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Now MPAA want the burden of proof removed in litigation!
app103:
Sure, no argument there. Except for #1, where the defendant still had the mens rea (mental state). In some cases, depending on the specifics of the law in question, the intent to commit the crime is sufficient, even if the defendant wasn't successful. I don't know what the law says about this in copyright cases, though.
-CWuestefeld (June 24, 2008, 12:56 PM)
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That possibly could be the case if the misconfiguring was accidental and due to ignorance. It wouldn't be the case if the misconfiguring was deliberate, in order to NOT share files, which is more common than you may think.
Additionally, a great many people are ignorant of how p2p software works and don't know that some of these applications will share a specific folder by default, and they don't know how to stop it even if they do know it does this. This is how people end up sharing their tax returns and other sensitive documents on p2p networks by accident. They don't even know they are doing it. But that is a whole different situation.
The idea that a defendant can get on a witness stand and refute the evidence of the list by explaining, isn't going to be a valid one if a list alone is considered indisputable evidence of making files available by a judge's decision on July 1.
The actual copyright law does not leave room for intent. Actual distribution must take place, and if the files can't be uploaded then no distribution can take place. This is why I say a list alone can not be used as as proof of distribution. This is the issue that the judge will be deciding.
If he decides that a list alone is valid proof, then a list is no longer circumstantial evidence. It will be considered valid proof of distribution. And if that happens, anyone in one of the 5 scenarios I provided will not be able to defend themselves with an explanation. Innocent people can and will get nailed by the blood suckers that the RIAA/MPAA are.
I could end up sued and losing, for using a chat client that can not upload, download, or share files. This would be the same as suing me for chatting. You don't see this as a way to infringe on someone's right to free speech? You don't see this as a way to extort money from innocent people? Since when is having a text file containing a list of song or movie titles illegal? If it's illegal, then every letter to Santa written by a child that wants a CD or DVD for Christmas is illegal and all our children are criminals.
All I am trying to say is that a list alone doesn't mean anything. Lists lie. You still have to have other evidence to go with it, like a file. And that file has to be something that infringes, so the content of that file must be analyzed and proven to be what the RIAA/MPAA claim it to be. If they can't get a file, then nobody else can either...and no crime could have been committed. The RIAA/MPAA don't want to go through the trouble and expense to get those files and analyze their contents. They want a decision that will enable them to have a guaranteed easy way to win, even if they are wrong.
What is next? Automatic murder convictions for anyone that owns a gun license, even if they don't own a gun, and no murder weapon can be produced?
CWuestefeld:
Is it about justice at all when the rules of evidence get changed to say 'no evidence is needed' ???
-Carol Haynes (June 24, 2008, 02:00 PM)
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Aargh. That's not what was said at all. The only one in the whole story who said "no evidence" was the stupid reporter who was trying to be sensational.
What they were saying was that the amount of circumstantial evidence they'd gathered ought to be sufficient. I agree to an extent: if the defendant can't say "actually, these circumstances aren't because I was doing X; I was really doing Y", then it the circumstances might be sufficiently damning.
Take as an example - I think you have slandered me and I get a lawyer to take you to court to claim damages. How would you defend yourself if the judge says I win my case unless you can prove that you have never said anything bad about me ?-Carol Haynes (June 24, 2008, 02:00 PM)
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Slander laws work counterintuitively, and are a bad example.
The burden of proof is on the party bringing suit: in a criminal trial that's the State; in a civil case such as slander, it's the plaintiff. In your hypothetical slander case, when you claim "Chris said that I wear army boots!", you must prove that my claim is false -- that you do not wear army boots. So here you must prove a negative, which is logically difficult, and this is why we don't see very many such cases.
BTW, Do you wear army boots? ;)
If he decides that a list alone is valid proof, then a list is no longer circumstantial evidence. It will be considered valid proof of distribution. -app103 (June 24, 2008, 02:11 PM)
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Aargh yet again.
I think that we're better off sticking to technical discussions, because it's clear that the understanding of law here is simple, and we're not all familiar with concepts like an affirmative defense (http://en.wikipedia.org/wiki/Affirmative_defense).
It may be that the circumstantial evidence would be sufficient to convict (note that I say circumstantial, not "an absence of any evidence", contra Carol). Even so, it may be that an explanation of the circumstances (e.g., my ISP cuts off P2P traffic anyway, so I couldn't be sharing) constitutes a valid affirmative defense, so the defendant is found innocent anyway.
This whole argument is really the result of shoddy reporting. The so-called journalist (or his editor) made incorrect, sensationalist claims in the headline. This get everyone riled up, and since the article doesn't say anything about what the law says is a valid defense, we really don't know anything more than we did before reading the crappy article.
app103:
The MPAA wants to be able to win any case in which a 16 year old boy is sharing a bunch of video files that show their names to be that of various Disney movies without downloading those files, analyzing them and providing those files as evidence. They want a screenshot of the list alone to be the only proof needed to get a conviction.
This means that a 16 year old boy who thought he was a smart one by renaming his porn collection to match Disney movies*, in order to hide them from his mom, will end up convicted for infringing on Disney's copyrights for distributing Disney movies, even though he has no Disney movies on his hard drive. He will not be able to prove they are not, were not, and never were Disney movies.
Do you see how this works now?
*We have all heard stories of people downloading Disney movies on P2P that turned out to be porn films. This is just one of many ways this ends up happening.
CWuestefeld:
They want a screenshot of the list alone to be the only proof needed to get a conviction.
-app103 (June 24, 2008, 02:50 PM)
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Sigh. That's not what is going on. No on ever said anything about such a list being a trump card that can't be countered. I challenge you: show me one thing that says "the existence of a filename suggesting a copyrighted work shall be considered incontrovertible evidence of infringement, and no defense against this may be offered."
I agree that if a defendant can take the stand and state, under oath, what the alternative explanation for that list is, then it should suffice to counter the circumstantial evidence.
But (a) you seem to be taking the odd view, completely made from your own imagination so far as I can tell, that this one hypothetical list is to be ironclad irrefutable evidence; and (b) you seem to believe that trials work like Perry Mason, with everything hinging on a single piece of evidence, when in fact there are many other factors that are relevant even if all the evidence is unequivocally damning (e.g., standing and jurisdiction, off the top of my head).
I don't see that anyone has offered an answer to my earlier claim. If (and only if!) a defendant is unable to take the stand and explain his particular circumstance, why should the skin-deep evidence not be assumed to go deeper?
Carol Haynes:
If you read the lawyers brief in full he does seem to be assuming that just having files and a P2P client is SUFFICIENT to PROVE distribution.
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