Good point, but that point is based entirely on the -assumption- that the data being transferred is actually being written to a file. It is a trivial matter to write a program that transfers Torrent or other P-2-P sourced data and simply dumps the incoming memory buffers as the data is received.
Computer technology is Hyperpolymorphic. Anything -IS- possible and -MUST- be taken into consideration. You must -NOT- assume anything is happening until you can prove it authoritatively.
...The Judge forgot something just a substantial as his "RULE 1."
RULE 4. BEFORE SUING A DEFENDANT FOR COPYRIGHT INFRINGEMENT, YOU MUST PROVE THAT THE FILE DATA TRANSFERRED WAS ACTUALLY USED TO CREATE A FILE COPY OF THE COPYRIGHTED WORK ON THE DEFENDANT'S COMPUTER. IF THE DATA TRANSFERRED IS NOT ASSEMBLED INTO A FILE ON THE DEFENDANT'S COMPUTER, THEN NO COPYRIGHT INFRINGEMENT OCCURRED.
I'm thinking about deliberately crashing my plane in the Gobi desert. The pilot and copilot will likely die, but me and my classmates are all expected to survive unharmed. My plane will crash 70 miles off the course that was filed prior to take off and will end up 50 miles southwest of a mining camp. I will be taking 16 survival items with me. Please help me rank them from most important to least important.
A flashlight with four batteries.
A big jack knife.
An aeronautical chart of the area
A big plastic raincoat.
A magnetic compass.
Compresses and bandages.
A 45 caliber handgun with bullets.
A red and white parachute.
A bottle of salt tablets.
A one liter bottle of water per person.
A book titled "Edible Desert Animals."
A pair of sunglasses per person.
A One liter bottle of alcohol (96%).
A light summer coat per person.
A makeup mirror.
Another book titled "How to School Copyright Ignorant Businesses in the Internet Age."
If I'm not mistaken, we adults outnumber the "Children" at least 8 to 1.
Let's kick 'em off the frikkin' internet and tell them to go do their god-damned homework and -then- clean that pig sty of a room!
And...if they get that done, reward them with a nice bedtime story about the four Piggy-Bears, Bill, Hillary, Monica and little Chelsea. Oh! And tonight's chapter is "The Attack of the Sloppy Cigar Monster"..