Klarinet Archive - Posting 000124.txt from 2009/02

From: Michael Nichols <mrn.clarinet@-----.com>
Subj: Re: [kl] Derivative Works
Date: Fri, 06 Feb 2009 11:51:22 -0500

On Thu, Feb 5, 2009 at 10:23 PM, Jonathan Cohler <cohler@-----.org> wrote:
>> I already did. Campbell v. Acuff-Rose says "fair use is an
>> affirmative defense," clear as day. 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.
>
> Yes, Campbell v. Acuff-Rose says "fair use is an affirmative defense" citing
> Harper & Row, Publishers, Inc., et al. v. Nation Enterprises et al. 471 U.S.
> 539. So what? That does not mean that courts "presume that unauthorized
> copying of copyrighted material is NOT fair use". It just means that the
> defense has to present a case. And nowhere does either case mention such a
> presumption.

They probably don't use the word "presumption" in that case, but
that's what it means--that the defendant has the burden of proof for
the defense.

To give you what is a more familiar example for most people (at least
if they watch TV detective shows), in a criminal case it's well known
that the accused is presumed innocent by the court until proven guilty
by the prosecution. Thus, we say that the prosecution has the burden
of proof with regard to whatever criminal charge has been brought.
It's the prosecution's burden, because if they don't prove their case,
the court will presume that the defendant is innocent.

Now with respect to affirmative defenses, it's the *defendant* that
has the burden of proving the defense. An example of this in the
criminal sphere would be self-defense--that's an affirmative defense..
Let's say the charge is assault. The prosecution, to make its case,
would have to prove that the defendant intentionally inflicted (or
attempted to inflict) bodily harm on another. If the act of bodily
harm was performed in self-defense, though, the defendant has to raise
this as an affirmative defense, and it is the defendant's burden to
prove that it *was* self-defense. If the prosecution proves
intentional bodily harm, but the defendant doesn't successfully prove
that the act was in self-defense or doesn't assert this defense at
all, the court will have to conclude that it was not in self-defense.
Another way of saying this is that the presumption (that must be
overcome by the defendant) is that the act was not made in
self-defense.

Another well known affirmative defense is the insanity defense; the
court will presume that the defendant is sane unless the defendant
manages to prove otherwise. That's one reason we have court-appointed
defense attorneys, because if someone really is insane, they won't be
mentally capable of raising that defense--it's a catch-22 (in the
original sense of the term).

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