Klarinet Archive - Posting 000099.txt from 2009/02

From: Jonathan Cohler <cohler@-----.org>
Subj: Re: [kl] Derivative Works
Date: Thu, 05 Feb 2009 13:17:02 -0500

Last pass on this one...

--Jonathan

At 2:15 PM -0600 2/4/09, Michael Nichols wrote:
>Of course there are bright-line rules in the law. Statutes of
>limitation are a good example--wait too long to sue and you lose your
>ability to do so. Most of what courts do is hear evidence, from which
>they make factual conclusions. Most courtroom battles (at least at
>the trial court level) are about what the facts are, not about
>interpretation of law. Even if there is a bright-line rule, there can
>be (and often is) contention over what the facts are.

Every judge and jury interprets the law differently. The law is
decided when they (a judge or a jury) make a decision. The rest
(i.e. the laws) are just guidelines.

If it were possible to make a set of laws that all judges and juries
would interpret in PRECISELY the same way, then I suppose you
wouldn't need courts.

Then you could have your "bright line rules" (an imprecise term at best).

Until then, there are no "bright line rules".

But since "bright line rule" is such an imprecise term itself,
perhaps what you mean by it is any rule of which you think you
understand the sole and perfect interpretation. Then these would be
bright line rules for you but not for someone else who disagrees with
your interpretation (and who might be a judge or juror).

EOS.

> > So as I said, prima facie or not, in ALL cases in the United States of
>> America, the plaintiff must prove their case first. NOT the other way
>> around. No exceptions. None. Zip. Zilch. That's just the way we designed
>> our jurisprudence in this country. Law 101. Sorry.
>
>I never said the plaintiff doesn't have to prove their case first.
>What I said was that "fair use" is an affirmative defense, which means
>that the defendant has the burden of proving "fair use" once the
>plaintiff has proven the elements of infringement (which are ownership
>of a valid copyright and copying of the copyrighted material).

There you go again. "Once the plaintiff has proven the elements of
infringement" means that the onus is on the plaintiff.

And you are massively incorrect, if you believe that the only two
elements of copyright infringement are "ownership of a valid
copyright and copying of the copyrighted material". Read the law.
There are many other elements and exceptions.

>In other words, if someone copies copyrighted material, it is
>*presumed* that the copying is NOT fair use.

WRONG. Show me a case. Or a law that says this.

>The defendant has to
>prove that it IS fair use.

WRONG. Not unless the plaintiff proves that there is infringement,
which would include evidence that it is NOT fair use.

>That doesn't change the fact that the
>plaintiff has the burden of proving ownership of a valid copyright and
>copying of protected material (i.e., making a prima facie case).

Proving these two facts is not anywhere near sufficient to prove a
copyright violation.

>Since courts *presume*
>that unauthorized copying of copyrighted material is NOT fair use,
>unless a defendant proves to them otherwise, that makes fair use a
>difficult doctrine to rely on in court.

WRONG. Show me where in the law (or in any case) it says what you are
claiming above.

> > Using fancy words like "prima facie" to obfuscate doesn't change reality.
>
>I wasn't trying to confuse you. It's just one of those basic legal
>terms every American law student learns in the first year of law
>school (or "Law 101," as you say), along with "affirmative defense."
>Since you seem to have a lot of confidence in your knowledge of
>American jurisprudence, I assumed you'd know what I meant. But if you
>haven't been to law school (and taken "Law 101"), I can understand
>your not being familiar with that terminology.

I am absolutely clear on prima facie. Clearly, you are not.

For your edification, here is the definition of affirmative defense,
which you also seem to be a bit hazy on:

>An affirmative defense is a type of defense in which the defendant
>seeks to avoid liability by introducing new evidence not addressed
>in the claims of the plaintiff's complaint. Such a defense must be
>raised in the defendant's answer, and because affirmative defenses
>require the assertion of facts beyond those claimed by the
>plaintiff, the defendant has the burden of proof for the defense.
>The burden of proof is typically lower than beyond a reasonable
>doubt. It can either be clear and convincing or preponderance of the
>evidence. An affirmative defense must be timely made by the
>defendant in order for the court to consider it, or else it is
>considered waived by the defendant's failure to assert it.

Completely, irrelevant in this matter.

--Jonathan
--
Jonathan Cohler
Artistic & General Director
International Woodwind Festival
http://iwwf.org/
cohler@-----.org

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