22 May 2004

Abridged Edition

In the US, many of us—even many of us who should know better—often fondly think of the UK as another bastion of democracy and free speech. In publishing industry terms, the free speech Over There is an abridged edition. That the media marketplace is creating the same danger over here, in the name of profit protection, is nearly as serious.

Mr. Unger said he was not angry at his erstwhile British publisher, but rather unnerved by his crash course in British libel law. "It makes you love the First Amendment all the more," he said. "It's rather shocking what we take for granted as journalists in the United States, and what you cannot say in England."

If nothing else, this illustrates the point that the burden of proof is strongly outcome-directing. In publishing-oriented cases (copyright, trademark related to publishing products, publishing contracts, and defamation by media) in the last decade of so, for those cases that have actually been filed it appears that the party with the burden of proof loses over 70% of the time. At least, for those jurisdictions that I have been able to study; and, although that doesn't include some significant jurisdictions, such as the Tennessee state courts, the difference between the other state jurisdictions is not statistically significant. The sampling technique is not rigorous enough to quantify the effect for purposes of making predictions; it is, however, enough to draw a general conclusion: that the burden of proof gives a better than two-to-one advantage to the party in the defensive posture.