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Living with roommate not on the lease Suppose someone enters into an apartment lease which specifically forbids guests for staying for extended periods of time. The leasee then violates the contract by hosting a guest for an extended period of time. The issue may surface after the lease ends when the guest is questioned about previous locations they have lived in a number of circumstances (applying for jobs, their own apartment, etc). Are there possible legal repercussions for either party (leasee, guest) for violation of this policy after the lease has ended? Update: the state is Illinois. Update: this is also considering the case in which the tenant pays their own utilities. | The landlord might be able to sue the tenant for actual damages arising from the double occupancy, if utilities are paid by the landlord. Two people tend to use more water than one person. Establishing that there has been any loss would be tricky, but let's assume that there is evidence pointing to some dollar figure. Then the landlord might sue the tenant for causing this damage. | There is no legal theory of which I'm aware which would allow a host to confiscate a guest's property without consent and consideration. Even if the host intends to return the property and both parties know this, the host still can't keep it even temporarily after the owner demands its return. File a police report, press charges and sue for damages. Take Indiana as a perhaps representative example of what you could expect in the US. See http://www.myindianadefenselawyer.com/criminal-charges/theft-shoplifting/ . Theft is knowingly depriving a person of their property with the intent to permanently deprive them of it. Conversion is knowingly depriving a person of their property without an intent to permanently deprive them of it. Both are crimes, though the former is a felony and the latter is a misdemeanor. | Can a landlord legally charge for pet rent even when no pets are present in the apartment? Yes. Absent any indication in the lease that your cats would not move in immediately, the landlord is right. I assume that your lease reflects mutual knowledge of your intent to bring your cats over (via a marked checkbox or in "d) Pet1 Details: ... Pet 2 Details ..."). If so, according to the lease, you officially have pets in the apartment. To avoid being charged unnecessarily, you should have (1) ensured that the contract reflects the intended delay regarding your cats, or (2) asked the landlord to amend the lease once it is imminent that you will bring your pets over. One or multiple administrative reasons justify a landlord to charge pet fees even if there are no pets in the apartment. For instance, the landlord might need to notify his insurer whenever an additional rental unit will host pets, thereby resulting in adjustments to a premium. Likewise, the number of pets might be a factor when a cleaning company bills the landlord. The lease was signed with the impression that the $40 would only be necessary if we brought pets. Hence the relevance of determining whether or not the lease objectively reflects that you notified the landlord of your intention to bring pets and, if so, when it would become effective. If the latter is not specified, it defaults to the start date of the lease. It also sounds like if we never mentioned pets until, say, 6 months in, they would charge us pet rent for the previous 6 months even though the pets were not present. It depends. If the landlord "busted" you, then he could sanction you in accordance with the terms of the lease. Instead, if you subsequently requested an amendment to the lease, then the landlord would only charge you from the date you officially bring the pets. But the effective date needs to be reflected in the lease/amendment. Should I take this to court and get a lawyer? No. First, for the reasons I mentioned above. Second, because lawyers want money, and they will detect right away that there is really not much to recover in a controversy like this one. Third, because complaining about a relatively small amount ($40/month) tells the lawyer that he or she won't get much money from you either (and lawyers want your money). And fourth, because the yearly total of pet fees indicates that the matter would have to be filed in Small Claims Court, where --if I am not wrong-- parties are not allowed to be represented by counsel. Going to court is not "peanuts". Even if your were allowed --and you managed-- to retain a lawyer, you would end up paying so much in attorney fees to someone who might not be forthcoming, let alone diligent. If you no longer plan on bringing pets, just ask the landlord to amend the lease accordingly. | Unless your lease clearly denies the possibility of prorating, the emails are binding (and yes, emails count as in writing). The landlord ought to honor the conditions outlined in the emails, and it is not your fault that the manager was ignorant about his or her employer's/landlord's policies at the time the manager computed the prorated amount. Additionally, if the lease only speaks in terms of 20-day notice, then it implies that prorating may apply. It is possible that the lease contains language in the sense of when the notice becomes "effective". If so, that would require a more detailed review of the language therein, since even in that scenario you might prevail on the basis of the doctrine of contra proferentem. Here the difficult part seems to be that you are not in the US. Because the amount at issue is not high enough, the grievance/complaint would have to be filed in Small Claims court. And, as far as I know, the parties cannot be represented by a lawyer in Small Claims court. You might have to file your grievance once you are back in the US. | I assume the lease does not clarify what the effective date for cancellation of utilities should be: when you "officially abandon" the property, or when the 30-day notice elapses. Who is responsible for the damage? At least under a principle of equity, the landlord is responsible for the damages. That is because, once you have returned the keys and officially abandoned the property, you have no control on how or whether utilities are consumed or (ab-)used thereafter. For instance, if sometime after the 30th of July a person breaks in that rental unit and extracts tremendous quantities of power or gas, that would lead to the inequitable outcome that the utilities company would charge you if your name is still in the utilities company's records. Similarly, it would be unreasonable and inequitable to expect you to essentially insure the landlord (by keeping your name on the utilities) despite his full awareness that you no longer are there. | Many states require an escrow of rent for habitability issues, simply not paying rent can be grounds for eviction proceedings. Illinois has a statute for deducting a repair from rent (765 ILCS 742/5). If it’s less than half the monthly rent and less than $500, a tenant can inform the landlord of the repair required. If the landlord has not provided a repair within 14 days, the tenant can have the repair completed in a workman like manner by someone having the appropriate licenses. In this case, if you’ve notified the landlord and they’ve done nothing, you can have an licensed exterminator come and treat the property. BUT... your lease may override this statute. Many leases include terms that the tenant is responsible for pest control - since often it’s the tenant’s lack of cleanliness that draws pests (not in all cases of course). So definitely review your lease and discuss with someone who is more familiar with IL law. Note that Chicago has its own interesting laws that may add to or contradict IL laws. | I do not have anything official proving that I gave him the 2-months worth deposit What did you do, hand him a wad of cash? Pay by check, and put what it's for on the memo line. You've been there for nine months and there are several other people who can testify that you've been living there, so it would be difficult to claim that you aren't a renter. If you can show that the landlord is aware of your residence, that definitely helps even further, as does receiving mail there, registering to vote or with the DMV with that address, etc. Question 1 : what would be the best course of action to force the landlord to give me the requested lease agreement? You can't "force" someone to give you an agreement. That's kinda part of the definition of the word "agreement". If you find the conditions unacceptable, you can find another place to rent. When I asked the landlord about what he was planning to do regarding that, his answer was that it was not his business. It doesn't seem like it is. You could take