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sbrook
Premium,Mod
join:2001-12-14
Ottawa
kudos:13
reply to TSI Marc

Re: Why we are not opposing motion on Monday.

People keep referring to burden of proof. burden of proof does not apply in a civil suit. It is all about preponderance of evidence.


TwiztedZero
Nine Zero Burp Nine Six
Premium
join:2011-03-31
Toronto, ON
kudos:5
Definition: Preponderance of the evidence m'kay?

funny0

join:2010-12-22
said by TwiztedZero:

Definition: Preponderance of the evidence m'kay?

so
two people stand out front of you
one hands one a dvdr and walks away
was that a commerical act?
NO
in fact you could get charged for taking a quarter for a ciggarette cause you aren't doing taxes and lisences and fees etc. BUT if you just give it away it is not commerical

thats my take and its why the motion for your names and addresses would mean nothing other then there ability to harrass and attempt to intimidate people for not reason then to be bad citizens.

In other words if instead of ip addresses you used your name and addresses in grabing or sharing these files would it have mad eit commercial

commercial:: adjective business, businesslike, economic, engaged in commerce, financial, in the market, industrial, jobbing, manufactured for sale, mercantile, merchandising, monetary, pecuniary, perraining to business, pertaining to merchants, pertaining to trade, prepared for sale, skilled in commerce, supplying, trade, trading

oh and rule out trade as i did not give something to get something ....

Grappler

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

People keep referring to burden of proof. burden of proof does not apply in a civil suit. It is all about preponderance of evidence.

With all due respect to your past knowledge, excellent posts, etc. do not confuse the two terms yourself.

"Burden of Proof" is the duty imposed on any given party, and as I stated in a earlier post, the plaintiff has the initial "burden of proof". After this, if required, the defendant has the "burden of proof". I say "if required" because there is always the chance that the defendant can shoot enough holes in the plaintiff's case, during cross examination, to have the matter dismissed without having to present their side.

"Preponderance of Evidence" is the standard that is then applied to the evidence in its totality after all parties have had their say whereby the courts then make their decision based on that evidence. Yes, it is a much lower standard than required in criminal law.

peterboro
Avatars are for posers
Premium
join:2006-11-03
Peterborough, ON
said by Grappler:

"Burden of Proof" is the duty imposed on any given party, and as I stated in a earlier post, the plaintiff has the initial "burden of proof". After this, if required, the defendant has the "burden of proof". I say "if required" because there is always the chance that the defendant can shoot enough holes in the plaintiff's case, during cross examination, to have the matter dismissed without having to present their side.

Think of this as the onus or requirement to show something happened. The defendant rarely has this requirement only the requirement to raise doubt that it did. To confuse the matter there are reverse onus proceedings like one I am doing now where one need only present a prima facie case on its face in the pleadings and the defendant now has the burden of proof to demonstrate the event did not happen.

said by Grappler:

"Preponderance of Evidence" is the standard that is then applied to the evidence in its totality after all parties have had their say whereby the courts then make their decision based on that evidence. Yes, it is a much lower standard than required in criminal law.

Think of this as a threshold or a prerequisite to "win" or prevail that different courts and quasi-judicial bodies want. Like "on the balance of probabilities" or "beyond a reasonable doubt" or " more likely than not" or “in the absence of evidence to the contrary”. The Supreme Court of Canada has consistently upheld that in civil cases there is only one standard of proof being "on the balance of probabilities"

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

said by sbrook:

People keep referring to burden of proof. burden of proof does not apply in a civil suit. It is all about preponderance of evidence.

With all due respect to your past knowledge, excellent posts, etc. do not confuse the two terms yourself.

"Burden of Proof" is the duty imposed on any given party, and as I stated in a earlier post, the plaintiff has the initial "burden of proof". After this, if required, the defendant has the "burden of proof". I say "if required" because there is always the chance that the defendant can shoot enough holes in the plaintiff's case, during cross examination, to have the matter dismissed without having to present their side.

"Preponderance of Evidence" is the standard that is then applied to the evidence in its totality after all parties have had their say whereby the courts then make their decision based on that evidence. Yes, it is a much lower standard than required in criminal law.

Clarity itself. Evidently, I could not put it as clearly as you just did.

