'After the fact' may be of only limited legal importance in assessing the relative values being weighed in the case.
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."
Again, You’re ignoring the fact that >90% of libraries already have controlled digital lending programs. Libraries went through the effort to get there legally. IA ignored the processes and rules and just distributed essentially pirated copies.
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."