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I've always understood downloading to be, if not legal then essentially un-prosecutable because there's no way to tell whether or not the download is "fair use".
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I take no issues with "un-prosecutable."
Sure there are scenarios that question and stretch current jurisprudence; I understand that. All I'm trying to say is that Joe Schmoe—who downloaded a pirated ebook simply because he wanted to read it without paying for it—has no fair use exemption coming to him. Whether he ever gets prosecuted for it or not.