A global pandemic is a national emergency (I'm unsure how this cannot be argued considering the efforts both the US government and the Federal Reserve engaged in). The Internet Archive is at risk because of their actions, which can be argued to be in good faith during extraordinary times based on the events that occurred at that time [1]. You may not agree with regards to intent and the definition of good faith, but that is for the judicial process to resolve. If the Internet Archive legal entity is forced to dissolve, are legal participants on the other side of the civil suit prepared for the fallout from such an outcome (the "public outrage" you mention)?
I would argue the NEL is an example of fair use when the entire world is locked down [2] [3] [4], but I'm not the one who is defending the case. You're upset they are seeking a favorable interpretation of law through the judicial process. That isn't a Jedi mind trick, and to call it as such is silly ("The fair use right is a general exception that applies to all different kinds of uses with all types of works. In the U.S., fair use right/exception is based on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work.").
Power concedes nothing without a demand. Better to ask for forgiveness than permission.
> You're upset they are seeking a favorable interpretation of law through the judicial process.
I am not upset they are seeking a favorable interpretation of law through the judicial process. I am upset that they literally bet the entire organization on a questionable and novel legal theory, without acknowledging that they were putting the rest of their mission at such risk. You quoted some Wikipedia to me, but fair use is notoriously a minefield. You, me, the IA, and whoever edited that Wikipedia article all probably agree on how we think copyright law and fair use ought to be interpreted. But it seems like I am the only one of us who accepts that Big IP has a lot of influence over copyright law and that most judges don't think like us.
It would be one thing if the IA said, "We know we will be sued for this, and while we believe we will win this case and that the law is on our side, there is a very real possibility that we will not. If we lose, this may bankrupt our organization. However, we have a strong moral imperative to serve the people....." Or if they wanted to do a legal challenge to settle the law, they make one book from the most litigious publisher available for two people, record the entire thing, and send it to the publisher's lawyers. It goes to court
But they didn't. They responded to any criticism that this is risky in our current judicial system by saying that you can only believe it is risky because you don't share our views on what copyright ought to be.
> Better to ask for forgiveness than permission.
That is maybe decent advice for dealing with parents or a boss, but not with the legal system. There is no forgiveness in copyright law. You don't escape liability just because you thought you were acting in good faith.
> If the Internet Archive legal entity is forced to dissolve, are legal participants on the other side of the civil suit prepared for the fallout from such an outcome (the "public outrage" you mention)?
As much as I love the core of the IA's mission, there will be no public fallout from this if the IA has to dissolve to pay its debts. I wish there would be, but I seriously doubt this would break through in our current political climate. This is one of the reasons I was so upset, because the IA does not have the political capital to pull off a civil disobedience project. And they didn't even try! Where is Brewster calling on Congress or the President to get a digital library exception added to any one of those bills or executive orders that were being passed around the national emergency?
I would argue the NEL is an example of fair use when the entire world is locked down [2] [3] [4], but I'm not the one who is defending the case. You're upset they are seeking a favorable interpretation of law through the judicial process. That isn't a Jedi mind trick, and to call it as such is silly ("The fair use right is a general exception that applies to all different kinds of uses with all types of works. In the U.S., fair use right/exception is based on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work.").
Power concedes nothing without a demand. Better to ask for forgiveness than permission.
[1] https://www.cdc.gov/museum/timeline/covid19.html
[2] https://en.wikipedia.org/wiki/Fair_use
[3] https://en.wikipedia.org/wiki/Fair_use#Internet_publication
[4] https://en.wikipedia.org/wiki/Fair_use#Policy_arguments_abou...