the money you would have given to the other roommate, and give it to the power company instead. If paying for the utilities is part of the renters' responsibilities, and the renters are not paying for the utilities, then it's their choice to not have power. In California, landlords are required to make power available, but that just means that they can't interfere with you purchasing it from the power company, not that the landlord has to pay for it (if the landlord had agreed to pay for it, and isn't, then you can deduct the cost from the rent, but you can't simply withhold all rent, and your question indicates that the landlord hasn't agreed to pay for power anyway). Am I protected in any way, or can the landlord just come in my room and throw everything away, or worse just point me with a gun and force me to move? It would be difficult for the landlord to get rid of you, and would probably take several months to do legally. Performing an eviction himself, rather than getting the sheriff's department to do it, would expose him to serious charges, especially if a gun were used. Besides criminal charges, "If this or other unlawful methods, such as locking a tenant out or seizing his possessions before an eviction process has ended, are used to force a tenant to leave a property, a landlord may be subject to fees up to $100 per day of unlawful method use." http://homeguides.sfgate.com/tenants-rights-utility-billing-california-8073.html However, while the legal process will take a long time, at the end you will still be liable for back rent, and you will have an eviction on your record, which will make it harder to rent in the future. | It is legal, unless it is a violation of the rental agreement. Generally, a property owner can have a vehicle towed from their property, although there may be a requirement in the state to post a towing notice. If the lease agreement says that cars must always be street-legal, that is the end of the discussion. If the agreement says that cars without tags or plates can be stored in a person's spot, towing it would be a violation of the agreement. If the agreement doesn't say anything, then the property owner's rights would be the default deciding factor. Since your roommate seeks to override the park owner's ordinary control over the surrounding spaces, there needs to be an explicit provision for that in the lease. |
Why was the adjective "special" embraced for "special damages"? Source: A Brief Introduction to Law in Canada (Mar. 2017). p. 173 Middle. As in tort law, the most important remedy in contract law is damages. Contract damages classified differently, though. three main categories in contract law are: (1) expect- damages, (2) reliance damages, and (3) restitution damages. Punitive damages may also be available, but only in usual cases. Expectation damages attempt to place the innocent party in the position she would have been in if the contract had been performed as promised and all the contractual representa-tions were true. This method of assessing damages is the standard method used to calculate damages in contract disputes. Expectation damages typically claimed include out-of-pocket expenses to correct defective performance (for example, where construction work is shoddy and has to be fixed) and loss of profits (for example, where a commodity was not delivered and the purchaser was unable to resell for a profit as planned). Expectation damages sometimes have alternate names depending on what they represent or how they are calculated. For instance, out-of-pocket expenses can also be called special damages because they have already been incurred and are certain. The term general damages can be used to describe the value of a lost expectation that is not specifically quantifiable, such as the enjoyment the plaintiff hoped to experience on a vacation (where a vacation planner failed to deliver as promised). Liquidated damages, which are another type of ex-pectation claim, refer to damages that the parties have calculated in advance. They can only be claimed, however, where the parties have put a clause in the contract setting out what the damages are to be, and where the amount represents a genuine pre-estimate of the loss ex-pected to be suffered in the event of breach. Liquidated damages clauses can save the par-ties the trouble of arguing about what the damages are if the contract is broken. The use of "special" for "special damages" appears outlandish and unfit to me. What exactly is special about such damages, when they are predictable and calculable? | This is sense A. 1b of ‘special’ in the Oxford English Dictionary: Designating a thing: specific, individual or particular to the specified person, thing or set. Now rare (in later use tending to merge with or be understood as sense A. 4a). Special damages are those that can be specified by reference to particular expenses. They are not exceptional or unusual. As noted in the OED, ‘special’ is rarely used in this sense today; modern English users would be more likely to say ‘specific.’ However, the special/general distinction is still used in terms like ‘special/general counsel’ and ‘special/general relativity.’ | What do the contracts with your suppliers and the policy with your insurer say? Changes in government regulation do not ipso facto relieve Parties of the obligations under a contract under common (English) law. Contracts are allowed to allocate the risk of force majeure (and indeed, to define it because it has no common law meaning) but if they don’t, then each party bears their own risk and if they fail to honour their obligations they are in breach of contract. Common law does have the doctrine of frustration, however, that is much narrower and must result in the inability of the contract to be completed at all. And then there are consumer rights which may apply. When the dust settles, we are likely to see a lot of litigation around force majeure. Your venue appears to be complying with both the law and their obligations under the contract so you have no breach of contract claim against them and no trigger for the insurance policy. If you choose to cancel, then you broke the contract. Importantly, the position is reversed in civil law jurisdictions - a party unable to fulfil their obligations under a contract is not in breach. | In placing an order (for anything, not just in a restaurant) and in the supplier accepting it then a legally binding verbal contract has been created. There are terms that come into being implicitly: some come from statute law and some from common law. For example, in most jurisdictions there will be either a common law or specific statute that requires the product to be of merchantable quality and fit for the purpose the customer explicitly or implicitly made known to the vendor. In a restaurant, this means that the food must be presented in a way that enables you to eat it and it must be fit for human consumption. It also means that, in the absence of a time for delivery being specified, that the meal must be delivered within a reasonable time. Reasonable has a specific legal meaning and is an objective test: what an ordinary, reasonable and prudent person would expect in the specific circumstances. It is clear that a reasonable time varies with the circumstances. Reasonable in McDonalds is different from reasonable in a 3 Michelin star restaurant and also different from the same McDonald's when it is obvious to the customer that they are currently insanely busy. If the supplier does not supply the goods and services within a reasonable time then they have breached a term of the contract. The customer has several options: repudiate the contract and sue for damages if this is a breach of a condition of the contract (a condition is a term that is fundamental to the contract; late delivery of food probably isn't a condition), repudiate the contract and sue for damages if this is a major breach of a term of the contract (late delivery probably is), sue for damages if this is an intermediate breach of a term or a breach of a warranty. Enough generalities, for your specific queries: What law in involved in restaurant orders? Contract law, consumer protection law, health and safety law, business law, food hygiene laws, tax laws etc. etc. If I go into a restaurant and order hundreds of dollars of food, then leave before it arrives, I would imagine there is some recourse that the proprietor could take. Sure, there is a contract, you breached it, the restaurant can sue for damages. In addition, they could make a complaint to the police that you have acted fraudulently by ordering food you never intended to pay for. However, if I order a single item and it doesn't show up for over an hour, despite me inquiring about it's status, would