That's my personal test. It has nothing to do with established law. She is writing a blog; original rights-holder is trying to sell a house. There is no particular reason why either one should "win", as they are not in competition.

Attempting to argue that to a judge that does not employ the same boundary test is therefore likely to fail.

I get these types of responses all the time, whenever someone detects that I am crossing onto foreign turf. The law does not belong exclusively to legislators, judges, and lawyers. I am entitled to have an opinion that conflicts with established precedents. And as many of us are painfully aware, the law is sometimes an ass.