First of all.. you act as if Fair Use doctrine is concrete and infallable and everything I have ever seen defines it as tough to delineate.
As shown below are some of your critical points. Yet you neglect some of the key words... private.. non-commercial... later viewing. TPB is a commercial enterprise. They advertise for a profit. They are not doing this out of the goodness of their hearts. They are utilizing a marketing scheme to make money linking to the delivery method for which people come to their site. (your argument of time-shifting is covered, but there is no agreement by the court that you have the right to deliver the content in question to anyone else. That is re-distribution... and is a very sketchy area)
Fair use is covered for criticism, comment, reporting, teaching, scholarship, research and parodies. Nowhere does the act nor the cases in question allow you to deliver en-masse full contents of images, movies, videos, books, etc.
Also.. seeing as you are very knowledgable and up on your reading.. lets address the four point test.. of which #4 is usually the sticking point. If you can't prove in #1, 2 or 3, the court won't let you get to #4.
1- The purpose of the use. Is it for commercial or nonprofit education purposes? #1 Theft, #2 to promote the torrent site and justify their advertising, #3 (or even lower down the line) to allow legitimate users to back up content (which is laughable as the rips in many cases are for current content or active content less than a few months old. Who loses their content this fast?????? NaughtyAmerica has rips up from last week. Adobe Photoshop CS3 is available and it has been out how long? CHECK
2- this nature of the content being transferred is on the whole creative rather than factual... Check. We are not making documentaries of seals here.. we are making movies.. entertainment.
3- The amount and substantiality of the work being used in comparison to the work as a whole. The amounts being taken are the entire work. This is not comparable to the marketing materials we provide. It's entire photo sets. it's entire video sequences and episodes. All of it. Not a small percentage. Check
4- The effect of the use upon the potential market or value of the work. Lets see... total anihilation of the market for the work perhaps? 50% drop? more? I would say this is a CHECK also.
as taken from
http://www.eff.org/IP/eff_fair_use_faq.php
3. How Do You Know If It's Fair Use?
There are no clear-cut rules for deciding what's fair use and there are no "automatic" classes of fair uses. Fair use is decided by a judge, on a case by case basis, after balancing the four factors listed in section 107 of the Copyright statute. The factors to be considered include:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes -- Courts are more likely to find fair use where the use is for noncommercial purposes.
The nature of the copyrighted work -- A particular use is more likely to be fair where the copied work is factual rather than creative.
The amount and substantiality of the portion used in relation to the copyrighted work as a whole -- A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work.
The effect of the use upon the potential market for or value of the copyrighted work -- If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use.
4. What's been recognized as fair use?
Courts have previously found that a use was fair where the use of the copyrighted work was socially beneficial. In particular, U.S. courts have recognized the following fair uses: criticism, comment, news reporting, teaching, scholarship, research and parodies.
In addition, in 1984 the Supreme Court held that time-shifting (for example, private, non-commercial home taping of television programs with a VCR to permit later viewing) is fair use. (Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984, S.C.)
Although the legal basis is not completely settled, many lawyers believe that the following (and many other uses) are also fair uses:
Space-shifting or format-shifting - that is, taking content you own in one format and putting it into another format, for personal, non-commercial use. For instance, "ripping" an audio CD (that is, making an MP3-format version of an audio CD that you already own) is considered fair use by many lawyers, based on the 1984 Betamax decision and the 1999 Rio MP3 player decision (RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999.)
Making a personal back-up copy of content you own - for instance, burning a copy of an audio CD you own.
BTW... this four point test is from the copyright act.. not just the website copied from.
Sooooooo.. we know it's copyright violation... The users on the whole.. both the seeders and the downloaders are violating.. VERY CLEAR.. How do you prove you are sharing with a friend that you don't even know? It's not even a private network. There are no protections in place at all.
Now the question is... is TPB doing anything wrong. According to SWEDISH law no. Beyond that.... hell yeah. They are making money using links to items that are being delivered illegally. There is no way around that.
I know you will have fun with this post.... break it up.. tell me where I am wrong.