RE: Prove It's Not You: Case Raises Dangerous Precedent for Artists and Content Creators
@steemship I agree that the case is a terrible one for the painter. But he has sworn out a disavowment. His worst penalty would be perjury should it be found he was not truthful.
Civil cases rely on a preponderance of the evidence. This is about the loosest standard there is. However civil cases have never to my knowledge set precedent for criminal cases. Usually a criminal case proceeds a civil one.
It's a great article and I know you're a lawyer with legal expertise. But honestly, do you really believe this could set any sort of precedent for forcible attribution or forced / coerced confession?
My opinion on the case though is that the plaintiff bought a painting on false assumptions. It should be between him and the dealer that sold it to him. Surprised the judge is even entertaining this case. The artist should have been deposed and disposed.
Great comment. No, I don't think it would set precedent on forced confession or anything like that. But when the whole case involves a burden that is shifted onto the defendant, that's a dangerous precedent itself. This case should not have gone so far already.
You are correct regarding the normal civil standard of proof. What we are talking about here is the burden of proof, which is slightly different. It's simpler: the defendant should not have the burden of proving innocence (criminal) or lack of liability (civil), yet that is the plaintiff's entire case here.
Basically, the law can change over time and if this works once for a plaintiff, there is no telling how many more opportunists will sue artists, authors, you name it, using a similar theory of liability. And some of those courts will be looking at what this one did. Over time, the law can shift as courts interpret and apply it in new ways. Criminal law is pretty well insulated by constitutional protections, but how many of those have we seen whittled down when times change? A lot of them.