I think you're reading a different argument. Thomas's argument is circular dreck. It basically says:
1. An important fair use test is market effects.
2. Amazon and others used to give Oracle huge gobs of money because they feared that APIs might be copyrightable and not covered by fair use.
3. After Google called Oracle on this, Amazon and others also started believing it was likely fair use and stopped paying Oracle tens of billions per year.
4. Therefore, Google copying the API was a major adverse market effect.
5. Therefore, copying wasn't fair use.
That's a shit argument. Watch me do a similar analysis in a more obvious way.
1. An important fair use test is market effects.
2. People used to pay gobs of money to watch the movie Transformers 2.
3. In a widely watched review of the film, I showed a 4 second clip of the movie where someone said "I am standing directly beneath the robot's testicles."
4. After this, nobody wanted to pay any money at all to watch Transformers 2.
5. Therefore, there was a major adverse market effect from my copying.
6. Therefore, copying wasn't fair use.
1. An important fair use test is market effects. 2. Amazon and others used to give Oracle huge gobs of money because they feared that APIs might be copyrightable and not covered by fair use. 3. After Google called Oracle on this, Amazon and others also started believing it was likely fair use and stopped paying Oracle tens of billions per year. 4. Therefore, Google copying the API was a major adverse market effect. 5. Therefore, copying wasn't fair use.
That's a shit argument. Watch me do a similar analysis in a more obvious way.
1. An important fair use test is market effects. 2. People used to pay gobs of money to watch the movie Transformers 2. 3. In a widely watched review of the film, I showed a 4 second clip of the movie where someone said "I am standing directly beneath the robot's testicles." 4. After this, nobody wanted to pay any money at all to watch Transformers 2. 5. Therefore, there was a major adverse market effect from my copying. 6. Therefore, copying wasn't fair use.