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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.

...none that have held that the subsequent comment is a "transformation" that results in the complete copy being different from the original

Well, should the Court view what has been as what always is, you are correct.

It's all a matter of perspective. Without even getting into why a "transformation" is required for fair use, let us just assume it is necessary. Now, how does a transformation occur? -- One starts with the original and then transforms it. Right?

So, it's ok so long as we leave out the making from the sausage -- Just show us the cooked pork and it's ok? Add up the posts and there you have it: the citizens' pie. Very fair.

Have you noticed that un-replied articles here die? That's exactly the point. What matters here is transformation.