[dahart]

No, that’s not why they lost. The reason is because they effectively lend it to many people simultaneously, and implement no controls on getting it “returned” (deleted) by the people they lent it to, while even being aware that some of them don’t “return” it.

The technicality that they keep a copy of the book while it’s being lent isn’t really at issue here at all. It’s not because there are two copies, it’s because there are three or more copies, given to two or more parties at the same time. It has become “distribution” in the eyes of copyright law, beyond the lending analogy.

[endisneigh]

Even if they did what you described they would still lose. There would be no way to implement a control to prevent an additional simultaneous copy. It's not a technical issue, it's simple impossible inherently.

I don't know why companies keep trying this. MP3.com, Aereo, etc. The precedent is clear.

[xuto3]

Again, speaking about the wider CDL initiative (one digital copy lent for each physical copy) and not their National Emergency Library, the Internet Archive do implement a DRM on that digital copy, so for the reader to make additional copies of it is not trivial. Regardless, from where do you get a requirement to prevent (with 100% certainty) the reader from making additional copies? When a person borrows a physical book from a library, they could photocopy the entire thing, then return the book they borrowed to the library and still have an additional copy that they made. Does that make library lending illegal? How is that something that can be blamed on the library in the first place?

[dahart]

The question isn’t whether it’s technically possible, the question is whether they even tried, and one of the reasons they lost is not just because they didn’t try at all, they instead looked the other way when they knew the borrowers didn’t “return” the book.

[endisneigh]

my point is that even if they did try, the outcome would've been the same and CDL was doomed from the beginning. their inane emergency CDL plan simply accelerated this outcome

[dahart]

Maybe, but that’s speculation, and others have won fair use claims. The decision in this case explicitly cited the defendant’s lack of effort to control their loaned copies while being aware of infringement.

[endisneigh]

who is doing anything even remotely similar that won fair use claims?

[dahart]

I didn’t claim similar, and it seems like we’re losing the point here. Mine is that your claim at the top, that the problem had to do with having two copies, actually has nothing to do with why they lost. The problem, as the judge described, is that they didn’t put the “C” in CDL, and looked the other way when then knew it was missing, and then tried to claim fair use for something that clearly isn’t fair use. They didn’t lose because the judge is being pedantic about how many copies there are, they lost because they’re actually squarely violating existing copyright law.