The Mechanics of Flexibility

Returning to the famous quote by Judge Baer in the Hathitrust case, it is noteworthy that, when delivering his final points in a judgment to end a milestone battle of traditional intellectual property protection against an innovative investment that was shaking its very foundations, he chose to remark on the value of this novel contribution to the progress of science and creative arts being so immense that it could not have been deemed not to constitute a fair use of the protected works. This inspires the question: where exactly does the flexibility originate, as demonstrated by American judges (albeit not only, as will be shown), in fringe cases pertaining to IP protection in the context of digital innovation?