bentman78
Bentley
join:2004-04-16
Arlington, VA
 ·Comcast
| reply to TK Junk Mail
Re: uh huh
I disagree...the burden of proof is on the plaintiff. They have to prove beyond a reasonable doubt he downloaded the stuff. They had the police invade his home and take his computers. If there isn't any evidence on his PC's he had those files what can they do?
While I disagree (for the most part) with pirating music, if they are going to sue, they need to have the proof. If I was a juror (not sure if they use jurors in civil cases or not) I wouldn't find him guilty unless they can prove he actually did it and have evidence it was him...other than shitty ISP logs. |
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TK Junk Mail
Go ahead, make my day
Premium
join:2002-03-03
Margate City, NJ
clubs:
·Comcast
| said by bentman78  :I disagree...the burden of proof is on the plaintiff. They have to prove beyond a reasonable doubt he downloaded the stuff.... not sure if they use jurors in civil cases or not In civil law there is no such thing as "beyond a reasonable doubt". That is purely a criminal standard. In civil law the standard is a "preponderance of the evidence". And that means there can be evidence against the plaintiff, but if the plaintiff has MOST OF the evidence, they can still win.
Many trials in civil court are heard just by judges, but a jury trial can be demanded by the defendant(except in small claims court). The disadvantage of a jury trial is that if the defendant loses, they also get to pick up all the significant costs of a jury trial as well.
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nightshade74
Yet another genxer
Premium
join:2004-11-06
Prattville, AL
·Knology
 ·VoicePulse
| reply to bentman78
said by bentman78 :I disagree...the burden of proof is on the plaintiff. They have to prove beyond a reasonable doubt he downloaded the stuff. Actually the standard is "preponderance of the evidence"
(the civil standard) Which is a much lower standard than
"beyond a reasonable doubt" (the criminal standard)
With that being said... It's within the realm of
reason that an open wifi spot attracted the P2P crowd.
Whether it is the most likely cause (again civil standard)
remains to be seen. |
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bentman78
Bentley
join:2004-04-16
Arlington, VA | I see...
However bing a juror, I'd have to see more proof, more than ISP logs anway. However if it's in the hands of a judge then who knows what will happen. |
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radarman
join:2005-06-01
Odenton, MD
| reply to TK Junk Mail
Actually, for most people, there is an even lower standard - can they afford the first day of court?
The bottom line is, you can easily spend more than the settlement would cost just walking through the door with a halfway competent attorney.
This is how the RIAA manages to extort so much money - they know that the people they are suing can't afford a real legal battle, and the people they are suing realize it as well. In most cases, they are probably guilty of what they are being accused of - but it really doesn't matter, does it?
This is why a lot of scam artists threaten to sue when someone reveals their scheme on the Internet. It is cheaper to back off than risk going to court. |
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nonner9
join:2005-10-14
Charlotte, NC
| reply to bentman78
and if this guy defends himself, I don't know if he will be able to pick a jury with smart people like you.... the prosecution will pick dumb people who will believe the logs, and won't be able to comprehend that someone could have masked the MAC or IP address... |
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bentman78
Bentley
join:2004-04-16
Arlington, VA
·Comcast
| this is one of my fears as well. I think we will only see more cases such as this in the future.
My feeling is this:
there will be more and more cases of what the media calls "cyber-crime" and "hackers" (I hate the term myself, the media misuses it) that will breech our headlines and our courts. Unfortunately most people don't have a good understanding of the technologies involved. This goes for jurors, judges and especially lawyers who seem to be stifling innovation at best in my opinion. Basically you have people judging without being truly aware of all of the implications involved, security, copyright laws or otherwise.
What I guess I am trying to say is this guy won't get a fair chance because a majority of the people involved don't really know what a MAC/IP address even is let alone being aware of MAC spoofing, cracking WEP keys (I am aware this guys AP was unsecured) or anything else more advanced than "surfin' tha net'. This goes for the lawyers as well, and I seriously doubt a technical expert will be consulted on this case to verify the defendants arguments. Is it likely someone sat in his driveway and use his connection? No. Feasible? certainly, and you might not even have to be that close. I pick up peoples AP's from across the street, it's weak but I can get it.
