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Re:Internet Archive responds: Why we released the National E... by squarefoot on Tuesday March 31, 2020 @01:20AM (#22735110)
"Not only that - if this goes to court ..."

They gave authors the ability to opt out. From the FAQ:

"If I am an author and I do not want my book to be temporarily available during this crisis, how can I remove my book from the National Emergency Library? Authors who do not want their books in the National Emergency Library should send an email to [email protected] with “National Emergency Library Removal Request” as the subject line. Please include each URL of the book or books you would like to have removed. Please allow up to 72 hours for processing as we are a small team."

Re:Internet Archive responds: Why we released the National E... by sysbin on Tuesday March 31, 2020 @03:51AM (#22735667)
One could argue it should be an opt-in firstly. I find that difficult for creating the same service but just.
Re:Internet Archive responds: Why we released the National E... by geofft on Tuesday March 31, 2020 @01:24PM (#22739915)
I'm not sure that opt-out makes a meaningful difference in whether it is likely to end up in court. I don't expect that Napster giving artists an opt-out form would have saved them, for instance.