At any rate, "changing the rules" can't be a blanket get-of-liability-free card, can it? I mean, if you walk into a convenience store, grab a Coke, and walk out without paying for it, you can't claim "I'm not disregarding payment, I'm changing the rules, rules in which money plays a role." Money plays a role, in the sense that you are expected to pay for the Coke and if you do not, it's theft.

It's uncomfortable to grapple with this, but the publishers were largely looking the other way with respect to the IA's lending library up when they were following the principle of "we've scanned X copies and thus can lend out X copies". Technically, that may still be considered copyright violation, in that the publishers didn't give permission for the copies to be used that way. But they let it slide until the IA decided that the closures of libraries during the pandemic constituted a rationale for "we've scanned at least one copy and thus can lend out as many as we want." SamReidHughes and I don't always see eye-to-eye on many things (hi, Sam), but legally speaking, he's absolutely correct, even if you'd prefer "flagrant copyright violation" rather than "piracy."

I can't believe that the IA did this without knowing full well it was inviting a legal challenge. The original CDL concept at least seems plausible to me, and in any case, I think the terms publishers offer libraries for digital copies are frequently bonkers (e.g., pay $X for a maximum of Y lending times, then be forced to buy a new digital copy). But either the IA deliberately violated copyright with the intent of trying to change the legal standing here -- which necessitates this trial happening -- or they deliberately violated copyright because they are, not to put too fine a point on it, blooming idiots. I would like to think the former, but I'm not sure they have very solid ground to stand on.