So, this is basically a technical argument based on a technical implementation detail.
These mostly are considered irrelevant and frequently fail (see, e.g., napster et al)
It's true, fwiw, the ninth circuit did reject visual incorporation tests in favor of a physical transmission test.
This is, IMHO, silly, and only some courts have chosen to follow it.
It's true, fwiw, the ninth circuit did reject visual incorporation tests in favor of a physical transmission test. This is, IMHO, silly, and only some courts have chosen to follow it.