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Torabo

join:2009-09-01
reply to The Mongoose

Re: Why we are not opposing motion on Monday.

said by The Mongoose:

And it's illegal in Canada to threaten to sue someone if you don't plan to sue them.

I've heard this before, though I've also heard otherwise, in either case, does anyone know of any relevant laws that prove or disprove this?

*edit*
I'm pretty sure its illegal if its part of an extortion scheme, though that's more so because its extortion, but regular threats? don't people do that all the time? heck I'm pretty sure I've read in the papers about people threatening to sue each other over something or other.
Expand your moderator at work

Grappler

join:2002-09-01
Ottawa, ON
reply to TSI Marc

Re: Why we are not opposing motion on Monday.

Burden of Proof starts with the Plaintiff, no ifs, ands or buts; look at it from this perspective: you cannot defend against unknown evidence, this has to be presented into court first.
(Note: Disclosure does not constitute "evidence" until such time as it is entered into the courts).

Notice I stated "Burden of Proof starts"...

Once the plaintiff presents their case or during the presentation, subject to cross examination, they have now established their "Burden of Proof", it is now up to the defendant to tear that apart, some of which may be accomplished during cross examination. If they are able to successfully cross examine and make swiss cheese out of the plaintiff's case then the case may end there and the defendant wins. However, most likely they will then have to present evidence which disputes the plaintiffs case. This is when the "Burden of Proof" shifts to the defence.

funny0

join:2010-12-22
reply to Torabo
said by Torabo:

said by The Mongoose:

And it's illegal in Canada to threaten to sue someone if you don't plan to sue them.

I've heard this before, though I've also heard otherwise, in either case, does anyone know of any relevant laws that prove or disprove this?

slander of title...harrassment laws etc....all fall under that. ALSO class actions are what this is for...it might even be said you could be counter sued for fraud...again this is where lawyers know more ....but as i have said in examples OK you all downlaoded my PRECIOUS i want all your names and addresses all i have to do is come up with how much money to file in court....

and marc won't fight it so he can warn you a week ahead a time ...oh joy....
sounds like about 10 violations of the charter of rights and freedoms be a coming if someone wants too...

funny0

join:2010-12-22
reply to Grappler
said by Grappler:

Burden of Proof starts with the Plaintiff, no ifs, ands or buts; look at it from this perspective: you cannot defend against unknown evidence, this has to be presented into court first.
(Note: Disclosure does not constitute "evidence" until such time as it is entered into the courts).

Notice I stated "Burden of Proof starts"...

Once the plaintiff presents their case or during the presentation, subject to cross examination, they have now established their "Burden of Proof", it is now up to the defendant to tear that apart, some of which may be accomplished during cross examination. If they are able to successfully cross examine and make swiss cheese out of the plaintiff's case then the case may end there and the defendant wins. However, most likely they will then have to present evidence which disputes the plaintiffs case. This is when the "Burden of Proof" shifts to the defence.

yup and the first thing one asks for in any court is each others evidence ...its called discovery.... and when there's shows no known way to prove you did any commerical acts in the downloading or sharing case will and should be dissmissed.

resa1983
Premium
join:2008-03-10
North York, ON
kudos:10
reply to The Mongoose
said by The Mongoose:

said by JonyBelGeul:

said by The Mongoose:

No, it doesn't. This is not a criminal matter. If a judge thinks it's 51% likely that the defendant committed the act alleged by the plaintiff, the plaintiff wins. Civil litigation is not "Law And Order SVU".

For the judge to "think" this, there must be sufficient evidence, and we're back to burden of proof, which lies with the plaintiff.

There is no "burden of proof" in the way people think of this, only balance of probabilities. If it's more likely the defendant did the alleged deed than not, the plaintiff wins.

So a judge is going to ask "what is more likely...that this person shared the file or not?" That's it. And that's a much easier bar to meet than "beyond a reasonable doubt".

Does that mean Voltage would win lawsuits? No. But it's not a slam dunk by any means. And it's illegal in Canada to threaten to sue someone if you don't plan to sue them. Once voltage sends out their extortion letters, they are required by law to sue a certain percentage of them.

I'm sure Voltage sent out their extortion letters last year when they handpicked the 10 IPs from Bell, Cogeco & Videotron... The case was given multiple extensions, and was finally dismissed for not filing suit.
--
Battle.net Tech Support MVP

Grappler

join:2002-09-01
Ottawa, ON
reply to Torabo
said by Torabo:

said by The Mongoose:

And it's illegal in Canada to threaten to sue someone if you don't plan to sue them.

