This doesn't make sense, a byte identical copy of other work is obviously not transformed. So anyone claiming fair use relying heavily on transformation would f

This doesn't make sense, a byte identical copy of other work is obviously not transformed. So anyone claiming fair use relying heavily on transformation would fail. But the only thing that does is make step 3 of fair use harder to clear. Not impossible. There are fair uses of copyright that use the entire identical work as is.