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Re:Internet Archive responds to publishers’ lawsuit by MattGaiser on Thursday July 30, 2020 @11:22AM (#23999216)
> 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.

Re:Internet Archive responds to publishers’ lawsuit by bsanr on Thursday July 30, 2020 @12:26PM (#24000025)
>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.

Re:Internet Archive responds to publishers’ lawsuit by kmeisthax on Friday July 31, 2020 @12:54AM (#24005793)
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.

Re:Internet Archive responds to publishers’ lawsuit by icebraining on Friday July 31, 2020 @06:52AM (#24007418)
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...

Re:Internet Archive responds to publishers’ lawsuit by tgsovlerkhgsel on Thursday July 30, 2020 @05:25PM (#24003007)
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?

Re:Internet Archive responds to publishers’ lawsuit by icebraining on Friday July 31, 2020 @06:48AM (#24007400)
> 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.

Re:Internet Archive responds to publishers’ lawsuit by tgsovlerkhgsel on Monday August 03, 2020 @06:22PM (#24044173)
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.

Re:Internet Archive responds to publishers’ lawsuit by nitrogen on Thursday July 30, 2020 @12:24PM (#23999979)
What quantities were actually lent?