Antipiracy bill gains new ally

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Constitutional problem...

The Betamax case was alarming enough, considering that it was made by a slim majority.

The major problem I see here goes well beyond copyrights and intellectual property. Presumption of innocence is the major Constitutional freedom that is threatened. Sony was, apparently, presumed guilty until "substantial non-infringing uses" could be proven. Even then, 4 of the judges believed this was insufficient. If something that can be used to infringe copyrights must be forbidden despite any number of non-infringing uses, then either copyright infringement is a special class of crime that must be prevented at all costs or there is effectively no defense against anyone who wishes to sue anyone who makes anything that could be used to harm them in any way.

Ordinarily, when one is accused of having committed a crime, he is presumed innocent until proven guilty. Now, however, one is presumptively guilty not only of a crime committed in the past, but of any number of crimes not yet committed. This is the "prior restraint" issue that constitutional law has identified as unacceptable.

Of course, presumption of innocence only applies in criminal cases, and Betamax was a civil case. Also, the burden of proof is still on the plaintiff, but the standard of proof is lower, and the proposed law effectively abolishes the burden-of-proof requirement. It doesn't even shift the burden of proof to the defendant, since the defendant has nothing to prove but a negative.

Posted by: bthomasmo@...   Posted on: 07/22/04 You are currently: a Guest | Members login | Terms of Use

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