The UCLA case was dismissed, twice. Until some valid plaintiff names a valid defendant (as for example in the Georgia State case, which involved books scanned and put on line), there will be no proper decision about fair use in the case or opportunity to appeal that decision.
The second time A.I.M.E. brought their case, Judge Consuela Marshall decided to discuss fair use even though the case was not a valid one and was dismissed on other grounds. What she said was that the UCLA defense that using creative works in an educational context was interesting enough that the "nature of the work" factor did not in her opinion weigh in favor of either party. So that's the transformative bit. As for streaming the entire picture even though a stream was actually on the market (factors 3 and 4), she liked the UCLA argument that this could be considered a form of "time shifting" allowing students to attend a classroom screening at a different time, and she said that since classroom use is valued over market impact that factor even counts in favor of UCLA. I don't think she brought in DMCA or TEACH at all. The federal law trumps state contracts thing is there in her decision, but I don't know enough about the law to really grasp it. Kevin Smith of Duke says "It seems clear that an unambiguous license would have overcome qualified immunity in this case." http://blogs.library.duke.edu/scholcomm/2012/11/26/another-fair-use-victory-for-libraries/ As for the 1976 Guidelines, Judge Evans in the Georgia State discussed them. She said that they are MINIMUM standards for amounts etc.,-that is, the amount that is "distinctly small" and completely safe, not a maximum such that if it is exceeded the use is infringing. I have been interested by the lack of discussion of the actual act of digitizing hard media, in the recent cases. The main case that really discusses this is HathiTrust, where the existence of unauthorized scans of copyright texts on the trust's servers was the big complaint; the judge in that case found the scanning of the books wholly justified because of the uses to which the text was being put (screen readers, search engines). Judy Shoaf
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