Whose Burden Of Proof Is It When Accused Of Unauthorized Uploading?

from the questions,-questions,-questions dept

We’ve already seen how flimsy the evidence can be when people are accused of sharing unauthorized content online. It takes a lot more than just an IP address to show that the person was actually making unauthorized content available. However, that doesn’t preclude some legal bullying in the meantime. TorrentFreak has an article about a bunch of folks who were accused of unauthorized sharing of a video game. Many were surprised, claiming they had never heard of the video game, suggesting that among other things, their computers were hacked, their router was used without permission or that the accusing company simply had bad data. Any of these are possibilities, but the lawyers in the case are now demanding a lot of additional information from anyone who pushed back at the initial charge. Among other things, the lawyers are demanding a copy of the instructions that came with the router each accused person uses, evidence that they use an anti-virus product and a firewall, specific evidence to explain how their computer or router may have been compromised and evidence to show that the person took adequate measure to prevent any intrusion. This seems like quite a stretch. It hardly seems reasonable to demand all this information when the original accuser is unable to provide the details to prove that the person they’re accusing actually did anything wrong. If this is allowed, they might as well just accuse everyone of unauthorized uploading and demand contrary proof from each individual. The problem, though, is that many people get scared off by letters from lawyers and give in to needless bullying.

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Comments on “Whose Burden Of Proof Is It When Accused Of Unauthorized Uploading?”

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lar3ry says:

Prove innocence

First: “Innocent until proven guilty” is only valid in the criminal system, where the government needs to prove that you are guilty beyond all reasonable doubt. This is not the case in civil court where the RIAA/MPAA are taking people. It’s you versus them. They have a lower burden of proof (you can be found “probably guilty” in the same way O.J. was in his civil trial, despite the fact that his criminal trial found him innocent).

Second: If you are accused of such things, whether or not you think you are guilty, you will need to find a good lawyer, preferably somebody that is aware of the various issues regarding “intellectual property.” You do not want a lawyer to get his or her lessons in intellectual property at your expense!

Third: Be careful how you respond to such a request. Those “demands” that you get may have been vetted by a judge. Judges are not known to have a sense of humor when somebody tells them to “stick it where the sun don’t shine.” They will happily find you in contempt or make a summary judgment against you. Don’t want to pay? Try getting around a lien on your house or paycheck. Keep all responses civil, and never admit anything. Get a lawyer!

From the article: “Suggesting that among other things, their computers were hacked, their router was used without permission or that the accusing company simply had bad data”

The problem with hacked computers or router used without permission is that you are defending against their charge, which gives the implication that you agree that the file was actually shared from your system. That gives their lawyers lots of freedom to demand such additional data, such as described in the article. You should always dispute the original charge, demanding that they show YOU how they determined that it was you that was sharing the file. If they cannot do so, they are in a much weaker position to argue that YOU have to prove that you didn’t do what they claim. Do not give them an inch, and avoid giving even implicit agreement to anything they say.

Again, the best response is to have your lawyer, who has experience in this area, respond properly to everything. It will cost you money, but if you are found innocent, it opens the way to the recent precedents where the RIAA was forced to reimburse legal fees. Also take care to read everything that transpires with the issue. A simple misstatement by other side can be used to your advantage, and lawyers aren’t terribly knowledgeable in the computer area. They like using big words to impress the judge, so it’s a possible way out, as long as you aren’t seen as anal retentive and just making specious argument by the judge. You will have to be your lawyer’s subject matter expert, and don’t hesitate getting help with the complex technical issues involved if you aren’t that expert in the area.

The bitch of the entire thing is that as soon as that letter arrives, you are already f***ed. You will need to spend money on a lawyer, or pay the fine or settlement fee. There ain’t no easy way out, all puffery aside.

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