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

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.