> a very real dilemma and either decision will have drawbacks
That's bread and butter for the courts. You don't need judges and juries and lawyers to see through a simple hack; trying to use a trivial enumeration to defeat a copyright claim is just "ha ha, nice try, but nope" issue no reasonable layman would have a problem with. Shades of colour are of critical importance in precisely those cases that are fuzzy, where there is no obvious ruling to be made. That's what the courts are made for.
That's bread and butter for the courts. You don't need judges and juries and lawyers to see through a simple hack; trying to use a trivial enumeration to defeat a copyright claim is just "ha ha, nice try, but nope" issue no reasonable layman would have a problem with. Shades of colour are of critical importance in precisely those cases that are fuzzy, where there is no obvious ruling to be made. That's what the courts are made for.