Yes, but the parents of minors, or someone acting in loco parentis, can enter into contracts on their behalf. I suspect that Judge Hilton's thinking would have been that since schools are presumed to act in loco parentis, they would have had the right to unilaterally make such an agreement that bound all their students anyway; and that requiring each student to make the agreement individually was not materially different from that. Whether he's right or not is a different matter. It might be that legally speaking the form of agreement *does* matter, and that if the school intended to make an institutional agreement with iParadigms, that's precisely what it should have *done* - and because it didn't, no agreements exist at all. As for the arguments around the matters of fact, (a) and (b) would seem to be kind of irrelevant to whether the use is transformative, as far as I can tell. Granted, it makes sense to present arguments in order of strength, but I'd be afraid that they would distract from the meat of the factual dispute - (c) even if an archive as a whole is a transformative use, that's not what iParadigms were doing - they were amassing individual contributed works to be redistributed on request, not merely presenting their archive or relaying received results, and hence, from an external point of view - perhaps, that of the man on the Clapham omnibus - no transformation occurs. (beware of the no lawyers who live at my house)
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