This case raises two really interesting undecided questions in fair use which I've heard batted around.
1.
Some friends of mine who are media law defense attorneys always insist that Fair Use is not a "defense," because the phrasing surrounding fair use is always "a fair use IS NOT infringement" rather than the typical language of affirmative defenses, which would say, "an infringement is PERMITTED(/not actionable/shall not result in damages) given fair use." This means that it is the plaintiff's obligation to establish the use was not fair as a very element of the underlying claim. In turn, a judge can independently find this element lacking and deny a copyright claim without the defense ever being raised.
The media law Plaintiff's attorneys I know all disagree, of course, citing common practice, and the fact no judge would actually do that. Well, here we are. And the underlying theory that "fair use is not a defense", while a bit unorthodox, seems to bear at least basic textual scrutiny. I'm not saying it's decided, but there's a prima facie case to be made. I never thought it would be put to the test, but hopefully we get an appeal on this and a judge up the chain explicitly says, "Yes, judges can do this, because a fair use is never an infringement," or "No, this must be raised as a defense."
2.
Some* have noted that the common law fair use considerations are clearly not meant as an exhaustive list in Folsom v. Marsh. As codified in the statute, it appears like an exhaustive list, but the existence of 17 USC 107 does not preclude the possibility of a common law principle which reaches even farther in categorizing some uses as fair. 17 USC 107 does not explicitly preempt the further development of Folsom v. Marsh. In other words, the judge could find that any use by a non-profit organization is fair, on some completely novel grounds, like non-profits promote the public good so we will give them a pass. (I don't think such a broad ruling is likely, I'm just illustrating how a new type of fair use could be created.)
*Specifically, I'm lifting this from some comments Fred von Lohmann made in Kansas City a few years back. Apologies if I misrepresented his position. Also note that I'm not even sure he's committed to this, he may have just been tossing it out as an interesting idea.
