I agree; I was hoping for a more cogent explanation, but the whole time-shifting concept with respect to Fair Use is...weird? It's more of a "Terms of Service" type of issue, from my perspective, in that paying for the service should carry with it certain reasonable rights. It's not exactly a "transformative" notion from my perspective, but honestly, the courts have been so all over the map of reasoning that it takes me a while to figure out the logic. Sometimes, when I do figure it out, I get really, really mad with flashbacks to the crux of the Napster case which ruled "A home computer is not an audio device and therefore person-to-person sharing of audio copies as Fair Use does not apply" (paraphrased) and is so utterly shitty and wrong it has led us down the DRM wormhole.
At least Eminem successfully sued for his 50% cut. For those unfamiliar, the jist of the story is Eminem's label told users they were 'leasing' a song, which entailed a 50% royalty rate to Eminem, but they accounted each lease as a 'sale' and paid him closer to 20%...which was in violation of his contract. He sued, he won, and it's a thorn in the industry's side to this day. I blame the greed of "having our cake and eating it too" and the outcome pleased me on both fronts as an artist and paying consumer.
Time-shifting is not a "Terms of Service" issue, because fair use is a right under copyright law and signing a license cannot take that away from you.
Also, I think you misread the article: Time-Shifting was never ruled to be transformative. It was ruled to be fair use by the Supreme Court because it is for private use and does not affect the market for the original work.
Ah, indeed I conflated the "transformative" part from the book scanning, which makes them searchable. That's definitely a value-addition of the process, to me. Oh well, I'll leave the comment as it stands, flawed as it may be.
As far as signing a ToS / license, yeah you're right in principle, but I have no doubt that right will, as it was in this case, be under heavy legal artillery for the foreseeable future. Even the NFL hasn't bothered to change their tune with their "...is prohibited" disclaimer, which is fundamentally unenforceable. Maybe if that kind of dishonest truth stretching were an actionable offense, the stakes would be a little higher and cases more interesting.
Yes, misleading copyright notices are real a problem as they cause many people to think that they will violate the license by exercising their fair use rights. Fixing the language might help - but I'd like to see fair use more clearly defined, so that consumers can easily check if their activity is legal, regardless of the license.
At least Eminem successfully sued for his 50% cut. For those unfamiliar, the jist of the story is Eminem's label told users they were 'leasing' a song, which entailed a 50% royalty rate to Eminem, but they accounted each lease as a 'sale' and paid him closer to 20%...which was in violation of his contract. He sued, he won, and it's a thorn in the industry's side to this day. I blame the greed of "having our cake and eating it too" and the outcome pleased me on both fronts as an artist and paying consumer.