About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


23 Lewis & Clark L. Rev. 621 (2019-2020)
Proving Infringement: Burdens of Proof in Copyright Infringement Litigation

handle is hein.journals/lewclr23 and id is 541 raw text is: PROVING INFRINGEMENT: BURDENS OF PROOF IN COPYRIGHT INFRINGEMENT LITIGATION by Lydia Pallas Loren & R. Anthony Reese* The Copyright Act says very little about the plaintiffs burden ofproof in es- tablishing liability in an infringement case, although courts have, to varying degrees, allocated burdens ofproof including identifying certain defense argu- ments as affirmative defenses. The Article seeks to provide greater analytical clarity to the complicated area of the burdens ofproof in copyright infringe- ment litigation. In particular, the Article identifies many defenses to a copyright infringement claim as not being true affirmative defenses but rather being rebuttals to a plaintiffs efforts to satisfy the burden ofpersuasion. Care- ful understanding of the burdens ofpersuasion, the diferent types of defense arguments, and the potential shifting of the burden of coming forward with additional evidence will aid attorneys and courts in a more accurate and thor- ough analysis of both the procedural and substantive issues raised in any par- ticular infringement case. Lydia Pallas Loren is the Henry J. Casey Professor of Law at Lewis & Clark Law School. R. Anthony Reese is Chancellor's Professor at the School of Law of the University of California, Irvine. The authors would like to thank participants at the Lewis & Clark Business Law Forum held in September 2018 for their helpful comments. 621