The question isn’t whether it’s technically possible, the question is whether they even tried, and one of the reasons they lost is not just because they didn’t try at all, they instead looked the other way when they knew the borrowers didn’t “return” the book.
my point is that even if they did try, the outcome would've been the same and CDL was doomed from the beginning. their inane emergency CDL plan simply accelerated this outcome
Maybe, but that’s speculation, and others have won fair use claims. The decision in this case explicitly cited the defendant’s lack of effort to control their loaned copies while being aware of infringement.
I didn’t claim similar, and it seems like we’re losing the point here. Mine is that your claim at the top, that the problem had to do with having two copies, actually has nothing to do with why they lost. The problem, as the judge described, is that they didn’t put the “C” in CDL, and looked the other way when then knew it was missing, and then tried to claim fair use for something that clearly isn’t fair use. They didn’t lose because the judge is being pedantic about how many copies there are, they lost because they’re actually squarely violating existing copyright law.
