> theory was that the courts would find it to be fair use. Which isn't a crazy theory at all
If they'd been advancing a test case, they would have done what they did and then--when confronted by rightsholders--stopped while the courts deliberated. That asks the question while managing the downside. Instead, IA dialled its rhetoric to eleven, thereby turning what could have been a measured legal contest into a bet-the-farm Hail Mary.
> If they'd been advancing a test case, they would have done what they did and then--when confronted by rightsholders--stopped while the courts deliberated.
Consider what would happen if they did that.
First, this was happening during a pandemic. Emergency happening right now. If you stop doing it at this point, not only do you fail your patrons when they need you, you're undermining your own argument that this is actually an emergency that justifies doing this.
Second, if you stop, do they even sue you? If they don't, you don't even get your test case.
Third, if they do sue you, what does it matter if you were doing it for a month vs. a year? If they hit you with the absurd fictional damages numbers in some of the copyright statutes and you lose, bankrupt is bankrupt.
> Did the emergency argument ever hold legal water?
It's whatever the courts say it is. Fair use is very squishy. Nobody knows until there is a case.
> How many actual librarians did the IA consult in crafting its programme?
They are actual librarians.
> Injunction.
If you voluntarily stop they don't need to file for an injunction, they can just drop the case and then there is nothing for you to appeal.
> Damages.
What's the difference between a billion dollars and a trillion dollars when you don't have a billion dollars?
> Going straight from controlled digital lending to free for all was totally unnecessary when the first hadn't been tested.
They'd been doing controlled digital lending for a good while and nobody sued them. To get a test case somebody has to file a lawsuit. Maybe it shouldn't work that way but "courts don't issue advisory opinions" isn't something IA made up.
> IA was arrogant throughout the lawsuit, and it showed in their library partners often publicly rebuking them.
Issuing a statement that amounts to "please don't sue us" isn't really indicative of much other than that they know they'd need to budget for a bunch of lawyers if they want to get involved and they don't.
If they'd been advancing a test case, they would have done what they did and then--when confronted by rightsholders--stopped while the courts deliberated. That asks the question while managing the downside. Instead, IA dialled its rhetoric to eleven, thereby turning what could have been a measured legal contest into a bet-the-farm Hail Mary.