In today's court case (https://plus.google.com/115599971535973973155/posts/cRDkskrfAo4
) Elsevier, Springer and Thieme vs ETHZ-library both parties choose two different strategies. The lawyer of the plaintiff’s made the case that the dissemination policy is against Swiss law, but very much undermines the private sector by competing unfairly by copying and distributing works that are freely available on the market. It was an argument that was biased the effect of the law, rather than building a case based on whether the law is properly applied or not. The also made the case, that Switzerland should essentially law from other countries that would not allow this practice.
The defense on the other hand argued from a legal point of view, citing law and decisions by the federal court, which is difficult to follow as non lawyer.
Probably the most remarkable point by the plaintiffs was, that they argued that every normal student would today use Google to find the paper and then directly go to the publishers service and get the paper. With other words, the service of the library is not needed anymore. Furthermore, they build their case on the statement, that the article is the work, and that they can be bought individually. They also made a statement, that his is a very robust and successful business model, and used the case of L’Oréal (the company) who buys 100,000 articles from these publishers.
The plaintiffs also made a point that the authors do want to have healthy publishers because they need them for a successful career only the publishers can provide with their journals with high impact factors.
Also, they often used comparison from the audio industry, essentially arguing that iTunes is the solution to access to music, since it is one complete service which would not need any more small shops selling CDs. Another argument has been made that copyright is important because of the income by selling later editions, like happening in novels.
The defense argued from the point of view that the publishers sell access to journals, and that copying parts of (articles) is allowed under current Swiss law. In fact, the issue is, that the publishers do not even sell individual journals to the library but entire bundles of journals.
The defense also made the point, that despite the plaintiffs might have a working system for access, they only cover their own content, which is far less than what a normal library can offer.
Besides the legal argument that I cannot comment, the plaintiffs were drawing an image of the publishing industry that was well in favor of the students, not mentioning that an average prize for an article is around USD30 or more, does not sell journal articles but rather bundles of journals, that they essentially provide a service that does not need those of a library anymore, may be with the help of Google that helps to discover the source of the (plaintiffs) journals.
It is also interesting to compare the argument here with a somewhat related argument, whereby the plaintiffs make the case that the loss of their business has to be stopped by the law. Similarly, the ongoing discussion in science about what is work in the legal sense is in most cases an argument to apply copyright law so that attribution of guaranteed (which has nothing to do with copyright law proper).