Kahle in a statement denounced the publishers' demands. "Here’s what’s at stake in this case: hundreds of libraries contributed millions of books to the Internet Archive for preservation in addition to those books we have purchased," he said.

"Thousands of donors provided the funds to digitize them.

"The publishers are now demanding that those millions of digitized books, not only be made inaccessible, but be destroyed. This is horrendous. Let me say it again – the publishers are demanding that millions of digitized books be destroyed. //

"And if they succeed in destroying our books or even making many of them inaccessible, there will be a chilling effect on the hundreds of other libraries that lend digitized books as we do." //

During the hearing, Judge Koeltl probed the arguments made by McNamara and IA's attorney, Joseph Gratz. He raised the defendant's point that there's no evidence of financial harm because there's no evidence the defendants would have paid to license electronic versions of their physical books.

McNamara responded that the harm is real. The ebook market is real and IA is just refusing to participate, she argued.

Gratz maintains that libraries have a right to lend a physical book they have purchased and that they have a right under the fair use exception to copyright law to facilitate digital lending so long as it's one copy per book.