He just created a really terrible 2nd Circuit precedent. He could have avoided that easily. How was this his job?

Not setting a terrible precedent is actually the judge's job.

Not so much? The judge applied the law to the facts. I don't think this is an especially controversial case, legally.

If that's what you think, then the precedent is neither terrible nor interesting.

It's bad if you want people to be able to do 1:1 lending of digitized books. It's fine if you don't care. The point is that it didn't need to happen; there was no reason to appeal the case. It was a loser to begin with.

> It's bad if you want people to be able to do 1:1 lending of digitized books.

How? By your argument, this was already clearly illegal. What did the precedent change?

The court could instead have heard a case exclusively about books that were under copyright but not available digital in any form, or one in which a library had some existing licensing arrangement that covered the usage imperfectly, which would have made both the transformation and commercial impact fair use tests more complicated. Instead, IA chose to bring this deeply unsympathetic fact pattern to the 2nd Circuit. Now, in that circuit, if some entity did have that more sympathetic fact pattern, it doesn't matter: the finding here was categorical.

I feel like this is not a very complicated point I'm making, but I'm happy to keep expanding on it.

> The court could instead have heard a case exclusively about books that were under copyright but not available digital in any form, or one in which a library had some existing licensing arrangement that covered the usage imperfectly, which would have made both the transformation and commercial impact fair use tests more complicated. Instead, IA chose to bring this deeply unsympathetic fact pattern to the 2nd Circuit. Now, in that circuit, if some entity did have that more sympathetic fact pattern, it doesn't matter: the finding here was categorical.

How do you see this as different from the claim that the judge(s) did a bad job?

If you think this ruling is just an obvious application of the law to the facts, then you'd get the same result in a different case.

Or, if you think the ruling is contingent on whether a judge approves of the conduct independently of the law, then the court is the party that screwed this up. In particular, the example you highlight, "the finding here was categorical", is completely at the judges' discretion.

(Or are you saying that this ruling is clearly correct, but you wish that the judges would have gotten confused?)

Neither. Search for "bad cases make bad law", and find a meaty post (you'll have hundreds to choose from). This is literally a textbook case of it. We are at the point where we're litigating whether that maxim means anything. I can't do better than every lawyer who has ever written about it.