moot point. they're going after the end users as well. all will be over for the illegal bullshit soon. the true meaning of fair use will be enforced. end users are getting the news now. once you have a few thousand end users paying hefty infringement fines - game over.
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One thing judges will ask is 'did you use this for a different purpose than the original or are you merely taking something that somebody's actually selling, and getting it for free?' Basically - are you taking market value from them?
Donaldson added that 'there?s no first amendment right to steal something and make money off it,' and to just keep in mind those 1st amendment origins of fair use law."