Right, the question is, when my computer requests a file from your computer, which one of us is "making a copy" ? It becomes less ambiguous to ask who is doing the publishing.
In a physical analogy, if someone is selling bootleg DVDs on the street, I don't think anyone ever got busted for being a customer.
Note that you can't really do much with a downloaded file that is just sitting there on the disk or whatever that you downloaded it onto. Using it is likely to make a copy into RAM.
If the case of computer programs making such a copy does not require permission because of 17 USC 117 [1], which says that the owner of a copy of a computer program can make copies or adaptations if they are created as an essential step in utilizing the program and they are used in no other manner.
For digital downloads other than computer programs 17 USC 117 does not apply, and so copying to RAM to use the download would in theory be infringement. You probably won't get sued over it of course so its nothing to lose sleep over.
> Right, the question is, when my computer requests a file from your computer, which one of us is "making a copy" ? It becomes less ambiguous to ask who is doing the publishing.
That question is irrelevant in a discussion about legality, because it doesn't matter who physically made the copy at the time of transfer. It only matters if the first party has the legal rights to distribute it, which they don't. Since you are knowingly taking possession of copyrighted property that they don't have the rights to, then you have now violated the copyright by obtaining an illegal reproduction.
> In a physical analogy, if someone is selling bootleg DVDs on the street, I don't think anyone ever got busted for being a customer.
Just because you don't get arrested for purchasing a bootleg DVD, doesn't make it legal. Not all illegal things involve arrest or prosecution. Lots of illegal things can only result in civil lawsuits. This is one of those things. The reason the seller of the bootleg DVDs can be arrested, is because the cities where bootleg sales are most common have laws specifically targeting the advertisement and sale of copyrighted works that were reproduced illegally. If you buy one, you're still violating the copyright and the MPAA could file a lawsuit if they had any evidence of your purchase and felt it was worth their time.
In a physical analogy, if someone is selling bootleg DVDs on the street, I don't think anyone ever got busted for being a customer.