The problem is our judicial system isn't prepared for the next phase in society that will become highly technical. This goes for our patents system as well and there needs to be revisions soon as more and more cases such as this show up. If this man is found guilty on the pretense that "we have logs", he possibly could have downloaded stuff, he should be responsible for his open AP it will set a new precedence for future judgements in this case. I am certainly no expert in law, I just can't see where the MPAA has the evidence or what the defendants rights are. I noted somewhere down the thread that property can't be seized in a civil case, then it turns criminal and the "beyond a reasonable doubt" kicks in, is this true?
Might I also bring up the case in Tampa where the man was found guilty of "hacking" by using someones access point that wasn't his? Many people supported him being charged with a crime because he was using a connection that wasn't his. How is this any different. Should this guy in Cincinnati or where ever be responsible because someone used his connection. According to the case in Tamps he shouldn't....where does the line end and where does it begin? |
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envoid
join:2002-12-21
Duluth, GA
| reply to nonner9
agree. would pick the dumb that think anything in ISP logs is 100% proof. but it is also possible that a WAP crashes and resets to defaults AFTER it was set up securely without the operator knowing anything about it. wasn't using mine for a bit as wasn't working from home and kept getting emails from Charter sayign ASF or whomever and MPAA were saying I was trading shit. Updated the FW and moved do another subnet so if it defaults again there's no access from it. But it is quite a plausible defense and if it's true I hope he wins. |
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TK Junk Mail
Go ahead, make my day
Premium
join:2002-03-03
Margate City, NJ
clubs:
·Comcast
| reply to bentman78
said by bentman78 :I noted somewhere down the thread that property can't be seized in a civil case, then it turns criminal and the "beyond a reasonable doubt" kicks in, is this true? No. But it is a separate civil procedure to get a judgement against property. That is you can lose a civil suit, but if you refuse to pay, the winner has to go back into court to get a judgement to seize the losers assets.
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Cyron
join:2002-09-24
Charlotte, NC
| reply to nonner9
said by nonner9 :and if this guy defends himself, I don't know if he will be able to pick a jury with smart people like you.... the prosecution will pick dumb people who will believe the logs, and won't be able to comprehend that someone could have masked the MAC or IP address... I'm pick dumb people as well, and I would act very dumb myself. Dumb people would be more willing to believe your wireless network was 'hacked' and computer nerds took advantage of you. Not to mention, everyone of them would put themselves in your shoes as a dumb computer illiterate who is being rail-roaded by a huge, wealthy interest group. |
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tomkb
Premium
join:2000-11-15
Avon, OH
clubs:
·RoadRunner Cable
| reply to nightshade74
said by nightshade74 :said by bentman78 :I disagree...the burden of proof is on the plaintiff. They have to prove beyond a reasonable doubt he downloaded the stuff. Actually the standard is "preponderance of the evidence" (the civil standard) Which is a much lower standard than "beyond a reasonable doubt" (the criminal standard) With that being said... It's within the realm of reason that an open wifi spot attracted the P2P crowd. Whether it is the most likely cause (again civil standard) remains to be seen. Yes, but the question that will have to be answered in this civil tort is if the defendant had an obligation to insure his access point was secure from this crowd. Was he negligent? Was the manufacturer negligent? Was the unit defective? Were significant instructions supplied to prevent this malicious act? Is the defendant jointly liable? The burden of proof lies with the plaintiff. I believe the defendant has a real shot at winning this case. My guess is the industry will never let this get to trial. what if this guy from ohio wins and sets a precedent with wireless access points? can the industry really afford this? |
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longstreet
join:2004-11-14
Salt Lake City, UT | preponderence of evidence and any sane thinking person= beyond a reasonable doubt |
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