The actual opinion rules on the concept of controlled digital lending more broadly. From page two:

> "This appeal presents the following question: is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no."

The IA's controlled digital lending setup worked the same way.

No, the IA's CDL system required them to make multiple copies of books (one to digitize the book, and one for every reader of the book), which is not a legal problem a physical library runs into.

I agree, and apparently this distinction is legally relevant. However, it does not change my point that the CDL also has the property that:

"if a book is in high demand in a library, you'd either have to wait your turn or purchase one yourself to avoid the lending queue."

Right. I'd like a system where that distinction matters but it seems plain how the courts will arrive at a conclusion that it doesn't, because the law is about the mechanism more than it is about the intent. Still, we were all holding on to a fig leaf of an argument that the intent would control here, and IA has burnt that leaf up, at least in NY, CT, and VT.