Comments on: Mak Prosecutors Come to Their Senses on Public Domain Issues http://www.exportlawblog.com/archives/145 Latest News on DDTC, BIS, OFAC, and other export law matters Fri, 10 Feb 2012 10:06:23 +0000 hourly 1 http://wordpress.org/?v=3.0 By: Mike Deal http://www.exportlawblog.com/archives/145/comment-page-1#comment-1626 Mike Deal Sun, 15 Apr 2007 17:56:45 +0000 http://www.exportlawblog.com/archives/145#comment-1626 This isn't a total win for the defense: Apparently, the prosecution is taking the position that its up to the defense to prove that the information is public domain, which would be consistent with its earlier position that "Public domain" is an exemption, and shifts the burden of proof to the defense just as with an affirmative defense. If treated as jurisdiction, i.e., that DDTC does not have authority to regulate Public Domain, then it would be the prosecutions burden, at least a burden of production (which could then shift the burden to the defense to reut the prosecution), to prove than the information was not public domain and was therefore subject to control. In this case, it sounds like Mak can meet the burden on at least two counts, but that still means that the prosecution gets to present its case in chief without ever having to address the question until the defense presents sufficient evidence to meet its burden. This gives the prosecution the chance to mold the jury's attitude, and puts the defense in an uphill battle. In theory, instructions from the judge cure this: In reality, it puts a heavy psychological burden upon the defense. This isn’t a total win for the defense: Apparently, the prosecution is taking the position that its up to the defense to prove that the information is public domain, which would be consistent with its earlier position that “Public domain” is an exemption, and shifts the burden of proof to the defense just as with an affirmative defense. If treated as jurisdiction, i.e., that DDTC does not have authority to regulate Public Domain, then it would be the prosecutions burden, at least a burden of production (which could then shift the burden to the defense to reut the prosecution), to prove than the information was not public domain and was therefore subject to control. In this case, it sounds like Mak can meet the burden on at least two counts, but that still means that the prosecution gets to present its case in chief without ever having to address the question until the defense presents sufficient evidence to meet its burden. This gives the prosecution the chance to mold the jury’s attitude, and puts the defense in an uphill battle. In theory, instructions from the judge cure this: In reality, it puts a heavy psychological burden upon the defense.

]]> By: Charles Liu http://www.exportlawblog.com/archives/145/comment-page-1#comment-1605 Charles Liu Fri, 13 Apr 2007 20:40:51 +0000 http://www.exportlawblog.com/archives/145#comment-1605 So where does this leave the Chi Mak case? These two documents (available on IEEE.org) can be argued as PD, and supposedly defense has evidence Mak received release from Power Paragon for the DDX component RFP (aren't RFPs public requests?) So where does this leave the Chi Mak case?

These two documents (available on IEEE.org) can be argued as PD, and supposedly defense has evidence Mak received release from Power Paragon for the DDX component RFP (aren’t RFPs public requests?)

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