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Oh yeah... As to whether a court would actually punish someone, that's not clear either.
But there's clearly a good reason why no one has pushed hard to get either the courts or the congress to clarify these issues: fear.
Everyone on all sides is afraid that the outcome of encouraging the Congress to address the issue directly in statute would be worse (from their point of view) than the confusion we have now. Corporate content owners (e.g. Hollywood and record companies and some publishers) fear that a clearly delineated definition of what is and is not Fair Use would greatly reduce their ability to charge us for content. Fair Use activists (some legal experts, many libraries and consumer organizations) fear that a clearly delineated definition of Fair Use would reduce that definition and so make illegal various practices that are now clearly OK under existing case law. And everybody fears that the "other guys" will have better lobbyists or stronger grass-roots support, and would thus do a better job of influencing the Congress.
Meanwhile, remarkably few Fair Use cases actually make it to trial. Individuals usually settle, because defending a major legal case is extremely expensive -- likely many many times more expensive than any plausible settlement offer from the other side. And large corporations (like Google, in the recent book scanning class action lawsuit) have strong incentives to settle for "good enough" rather than pushing for a legal victory.
And so, with everyone afraid to push the Congress and hardly anyone willing to see a test-case through the courts, we wait for clarification. And wait. And wait. And...
Despondently,
Xenophon
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