Pardon me, but why isn't there a black 23 in this case? As I understand it, half of deciding 'fair use' is: -is the use of commercial nature or is it for nonpr

Pardon me, but why isn't there a black 23 in this case? As I understand it, half of deciding 'fair use' is: -is the use of commercial nature or is it for nonprofit educational purposes? -how does the use affect the potential market? It seems to me that Nesson might actually have it right: the sharing certainly wasn't for profit, and he seems to have evidence showing that there is no effect on the market.