I be compelled to pay? It depends on if an hour is a reasonable time or not. By inquiring you have demonstrated that you don't believe that it is but you may not be "an ordinary, reasonable and prudent person". If the breach is actual and egregious enough then you probably have the right to repudiate the contract; that means the contract is at an end and neither of you have any further obligations under it including an obligation to pay. That said, you would be on surer ground if you attempted to renegotiate the contract to make time a condition. "Look, if the meal is not here in 15 minutes, I'm leaving"; if the restaurateur accepts this renegotiation by, for example, saying "I'm terribly sorry, we will sort it out" then your position is much clearer. | The "contract" (sometimes called a charitable pledge or a pledge to make a donation) is not enforceable under contact law because there is no consideration. From a contract law perspective, it isn't really a contract at all. This fact pattern is literally the "standard" example of a "contract" that is unenforceable for lack of consideration. The promises made in the charitable pledge might be enforceable under an equitable doctrine called promissory estoppel, if someone detrimentally relies upon the promise made in the contract and it is not inequitable to do so. As a practical matter, however, donees almost never sue to enforce a pledge to make a donation. A donative pledge should also be distinguished from a transfer document, which is also not a contract. In a transfer document, the donor is unilaterally giving something to someone, and the recipient is signing merely to affirm that they accept the transfer being made to them, rather than rejecting the donation and disclaiming it. | This is part of an indemnification clause. Basically, the idea is that the service provider guarantees that if your business gets harmed because they let in an intruder, then they will absorb the losses if somebody sues you, as long as they have control of the court case and you cooperate with them in defending the court case. So, for example, imagine you are using a web hosting service. Suppose there is a vulnerability in the hosting service computers, and a hacker is therefore able to break into your web site and steal your customer information. Your customer sues you for allowing their credit card to fall into the hands of a hacker. The web hosting service's insurance will pay the damages if the lawsuit succeeds, as long as you let their lawyers (ie the insurance company's lawyers) run the defense of the lawsuit and you cooperate with them. The reason this language is there is because the "service provider" has an insurer that is guaranteeing them if they get hacked or something, then the insurer will cover any damages. The insurer requires them to make all their clients (like you) sign an indemnification agreement which includes the control clause. | Typically in defamation law, claims made persuiant to litigation are not defamatory, since they are going to be tested for validity if the case goes to trial. I'm not familiar with any differences in what is generally done in settlements between the U.K. and the U.S., but since both are Common Law countries, and Settlements are very common in civil proceedings in the U.S., it's a good start. Generally a settlemant can occur anytime before the verdict of the case is rendered, although usually it will happen after preliminary hearings during the Discovery phase. In the U.S., Discovery is very broad and one need not prove that the requested items contain evidence but might contain evidence. This means that, for example, you could request a substantial amount of e-mail records from the opposing party because somewhere on the company e-mail server, there might be something to help your case. And even if after you sift through the emails and find no smoking guns related to your case, you could find some dirty laundry that's unrelated but still damning... if not more so than the initial case. Many people, especially big compainies, would rather just give the ex-employee some what he/she wants, if it means they don't get to see the proverbial man behind the curtain. Additionally the practice might fall into a legally gray area of the law that, if it reaches trial, could hurt the company or even the industry if a judge rules against the company, effectively saying that this gray area is now definately illegal. Better to eat the loss of capital with the settling out of court than to take the much larger hit of the buisness practice being illegalized all together. Typically in settlements, both parties agree to terms and sign a contract. While the whole of the terms are never discussed, almost all include that the plaintiff will drop the case and never bring the matter to court again and that both parties will sign a non-disclosure agreement (NDA) meaning that they won't discuss the rest of the settlement terms with anyone not party to them. If the plaintiff does break the NDA, the defendant can sue for breech of contract and recover at the least the monitary compensation they awarded in the settlement. Conversely, if the respondent breaks the NDA, the plaintiff can refile their initial suit with the addition of breech of contract (and this time it will get to court... and all the dirty laundry sees the harsh light of day.). While the respondent in a settled case can possibly sue for defamation if the plaintiff said the respondent did what the initial suit claimed they did (legally, it was never proven or disproven), or they were guilty (again, since no verdict was reached at trial, no guilt was established), the breech of contract is a much more airtight case and doesn't open up discovery to the respondent's cupability in the settled case (since the breech is about discussing the settled case at all, not the validity of the accusations of the settled case). Typically they would not go this route because then it opens the can of worms the settlement was trying to keep a lid on. | The landlord is entitled to damages Damages under a contract are to restore the innocent party to the position they would have been in had the breach not occurred. This means the landlord is entitled to rental payments of a monthly basis for the balance of the lease. However, the landlord is also obliged to reasonably mitigate the damage, typically by finding a new tenant as soon as possible. Let’s make the example concrete. Let’s assume the rent is $1,000 per month and that there is no pro-rata clause in the contract (as is typical). That means whether the tenant uses 1 day or 31 days of a month, they owe a full month’s rent. When the tenant moves out, they owe $3,000 (plus interest). They also have an ongoing obligation to pay rent each subsequent month. This gives unmitigated damages of $17,000. The landlord spends $500 to clean and get the property ready to rent. $1,000 commission to the agent and $500 on advertising. After 2 months they find a tenant at $800 per month. Damages would be $3,000 for the unpaid rent, $2,000 for the out of pocket, $2,000 for the unoccupied months and 14 x $200 = $2,800 for the lower rent. So, $9,800. Typically, a security deposit can be put against unpaid rent but might not be allowed to be deducted for economic loss from a breach. | One analysis is in Bow Cycle & Motor Co. Ltd. v. Murray, 2006 ABPC 366, by Judge O'Ferrall (now Justice of the Court of Appeal of Alberta). The defendant sat on a motorcycle, positioned it fully upright, and when he returned the motorcycle to rest on the kickstand, the bike crashed to the floor. There were three potential paths to liabilty argued, none successfully: negligence (for example, if the defendant had repositioned the kickstand at any point—there was no evidence of this) trespass to goods (but this would have required intentional or negligent treatment of the good) contract (which would have required a clear "you break it, you buy it" policy with express statement that the customer would be liable even for non-negligent damage—there wasn't) Context mattered. Liability might be made more strict more easily in a china shop. The judge wrote: in the end, this case must turn on the presence or absence of negligence because, at least in the circumstances of a motorcycle shop, a “break it, you buy it” arrangement would have required an element of fault on the part of the breaker, absent a very clearly communicated term that the customer pays irrespective of negligence. There being no such term and negligence having not been proven, I find the Defendant not liable. In so doing, I considered the china shop analogy. It may be that in a china shop one could infer that the customer pays for broken items irrespective of fault because there is no need to touch the item in order to make the purchase decision. But in order to make an informed purchase of a motorcycle, the purchaser must try it on for size and the fact that he must do so makes it much more difficult to infer a no-fault promise to pay for damage howsoever caused. |
