They previously had libraries offer copies of books, but during the time of crisis they decided to act quickly to repace the 650 million books now out-of-circulation. Only around a hundred libraries signed on on support.
I can understand the argument as for why the IA shouldn't have done this, but agree with the IA that in these unique circumstances it should be fair use. Either way, the lawsuit is about ending the entire CDL policy, not the short term change.
- lending is limited to the original bought copies (a library cannot create more copies of a book for further lending)
- digital lending requires sending the data to another device creating a copy
- digital lending has near-zero marginal cost (specially at scale)
- digital borrowing has near-zero marginal cost (no library membership, single click borrowing for some minutes or some hours with single click return)
IMHO I think Archive is legally in the right and it is only due to the previous circumstances, Archive.org collaborating with _a lot_ of libraries, and the tension between the older/traditional socialist/communal lending practice vs newer/contemporary private property laws that allows this conflict to emerge.