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The lawsuit is not about the “National Emergency Library”. It’s about, as the IA calls it, “Controlled Digital Lending” - which the IA was doing before and aft

by jrmg 3y ago

The lawsuit is not about the “National Emergency Library”. It’s about, as the IA calls it, “Controlled Digital Lending” - which the IA was doing before and after the “emergency”, and is still doing now. The idea that, if they have a physical copy of a book, they can lend, one-for-one, a digital copy. The “National Emergency Library” was basically uncontrolled - they were ‘lending’ digital copies of books they did not have physical copies of. But there are no lawsuits about that - presumably because they stopped and it would be bad publicity fore book companies to pursue them about it now. I do wonder if it’s what precipitated the book companies’ ire - but I also think a lawsuit about “Controlled Digital Lending” was coming sooner or later anyway.

gojomo 3y ago
No, the publishers' lawsuit also took issue with the "NEL". It's just that the lower court's judgement didn't really focus much that issue, because they found the broader/simpler and more-foundational "can you loan a format-shifted ebook 1:1 from your physical book" issue against IA, which then makes an anti-NEL conclusion almost automatic. So NEL-related arguments haven't yet been the focus of the rulings, despite being part of the original lawsuit. Thus, also, IA's appeal is mostly about that foundational finding – though section II of the IA appeal brief says that if the appeal succeeds on "ordinary controlled digital lending", the NEL ruling should also be rejudged: >Il. THIS COURT SHOULD REMAND FOR RECONSIDERATION OF THE NATIONAL EMERGENCY LIBRARY Publishers do not deny that the district court’s NEL ruling depends entirely on its analysis of ordinary controlled digital lending. Resp.Br. 61-62. If the Court reverses the latter, then it should also reverse and remand the former. It need not address Publishers’ arguments about the justifications for NEL (Resp.Br. 62), which should be left for the district court in the first instance.
- jrmg 2y ago
  You’re right - I remembered the judgement, which, to heavily paraphrase, basically said “the NEL doesn’t matter if CDL is not allowed, so we only really need to consider that”.

by jrmg 3y ago

gojomo 3y ago

No, the publishers' lawsuit also took issue with the "NEL". It's just that the lower court's judgement didn't really focus much that issue, because they found the broader/simpler and more-foundational "can you loan a format-shifted ebook 1:1 from your physical book" issue against IA, which then makes an anti-NEL conclusion almost automatic. So NEL-related arguments haven't yet been the focus of the rulings, despite being part of the original lawsuit. Thus, also, IA's appeal is mostly about that foundational finding – though section II of the IA appeal brief says that if the appeal succeeds on "ordinary controlled digital lending", the NEL ruling should also be rejudged: >Il. THIS COURT SHOULD REMAND FOR RECONSIDERATION OF THE NATIONAL EMERGENCY LIBRARY Publishers do not deny that the district court’s NEL ruling depends entirely on its analysis of ordinary controlled digital lending. Resp.Br. 61-62. If the Court reverses the latter, then it should also reverse and remand the former. It need not address Publishers’ arguments about the justifications for NEL (Resp.Br. 62), which should be left for the district court in the first instance.

jrmg 2y ago
You’re right - I remembered the judgement, which, to heavily paraphrase, basically said “the NEL doesn’t matter if CDL is not allowed, so we only really need to consider that”.