Any unauthorized copy is a copyright violation, whether or not you upload or download, whether or not you knew it was an illegal copy, and even whether or not the person you got it from purported to give you a license.

This is not universally true either.

Perhaps your argument holds by US law, but not by all national copyright laws. 95% of the human population does not live in the US.

The musical instrument is played much like a theremin [...]

Clearly whoever wrote this has never seen, let alone played a theremin.

You don't play a theremin by rotating a mobile phone (or anything) in your hand. There is no notion of angle, since you play with your bare hands, only distance. The distance to the vertical antenna determines the pitch, whereas the distance to the horizontal circular antenna controls the volume. The whole point is the expressiveness of playing music with your whole body.

If you want a small silly toy theremin, you should order Vol. 17 of Japanese magazine Otona no kagaku (the whole thing is in Japanese, but easy enough to build). You can only control the pitch, the sound is pretty awful, and you cannot place calls with it, but at least it's a theremin.

Well, the iTunes Music Store Japan should open by year's end, according to Apple (who tirelessly rebuff the Nihon Keizai Shinbun's claims of it being set to open earlier).

However, the iTMS is blatantly designed around post-1960s recorded popular music. The Album-Artist-Title paradigm and 30-second previews are meaningless for much else. The "what it sounds like first" side isn't really catered for concerning jazz, classical (European and non-European), or even new-age music, where you get a random 30-s bit, sometimes mostly silence, of a fifteen-minute track. That, and the fact that anything not recorded in English seems to go straight to the "World Music" genre category.