Let's say that for book X, IA held-in-reserve 2 copies. And at the peak of the "Emergency Library", they never loaned out more than 10 total copies.

I'm sure publishers would allege: "You created 8 net copies! Pay us!"

But then 500 physical libraries who are sympathetic to the IA show up, and say: "Amongst us, we had 1000 idle copies of X trapped on our shelves. We wish we could have done the same sort of 1-for-1 lending IA did, to help the nation in its hour of need, but we weren't set up for it, and couldn't throw it together with limited resources during mandatory-closure orders."

"So, as soon as we heard about IA's program, we endorsed it & recommended it to our physical patrons. As far as we're concerned, we delegated the right to loan our copies to IA, including retroactively."

"No net copies of X were created. Rather, if there had been no pandemic emergency forced closure of physical libraries, our copies of X would've been loaned out for a total of 40,000 library-patron-days. None of that happened, but IA's emergency lending managed to reclaim, according to their exact usage numbers, 5,277 of those days-of-use for students, scholars, and citizens. Less than 15% of the pandemic-destroyed-value."

"Now, publishers are trying to profit off the pandemic, by not only having collected their payments for all those idled books, but collecting a windfall of extra purchases, and/or damages, from a non-profit library that was just trying to offset massive pandemic losses in a technologically efficient way."

Then who are the 130 partner libraries they are talking about?

https://blog.archive.org/2020/07/22/libraries-have-been-brin...

Over 130 libraries endorsed lending books from our collections, and we used Controlled Digital Lending technology to do it in a controlled, respectful way. We lent books that we own—at the Internet Archive and also the other endorsing libraries. These books were purchased and we knew they were not circulating physically.

Also being endorsed by a library does not mean giving ownership of their physical copies.

That isn’t what happened - in your metaphor: IA started lending friends’ copies without asking.

IA only after the fact got endorsements from libraries and they certainly didn’t have agreements in place giving them any inventory.

That's relevant if the friends have grievances, but not so much the publishers.

You think it is okay to lend out other peoples property? You need a serious reality check if so.

What you're alleging they did is equivalent to someone going to their friend's house and taking something of theirs to lend to someone else without asking them. I agree that if that's an accurate assessment of what actually happened, it's a lot less defensible.

I have no idea what limitations, if any, are put on the lending of digital goods by law or by the specific terms of IA, or the terms the other libraries in question offer.

Sure, but at no point does the producer of a physical object that is being lent get a say-so in the agreement between my friend and me, or the contract between a lending business and me.

In the car rental metaphor, it'd be like Ford suing Hertz for lending me a Focus that Ford already sold to Hertz.

If I borrow a neighbours defibrillator, without asking, to save their child it would be insane for the manufacturer of the defibrillator to sue me for not buying my own defibrillator. While in theory the neighbour could object to me borrowing the defibrillator without permission, that does not appear to be what happened. Based on IA's statements it appears that libraries are saying after the fact that they were happy for their copies of books to be loaned by IA.

I would assume from their actions these publishers hoped to make a windfall on book sales when people were no longer able to access libraries and they saw IA's actions as attacking this potential profit. I can't think of any other reason why they would peruse their current course of action.

And then it turned out the friends were fine with it anyway.

https://help.archive.org/hc/en-us/articles/360016554912-Borr...

Most libraries' digital lending is completely separate from their physical lending or from the Internet Archive's scanned book program. Those digital lending systems have no relevance to this case.

IIUC libraries buy separate digital copies for digital lending. IA's justification is that they were providing a substitute for the physical copies which are now sitting unusable. It might be legally suspect but it's not an illogical position.

The publishers are saying that, regardless of the form of media, the IA engaged in uncontrolled digital lending, meaning that they lent out more digital copies of books than they actually owned, digitally or physically (or that were lent to them by their so-called partner libraries either digitally or physically). Because they did not actually own or possess the copies underlying these loans, they were required by copyright law (in the US and the EU) to either acquire more physical copies or to license more digital copies.

* lending in specified forms, which require illegal activity to make further copies, and

* lending for a specified time, which requires illegal activity to extend.

Welcome to NewSpeak, where "uncontrolled" means fairly tightly controlled.

Uncontrolled does not have to mean zero restraints. The word never meant that. Especially in a well defined context where controlled has precise meaning (and that meaning is not “every constraint”). Neither word need mean the absolute extreme.

This is not NewSpeak.