In the case here, Voltage presented evidence that was found to be inaccurate in a few instances. A defendant would then only need to point to these inaccuracies - to poke holes in the plaintiff's claim. The main argument is that the evidence in question is very exact, therefore this exact nature is the threshold for its admission. In other words, it's an absolute. Either or. 1 or 0. True or false. However, the inaccuracies were found not for all instances, but only a few. The bulk of instances appeared to be accurate, and could still be admitted.

But deeper still, we have the original evidence to look at. Namely, if the movies were in fact verified directly in all instances. One poster here suggested that the time required for this was insufficient, therefore a more likely explanation was the movies themselves were not verified, but instead a proxy was used for this purpose. The proxy is the hashcode used to check block integrity after download within the BitTorrent protocol. A proxy is like associating a person to an IP, the IP is not the person. Thus, the hashcode is not the movie, weakening the evidence. A counter argument to this is that statistically, it's very very very unlikely that the same hashcode can be found for a block from different data. A counter argument to that is that the hashcode check software must be checked regularly to make sure that the hashcode check software used is still checking hashcode for the movie in question. If no regular checks were done here, then we can argue that too much trust was put in the software, not enough on the person doing the checking and subsequently testifying for the whole thing. After all, it's humans that testify, not machines.

Then there's hearsay, expertise, methodology, history of the plaintiff with similar legal action, etc.

This is all for the poking holes in the plaintiff's claim. For the defendant, he could then present evidence that further poke holes in the plaintiff's claim. For example, the cafe owner with a public wifi.

The point is, burden of proof comes first, then comes preponderance of evidence, i.e., the arguments. The further point is that at some point down the line where evidence is presented is where the evidence must be sufficient just to convince the court to order disclosure of further evidence. This would be the hashcode/movie, and the hashcode/movie checking software -- IP. At this time, it doesn't look too good for Voltage.
--
My blog. Wanna Git My Ball on Blogspot.


A Lurker
that's Ms Lurker btw
Premium
join:2007-10-27
Wellington N
said by JonyBelGeul:

The point is, burden of proof comes first, then comes preponderance of evidence, i.e., the arguments. The further point is that at some point down the line where evidence is presented is where the evidence must be sufficient just to convince the court to order disclosure of further evidence. This would be the hashcode/movie, and the hashcode/movie checking software -- IP. At this time, it doesn't look too good for Voltage.

The catch is that what you discuss here would most likely come up in a court case - AFTER - IPs and matching names are released. Most people believe that Voltage has no intention of going to court for their 10K. They want to send letters out trying to scare people into paying. In the UK this number has been (I believe) 25-40%. This will allow them to send an even bigger list to Rogers / Bell / Cogeco. It's a business.

JonyBelGeul
Premium
join:2008-07-31
said by A Lurker:

said by JonyBelGeul:

The point is, burden of proof comes first, then comes preponderance of evidence, i.e., the arguments. The further point is that at some point down the line where evidence is presented is where the evidence must be sufficient just to convince the court to order disclosure of further evidence. This would be the hashcode/movie, and the hashcode/movie checking software -- IP. At this time, it doesn't look too good for Voltage.

The catch is that what you discuss here would most likely come up in a court case - AFTER - IPs and matching names are released. Most people believe that Voltage has no intention of going to court for their 10K. They want to send letters out trying to scare people into paying. In the UK this number has been (I believe) 25-40%. This will allow them to send an even bigger list to Rogers / Bell / Cogeco. It's a business.

I agree. But then whatever is being said here must also be associated with the IP, the person, the movie, the hashcode, etc. And this evidence must also be just as exact and reliable as the other evidence it is associated with. Simply discussing the case, how the law works, or basically everything else but direct evidence is useless to Voltage. So posters who are directly involved or who know somebody who is should be careful not to divulge any information which could be used to strengthen Voltage's claim, regardless of whether they did in fact commit or not the allegations as stated. (Remember, some persons who were directly involved - who received an email from TSI telling them their name came up - did not in fact commit the allegations because they just weren't a TSI customer at the time of the alleged infraction. But this is just one first-line kind of proof of innocence. There are more ways than this to be genuinely innocent.) Name, IP, address, activities, that kind of thing.
--
My blog. Wanna Git My Ball on Blogspot.