Tell that to the weapons manufacturers. War is HIGHLY profitable.

I think the discussion may have missed both a novel aspect of the case (PDF) and a significant factor in the court's analysis:

First, the infringement didn't occur because ditto.com copied the work, but because they violated Kelly's right to publicly display his work. A run-of-the-mill infringement claim is going to involve copying or creating a derivative work, which makes the analysis in this case relatively interesting.

Second, the question of whether ditto.com infringed on Kelly's right to display his work still came down to a question of fair use:

• the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

In this case, the infringement of the right to display came, essentially, because Kelly was trying to sell copies of his photographs and ditto.com displayed the images in a way that made it less likely that people would ever visit his site (why bother? they could right-click the images displayed on ditto.com's site) and buy copies of his works.

In other words, the analysis could be different if the copyright holder isn't trying to sell copies of their work. It could also be different, I think, if one of the other factors tilted more strongly in favor of the defendant: for example, a not-for-profit use of a work in a context of political or artistic discussion.

Mike "Still Bitter About Submitting This Story Yesterday Morning and Having it Rejected" Skoglund