Hmmm.... Okay, to set the scene, I have a deep respect for the legal system - though not necessarily all the people who are involved in it or the nature of justice it always delivers! Above all, I've seen that by and large, the legal system works remarkably well given that by it's nature there is a winner and a looser in almost every case, and that losers are rarely happy about their fate at the hands of the system.
Underlying it all is the principle of presumption of innocence, which is still alive and well and (mostly) kicking. There are certainly courts that have tended to err on the side of hanging defendants and then asking questions, but the principle remains, that it is
not up to a defendant to 'prove' he or she is innocent, but a prosecutor to 'prove' he or she is guilty.
Thus, if I am alleged to have 'stolen' music, for example, by downloading or copying something which carried a legitimate copyright for which I have not paid for a right of use, the burden of evidence is always on the prosecutor to prove the case against me beyond reasonable doubt. Likewise, if I am alleged to have illegally distributed 'stolen' music for which I have not paid for a distribution right, again the burden of evidence is always on the prosecutor to prove the case against me beyond reasonable doubt. It is not my burden to prove my innocence in any way. Thus if I cannot furnish a receipt to show I obtained something legally, I will still be found innocent unless the prosecution can provide evidence of a compelling nature to show that I am guilty and I cannot raise any issues of doubt. That is why the record and film industries are pressuring ISPs to provide client records to thus allow them to trace users who access sites and download and share music.
In civil actions, cases are decided on the principle of 'the balance of probabilities', where instead of the concept of proof and reasonable doubt, a court will decide on the basis of which side seems most likely to be right based on the arguments made and the evidence provided. Thusly the burden of evidence is rather different, and hence such things as civil actions for wrongful death often succeed where criminal actions for murder do not. It's also why many cases brought on alleged theft of copyright materials are filed in civil proceedings, because the copyright holder knows that the absence of a legitimate receipt for the item will tell far more against the defendant than in criminal proceeding where such a lack would be a matter of circumstance.
Even so, were I to be sued for copyright infringement, the fact I do not have a receipt to offer the court as evidence of legitimate access to the work would still not be damning in of itself because another principle of law comes into play - the question of 'reasonableness'. My argument in court would be that it is not reasonable to assume I never had a receipt simply because I can't produce one, because most people don't keep receipts. The court would be left to decide whether or not a notional 'normal' person would be likely to have kept a receipt for that item or not. There are many factors that might impact their decision on that point - a corporate entity for example is far more likely to keep financial records and maintain such things as software install disks and license materials than a private individual is to keep a receipt for a CD bought at Sainsbury's, Tesco's or whatever. Also, the period of time that has elapsed since the 'purchase', and the nature of the copyrighted item - such that it would be more reasonable to retain receipts for a £500 piece of software than a £10 audio CD or DVD.
I know that if I lost a civil case on the basis of the lack of a receipt and without the balance of probability tipped by the evidence in favour of the complainant against me, I would certainly have high expectations of the judgement being overturned in appeal.
The entertainment industry know this of course, but they also know that private individuals most often can't afford good lawyers and don't want to be involved in court cases in the first place so they settle and run away as fast as they can. That is why so many actions by, or on behalf of, the industry have succeeded and why very few have been challenged or adverse judgments appealed. One day they'll go after someone who is prepared to fight and we'll likely see some interesting consequences!
In the case that you linked to, it appears that Helen Muir's lawyers did not argue that she was innocent. Rather, they argued that her actions were the result of depression. As a result of her lawyers arguments on her behalf, she escaped custodial sentence and will receive psychiatric counselling.
Now, how did David Laws escape a custodial sentence? For that matter, how the hell did Margaret Moran escape prosecution? It's a different debate and one that has left me scratching my head with a look of total confusion.
OK, so now I've bored everyone silly, I'll go back to sleep mode.... until my next whiskey break!
Kryten
