“What counts as fair use?
The flexibility of fair use is one thing the Internet Archive has on its side, however.
There is room for the court to assess the public benefit of the Internet Archive’s lending practices which, as the National Emergency Library exemplifies, are undeniably strong.
Assessing whether the public interest arguments are strong enough to overcome the weight of the market harm may be key to deciding who wins this case.
The Internet Archive may also have difficulty establishing that its practices are simply an extension of the traditional role of libraries, and beyond the boundaries of publisher’s legitimate markets.
In a case in 2013 involving a “second-hand” market for digital copies of music, US courts decided that emulating analogue models of dissemination was not enough to evade copyright infringement.”
The Conversation: Publishers vs the Internet Archive: why the world’s biggest online library is in court over digital book lending.[…]