I've heard this before, though I've also heard otherwise, in either case, does anyone know of any relevant laws that prove or disprove this?

You can threaten someone with a civil action all you want, it is not illegal, Sec 346(2) CCC. You cannot however threaten someone with a criminal action, in the hopes of obtaining a favour (extortion), sec 346 CCC, however you cannot threaten anyone with the publication of a defamatory libel, sec. 302 CCC.

UK_Dave

join:2011-01-27
Powassan, ON
kudos:2
Reviews:
·TekSavvy DSL
Hey folks. I thought about a new thread for this, then thought against it.

I've looked through most of the current ones, but can't find any discussion of the following:

"TekSavvy had previously been provided with a file of IP addresses in November. Due to the large number of IPs involved and inaccurate data in the file that had to be clarified with Voltage"

Does anybody out there know what the "inaccurate data" was in the original submission to TSI? i.e are we talking missing seperators in a CSV, or are we talking wrong addresses?

Cheers,
Dave

JonyBelGeul
Premium
join:2008-07-31
reply to shepd
said by shepd:

If only the burden of proof was that simple. Ever fought a parking ticket? The meter maid goes on the stand and says "Yes, he was parked there at that time". No evidence, just a statement.

No signature on the ticket, had a second court date. No proof that the meter maid had the right time on the ticket. Doesn't matter. The judge simply stated he's 51% sure the meter maid is telling the truth.

Now, of course, Voltage isn't a friend of the court, so they'll have to be a little bit more serious than that, but not all that much. Fortunately, the amount they'll win is miniscule.

Eyewitness testimony is evidence. However, here there is no eyewitness to Voltage's allegations.
--
My blog. Wanna Git My Ball on Blogspot.

JonyBelGeul
Premium
join:2008-07-31
reply to The Mongoose
said by The Mongoose:

said by JonyBelGeul:

said by The Mongoose:

No, it doesn't. This is not a criminal matter. If a judge thinks it's 51% likely that the defendant committed the act alleged by the plaintiff, the plaintiff wins. Civil litigation is not "Law And Order SVU".

For the judge to "think" this, there must be sufficient evidence, and we're back to burden of proof, which lies with the plaintiff.

There is no "burden of proof" in the way people think of this, only balance of probabilities. If it's more likely the defendant did the alleged deed than not, the plaintiff wins.

So a judge is going to ask "what is more likely...that this person shared the file or not?" That's it. And that's a much easier bar to meet than "beyond a reasonable doubt".

Does that mean Voltage would win lawsuits? No. But it's not a slam dunk by any means. And it's illegal in Canada to threaten to sue someone if you don't plan to sue them. Once voltage sends out their extortion letters, they are required by law to sue a certain percentage of them.

Probabilities are based on evidence. We're back to burden of proof, which lies with the plaintiff.
--
My blog. Wanna Git My Ball on Blogspot.

JonyBelGeul
Premium
join:2008-07-31
reply to Grappler
said by Grappler:

Burden of Proof starts with the Plaintiff, no ifs, ands or buts; look at it from this perspective: you cannot defend against unknown evidence, this has to be presented into court first.
(Note: Disclosure does not constitute "evidence" until such time as it is entered into the courts).

Notice I stated "Burden of Proof starts"...

Once the plaintiff presents their case or during the presentation, subject to cross examination, they have now established their "Burden of Proof", it is now up to the defendant to tear that apart, some of which may be accomplished during cross examination. If they are able to successfully cross examine and make swiss cheese out of the plaintiff's case then the case may end there and the defendant wins. However, most likely they will then have to present evidence which disputes the plaintiffs case. This is when the "Burden of Proof" shifts to the defence.

The burden of proof always lies with the plaintiff. The defense merely needs to poke holes in the plaintiff's evidence. Inaccuracy, lack of, inconsistency, etc. The defendant only needs to present as much evidence as needed for that purpose, if at all.

