That's unfortunately exactly what happened though:
> He unveiled the National Emergency Library, a vast trove of digital books mostly unavailable elsewhere, and made access to it a breeze.
This good deed backfired spectacularly. Four publishers claimed “willful mass copyright infringement” and sued. They won. On Friday, the publishers said through their trade association that they had negotiated a deal with the archive that would remove all their copyright books from the site.
There is no evidence that, under the NEL, more digital copies of books were borrowed than physical copies were (un)available in the closed libraries. I've not re-read all the materials from the lower court recently, but IIRC publishers didn't even bother to argue this point. Did you find any place where the judge relied on this?
> Both sides filed motions for summary judgment. Judge John G. Koeltl ruled on March 24, 2023, saying the National Emergency Library concept was not fair use, thus the Archive infringed copyright by lending full ebook copies without the waitlist restriction.
Yeah, that's incorrect. I've fixed it now. A better summary is lower down:
> Judge John G. Koeltl held that the Internet Archive's scanning and lending of complete copies clearly constituted a prima facie case of copyright infringement and that the Internet Archive's fair use defense failed all four factors of the "fair use test". He rejected the Archive's argument that their scanning and lending of complete books was "transformative" in the sense of copyright law.
I've just skimmed the ruling again and I don't find anywhere a statement that the number of copies in circulation for any individual book was a deciding factor. Instead the judge stressed the total number of books involved.
> Although IA has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse. To hold otherwise would be to ignore the teaching of the Court of Appeals for the Second Circuit in Google Books that there would be a “strong” claim for copyright infringement if Google had distributed digitized copies of complete books.
Wasn't the issue precisely that they removed that limitation and then never added it again?