- It's used on a commercial site for non-commercial purposes? Anything used on a commercial site is arguably there to increase the site's financial value.

- They didn't know it was copyrighted? Unless you see a notice of a CC license or such, that photograph was under copyright the moment the shutter was clicked.

Seems to me that the judge grossly misused the 4 aspects of the copyright text.

Transformative doesn't apply to the use of the work, it applies to the work itself.

There is no "good faith" use defence against copyright infringement.

The "factual" nature of the photo is a red herring. Yes, the photo is "factual" in the sense that you could go to the same spot, with the same camera, on the same day of the year, and take a photo with the same settings and create a photo with incredibly similar characteristics. That would be non-infringing, because of the "factual" nature of the work. That the work is a photo of the real world doesn't make it immune to copyright.

Previous publication does nothing to diminish copyright.

I also disagree with the "didn't hurt the market" argument here. Thing is, AFAICT, that website is part of the market for the photo. Furthermore, that the website didn't onsell the photo is irrelevant - the website is the copyright infringement.

Seems like a slam dunk appeal to me.

Dude still took it down as soon as he knew something was up, and he's still not using it.