Say for instance, I buy a book. I make a scanned copy and lend out the original. The person who borrowed the book, makes a copy and sends it back. I do this for 1 million times. I wasn't distributing copies, no one was distributing copies.
This is what we did in Uni. The class would contribute some small amount to the purchase of an original book. Then the person who bought the original with the classes money, made a copy, passing the original along. Within the week, every student had borrowed that book. And everyone had a copy. Do you see the murky water?
For an actor like that, you want to take cases that you can win to court, to establish precedent step by step. You want to settle cases you might lose out of court to avoid establishing precedent to your disadvantage. In this way, you can slowly change the interpretation of the law.
Taking this to court is seen as a mistake because it was a predictable loss and established a harsh precedent.
Internet Archive had lent books on a 1 reader for 1 physical copy basis for a long time, and the publishers didn't want to take it to court because the judge would need to weigh the rights of a person purchasing a physical good against copyright. They might no like the decision. It suited them to leave it untested.
Internet Archive chose to lend unlimited copies and pursue the matter to its conclusion in court rather than settling out of court.
Assuming Internet Archive were well advised, knew they would lose, and still chose to create this situation and go to court, you have to wonder why.
Are they trying to create an unacceptable legal precedent so that they can get the law changed? Some other reason I am not seeing?
A teacher buys a book which is a collection of worksheets. The teacher photocopies some worksheets out of the book to use in a non-profit educational environment. This is entirely fair use.
A teacher buys a copy of a textbook, photocopies the entire textbook, and hands it out to the class, that is not fair use because it is the entirety of the work.
There are four factors of fair use. Factor three is the amount or substantiality is being copied. You're somewhat right there isn't an entirely objective standard to measure things, but there isn't exactly an objective measure to creativity.
You can't put something on a scale and get units of creativity a work has. You can't get a graduated stick and measure the creativity of a work.
That's not just a narrative that serves the establishment, it's a fact of life. We don't get anywhere towards change by ignoring the reality of the present situation—we have to work within reality in order to change reality.