What is the U.S. law that lets the president “protect industry on grounds of national security”? From The Economist | The threat to world trade: The tariffs are based on a little-used law that lets a president protect industry on grounds of national security. | Although it doesn’t seem to be on the Federal Register (yet), the Presidential Proclamation on Adjusting Imports of Steel into the United States issued on March 8, 2018 has been published on whitehouse.gov. The relevant law cited in the proclamation is section 232 of the Trade Expansion Act of 1962, which is codified at 19 U.S.C. § 1862 and provides: [A]fter receiving a report ... in which the Secretary finds that an article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security, the President shall ... if the President concurs, determine the nature and duration of the action that, in the judgment of the President, must be taken to adjust the imports of the article and its derivatives so that such imports will not threaten to impair the national security. The Department of Commerce published its 262-page report, ‘The Effects of Imports of Steel on the National Security,’ on January 11, 2018. | The President wouldn't be in breach of Insider Trading Laws (Section 10b of the Securities Exchange Act) since he has no information resulting from a position of trust within Twitter (or as a trusted provider of services) and no ability to depress their stocks through intentionally fraudulent practices. [O]ne who fails to disclose material information prior to the consummation of a transaction commits fraud only when he is under a duty to do so. And the duty to disclose arises when one party has information “that the other [party] is entitled to know because of a fiduciary or other similar relation of trust and confidence between them.” The key word here is "insider". The President is not an insider, he's merely the user of a service. He certainly has material information, but not gleaned from a position of confidence or trust. anyone in possession of material inside information must either disclose it to the investing public, or, if he is disabled from disclosing it in order to protect a corporate confidence, or he chooses not to do so, must abstain from trading in or recommending the securities concerned while such inside information remains undisclosed. That being said, it's arguable (and I'm reasonably sure his political opponents would argue it until the cows come home) that his shorting their shares would be a material violation of the STOCK Act, specifically section 6 which requires the President to have disclosed his holdings of shorted stock to the public. It's also pretty arguable that his popularity on Twitter is a direct result of his office as President, and hence making money by publicly and messily leaving their service will result in a breach of accepted ethical standards and potential impeachment even if no specific law has been broken. | You're completely misreading the goals and purpose of the Export Controls Office - Overview. They regulate the transfer of US regulated information and technology, commodities, and software in the interest of national security and economic growth. Transfer and export are not the same as the use of technology that personal devices contain. The simplest thing to do is simply call the Export Controls Office, and they will explain the difference, and tell what you need to do and what is not required of you when traveling. Some countries do prevent the use of some personal tech or Apps, i.e. Russia and Signal, the encrypted phone app; but that has nothing to do with UC. | The ability to create such an office derives (according to Roosevelt, who invoked the power), from the constitutional authority of the president and the Trading with the Enemy Act amended by the War Powers Act, 1941. A president cannot repeal a part of The Constitution or an act of Congress, but he can undo an act by a president (as long as Congress hasn't come along and taken back a power for example by changing the "authorized" part to "required"). In a sense, that office is permanently gone, but until Congress or SCOTUS change the law, another president could effectively re-create that office and even give it the same name. The appendix to Title 50 which authorized the office is still there (not repealed). It is remotely possible that some other act or court ruling effectively nullifies this part of the law, but that would have to be determined by some president attempting to re-create the office and then someone else suing to prevent it (based on such an effectively nullification). | No punishment followed because those policies are not the law, and, even it was found out earlier, no Inspector General would have the authority to dismiss Mrs. Cliton, it's POTUS's prerogative, as I understand it. That is true for maybe 10 people max in a government department. For the tens or hundreds of thousands of employees who weren't appointed by the President to serve at their pleasure, violating policies can lead to suspension, fines, or dismissal. | Yes. In some common law jurisdictions, such as Canada, the United Kingdom and even some U.S. states, the government may under some circumstances refer a legal question to the appropriate Supreme Court (Privy Council in the U.K.) for an advisory opinion. These opinions are non-binding, but have large influence because they are often made by the same judges that would otherwise end up dealing with the question should it occur in a case. One common law country in particular stands out in this field: Ireland. Under Article 26 of the Irish Constitution the President may, with some exceptions, refer a bill to the Supreme Court to test its constitutionality. The referral is optional, but once made, the Supreme Court's decision is binding. The relevant portion: 3 1° In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill. [...] 3° In every other case the President shall sign the Bill as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced. This power was last used successfully in 2004. | You don't explicitly say (this being an internationally visited and populated site), but based on your question, I will assume that you are in the US. For the question you asked: Is the company the government? If not, then NO, you cannot successfully sue a company (or person for that matter) for violating the freedom of speech granted by the First Amendment to the US Constitution in any circumstances whatsoever. (Sorry, this is a pet peeve of mine). The US Constitution does not bind or restrict any private* individual or company, in any way. (Here "private" means "non-governmental; a "public(ly traded) company" is still considered a "private" entity in this context). The US Constitution exclusively deals with four things: How the US Federal Government operates, powers of the government, and restrictions of the government, and the definition of treason (which arguably is itself a restriction on the power of the government, by denying them the ability to define treason themselves). The First Amendment itself is explicit about this restriction: Congress shall make no law ... abridging the freedom of speech (emphasis mine). Note that, while the First Amendment does not mention acts of the President, this is because the President's Constitutional powers are quite weak and limited; What powers the President does have and usually uses are granted to the office by laws passed by Congress, and so the restriction comes with them, as Congress cannot delegate to the President powers that Congress themselves do not possess). As such, no company can be sued for violating the First Amendment (or any portion of the Constitution, really) because it does not apply to them. Now, there may be laws passed by relevant legislatures, but these are dependent on your jurisdiction (e.g. state). However, as a general rule of thumb this would be legal. Turning down a candidate based on what they say in an interview is the point of having an interview; Turning down an candidate for saying something in an interview that could potentially leave the company liable for a lawsuit under the theory of vicarious liability is only good common sense. | In the broad sense encoded in EU law, there is no right to be forgotten in the US. Certain rights recognized in the Constitution, in particular in the Bill of Rights, which prohibit various government actions. The Constitution also gives Congress the specific power to regulate interstate commerce, which has been used to limit individual freedoms (such as the right to grow wheat). In deciding if a law limiting freedom is constitutional, the courts will apply the standard known as strict scrutiny in deciding, when a law restricts a fundamental right (such as the right to free speech). The requirement for passing such scrutiny are that the law is needed for a compelling state interest, it is narrowly tailored, and uses the least restrictive means to do this. There is no such law encoding a supposed "right to be forgotten", although in certain circumstances one might sue for damages over an invasion of privacy, usually broken down into intrusion of solitude, appropriation of name or likeness, public disclosure of private fact and false light. A requirement to delete a person's posts or posts about a person, or records of transactions would not fall under these categories. The simplest answer to the question is, there is no such law, and it is hard to see what law could be constructed that is consistent with US Constitutional protections of individual freedoms. |
