Here is an interesting case for lawyers and law students. I'm trying to help out with the OpenLaw OpenDVD discussion in the DeCSS case in New York.
The discussion is online at:
http://eon.law.harvard.edu/openlaw/DVD
Judge Kaplan has raised the odd problem of how to assign responsibility for something like contributory copyright infringement--very hypothetically, since there has been no proof of any such thing and it remains to be seen if anyone has to prove that, since the case is raised by movie studios under the DMCA. But in any case, he wants to be briefed on this point.
As a nonlawyer, I am puzzled about the question as to whether negligence (as in Summers) might be concluded without a finding of harm. And in copyright infringement, has there been a case where the direct infringer and any contributory infringer have been told to divide the proof, responsibility and damages, instead of putting the burden on plaintiff?
Here is the transcript from Friday, July 21, and following is the reference to the case online [the transcription says "Tyce" but it should be "Tice"]:
http://www.eff.org/IP/Video/MPAA_DVD_cases/20000721_ny_trial_transcript.html
818
...
THE COURT:... 14 Just by way of a parenthetical digression, I am well15 aware that the issue of the extent to which there is 16 sufficient proof that there are in fact decrypted movies 17 available over the Internet has not been decided and we are 18 going to have further discussion about that. My question 19 presupposes, just on a hypothetical basis, if there is 20 adequate proof to find that there are such movies out there. 21 The thought that occurred to me last night and on 22 which I may want briefs is whether the burden of proving that 23 whatever decryptions are out there came from the defendant or 24 more broadly DeCSS is on the plaintiff as distinguished from 25 the burden being on the defendant to prove that they did not.
819
1 The case that prompted me to think about that, I know we all
2 read this in law school a long time ago, Summers v. Tyce,
3 decided by the California Supreme Court in 1948 which seems at
4 least superficially to be analogous to this problem.
5 The case involved a group of hunters out hunting with
6 shotguns, two hunters fired simultaneously. One shotgun
7 pellet hit the plaintiff. Because they were shotgun pellets
8 as opposed to bullets out of a rifled weapon, it was
9 impossible to tell which shotgun the pellet came from. The
10 California Supreme Court said that the burden of proof was on
11 the defendants to show that their shotgun did not discharge
12 the bullet that hit the plaintiff and in the absence of such
13 proof, everybody who fired a shotgun at that time was jointly
14 and severally liable.
15 I am not inviting argument on that this morning, but
16 I wanted you to know that I am thinking about that and to give
17 you an opportunity to address it at the appropriate time.
18 OK. That said -- and I should add there is a lot of
19 development in the law of products liability, I am sure you
20 all the know the case Summers v. Tyce as its starting point
21 and some of you may know that. Let's continue where we are.
...
The case is online at:
http://eon.law.harvard.edu/archive/dvd-discuss/msg05493.html
Summers v Tice 33 Cal.2d 80
199P.2d1, SA.L.R.2d91
(cite as: 33 Cal.2d 80)
Charles A. Summers
v
Harold W. Tice
L. A. Nos. 20650, 20651
Supreme Court of California, In Bank.
Nov. 17, 1948.
-- "Eric" Eric Eldred Eldritch Press mailto:Eldred[_at_]EldritchPress.org http://www.eldritchpress.org/EricEldred.vcfReceived on Mon Jul 31 2000 - 13:59:11 GMT
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