In this case, there is no direct evidence that the person associated with the IP did the deed. Therefore the defendant only needs to point that out, case closed. However, if the defendant wants to present evidence to further validate his innocence, then he can explain how his particular internet connection is shared and used by more than just him, or some other evidence that directly contradicts the allegations, or claim ignorance of the workings of the intarweb, eyepeez, and what the hell is an unsecured wifi router? However, just as with the plaintiff who is not required to present direct evidence for the allegations just to make these allegations (I believe he did it), the defendant is not required to provide direct evidence of his explanations either (I did not do it, and here's why). Word against word, the defendant wins.
--
My blog. Wanna Git My Ball on Blogspot.

jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2
reply to TSI Marc
Don't know if this has been posted yet, but Howard Knopf one of the lawyers that presented in the last mass lawsuit attempt back in 2005 did an excellent post on the subject today on his blog:

»www.excesscopyright.blogspot.ca/···age.html

The decision to not oppose, maybe be pretty brutal for TSI customers. Hopefully things go consumers way here with the CIPPIC submission.
--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/

JonyBelGeul
Premium
join:2008-07-31
said by jkoblovsky:

Don't know if this has been posted yet, but Howard Knopf one of the lawyers that presented in the last mass lawsuit attempt back in 2005 did an excellent post on the subject today on his blog:

»www.excesscopyright.blogspot.ca/···age.html

The decision to not oppose, maybe be pretty brutal for TSI customers. Hopefully things go consumers way here with the CIPPIC submission.

As Knopf says here:
quote:
The law about all of this was clearly laid out by the Federal Court of Appeal in 2005. Here is a very balanced discussion of this presented by myself and one of my worthy opponents in that case, Richard Naiberg. The key criteria for potential success in a disclosure motion such as this is that there must be substantial, admissible, non-hearsay, and reliable evidence in the form of affidavit material and at least a bona fide case.
This means more than just an allegation association with an IP, and a name associated with this same IP. Something like eyewitness account or equivalent. Do any of you still want to argue against burden of proof at this point?
--
My blog. Wanna Git My Ball on Blogspot.

UK_Dave

join:2011-01-27
Powassan, ON
kudos:2
Reviews:
·TekSavvy DSL
There's a lovely quote in there:

"It should be emphasized that none of those objecting to or intervening in the motion in 2004 were there in support of what is sometimes called “piracy” by the alleged downloaders and file sharers. The battle was all about privacy – and when it can or should be breached, mindful among other things of the severe consequences of ordinary citizens being dragged into complex and costly litigation, quite possibly by mistake based upon unreliable information."

I like that.

jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2
reply to JonyBelGeul
Yeah, but if there's nobody opposing the motion in order for cross examination. That's the problem. The CIPPIC has requested to intervene, it's a bit dicey to suggest that the CIPPIC could be 100% positively successful in it's intervention when TSI has basically already agreed to hand this information over by not opposing the motion.

From Knopf:

If the motion remains unopposed and is granted, the result could immediately affect 2,000 Teksavvy customers and help to pave the way for future mass litigation - or the threat thereof in order to obtain vast numbers of “settlements” - in Canada in the future. Such litigation would be new to Canada.


Knopf goes on to explain:

Although Teksavvy has indicated that it “will not provide personal information to a 3rd party when copyright infringement is alleged unless ordered to do so by a court”. However, it has decided in the end not to oppose the motion seeking such an order. It has decided not to cross-examine on Voltage’s affidavit material and not to file any written material.


Knopf adds:

Despite Teksavvy’s openness concerning this issue, questions are still bound to arise why Teksavvy is not actually opposing this disclosure motion in 2012, as Shaw and Telus actively and successfully did in 2004, with Bell and Rogers taking a similar if less vigorous position.


Chances look grim here:

Teksavvy did go to some length to specifically notify its potentially affected customers. However, it would be very surprising if any of them are willing and able to retain counsel to assume the burden of opposing a determined and experienced plaintiff and to assume the risk of an adverse costs award.


In other words if your going to show up tomorrow, Marc forgot to tell you to bring your lawyer with you.

Knopf concludes:

The hearing will presumably be open to the public, although these court rooms typically have very limited seating for spectators.

--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/

UK_Dave

join:2011-01-27
Powassan, ON
kudos:2
Reviews:
·TekSavvy DSL

1 edit
In other words if your going to show up tomorrow, Marc forgot to tell you to bring your lawyer with you.
------------------------------

Actually, Marc said quite the opposite.

But please, don't let that get in the way - that is a great find you have.


mlerner
Premium
join:2000-11-25
Nepean, ON
kudos:5
reply to TSI Marc
I have yet to see a case since 2004 where Bell, Cogeco and others did intervene. If you look at Voltage Pictures LLC v. Jane Doe, 2011 FC 1024, they did nothing and the court ordered that the ISPs hand over the subscriber data. »www.canlii.org/en/ca/fct/doc/201···024.html

So maybe ISPs did back then but certainly not now.