Moving with my children to the US after marriage What would I need to do to have my minor sons move to the states after marriage? My boys are 11 and 13. I plan on marrying my fiance who lives in Washington, but I will not move without my sons. | After you are married, your husband will have to petition the US government for you to immigrate to the US. He can also petition for your children to accompany you because they are younger than 21 years. See https://my.uscis.gov/exploremyoptions/petition_for_spouse for more information: A U.S. citizen can file a petition for his or her foreign-born spouse and, under certain situations, the children of the spouse. The U.S. citizen will have to establish the family relationship with the spouse by filing a Form I-130, Petition for Alien Relative. The U.S. citizen may also file a separate Form I-130 for a child of his or her foreign-born spouse if the child is unmarried and under 21 years old. When the petition is submitted, the U.S. citizen petitioner is required to provide evidence to prove his/her relationship to the foreign-born relative. If the petitions are approved, you and your sons will then be able to apply for immigrant visas (if you are outside the US) or for adjustment of status (if you are in the US). | Yes, this is illegal. If by "across the state" you mean some distance away but in the same state then the exact law will depend on which state you are in, but as a rule any "conversion" of property to the use of another counts as theft. In this case your aunt has "converted" the property to the use of your Nan (funny legal phrase). The fact that the people doing this are your relatives makes no difference. (When asking about the law here you should always say which state you are in.) Although theft is a crime, you could also start a civil case to get your property back without involving the police. The details depend on where you are, but try googling "(your state) small claims court". Many states have a process for collecting low-value debts or other property without needing lawyers. You need to have a firm conversation with your aunt about this. Tell her that you want your property back, and don't back down. Also call your Nan and explain this to her as well; she may not have realised that she is in possession of stolen property, which is usually a separate crime. If you want more advice on how to get your property back without starting a family row then you might ask on the Interpersonal Skills SE, but it might be better to start with "When are you planning to return my property?" and leave "You are a thief" as a last resort. Edit: As Eric Nolan points out in the comments, you may be a minor. If you are under 18 then your aunt has authority over you that she wouldn't have if you were older. For instance, if she is concerned about your use of video games impacting school-work then confiscating your console and putting it out of your reach would be perfectly legal. | Minor children can, in theory, sue their parents, in many countries, as long as they can prove a cognizable harm. The simplest case is where a parent commits a crime against the child, such as rape; this would also include embezzlement. "Abuse" is a term used in laws, for example RCW 26.44.020 (Washington state), but that sense of "abuse" doesn't include e.g. "overbearing behavior" or "obnoxious politics". If a child is disabled and the parents taunt the child for that disability, it is possible that the child could sue to terminate parental rights. The case is even clearer if the parent fails in their parental obligations to the child. Lgbtqia child rights are less well-defined. The background assumption is that the parent has the exclusive right to determine the child's upbringing, which includes things such as political beliefs, religion, and matters touching no family and sex. Norway is one of those countries with relatively few restrictions on "how you live your life", and they are considering a law against "conversion therapy", but there is presently no law prohibiting a parent from denouncing their child's lifestyle. It is possible that Barnevernet (child protective services) could intervene in a particular case, but they would not sue a parent on behalf of the child unless the parents actually violated the law. | As long as they have diplomatic immunity, they don't have a residency status. If either parent didn't have diplomatic immunity, then the child is a subject to the jurisdiction and they become a citizen at birth. The short explanation with the reasoning can be found on the uscis website. Namely Children born in the United States to accredited foreign diplomatic officers do not acquire citizenship under the 14th Amendment since they are not “born . . . subject to the jurisdiction of the United States.” and If one parent was an accredited diplomat, but the other was a U.S. citizen or non-citizen U.S. national, then the child was “born . . . subject to the jurisdiction of the United States,” and is a citizen. | In the US, the details are determined at the state level. The term "abandonment" is used very broadly, and can include a situation where a parent leaves a child without making contact for a period of time (which may result in termination of parental rights, but not a punishment). "Abandonment" as it applies in Washington state is explained here. There is what is known as a "safe haven" law, which allows a newborn (under 72 hours old) to be transferred (anonymously) to a qualified recipient (health care employee, medic, etc.), and not be liable under the criminal laws. This does not include dumping the infant in the snow. Under RCW 9A.42.020, the parent would be guilty of criminal mistreatment in the first degree if their action "causes great bodily harm to a child or dependent person by withholding any of the basic necessities of life" (note that the law is not specific to children), and this is a class B felony. There are multiple grades of mistreatment, so if the action "creates an imminent and substantial risk of bodily injury" or "causes bodily injury or extreme emotional distress manifested by more than transient physical symptoms", this is 4th degree mistreatment, which is a misdemeanor. There are, in parallel fashion, laws against abandonment of a dependent starting at RCW 9A.42.060, punished as a class B felony down to a gross misdemeanor. The maximum penalty for a class B felony is $20,000 and 10 years in prison, and for a simple misdemeanor it is 90 days and $1,000. In case death results, the discussion could move to the homicide statutes. Homicide by abuse is when, with extreme indifference to human life, the person causes the death of a child or person under sixteen years of age, a developmentally disabled person, or a dependent adult, and the person has previously engaged in a pattern or practice of assault or torture of said child, person under sixteen years of age, developmentally disabled person, or dependent person. and this is a class A felony. If a person "recklessly causes the death of another person", this is manslaughter in the first degree (class A felony), but if it is "with criminal negligence", it is manslaughter in the second degree (a class B felony). Manslaughter charges are predicated on there not being an intent to kill. If the intent was to actually kill the child, this would be first degree homicide, where the punishment is life imprisonment. Additionally, first degree homicide can be found if "under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person". State v. Edwards is a relevant case, where a person was charged with both second degree murder and homicide by abuse, and the issue came up that "extreme