From Judge Gertner,
Sony v. Tenenbaum (P2P lawsuit):
As it made clear previously, the Court was prepared to consider a more expansive fair use argument than other courts have credited -- perhaps one supported by facts specific to this individual and this unique period of rapid technological change. For example, file sharing for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently might offer a compelling case for fair use. Likewise, a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defense.
Emphasis added.
Concurring opinion of Judge Marcus in
Suntrust v Houghton Mifflin ("The Wind Done Gone" case):
The law grants copyright holders a powerful monopoly in their expressive works. It should not also afford them windfall damages for the publication of the sorts of works that they themselves would never publish, or worse, grant them a power of indirect censorship.
If there's no legit copy available, scanned-and-uploaded versions may be fair use. If they *never* intend to release an ebook, they don't have the moral right to stop people from reading it that way. Publishers who decide not to release an ebook format for sale are shooting themselves in the foot; they're removing their own ability to prosecute piracy.