JonyBelGeul
Premium
join:2008-07-31
reply to TSI Marc
Something to keep in mind. TSI did not oppose in exchange for notice-and-notice, because notice-and-notice is not yet implemented in copyright law. However, it will be, therefore we can expect TSI to then oppose future motions to disclose once notice-and-notice is implemented.
--
My blog. Wanna Git My Ball on Blogspot.


hm

@videotron.ca
reply to drjp81
said by drjp81:

Ok even I can see a few holes in their methodology. Someone is going to have a field day with these guys.

I gave info to Marc that will/should prevent at least one teksavvy user from being sued. Won't prevent an extortion letter unless they show up in court, but it could be used by cippic for more than this one person and prevent this legal term/thing called "joinder" (mass suit).

Ball is in Marc's hand to pass the info off to cippic i guess.

BTW, Marc, I tested it. Let me know if you see my videotron IP in your logs I'll pay you a case of Quebec 11% micro-beer if you do.

jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2
reply to JonyBelGeul
said by JonyBelGeul:

Something to keep in mind. TSI did not oppose in exchange for notice-and-notice, because notice-and-notice is not yet implemented in copyright law. However, it will be, therefore we can expect TSI to then oppose future motions to disclose once notice-and-notice is implemented.

I'm not sure, I haven't asked the experts yet on this but IMO, I think that may have been a legal mistake. In most cases courts keep governments intent in mind on law after royal assent is given. Notice to notice approach I believe was included with royal assent in June of the new legislation. It's not "law" yet but it will be. What's being debated right now by the ISPs and government are the technicalities of the costs, not the actual notice to notice approach.

In theory, knowing governments intent to implement a notice to notice approach and ISPs responsibility within a forthcoming law around it, TSI may have been able to advocate for extended time needed for notification to the court and would have been able to freely oppose the motion at a later date if leave was granted.
--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/

UK_Dave

join:2011-01-27
Powassan, ON
kudos:2
Reviews:
·TekSavvy DSL

1 edit
Hi JK.

That was a great find of yours - the excessive copyright blog.

Here's something else I dug out from that very same case from:

»www.macerajarzyna.com/pages/publ···erce.pdf

-------------------
"There was no evidence of connection between the
pseudonyms and the IP addresses. Neither the affidavits
nor the cross-examination thereon provided
clear evidence as to how the pseudonyms of the Ka-
ZaA or iMesh users were linked to the IP addresses
identified by MediaSentry. While the affidavit indicated
that the pseudonym (Geekboy@KaZaA) was
identified as the IP address 24.84.179.98 and that,
according to the American Registry for Internet
Numbers’ public database, that address had been
assigned to Shaw Communications (one of the ISPs
from which disclosure is sought), no evidence explained
how the pseudonym was linked to the IP
address in the first place. Given these circumstances
the court refused to order disclosure of the name of
the account-holder of IP address 24.84.179.98
thereby exposing that person to litigation."
-----------------------

That is better than a bunch of hopeful references to US case law.

It's Canadian.

-------------------------
On March 31, 2004, Justice von Finckenstein of
the Federal Court (the Motions Judge) ruled against
the request by the Canadian Recording Industry
(“CRIA”) for disclosure of the identities of 29 “John
and Jane Does” in the Canadian version of the mass
litigation campaign that the Recording Industry Association
of America (“RIAA”) had already in the
------------------

All of that was © Howard Knopf 2005 too....

The guy knows his onions.

UK_Dave

join:2011-01-27
Powassan, ON
kudos:2
And here's another summary of the same:

»www.internationallawoffice.com/n···236f84b2

jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2
reply to UK_Dave
Knopf himself is a lawyer, often argues copyright related cases with the supreme court. He's a pretty good consumer advocate around copyright issues. I've been following his blog since 2007 myself. Very good and trusted resource in understanding complex copyright cases. I'm wondering if the CIPPIC is successful tomorrow, whether he will get involved here to help with this.

UK_Dave

join:2011-01-27
Powassan, ON
kudos:2
Reviews:
·TekSavvy DSL
That's going to be an interesting development if it happens.

Having read through this, along with Supreme Court Transcripts, it seems everything fell flat at disclosure last time. So basically if disclosure gets warranted *this* time, then we've let things creep one step further forward even if no cases are succesful against the individuals.