indifference to human life" is not a self-evident expression. It turns out that case law in Washington interprets this, as applied to first degree murder, as meaning "indifference to human life in general", not "indifference to the life of the specific victim". After a lengthy review of principles of judicial interpretation, the court upheld the trial court's refusal to give the first-degree murder definition of indifference, that is, it is up the the jury to decide what constitutes extreme indifference, for homicides other than 1st degree murder. | When the person has been naturalised, that is, when the US government officially recognises them as a US citizen. There are many pathways to citizenship and the ones on the linked page are pretty typical across the world although the details vary: residence for a period with or without marriage to a citizen service descent. | Parents have a legal obligation to care for their minor children: it is illegal to harm a child through action or inaction. State law and associated welfare programs are complex: you can start here. If surgery is medically necessary, her insurance should cover it. If her parent do not have medical insurance, they still have the obligation of care; though various governmental programs may alleviate the problem, such as the state medical assistance program. The parents may therefore be in violation of the law, and anyone may report this to DSHS (specifically through Child Protective Services). This obligation terminates when the child turns 18 (assuming that someone does not petition for adult guardianship). Legislation is not crystal clear as far as what constitutes "injury of a child ...under circumstances which cause harm to the child's health". CPS has no authority to compel parents to pay for a medical treatment, but they can go to the courts on behalf of the child. At that point, it's hard to say what the court would order. For example, if the parents are capable of providing medical insurance and just willfully chose to not cover their child, the court could order them to get insurance. It is virtually guaranteed that the courts would not order the immediate amputation of the child's feet, and there would be no legal basis for ordering the parents to pay for the procedure in a decade, after the child is an adult. However, if you are suggesting that there is an immediate treatment (which the parents have opted to not provide, hence the prospects of later amputation), then it is reasonably likely that the courts would order the parents to provide for the treatment (if it would be possible for them; otherwise, the state may intervene and provide for the treatment). | Any municipality is fine In addition, they could get married in a different province and it would be a valid marriage in Ontario. They could also get married in a different country with which Canada has agreed to honour their marriages (i.e. most of them) unless they offend Canadian law (e.g. bigamy, child marriage etc.) |
Is an undercover cop offering money to a random woman for sex an example of "entrapment"? T/F Test Question: "Officer Jones, who was assigned to the narcotics unit, decided to look for possible prostitutes in the financial district of his city. Although there are no reports of a prostitution problem in this area, Officer Jones approached Betty and said, "I would pay $500.00 for some really hot sex with you." Betty declined at first, but after Jones offered $700.00 a second time, Betty agreed. Jones immediately arrested Betty for prostitution. This arrest would be considered entrapment." (correct answer: True) Our text says the current entrapment test is this: "Was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense?" I say no. A normally law-abiding woman knows what prostitution is just like a normally law-abiding citizen knows what cocaine is. If an undercover officer offers to sell a person cocaine and they agree to buy, that wouldn't be entrapment. Does the issue have to do with "pressure"? The text says an offer is permissible but "pressure" such as badgering or cajoling is not. This all depends on further details about the officer's conduct and to what extent cash is considered a pressure to the average woman for "really hot sex". It may be dangerous to suggest that the average woman considers $700 a serious pressure for sex. | Regardless of the context of the first solicitation, Officer Jones' second solicitation was made in willful refusal to accept Betty's unambiguous "no" for an answer; this is sexually coercive behavior, specifically postrefusal sexual persistence. If this question is assessed from the perspective of the "average" woman, then after her initial declination, extraction of a "yes" cannot be considered uncoerced. Here's a question: how many times does she have to say no before it starts to count? Before it counts against her finally being exhausted, harassed, or intimidated into capitulating? Because by that logic, he never has to stop; he can continue to harass her until he finally accomplishes his objective (grounds to arrest her) - in which case, why bother with the pretense? If it takes 200 "no's" to wear her down to "whatever", then the first 200 "no's" just didn't matter as much as the first "whatever", so why bother with the formality of pretending like the first mattered when it clearly does not? To demonstrate the significance of her initial "no, thanks" and his subsequent refusal to accept it from another perspective: if Betty and Jones were coworkers in the same office, if he continued to solicit her after being told no the first time, that would be the definition of sexual harassment on his part and it would not matter how genial or friendly or casual he thinks he's being; furthermore, if her workplace failed to intervene on her behalf, they would be engaging in sexually discriminatory behavior by creating a hostile work environment, regardless of how genial / friendly / casual, etc. It's hard to see how this could act as evidence of her having committed a crime in one context while being grounds for termination of his employment in another context. HTH. | Bob appears to have committed "attempted larceny" by extortion, contrary to § 155.05(2)(e)(v): (e) By extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: ... (v) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; See § 110.00: Attempt to commit a crime. A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. And see § 110.10 which covers the "impossibility" that Bob actually had compromising images from Alice's non-existent webcam: Attempt to commit a crime; no defense. If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be. (NB Bob's sentence, if found guilty, would depend the value of his attempted extortion) | Let's break it apart: The police has an union or charity. That's legal in most jurisdictions. The union or charity accepts donations from non-police. Also legal in most jurisdictions. The union communicates who the donors are. Generally legal in most jurisdictions. Keeping it secret would be just as problematic. Police officers have some discretion if and how they charge incidents. That's just common sense. Otherwise you get cases like 8-year-olds being arrested. (You get those anyway when the police don't use their discretion, or if the laws are too rigid.) Police officers let themselves be influenced by the donor card in how they apply their discretion. That's usually illegal on the part of the police officer. The Brits use the catchphrase 'without fear or favour.' But it is difficult to prove, even if it is systematic. The union issues donor cards to facilitate the effects of the previous bullet point. That sounds at the very least unethical. Some might argue that it is organized corruption. On the other hand, you can assume that the police unions have some decent lawyers on staff, and that they made sure that the words on their cards are not blatantly illegal in the jurisdiction in question. It might take something like a whistleblower, a sting operation, or an internal affairs investigation to prove corruption. | It is common in state FOI or open access laws to exempt from disclosure records pertaining to police investigations. In some cases police procedures are also exampled. 