> loaned copies one-for-one to IA. IA would then have more than enough copies to lend out

The problem is that they skipped that part and just assumed both that

1) libraries would transfer ownership to them. I could see them getting away with this. Inter-library lending is common.

2) the number of copies in partner libraries equalled the number of copies taken out. This is a massive assumption.

The problem is, did the books actually exist in the quantities being lent? IA has no proof that they do and had not transferred the rights for them even if they did.

Had they asked for libraries to upload their locked in inventory, sign away the rights to the inventoried books, and limited lending to that number, they could credibly call it controlled digital lending.

Instead they threw away the "controlled" aspect.

>The problem is, did the books actually exist in the quantities being lent? IA has no proof that they do

IIUC that's not how this works, legally. The publishers have to prove damage; the defense isn't just automatically assumed to have injured the plaintiff. Even if IA has been proven to infringe, the judge can massively reduce awarded damages if they weren't actually hurt.

Not if they pre-registered their copyrights - and I'd be shocked if they didn't, as you can't even sue anyone without a valid registration. If the infringement happens after the registration then you don't have to calculate and prove damages. Instead, the judge or jury awards damages based on some chosen number from $750 to $30,000 times the number of infringements proven. Sometimes, they literally just pick a total damage award and divide out the number of infringements, like in the billion-dollar Cox lawsuit.

Furthermore, even if they didn't preregister, and they somehow cannot prove actual damages, it's still infringing conduct. They could, say, get a permanent injunction barring Internet Archive from operating their library program. This might actually be what they really want, moreso than money damages.

Unfortunately copyright has "statutory damages". Hence why Jammie Thomas-Rasset was hit with a court order to pay $222,000 to the RIAA (down from almost $2 million!) for sharing 24 songs on Kazaa, despite the plaintiff obviously having no chance of proving they actually lost sales from it.

https://en.wikipedia.org/wiki/Capitol_Records,_Inc._v._Thoma...

It would be interesting to look into that. Would be funny if it turned out they still had more physical copies of the most popular book than they had digital lendings - it'd kinda confirm that the right move was to throw out the limits, because the need was there now, and the counting would take months.

Did they publish stats how often their most popular books were borrowed?

> the counting would take months.

Don't libraries know the books they own? That seems unlikely, since they need to know that when they lend them out.

Each library does, but unless they already all use the same software and have someone who knows it well enough to export the data and they have the time to do it, I suspect it would take a long time to collate the data in a useful form. And that assumes the books are keyed by some kind of unique ID like an ISBN in all libraries, otherwise good luck collating the different spelling/typos of titles.

Just reaching out to all the libraries and getting them to submit the data would take a lot of time.

What quantities were actually lent?

> The books exist, they're just behind closed doors now.

Every library I’ve used in the states (from rural Georgia to Seattle metro) already has a digital lending system.

Typical digital lending programs are artificially crippled by publishers. They require libraries to purchase expensive licenses that are worse than physical books, like being subject to embargoes or expiring after only 52 lends.[0] This is why every traditional library's digital catalog is a tiny fraction of their physical inventory.

The IA merely allowed people to borrow books that exist in physical form with the convenience that modern digital technology allows.

[0]https://www.eff.org/deeplinks/2019/11/publishers-should-be-m...

Crucially, AFAIK digital lending systems aren't based on the number of physical copies a library owns; they're separate licenses. Thus, in a scenario where a physical library is closed but digital lending is still available, a significant portion of the library's catalog is inaccessible. At least in this regard, IA's logic is sound: practically-speaking, the number of copies of a given book that they lent during the period in question almost certainly never exceeded the number of copies held by closed libraries in the US.

What you're missing is that libraries have always been a thorn in the side of big publishers, and capitalism in general. Long before IA, they pushed to strip the power that libraries have and kinds of things they can keep, lobbied to cut funding. This is why you can't just take a book out of any library, you need a library card you got in person, even for digital lending.

Publishers have been kinda OK with libraries because copies are physically separate and inconvenient, the copies get dirty, and it's a status symbol to own your own copy. If those restrictions went away (digital copies are convenient and fast, they never get dirty, and it's the exact same as ownership), they'd definitely lobby against it.

Exactly. If the publishers could, they would make libraries buy five copies for every one they lend out. People need to stop letting the publishers' PR teams convince them that they care about freedom or knowledge or anything other than increasing their profits.