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If copyright worked the way you seem to think it does, then the GP's scenario — where someone using a work under Fair Use terms could still be sued, and then ha

by rosser 11y ago

If copyright worked the way you seem to think it does, then the GP's scenario — where someone using a work under Fair Use terms could still be sued, and then has to prove that their use was legitimately Fair Use — wouldn't be the norm. But it is. So, there's how you appear to think it works, and there's how it works in the world outside your skull. It turns out, that things in the real world are sometimes sloppy, or inefficient, or illogical, or just plain weird; just because something makes "more" or "perfect" sense to you doesn't begin to make it correct.

shmerl 11y ago
> If copyright worked the way you seem to think it does, then the GP's scenario — where someone using a work under Fair Use terms could still be sued, and then has to prove that their use was legitimately Fair Use — wouldn't be the norm. So where did presumption of innocence go? I know it's tossed out all the time in copyright (that's the core of the whole DRM approach), but it's not supposed to be that way. If they claim that copyright is violated, they need to prove it (i.e. violation and lack of fair use), and not those who say it was fair use need to prove they have that right. And if you say that's what's going on in practice (presumption of guilt) - then the whole system is seriously perverted and requires deep fixing.
- rosser 11y ago
  I'm not even sure why I'm bothering any more. You seem determined not to hear what anyone else is saying, but instead just keep talking about how things should be, how they're supposed to be. Which might be an interesting discussion to have, if you were aware enough of how things actually worked to understand the difference between civil and criminal court proceedings. "Presumption of innocence" exists in criminal cases. The kinds of suits that copyright holders tend to engage in over things where the defense argues Fair Use are overwhelmingly civil. (Seriously, has there ever been a criminal copyright infringement prosecution where the defense argued fair use? If so, how did that work out for them?) Please stop spouting off about how shit should be based solely on an embarrassingly broken a priori idea of how the things you're railing against work, and try to understand how they really, actually work. I promise you that, if nothing else, doing so will better enable you to fight the fight you seem to believe so much in. Either way, I'm not going to argue any more with you, if you continue to insist on engaging from broken premises. Enjoy the rest of your day.
  - shmerl 11y ago
    Since I'm not a lawyer, please explain why presumption of innocence isn't applied in civil cases? That would be more productive than expecting that everyone should know that just because you do.
- wvenable 11y ago
  Presumption of innocence doesn't prevent you from having to go to court and defend yourself. However, the DMCA provides safe harbor for sites and networks, essentially removing them from the conflict entirely, if they quickly act to remove contentious materials. Then there is a process by which the two sides actually involved can dispute over the materials can make their case. The DMCA favors copyright complainants but it also completely absolves providers of liability. So it's a messy compromise.
  - shmerl 11y ago
    > Presumption of innocence doesn't prevent you from having to go to court and defend yourself. That's right, but you have to defend against what they should prove to the court. But @rosser is claiming that it's not even applicable in the civil law. That's really surprising to me (IANAL just to be clear), so I want to understand why.
    - wvenable 11y ago
      @rosser is wrong, there is presumption of innocence in civil cases as well (at least in the US). Or to rephrase, the the necessity of proof always lies with the person who lays charges.
      - rosser 11y ago
        Burden of proof isn't presumption of innocence. Burden of proof always lies with the party making the positive assertion. In criminal trials, that's something like "Shmerl did it, with a pipe, in the pantry" or whatever. This is why, for example, a criminal defense of insanity must be proven by the defense — and why such a defense is risky. The defense is stipulating to the fact that the defendant committed the act, but arguing the defendant didn't have the requisite mens rea to make their actions a crime. That eliminates the State's burden to prove that they did it, and assumes the burden of proving the defendant's state of mind/lack of culpability at the time. In a civil case, the question is more one of "Here's why Shmerl is responsible (and, consequently, liable) for what happened." The facts (that Shmerl did whatever, to whomever, at whatever time) are often stipulated to. The positive assertion being made by the plaintiff against him is the degree of liability. Consider the oft-mocked case of Liebeck v. McDonald's. No one disputed for a second that she bought the coffee at McDonald's, that it was the temperature it was, or that it was spilled. That wasn't remotely the question. Rather, the question was, "Should they have known better, to a degree that makes what happened to her their fault?" Does that distinction make sense?