91-A:5 Exemptions. (included in the document linked in the question) lists 6 exemptions, part of number IV is: Without otherwise compromising the confidentiality of the files, nothing in this paragraph shall prohibit a body or agency from releasing information relative to health or safety from investigative files on a limited basis to persons whose health or safety may be affected. This seem to imply an exemption for "investigative files", although no such exemption is specified in 91-A. However, I find it hard to see how the amount of ammunition purchased by the state as a whole reveals "police procedures" in a way which would compromise security or be reasonably exempt. In any case the state budget is almost surely a matter of public record, and it may well indicate the dollar amount of ammunition purchases, even if it does not give the number of rounds purchased. Or proceedings may be taken under the law. 91-A:7 Violation says: Any person aggrieved by a violation of this chapter may petition the superior court for injunctive relief. The courts shall give proceedings under this chapter priority on the court calendar. Such a petitioner may appear with or without counsel. The petition shall be deemed sufficient if it states facts constituting a violation of this chapter, and may be filed by the petitioner or his counsel with the clerk of court or any justice thereof. Thereupon the clerk of court or any justice shall order service by copy of the petition on the person or persons charged. One might inquire of the office of the court clerk for more details on how this is done, and any fees. | Yes. This is clearly kidnapping. It is probably not a terribly aggravated sub-type of kidnapping, but it is kidnapping nonetheless. It is probably a felony. The fact that the victim does not press charges, or ratifies the conduct after the fact, does not change the fact that a crime was committed. The police decision to arrest the ex-boyfriend was entirely proper. It was not a false arrest. They had probable cause to believe that a crime was committed by the ex-boyfriend, and, in fact, a crime actually was committed by the ex-boyfriend. In the United States, the prosecutor has full authority to prosecute the ex-boyfriend to the full extent of the law for felony kidnapping for his conduct, over the objections of the victim. The decision to prosecute or not is entirely in the discretion of the prosecutor who brings criminal charges on behalf of the state and not the victim. Often the police and prosecutors will honor a victim's wishes, and this appears to be what happened in this case, but they are not required to do so, and could change their minds and bring charges in the future against the ex-boyfriend within the statute of limitations, if they wanted to do so. (This analysis does not apply in countries with Islamic law, but the facts of the question suggest that Islamic law does not apply in this jurisdiction.) | I'd imagine that testimony from the defendant is rare enough that in the majority of cases, prosecutors do not meaningfully prepare for a cross examination. To the extent they do, I'd expect the preparation is similar to that for basically any other witness. So I wouldn't expect complicated flowcharts, because the general rule at trial is that you only ask questions whose answers are both known and helpful. So if I need to place the defendant at the OK Corral at 3 p.m., I'm only going to ask him where he was at 3 p.m. if I have evidence showing that fact is true -- maybe he gave a written statement to the sheriff, maybe he posed for a daguerrotype, whatever. I expect him to deny it, so I don't ask the question unless I have evidence more convincing than his denial. In this way, a defendant -- like any hostile witness -- is used less to provide any facts of their own, but rather as an involuntary narrator of my own story, authenticating evidence and validating the facts consistent with my theory of the case. | There is usually a law that could be stretched to cover such a case. In Washington, RCW 9A.28.030 says A person is guilty of criminal solicitation when, with intent to promote or facilitate the commission of a crime, he or she offers to give or gives money or other thing of value to another to engage in specific conduct which would constitute such crime or which would establish complicity of such other person in its commission or attempted commission had such crime been attempted or committed. The "intent" of the law is to punish people for saying "I'll give you $5000 to kill Smith". But just looking at the text, if you give someone money to encourage them to engage in a specific kind of criminal conduct (e.g. beating people up), then you've violated the law. So, handing a guy $5,000 and saying "I think you should be rewarded for your act" could easily be construed as promoting the future commission of the same or similar crime. | Just below the section you quoted it says: (3) The victim’s prior sexual conduct is not a relevant issue in a prosecution under this section. There is no stated provision for the case you mention. I suspect that the law would apply. Whether the authorities would choose to prosecute in such a case is a very different question. There might be caselaw of this subject. I wouldn't know. If this is more than hypothetical, i would urge consulting a lawyer with local knowledge of criminal practice. |
How is a shareholder allowed to sue the company? There are news about shareholders suing VW due to the losses that happened by the emissions fraud (lots of examples in the news, this is just one of them). Now, I understand customers suing VW, and I would understand shareholders suing the CEO, the CTO, the entire board or any combination of them, and other managers implicated in the issue. That part is clear. But, since the company is owned by the shareholders, suing the company does not make a lot of sense to me, because: Conceptually it is a lot like someone suing himself (yes I know the companies are different legal persons, but still); one could argue that the shareholders did benefit from the fraud while it was ongoing yet no customer can sue them. Any damages they take away from the company will decrease the value of the company, thus decreasing the value of their stock. Add to that the legal costs from both parts and the most probable result will be a considerable net loss. Add to that the additional negative info for VW due to the lawsuit and it sounds a lot like using a gun to kill that fly that is on your hand... The only possible explanaitions that I may think of do not sound very smart: They hope that only a handful of stockholders will sue, so the damages paid to 10% of the stockholders will be diluted between the 100% of the stockholders... but once there is a sentence against VW, I would think almost all of the small stockholders would join any action class lawsuit. They hope to get to a situation were they get the money and VW gets in enough of a bad shape that forces the German government to bail-out. I don't know, the situation seems strange to me. Are there legal precedents of shareholder suing the company (not its management) before? Update: To (hopefully) explain my doubts... If I buy a VW car and find it is not what I was promised, I can sue VW (the company) because I have a contractual relationship with it and the contract has not been honored. But a shareholder will have an ownership relationship with the corporation, which is what makes me doubt the possibilities of such a lawsuit1. And of course, there is always the -very, very, very tiny, almost non-existent - possibility that journalists are not reporting the issue correctly. 1Of course the individual members of the board and employees that failed in their fiduciary duty may be sued, but they are not the corporation. | There is certainly precedent. This list of the 10 biggest class action lawsuits in the world indicates that 8 of the 10 were by investors against their own company. In any event your analysis is flawed. The people who initiate the class action may (probably are) no longer be investors because they sold their shares and realised their losses. Further a legacy investor who didn't buy on the basis of the company's wrongdoing would not be entitled to damages. Finally, an investor who bought at say $100 on the basis of false information (like the cars were legal when the company knew they weren't) and now hold shares worth $40 will wait many years (if ever) to make good their losses: a lawsuit will be quicker and more certain. | The question of whether a person was acting on their own behalf or that of a company would generally be a question of fact, so if such a case came to court it would be for both sides to present evidence and argue for their interpretation of it. In most cases the context makes it clear. You mention having a company email domain and associated email signature; that is certainly good practice and would go a long way towards creating a presumption that you were acting for a company. Also signing yourself with your job title or role (e.g. "Joe Bloggs, Chief Bottlewasher") makes it clear that you are speaking in your role as an employee. The content of the communication also matters; if you use your company email address to order goods from