> we're so far in uncharted territory any speculation is useless
I definitely agree with that (at least the "far in uncharted territory bit", but as far as "speculation being useless", we're all pretty much just analyzing/guessing/shooting the shit here, so I'm not sure "usefulness" is the right barometer), which is why I'm looking forward to this case, and I also totally agree the assessment is flexible.
But I don't think your argument that it doesn't negatively affect the market holds water. Courts have held in the past that the market for impact is pretty broadly defined, e.g.
> For example, in one case an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a fair use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)
I definitely agree with that (at least the "far in uncharted territory bit", but as far as "speculation being useless", we're all pretty much just analyzing/guessing/shooting the shit here, so I'm not sure "usefulness" is the right barometer), which is why I'm looking forward to this case, and I also totally agree the assessment is flexible.
But I don't think your argument that it doesn't negatively affect the market holds water. Courts have held in the past that the market for impact is pretty broadly defined, e.g.
> For example, in one case an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all elements of the photo. The artist earned several hundred thousand dollars selling the sculptures. When the photographer sued, the artist claimed his sculptures were a fair use because the photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had considered making sculptures; what mattered was that a potential market for sculptures of the photograph existed. (Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).)
From https://fairuse.stanford.edu/overview/fair-use/four-factors/