Internet Archive is claiming their lending program is fair use, and deciding whether something is fair use involves showing the effect (or lack thereof) of the

Internet Archive is claiming their lending program is fair use, and deciding whether something is fair use involves showing the effect (or lack thereof) of the use on the market for the work. A use that doesn't hurt sales is much more likely to be held as fair use. There are requirements to show harm for other purposes like standing to sue in the first place, but that's not really a relevant issue here. Damages would of course be another, but copyright law has statutory damages that probably easily eclipse any actual harm here, and at any rate the parties already made a (confidential) agreement on damages after Internet Archive lost in the district court.