by rosser 11y ago

shmerl 11y ago

> If copyright worked the way you seem to think it does, then the GP's scenario — where someone using a work under Fair Use terms could still be sued, and then has to prove that their use was legitimately Fair Use — wouldn't be the norm. So where did presumption of innocence go? I know it's tossed out all the time in copyright (that's the core of the whole DRM approach), but it's not supposed to be that way. If they claim that copyright is violated, they need to prove it (i.e. violation and lack of fair use), and not those who say it was fair use need to prove they have that right. And if you say that's what's going on in practice (presumption of guilt) - then the whole system is seriously perverted and requires deep fixing.

rosser 11y ago
I'm not even sure why I'm bothering any more. You seem determined not to hear what anyone else is saying, but instead just keep talking about how things should be, how they're supposed to be. Which might be an interesting discussion to have, if you were aware enough of how things actually worked to understand the difference between civil and criminal court proceedings. "Presumption of innocence" exists in criminal cases. The kinds of suits that copyright holders tend to engage in over things where the defense argues Fair Use are overwhelmingly civil. (Seriously, has there ever been a criminal copyright infringement prosecution where the defense argued fair use? If so, how did that work out for them?) Please stop spouting off about how shit should be based solely on an embarrassingly broken a priori idea of how the things you're railing against work, and try to understand how they really, actually work. I promise you that, if nothing else, doing so will better enable you to fight the fight you seem to believe so much in. Either way, I'm not going to argue any more with you, if you continue to insist on engaging from broken premises. Enjoy the rest of your day.
- shmerl 11y ago
  Since I'm not a lawyer, please explain why presumption of innocence isn't applied in civil cases? That would be more productive than expecting that everyone should know that just because you do.
wvenable 11y ago
Presumption of innocence doesn't prevent you from having to go to court and defend yourself. However, the DMCA provides safe harbor for sites and networks, essentially removing them from the conflict entirely, if they quickly act to remove contentious materials. Then there is a process by which the two sides actually involved can dispute over the materials can make their case. The DMCA favors copyright complainants but it also completely absolves providers of liability. So it's a messy compromise.
- shmerl 11y ago
  > Presumption of innocence doesn't prevent you from having to go to court and defend yourself. That's right, but you have to defend against what they should prove to the court. But @rosser is claiming that it's not even applicable in the civil law. That's really surprising to me (IANAL just to be clear), so I want to understand why.
  - wvenable 11y ago
    @rosser is wrong, there is presumption of innocence in civil cases as well (at least in the US). Or to rephrase, the the necessity of proof always lies with the person who lays charges.
    - rosser 11y ago
      Burden of proof isn't presumption of innocence. Burden of proof always lies with the party making the positive assertion. In criminal trials, that's something like "Shmerl did it, with a pipe, in the pantry" or whatever. This is why, for example, a criminal defense of insanity must be proven by the defense — and why such a defense is risky. The defense is stipulating to the fact that the defendant committed the act, but arguing the defendant didn't have the requisite mens rea to make their actions a crime. That eliminates the State's burden to prove that they did it, and assumes the burden of proving the defendant's state of mind/lack of culpability at the time. In a civil case, the question is more one of "Here's why Shmerl is responsible (and, consequently, liable) for what happened." The facts (that Shmerl did whatever, to whomever, at whatever time) are often stipulated to. The positive assertion being made by the plaintiff against him is the degree of liability. Consider the oft-mocked case of Liebeck v. McDonald's. No one disputed for a second that she bought the coffee at McDonald's, that it was the temperature it was, or that it was spilled. That wasn't remotely the question. Rather, the question was, "Should they have known better, to a degree that makes what happened to her their fault?" Does that distinction make sense?