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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, ess

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?
    - shmerl 11y ago
      > The facts are often stipulated to But they have to prove that those facts constitute a violation of copyright, don't they? And that's not given, since that should mean they have to prove it's not fair use (since fair use can be viewed as a right). If it's not viewed as a right, then what you said is correct. But how it's viewed is decided by the judge ad hoc (since the law is ambiguous). Or there is some other logic there?

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?
  - shmerl 11y ago
    > The facts are often stipulated to But they have to prove that those facts constitute a violation of copyright, don't they? And that's not given, since that should mean they have to prove it's not fair use (since fair use can be viewed as a right). If it's not viewed as a right, then what you said is correct. But how it's viewed is decided by the judge ad hoc (since the law is ambiguous). Or there is some other logic there?