Associated Press notes D&D lawsuits

[kitsune9]

While, to my limited knowledge, the plaintiff has to prove the defended did what ever the suit alleges he did, the burden of proof is far far lower then it would be in criminal court. Nolan's defense MIGHT work with a sympathetic jury and some supporting evidence in a criminal trial since it might be reasonable doubt. In a civil case, I doubt it will work unless the jury just wants an excuse to find for him since Wizards just needs a to have more evidence and a more convincing argument.

Nolan's case isn't going to jury, it's in mediation.

 

[Cadfan]

This is a civil case. There's no prosecution. Its plaintiff vs defendent.

The burden of proof is rather low. There's a bunch of technical explanation about first-actor effects and status quo biases, but basically the plaintiff and defense are on even footing. Neither one has an advantage or disadvantage in civil court in terms of the burden of proof.

The exception to this is in your prima facie case. There are certain matters where one side has to first establish a basic case against the other, and until this is done the other side doesn't even have to try to defend itself- it will automatically win if the prima facie case isn't made.

I don't know the rules for a copyright case. But if I had to guess, I'd guess it goes something like this: WotC will make a prima facie case that sounds something like: "These are our books that he did not have the right to distribute. This is his file sharing account. These are our books on his file sharing account. We think he put them there because its his account." Then he'll try to rebut by, apparently, arguing that he didn't have sole access to the account.

Remember, its court, and just saying so doesn't mean everyone has to believe you. Even if WotC responds only by rolling its eyes at him and saying "yeah right," that could be enough if the fact finder concludes that his defense is implausible.

I'm not optimistic about the lost wallet defense.

That being said, I'm not incredibly enthusiastic about lawsuits as a means of combating file sharing. I kind of hate the "information wants to be FREE!!1!" guys, and so part of me doesn't mind seeing their self-righteous, self-justifying faces get bloodied once in a while, but the lawsuits as the remedy for file sharing system functions a bit unfairly.

The idea goes kind of like this: people are rational creatures. When dealing with acts for which they could be punished, they make decisions based on how big the possible punishment, and how likely they are to be caught. For some acts, the likelihood of being caught is very high, so the punishment doesn't need to be very high to dissuade people. But with file sharing, its the other way around. The chance of being caught is very low, so the system has gravitated towards very large punishments.

But even with this, the chance of being caught is really, REALLY low. So low that the possibility of being sued never enters into people's minds. What's probably needed is to take this out of the hands of privately driven law enforcement and put it into the hands of the government. If file sharing were more like speeding, where file sharers who didn't earn any money from their acts were caught after every few files uploaded and issued hundred dollar tickets for each offense, the regular people who post things to file sharing websites would probably stop. And the result would probably be a lot more fair all around. I'd want to preserve the private option for companies who feel that they really have been harmed financially to the point where a lawsuit would be a fiscally responsible decision (is WotC really making money no this? Probably not, its probably for intimidation of future file sharers), but for the day to day stuff my system would probably work better.

 

[Cadfan]

Nolan's case isn't going to jury, it's in mediation.

That doesn't mean it won't go to a jury. Mediation is something you do to resolve things voluntarily, and it works because the threat that the other side will walk away from the table and take you back into court to face a jury is usually scary enough to convince people to talk things over.

 

[tmatk]

I wonder how many thousands of PDF uploads and downloads there will be while this lawsuit drags for months. Makes me wonder what the point will be - Will they collect enough from these 8 people to even cover the legel fees? Will enough people even know about these lawsuits, and thus be scared of uploading or downloading in the future?

 

[Bumbles]

I wonder how many thousands of PDF uploads and downloads there will be while this lawsuit drags for months.

None of Scribd at least, since those got taken down.

And the "My account was hijacked" defense?

I'd expect Wizards to tear that down rather quickly.

"Did you report your wallet stolen?"

"What other accounts were hijacked by these alleged thieves?"

A defense is nice, but most people don't realize that anybody can see it for what it is, then come up with ways to show how you didn't behave like somebody who this really had happened to.

 

[Cadfan]

None of Scribd at least, since those got taken down.

And the "My account was hijacked" defense?

I'd expect Wizards to tear that down rather quickly.

"Did you report your wallet stolen?"

"What other accounts were hijacked by these alleged thieves?"

A defense is nice, but most people don't realize that anybody can see it for what it is, then come up with ways to show how you didn't behave like somebody who this really had happened to.

"So after they went into your Scribd account, what did they do to your credit cards?"

"Did you even cancel or change your credit cards?"

"So they've still got your credit cards now, presumably? And those cards are still valid?"

 

[rogueattorney]

"Nolan, representing himself in the case..."

Yee gawds!!! I was going to say that any defense lawyer worth his salt would have checked to make sure there was some paper evidence to back up the lost wallet defense...

Free legal advice for all... If a subsidiary of a corporation the size of Hasbro, Inc. is suing you in Federal Court, get a lawyer.

So what happens in this case? Mediation goes nowhere or settles for a nominal sum that was hardly worth the effort? If mediation doesn't solve it, the guy from Florida doesn't bother to show up for court in Seattle. WotC gets a default judgment. If they try to collect at all, the guy in Florida declares bankruptcy so fast, their head spins, and they get zilch... Kinda begs the question as to the point.

 

[Krensky]

That being said, I'm not incredibly enthusiastic about lawsuits as a means of combating file sharing. I kind of hate the "information wants to be FREE!!1!" guys, and so part of me doesn't mind seeing their self-righteous, self-justifying faces get bloodied once in a while, but the lawsuits as the remedy for file sharing system functions a bit unfairly.

Tangential: The funny thing is that the battle cry of "Information wants to be free" isn't even what Stewart Brand said or meant:

On the one hand information wants to be expensive, because it's so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other.

Back on curve:

The idea goes kind of like this: people are rational creatures. When dealing with acts for which they could be punished, they make decisions based on how big the possible punishment, and how likely they are to be caught. For some acts, the likelihood of being caught is very high, so the punishment doesn't need to be very high to dissuade people. But with file sharing, its the other way around. The chance of being caught is very low, so the system has gravitated towards very large punishments.

But even with this, the chance of being caught is really, REALLY low. So low that the possibility of being sued never enters into people's minds. What's probably needed is to take this out of the hands of privately driven law enforcement and put it into the hands of the government. If file sharing were more like speeding, where file sharers who didn't earn any money from their acts were caught after every few files uploaded and issued hundred dollar tickets for each offense, the regular people who post things to file sharing websites would probably stop. And the result would probably be a lot more fair all around. I'd want to preserve the private option for companies who feel that they really have been harmed financially to the point where a lawsuit would be a fiscally responsible decision (is WotC really making money no this? Probably not, its probably for intimidation of future file sharers), but for the day to day stuff my system would probably work better.

Um, this is not an attack Cadfan, but either you don't drive much, or you are from a place with a very different driving culture to the US or, so I understand, the Commonwealth. Speeding is endemic. The police catch a tiny percentage and it doesn't cause anyone to slow down. Largely because the chance of being caught is so low and because people are not rational actors.

 

[Drawback]

Kinda begs the question as to the point.

Deterence?

 

[Krensky]

Deterence?

Only deters those who would deter themselves.

I'd rate this more on the "Show Hasbro we're doing something aggressive about this." category.