I believe you have said you're a lawyer, so maybe you can answer my question in #69 above.....where there are 4 items listed.....does that mean that all four items have to be met in order to qualify as fair use, or can they/we/them/whoever just pick one thing that applies, i.e., non profit status. I was concerned about #3 because we have (up until this judgment thing) (collectively 'we') posted the entire article.
It's up to the judge, but these are the four "tests" of fair use.
All four items need not be met to constitute fair use. Meeting one conceivably could constitute fair use given unusual facts. It is all a rather jumbled mix and match test. But there is no case of which I am aware or which was cited in the Briefs which has ever upheld the complete copying of a piece for wide dissemination constitutes fair use, and none that have held that the subsequent comment is a "transformation" that results in the complete copy being different from the original, and thus not an infringement, which is an argument FR has made. I'm not a copyright lawyer, and thus not an expert, but after having perused this, I would be amazed if the court does not uphold the infringement, unless it finds that the internet is a different medium, which requires distinguishment from other media. I doubt that will happen, particularly if the judges are property rights oriented, i.e. somewhat conservative.
Another argument that has been made is that the First Amendment is this context trumps the copyright law. That argument strikes me as a Hail Mary pass. My inexpert opinion is that FR has an uphill battle. JMO of course. Clarity thinks I am an idiot on this. And Clarity is no dummy, although at the time he was an advocate.