So holds Fuentes v. Mega Media Holdings, Inc. (S.D. Fla. Jun. 29, 2011), adopting a Magistrate Judge’s Report and Recommendations, though of course in such fair use cases the decision is closely focused on the facts of the case, and offers only a limited precedent for future cases.
Note that there’s apparently some controversy about whether the plaintiff timely filed an objection to the magistrate’s report; the judge accepted the magistrate’s report thinking that the plaintiff wasn’t filing an objection, and plaintiff was surprised by this, since his lawyers apparently thought that the magistrate had given them more time to object. Plaintiff has therefore filed a motion for reconsideration, and objections to the report. It’s possible that the judge will therefore consider the matter again.