Even as a non-lawyer, to my knowledge a judge can not determine something to be fair-use if the defendant don't raise such claim. If the defendant is claiming to be a neutral intermediate between the end-user and the broadcaster, the court has to decide a direct answer to such claim. Everything else is out of scope.
If "public performance" should have an effect in distinguishing a distributor from an neutral intermediate could had be an interesting question, but I suspect the answer would be less so. Without a change in the law, "public performance" is either going to be a very dated phrase and thus non-inclusing, or something that means everything that a third-party might see (such as any packet sent over the public network called the Internet).
If "public performance" should have an effect in distinguishing a distributor from an neutral intermediate could had be an interesting question, but I suspect the answer would be less so. Without a change in the law, "public performance" is either going to be a very dated phrase and thus non-inclusing, or something that means everything that a third-party might see (such as any packet sent over the public network called the Internet).