Well, I suppose that it's possible that you might unplug your hard drive, put it in a cardboard box, and mail it to me, in response to a download request, but that's surely too unusual to care about.

Because the law defines making copies as a form of infringement, defines copies as material objects, and because we lack the ability to send a material object through the net, you cannot transmit an original copy of a work to me online. All you can do is give me the information I need to create a new copy on my end.

It's irrelevant whether you delete the file once I've downloaded it. The Copyright Act doesn't treat a copy followed by a deletion as not being copying. It doesn't matter in the least how many copies actually exist in the end, only what the provenance of the copies is. There is an essay called 'What colour are your bits?' which you may find helpful.

It is not, in any legally meaningful way, transferred anywhere.

Please take a look at this page, which discusses the outcome of the ReDigi case, and includes a copy of the opinion. ReDigi tried to sell used music files, going through the sort of copy and delete rigamarole as you suggest. They got shut down hard because it's utter nonsense as far as the legal system is concerned.

Thanks for agreeing with me, then; it's not possible to argue fair use unless there already is prima facie infringement.

No.

Creating a new copy of a work can infringe per 17 USC 106(1). But playing a work over a speaker doesn't create a new, infringing copy. That's why we have 17 USC 106(4), which can cause the public performance of certain works to be infringing. With public performance, no new copy needs to be created. Of course, not all performances are public performances -- playing a CD at home, privately, is likely not public and thus not infringing to begin with. Playing it outside, in a public park, is public and very well could be infringing.

I really think you'd benefit a lot by actually looking at the law, or perhaps reading a good book about it, instead of just continuing with what you imagine the law to be.

Given that the word 'copy' in copyright law is defined as a material object, and given the physical impossibility of sending material objects through telecommunications systems, I'm afraid you're very, very wrong.

I can't hold a file in my hand. It's not a material object. But I can hold the storage medium it's written to in my hand; that is a material object. Fixing the work into a new material object from which it can be perceived for a period of more than transitory duration is basically the definition of copying in the law, and as an exclusive right, copying can be infringing.

Feel free to read the relevant portions, at 17 USC 101. You'll want the definition of copies and also of fixing a work. Copying as an exclusive right is at 17 USC 106(1), as already mentioned.

Not all viewers, but a hell of a lot of them.

Here's an excerpt from Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999):

No. Just because it's commonplace doesn't mean that the Internet is intended to enable infringements. The Sony precedent and the DMCA safeharbor both work to protect the continued existence of the Internet, despite widescale infringement. Remember, the basic rule of Sony is this: "[T]he sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses."

But just because ISPs are not obligated to dismantle the Internet doesn't help individual infringers.

If your analogy using the mail were accurate, it would be possible for me to download a blender from Amazon and have it emerge from the side of my computer. Not a 3d printed blender either; that's just a copy. I mean one that was built at a factory in China or something.

You have RAM, which is a material object. You have a hard drive, which is a material object. You have flash memory, which is a material object. A work written to those makes them copies, just as a work written to a paper book makes it a copy.

In that case, you not buying it because you don't like it equally negatively affects that celebrity, because whatever the reason you don't buy it, they don't get more money.

Now, since then there has been the Cablevision case, where the 2d Circuit said that a work that was momentarily buffered in RAM (in that case, by a network provider) was not a copy because it lasted for too short a duration. But this is not likely to have much effect for the end user.

Also, your example is wrong. Copyright infringement is a strict liability offense, so the mental state (e.g. intent, knowledge) of the infringer is irrelevant.

A better example would be statutory rape, another strict liability offense. If you have sex with someone who swears they're an adult, who can produce excellent documentary support of that claim, and where you literally could not have undertaken any further reasonable measures to ensure that that person wasn't a minor, but it turns out that they were a minor anyway, you've just committed the crime of statutory rape. It doesn't matter how careful you were, that you didn't intend to have sex with a minor, what you knew, etc. Copyright is the same sort of thing.

A&M Records v. Napster., 239 F.3d 1004, 1014 (9th Cir. 2001).

