This response confuses me a little bit. Although in their response the Internet Archive refers to the lawsuit attempting to stop controlled digital lending, I believe the lawsuit instead is looking at uncontrolled digital lending (the Emergency Library from IA) [1].
If there hasn't been scope creep on this lawsuit I feel this is a disengenous representation of the publishers argument. The publisher's argument was specifically that the form of IA's CDL (basically uncontrolled digital lending) is against copyright, an argument I personally agree with (in the legal sense).
> 8. IA defends its willful mass infringement by asserting an invented theory called “Controlled Digital Lending” (“CDL”)—the rules of which have been concocted from whole cloth and continue to get worse. For example, at first, under this theory IA claimed to limit the number of scanned copies of a title available for free download at any one time to the number of print books of that title in its collection—though no provision under copyright law offers a colorable defense to the systematic copying and distribution of digital book files simply because the actor collects corresponding physical copies.
> 10. IA’s self-serving assertion and promotion of “Controlled Digital Lending” as both an actual legal doctrine and a justification for its infringement affronts the most basic realities of the law and the markets it propels. As a matter of markets, IA’s one-to-one conflation of print and ebooks is fundamentally flawed. Digital books are inherently different from physical books. They can fly around the world in a second; they do not degrade over time as physical books do; and they require devices to read them. For these reasons, the Publishers have established independent and distinct distribution models for ebooks, including a market for lending ebooks through libraries, which are governed by different terms and expectations than print books. IA’s end-run around these differences and restrictions is aggressive and unlawful. In short, all of the reasons why IA has scanned print books to create digital files are the very same reasons why authors and publishers provide digital books under different terms than print books—as they are entitled to do under the Copyright Act.
Generally when a party deliberately misrepresents an opponent's position like this, it's because their own position is legally fucked and they're trying to move the goalposts so that they have a chance. Alternatively, they've already assessed their chances at zero and are trying to lay the groundwork for an appeal.
Reading through their response (the actual filing, not their press release about it), it appears that the IA has admitted to a number of claims [1] that would constitute copyright infringement, so it appears they're hoping either for a miracle or to take this to a higher court and try to get some sort of ruling that would dramatically alter copyright law in their favor. Neither is very likely to happen.
[1] For example, they admit that their own founder and executive director stated that the IA didn't seek consent (i.e., a license) from IP owners prior to launching the uncontrolled lending program that is the National Emergency Library. With that admission alone, the judge could grant summary judgment for the publishers on at least a few claims prior to reaching the discovery stage.
> the IA has admitted to a number of claims [1] that would constitute copyright infringement, so it appears they're hoping either for a miracle or to take this to a higher court and try to get some sort of ruling that would dramatically alter copyright law in their favor. Neither is very likely to happen
When they made the announcement I was very curious as to how they thought it would be legal or how they thought they would get away with it if it was not.
I'm quite surprised that they simply didn't have any realistic plan for this outcome.
It's a shame, because I think their core cause is a good one, and now they're likely facing a mortal blow for something transiently related.
They're doing the techie thing of hilariously misrepresenting copyright law so badly that it seems morally indefensible to have one at all. Sort of like how sovereign citizen movements misrepresent traffic law and the tax code.
I cringe at "information wants to be free" type arguments about as much as I cringe at "The Internet is a series of tubes" type arguments these days...
If there hasn't been scope creep on this lawsuit I feel this is a disengenous representation of the publishers argument. The publisher's argument was specifically that the form of IA's CDL (basically uncontrolled digital lending) is against copyright, an argument I personally agree with (in the legal sense).
[1] https://news.ycombinator.com/item?id=23379775