Who would have thought we'd be cheering for someone to "do a Konrad" on this forum!?


sbrook
Premium,Mod
join:2001-12-14
Ottawa
kudos:13
Reviews:
·TekSavvy Cable
·WIND Mobile
reply to JonyBelGeul
said by JonyBelGeul:

said by The Mongoose:

No, it doesn't. This is not a criminal matter. If a judge thinks it's 51% likely that the defendant committed the act alleged by the plaintiff, the plaintiff wins. Civil litigation is not "Law And Order SVU".

For the judge to "think" this, there must be sufficient evidence, and we're back to burden of proof, which lies with the plaintiff.

Plaintiff - I accuse this man of downloading my movie without my authorization.
Judge - Do you have evidence to support your allegations?
P. - I have an IP associated with the act, and I have a name associated with the IP, therefore I submit that the name associated with the IP committed the infraction.
J. - Do you have direct evidence that the name did the deed?
P. No.
J. The defendant says he did not do it.
P. I still believe he did.
J. Belief is not sufficient evidence. Charges dropped. Case dismissed.

But according to what you say, this is what happens instead:

J. Well, in spite of the defendant claiming his innocence, in spite of lack of direct evidence, if you believe he's guilty, then he's guilty.

But what you are being told and ignoring is that we aren't dealing with "burden of proof", but rather with "preponderance of evidence". In other words, it's not about "Did you do it, or didn't you do it?", it's about, IS IT PROBABLE that you did it.

Say a plaintiff asks for $10,000 for you distributing movies ...

The plaintiff questions you ...

Do you like Movies? Yes
Do you like this particular genre of Movie? Yes
Do you watch them on your computer? Yes
Do you download files by BitTorrent? Yes
Is it true that BitTorrent generally requires you make files available for download by others (ie distribute them) if you are to download some for yourself? Generally, yes.
Did you download this movie? No
Do you make movies available? Yes
Did you make this movie available? No

Judge says the preponderance of evidence is that you probably did, but I'm not totally sure, so I find that you probably did make it available therefore I find for the Plaintiff, but only award $2000

If you answer yes, then your goose is cooked anyway. Judgement for the plaintiff and award $10,000 plus costs.

If you are truthful to skilful questions, you're going to be found against.
They don't have to prove guilt. They have to demonstrate PROBABLE guilt. ANd that is MUCH harder to defend against.

Amou

join:2011-01-29
Guelph, ON
Reviews:
·Acanac
·TekSavvy Cable
·TekSavvy DSL
·Bell Sympatico
reply to TSI Marc
My 1c is that Teksavvy is using logs for the right reason. People are complaining for the wrong reasons. Privacy, yes that is good reason, to defend one self from illegal actions? Well the law was already there. If people are worried about the charges why weren't they from the start when they decided to share the files. Of course not everyone had done it. To me Teksavvy didn't have to do anything and yet they did but we still sit there complaining and moaning at them for actions that we've done. That is a bit low. Not starting anything, just want to give them credit for all they've done. It's not their place to scrutinize our activity but it's also an option not to inform us at all. Sometimes doing little as possible is the best option.

Bhruic

join:2002-11-27
Toronto, ON
kudos:2
reply to sbrook
said by sbrook:

Do you like Movies? Yes
Do you like this particular genre of Movie? Yes
Do you watch them on your computer? Yes
Do you download files by BitTorrent? Yes
Is it true that BitTorrent generally requires you make files available for download by others (ie distribute them) if you are to download some for yourself? Generally, yes.
Did you download this movie? No
Do you make movies available? Yes
Did you make this movie available? No

Sure, if you're stupid enough to answer the questions in that fashion.

How about:

Do you like Movies? Yes
Do you like this particular genre of Movie? Yes
Do you watch them on your computer? Yes
Do you download files by BitTorrent? Legally available files, yes
Is it true that BitTorrent generally requires you make files available for download by others (ie distribute them) if you are to download some for yourself? I don't have technical knowledge on how bittorrent works
Did you download this movie? No
Do you make movies available? No
Did you make this movie available? No

Going in brain dead isn't going to help your case any.

jkoblovsky

join:2011-09-27
Keswick, ON
kudos:2

1 edit
Even if these studios did pass tests with respect to evidence of intent on non-commercial downloads, there is still very much the economic impact test to pass before any judgement would be awarded.

