This is a rather confusing situation as a result of the application of the fair use section of the copyright law.

Fair use should be renamed fairLY useLESS, since no one can understand the vague terminology in the law and the related jurisprudence and the even more vague arguments used by kawyers and judges when recurring to the fair use argument/justification.

It is absurd that to use a fair use benefit in the law, it will rquire a judge to finally decide, after the facts, arbitrarily, that infringement did or did not ocurr.

Now, the problem in the current case is that the use of the works is to prevent infringement by first infringing. Rather ironic, a paradox

The root of the problem is that legislators are too busy raising electoral money (and the related activity of helping obbyists) and getting reelected that they have not had the time to totally redo the copyrigh act to make it workable for the IAGE (Internet Age).

In a way I feel sorry for the lawyers, judges, parties involved in this case because they are trapped and have to work with a totally useless (as applied to the case) copyright law. Its impossible to work in the IAGE with a law designed for the guttenberg-edison ages.