Well, depending on whether MAI or Cablevision controls, it may very well be a copy. My point is that a copy can only be a tangible object, and maybe you live on the Starship Enterprise or something, but around here, I can't buy a DVD on Amazon and see the bulge in the ethernet cable as the disc is physically moved over the Internet.

Downloaders always make new copies at their end; that's just how it works. There may be numerous copies in between too, but it's asinine to say that downloading isn't copying at all.

Sure it was. Paper and pen worked just fine. And until the then quite recent invention of the printing press, that was usually how books were copied.

And yet, that's not what the actual language of the law, whether at the Constitutional level, or below, actually does.

Hey, I'd just as soon legalize all non-commercial infringement engaged in by natural persons. But it does no one any good to be unaware of what the law currently is, and what it actually does. And that is to render individual downloading of copyrighted works, without permission or an applicable exception, illegal, and potentially criminal.

It won't get changed if people delude themselves as to what it is that needs changing.

There are numerous court cases in which it was found that at least some downloading was illegal (obviously only certain downloading would be; downloading public domain works, or subject to a valid copyright license is not infringing). For example, from the Napster case, the Ninth Circuit said "We agree that plaintiffs have shown that Napster users infringe at least two of the copyright holdersâ(TM) exclusive rights: the rights of reproduction, Â 106(1); and distribution, Â 106(3). Napster users who upload file names to the search index for others to copy violate plaintiffsâ(TM) distribution rights. Napster users who download files containing copyrighted music violate plaintiffsâ(TM) reproduction rights." A&M Records v. Napster., 239 F.3d 1004, 1014 (9th Cir. 2001).

It's just that it's not usually worthwhile to sue downloaders. Even the MPAA, RIAA, et al have limited resources. Downloaders are the tail of the snake; shut down a single downloader, and all you've shut down is a single downloader. Shut down networks, and you can shut down all of their users. At least, that was the idea.

And what reason is that, pray tell?

Actually, copyright is the right to prohibit other people from making copies, as well as from doing some other things, but that's not precisely where the name originates from.

The right to make copies is the right of free speech, and it inherently exists in everyone, and applies to everything. I'm not Shakespeare, and I don't have a copyright on his work, but I can make copies of his plays by exercising my free speech right.

I am not Vellmont, the poster to whom you were replying earlier, but I am a copyright lawyer, and there's nothing I like more than arguing about copyright law. Seriously, it's an actual hobby for me, not just a job.

That's an acceptable outcome.

Copyright isn't meant to maximize creation and publication, nor is it meant to benefit all authors. Rather, it is meant to maximize the public benefit enjoyed by both on the one hand maximizing creation and publication of works that would not be created and published but for copyright, but also on the other hand, minimizing protection so that works are in the public domain as rapidly and as fully as possible.

I would love to sculpt the Moon into a piece of art, but the amount of copyright I'd require to make it economically worth my while is tremendous. Our society, through our government, appears to have decided that we are all literally better off without me doing it, given what I would require from everyone. I'm still free to do it at my own expense, for less reward than I deem necessary, but no one is obligated to cater to my needs, and no one does. And that's acceptable, just as it is in your case.

Much, though not all, piracy indicates the level of copyright that we ought to have, and if that is too little to sustain you, then that's an acceptable consequence. If it turns out that you're too important to let go, people will willingly choose to respect copyright more in order to do that.

No.

The Copyright Act defines infringement as unauthorized violation of any the exclusive rights of copyright. The making of new copies, such as by downloading, is such a right.

Assuming a copyright and lack of permission or exception, yes you are.

If it's copyrighted, if the downloads are made without permission, and there is no applicable copyright exception, then yes, it's illegal to download it.

Suppose that you live in a place with a zoning code that requires each house to have a white picket fence. You paint your fence black. Is that evil? I would suggest that that law is probably amoral. It may be useful for some reason, or not, but one color of fence is not more or less evil than another color.

Copyright is the same sort of deal. It's meant to be an economic incentive to get authors to create and publish certain works, for the benefit of the public. Violating it may be selfish and may be self-defeating in the long run, but it's not evil, and copyrights and respecting copyrights are not morally good. Copyright is entirely utilitarian.