The conservatives put a condition on the stat damages, meaning in order to qualify for the $100 - $5000 in damages they basically have to prove a loss from that download. That has never been done successfully before in court, here or worldwide. There's a reason for that.

There's an economic term called "creative destruction":

»en.wikipedia.org/wiki/Creative_destruction

What this term basically means if that while one part of the industry has suffered as a result of technological change (meaning P2P downloading) other parts of the industry are benefiting from it (including studio's like Voltage). There's evidence of this in industry's own economic numbers they release, along with evidence of this in independent economic studies as well. It's now for the most part an economic fact this is happening. The government knew this when drawing up the new legislation, and one of the reasons why they have put forth a legal test to prove actual losses have occurred before the stat damages can even be considered. They have to prove losses before stat damages are awarded. That again was supposed to be a "deterrent" for lawsuits.

I come from the media industry, and this whole assault on downloading is hugely hypocritical. In the past I've seen labels and production studios bitch about the downloading, and yet at the same time intentionally leak release product online to try and hype up that product up. While I can't definitive prove that, from someone with inside knowledge in the industry I know it happens quite often.

Another augment is the use of value chains. There are several "proven" value chains that industry is not using right now around file sharing (especially with anything video). I brought a specific value chain up to a TV producer friend of mine during the copyright debates, the only objection I got was it was unfeasible because they can't track downloads off of P2P. I countered by stating then why are downloads being tracked to bring people to court? He responded with "that's different."

After the new year I will be writing up a research paper on the economic impact of file sharing. I think people need to come to grips with the fact (including ISPs) that the future of copyright law, will most likely not include uses for non-commercial infringement.

In my perception after doing some very hard soul searching as part of the media industry, the personal use of P2P is taking advantage of a new unexploited medium. As with many independent economic researchers would agree that this should be legalized and fostered, and look forward to the day that the economics of P2P downloading is tested in court.
--
My Canadian Tech Podcast: »canadiantechnetwork.podbean.com/
My Self Help and Digital Policy Blog: »jkoblovsky.wordpress.com/

JonyBelGeul
Premium
join:2008-07-31
reply to sbrook
said by sbrook:

The plaintiff questions you ...

Do you like Movies? Yes
Do you like this particular genre of Movie? Yes
Do you watch them on your computer? Yes
Do you download files by BitTorrent? Yes
Is it true that BitTorrent generally requires you make files available for download by others (ie distribute them) if you are to download some for yourself? Generally, yes.
Did you download this movie? No
Do you make movies available? Yes
Did you make this movie available? No

Judge says the preponderance of evidence is that you probably did, but I'm not totally sure, so I find that you probably did make it available therefore I find for the Plaintiff, but only award $2000

If you answer yes, then your goose is cooked anyway. Judgement for the plaintiff and award $10,000 plus costs.

If you are truthful to skilful questions, you're going to be found against.
They don't have to prove guilt. They have to demonstrate PROBABLE guilt. ANd that is MUCH harder to defend against.

The bold line does not come from the plaintiff, but from the defendant. According to burden of proof, the onus to prove whether the defendant made movies available falls to the plaintiff. As Bhruic said, only a stupid defendant would willingly admit to anything when faced with the absence of incriminating evidence. So your entire argument here is not based on whether burden of proof applies in this case, but whether a defendant is stupid enough to provide evidence to the plaintiff freely and without being compelled to do so.

I'd like to think that Canadians are pretty smart in this respect. What with our entire youth governed by a singular purpose - the desire to avoid parental punishment, yet still do whatever we want anyway. In other words, we learn early in life that trying to defend ourselves against our own stupidity is a futile endeavor. The stupidity I refer to of course, is the free admission of guilt, in spite of lack of evidence of same.
--
My blog. Wanna Git My Ball on Blogspot.

UK_Dave

join:2011-01-27
Powassan, ON
kudos:2
Reviews:
·TekSavvy DSL

2 edits
reply to jkoblovsky
I think proving "the loss" is open to a few interpretations.

We all see the much used analogy, that it's not "stealing", because it does not remove the original.

However, if by downloading I am avoiding the "price/charge" the rightsholder has set to watch the movie/play the song - then OK, it may not be called "theft" - what in your opinion is it called?

I wouldn't walk into a corner store, loiter at the newspapers, and after reading my newspaper of choice, return it to the stand and say "Here's your paper back, I'm not buying it". It has no value to me now I've availed myself of all it's content. The entire value of the item to me as a consumer has now reduced to zero.