Comment Re:Fewer candidates to draw from... (Score 2, Insightful) 580
Nope, the person offering it for download is making the copy and distributing it.
A copy is defined in the Copyright Act (17 USC 101) as a material object in which a copy is fixed. A hard drive is a material object, a flash drive is a material object, RAM is a material object. But data coming in over the network is not a material object. The downloader causes that data to be written to some sort of storage medium on his end, thereby making a new copy. The person on the other end of the connection is in trouble too, but it is clear in the statute, and settled in the caselaw, that downloading can be infringing.
No more so than if you were to use a tape record to copy music from the radio or a VCR to copy a movie or TV show.
That's like saying that murdering someone with a gun is no more murder than murdering them with a knife or with poison. All of the things you mention are also infringing, if of copyrighted works and without permission. There may be applicable exceptions, but there just as easily might not be.
decisions like the Sony Beta Max case would probably bar cases against most copying that didn't involve distribution or public performances
It didn't. In fact, if you read the Sony case, you'll see that the Court expected that not all home taping of TV would even be a fair use. All that mattered was that there was enough possibility of VCR recording being legal sometimes that copyright didn't require that the technology be banned altogether.
For instance, you walking down the street singing Lady Gaga tunes or listening to a radio playing it in which others could hear would not be a violation unless someone paid you to do it or you were advertising something and using that to attract attention or similar.
It's a public performance, and would be prima facie infringing.