I think it is important to distinguish between the copyright doctrine of fair use, which means using copyrighted materials in a way which is fair, and the consumer's right to use their own hardware for things they want (which does not involve any copyright infringement, fair or otherwise). The latter may sound like 'fair use' of hardware, but I don't think they mean the same thing to the judge who is talking about the doctrine of Fair Use.
Yes - and the judge agreed that with the jurisprudence that the Doctrine of Fair Use wasn't a defence under the DMCA. The EFF were absolutely right that the DMCA anti-circumvention provisions could be interpreted by courts to make it illegal for people to exercise rights under the doctrine of Fair Use under some circumstances.
But that is missing the point of what I was trying to say. The Doctrine of Fair Use is about allowing certain types of copying of copyrighted works for certain purposes.
The Arstechnica article talked about the judge backing down from blocking the 'fair use' defence because he mentioned that the modifications were required for homebrew.
My point is that homebrew does not (generally) rely on the Doctrine of Fair Use - people making and running homebrew games are generally not copying copyrighted material without the permission of the owner. It may be 'fair use' in plain English, but that would be borrowing a legal term with a specific meaning and applying it to a different meaning (this is similar, for example, to how people often use the technical term 'virus' incorrectly to talk about malware in general).
