MPAA asks Judge to Eliminate Burden of Proof, Constitutional Guarantees of the Accused

Pesky legalities like having to prove copyright infringement is too hard says the MPAA, therefore they and other copyright holders should be allowed to just accuse anyone they see fit, provide any slapdash, inconclusive evidence that they feel like, and then receive a favorable judgment against the defendant.

In what amounts to an attempt to end-run the Bill of Rights in the US Constitution, the MPAA has filed a legal brief supporting the RIAA in the ongoing RIAA vs. Jammie Thomas trial that effectively requests that the Burden of Proof be eliminated from civil action for P2P/Internet-based copyright infringement.

• Arstechnica: MPAA: actual P2P distribution often "impossible" to prove
• Wired: MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits

As both parties to the trial work their way through appeals, Judge Michael Davis who presided over the case has admitted to making a manifest error of law when he revised his original jury instructions to instead consider that simply making a file available in a shared folder an infringement of copyright at the behest of the RIAA.  In the course of consideration to grant a mistrial at an upcoming August hearing, Judge Davis has requested public comment on the dispute from interested parties in the form of an amicus brief submitted to support their positions.

The law in question involves charging defendants of unauthorized distribution of copyrighted materials to the public and, as written, requires proof of actual distribution to the public.  As pointed out in a brief submitted jointly by the Electronic Frontier Foundation, Public Knowledge, the United States Internet Industry Association, and the Computer and Communications Industry Association, the law does not contain any wording concerning attempted distribution as grounds for determining copyright infringement, which is at the heart of the making available augment used by the RIAA to rampantly file infringement lawsuits with zeal.

The EFF furthermore attacks the means by which the typically flimsy proof of infringement is gathered.

Copyright holders typically hire firms such as Media Sentry, Media Defender, or other of their ilk to troll the web for bit torrent swarms, or other P2P protocols, with infringing content and track down the IP address for anyone who has infringing content in a shared folder that can be accessed by the P2P network.  As the EFF points out, these firms are hired by entertainment industry associations as their agents with instructions to find and download infringing files.  This means that these firms are neither part of the general public, nor are any downloads that they commence on behalf of these industry associations unauthorized because they act as agents and in addition, they are directly instructed to make the downloads by the associations.

Worse still, recent research has shown that these would be private copyright cops often do not even bother with actually finding infringing files on a particular computer or download the files (i.e. distribution), they simply identify IP addresses associated with an infringing torrent and pass it along to their clients who then make infringement claims even if the addresses only lead to a torrent freak of a networked printer.  Considering how little the average computer user actually understands computer security on the Internet, it’s not much of a stretch to see these people inadvertently leaving all sorts of folders accessible as shared folders while surfing the web.

Earlier this week, a group of nine law professors who specialize in copyright also submitted a friend of the court brief that clearly stated, as a matter of law, making available does not satisfy the wording of the relevant statutes:

Although the act of making copies or phonorecords available may enable the public to acquire possession or ownership of the copies or phonorecords, unless and until members of the public actually obtain such possession or ownership the necessary final step for transforming the ‘making available’ into a distribution would be lacking.

As old buddies of the RIAA, the MPAA has stepped up to present their opinion about the way copyright infringement trials should be handled and it does not involve proving that any distribution actually took place.

Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.

It is difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise…

MPAA Attorney Marie L. van Uitert

Finding direct proof of illegal copyright infringement is hard, so let’s just do away with due process says the MPAA.

Under the US Constitution, with several hundred years of legal interpretation behind it, innocence of the accused is presumed and the burden of proof is on the accuser, irrespective of civil or criminal action.

Burden of proof (Latin, onus probandi) is the obligation to prove allegations which are presented in a legal action. Under the Latin maxim necessitas probandi incumbit ei qui agit, the ordinary rule is that "the necessity of proof lies with he who complains." For example, a person has to prove that someone is guilty (in a criminal case) or liable (in a civil case) depending on the allegations; a person is not required to prove his or her own innocence, it is rebuttably presumed.

In civil law cases, the "burden of proof" requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover.

Burden of Proof, Wikipedia via Answers.com

Put simply, the law of the land requires proof of guilt, wrongdoing, or actual harm caused by the accused and the burden of providing that proof is required of the accuser; the accused is innocent until proven guilty.

The way copyright holders would like it such as the RIAA and the MPAA, in their never-ending quest to wrap the entire US legal system around their failing business models, the accused should be guilty until proven innocent.

Any ruling in favor of such an opinion undermines the most fundamental principles of the US legal system.

But copyright infringement is just so bad, and there’s lots of it going on, and it’s hard to catch the bad guys, so let’s just let the MPAA and the RIAA condemn anyone that they see fit to accuse.  It’s just easier that way.

This whole copyright protection business is going just a little bit overboard.