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Now MPAA want the burden of proof removed in litigation!
Carol Haynes:
Good for you April - and great comment. :Thmbsup:
CWuestefeld:
I could give 5 scenerios in which the RIAA/MPAA or their flunkies could get a list of "shared files" from someone and no actual sharing is taking place, or in some cases, can take place.-app103 (June 24, 2008, 12:16 PM)
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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.
But I had said:
this might be enough (in some circumstances) to fairly convict someone
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I didn't say that the circumstantial stuff is definitely enough to convict someone. Every case depends on its own unique facts. That's why we bother to have trials at all.
At least 4 of your 5 scenarios might be legitimate defense, plus enumerable others. But a crucial part of this is the defendant's ability to get onto the witness stand and truthfully assert that one of these scenarios was actually what happened. Just because one of these innocent explanations could explain the circumstantial evidence doesn't mean that, in point of fact, it does.
If the defendant is innocent, I would hope that he or she could provide this explanation. But the fact that such hypotheticals exist shouldn't in itself lead to the release of the guilty. The defendant has to get up, take an oath, and assert his explanation.
Call me naive, but I would like to think that justice isn't just about being able to get off if you can. I'd like to think that we've still got some ideal of honesty.
Deozaan:
This is somewhat off topic, but that site also had a link to this story:
Pirate Bay Turns Tables on Media Giants. Basically, The Pirate Bay supposedly has proof of media corporations using illegal tactics to sabotage TPB.
The charges include "infrastructural sabotage, denial of service attacks, hacking and spamming all on a commercial level".
The Pirate Bay said in a blog posting that the company now has "proof of the things we've been suspecting for a long time; the big record and movie labels are paying professional hackers, saboteurs and ddosers to destroy our trackers".
...
It emerged in July that MediaDefender, hired by the Motion Picture Association of America, attempted to lure file sharers to a fake download site called MiiVi.com.
The site installed spyware which checked hard drives for copyrighted material and reported back to MediaDefender.
...
The Pirate Bay named the following companies in its complaint:
Twentieth Century Fox, Sweden AB
EMI Music Sweden AB
Universal Music Group Sweden AB
Universal Pictures Nordic AB
Paramount Home Entertainment Sweden AB
Atari Nordic AB
Activision Nordic Filial Till Activision (UK) Ltd
Ubisoft Sweden AB
Sony BMG Music Entertainment Sweden AB
Sony Pictures Home Entertainment Nordic AB-http://www.vnunet.com/vnunet/news/2199427/pirate-bay-fires-shot-across
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CodeTRUCKER:
Given the magnitude of the effort and resources required to apprehend the desperados, it would appear that what the MPAA, etc. is really after is the threat of a very big stick.
Given the costs associated and the miniscule damages that could be extorted from the average individual, ROI would be veritably non-existent. To be sure, the MPAA, etc. will make some examples of the unfortunates that get targeted in multi-million dollar suits, but the primary objective is sensational intimidation to scare away any would-be criminals since actual litigatorial actions against every offender is untenable, if not impossible.
Carol Haynes:
Call me naive, but I would like to think that justice isn't just about being able to get off if you can. I'd like to think that we've still got some ideal of honesty.
-CWuestefeld (June 24, 2008, 12:56 PM)
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Is it about justice at all when the rules of evidence get changed to say 'no evidence is needed' ???
Effectively the MPAA lawyer is saying it is the defendants responsibility to prove they didn't do it - which is impossible and doesn't conform to common law which says a defendant does not even need to open his mouth: the legal onus is on the company bringing forward a charge to prove that the defendant did what they claim.
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 ?
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