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.
> 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.
https://en.wikipedia.org/w/index.php?title=Hachette_v._Inter...
Ah yes, I found it now.
> Even full enforcement of a one-to-one owned-to-loaned ratio, however, would not excuse IA's reproduction of the Works in Suit.