a supplier that the company has used before then the recipient can reasonably assume that you are ordering on behalf of the company and a court is likely to agree. OTOH if you use the company address to send libellous emails then the recipient would have a much higher bar to claim that this was the company view rather than a personal one. | In the US, "insider trading" includes both legal and illegal versions. When a corporate employee buys or sells shares of their company, they are insiders and they are trading (there is a requirement to report to the government). The illegal version involves breach of fiduciary duty or confidence. The relevant section of the federal regulations is 17 CFR 240.10b on "Manipulative and Deceptive Devices and Contrivances", and you will note that the section does not rely on the term "insider" in the law part, instead it directly characterizes what acts are illegal. Thus it would not matter, from a legal perspective, if someone considers you an insider. It is illegal to trade in securities using a “manipulative, deceptive, or other fraudulent device or contrivance”. This relates to what is commonly known as insider trading via rule 240.10b5-1, by defining as manipulative and deceptive trading on the basis of material nonpublic information about that security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or derivatively, to the issuer of that security or the shareholders of that issuer, or to any other person who is the source of the material nonpublic information (emphasis added to focus on the core requirements). Whether or not you have a "duty of trust or confidence" is determined by common law standards, that is, it depends on how courts have ruled on similar matters. For instance if the CEO of Apple tells you "Our computers explode and it's gonna be on the news tonight, the stock is gonna tank, but it would be illegal for you to act on that information", then it would be illegal, because you are aware that the CEO has a duty to not use that information (thus you "inherit" the duty). This also holds if he doesn't tell you that acting on the information, since it is expected that you know that the CEO of Apple could not legally act on that information (even if in fact you are unaware of the law -- ignorance of the law doesn't get you anywhere good). However, if you are unaware and could not know that the person making the factual disclosure is divulging information that he has a duty to shut up about, then you might not get prosecuted. | In the worst case if they shut shop, then how might I go about getting my money back? It is unlikely that you can. A SAFE is not a loan (and for that matter isn't even a share in the company) and doesn't create an enforceable contractual right to get your money back. If you make an equity investment and the company loses money and goes out of business, you lose everything you invested. If the promoter made false representations that induced you to invest, or actively concealed material facts about the investment, you might be able to sue the promoter for securities fraud under federal regulation 10b-5, or under a state securities law, or under a common law fraud theory. You could also sue to issuer of the investment (i.e. the company) but that would usually be futile because the company is broke and hence judgment proof. State or federal securities regulators or a local district attorney or state attorney-general might pursue the case in lieu of a private civil action by you, but getting them to take action is often quite difficult. But, if your investment wasn't induced by fraud and instead the management of the company simply made bad decisions that caused the company to fail, you have no remedy. The investment was for a SAFE (Simple Agreement for Future Equity). I have the signed SAFE with me. This is a very unusual way for a QoZ to be structured, which adds to the sense that this may have been a shady venture. | The shareholders can change who is the company director, but the company director runs the company (until he or she resigns or is forced to sign by the shareholders). So the company director is who has the say what happens in the company. If the contract is between Fred and John Smith directly, then I would expect John Smith to give the orders and to pay Fred. However, Tom is company director, so he can order Fred to stay off the company premises. He can't order Fred what to do, since there is no contract between Fred and the company, and the company won't pay Fred if it doesn't want to - it's up to John Smith to pay Fred from his own pocket. The whole setup is highly unusual. I would assume that the situation is unsatisfactory for everyone involved, so likely they will agree that the contract between John Smith and Fred is cancelled, that there is a new contract between Small Company Ltd and Fred, and from then on the company director gives the orders. | Under U.S. law, this is only actionable is you make this statement knowing that it would not "support the continued creation of X" and that instead, you had already completely abandoned that product and you were, for example, planning to change lines of work and become a lumberjack instead. Even in that case, common law fraud is hard to show, because you would need to show how that statement which related to how the profits will be used, rather than what you are actually receiving, could cause you damages in that narrow transaction. But, many states have deceptive trade practices acts that protect consumers by allowing the attorney general, local prosecutor, or a private individual or class of plaintiffs to sue if representations such as these are made when they are known to be false. Typically, these lawsuits provide for minimum statutory damages, attorneys' fees award, and when cases are brought by a public official, injunctive relief (ordering the advertising with that pitch to cease) are authorized. For example, saying this when it is false would be actionable in California and Colorado. A fairly common fact pattern is that someone will sell stuff at an above market price saying that "profits will help me pay for my cancer treatments" when in fact the person doesn't have cancer. This could even constitute criminal wire and mail fraud, for example. Sometimes, competitors can also sue you under the Lanham Act (which primarily governs federal trademarks), for false advertising about something that could unfairly undermine their sales if what you are saying isn't true and is causing their sales to drop. On the other hand, if you sincerely believe that what you are saying is true when you say it, and your belief is not so unreasonable that no reasonable person could believe that under the circumstances, then what you are saying is legal. Usually this is true, and if it is, ultimately, you will be fine. Although nothing can prevent you from being sued on a non-meritorious basis. In between are cases where this is true (you will be supported, but perhaps only get 5% of the profits while the rest are garnished for a lawsuit), but your statements were still misleading at the time you made them and you knew it. Those cases get resolved on a case by case basis. Outside U.S. law, your mileage may vary. Legal regulation of commercial speech varies significantly from one country to another. These statements might not be O.K. for example in a Communist regime on the Chinese or Korean model. | Yes a company can be sued (since anyone can sue anyone). But in order to win a lawsuit, you have to have damages as a result of some action, AND you must prove that the action was done with intent to harm or was otherwise negligent. So following your website example, a lot of things would have to happen: The website would have to be hacked. If the passwords are encrypted instead of hashed (which still qualifies as "plain-text" once they email it to you), the hacker would have to figure out how to decrypt the passwords. (Which a good hacker could probably do.) The hacker would have to take those passwords and do something with them that causes damage to their owners. Even if all of those things happened, you would still also have to prove negligence on their part which would be pretty difficult to do because the flaw that was hacked would be the focus of negligence discussions moreso than what was stolen. That being said, if your goal is simply to get them to fix the problem, rather than receive monetary damages, then you could still sue for an action to be taken. You'd have to pay by the hour for the attorney since they wouldn't have a chance of winning monetary damages. But in all likelihood the website owner, upon seeing the lawsuit, would fix the problem before it gets to court, so I could see that having the desired effect. That is if you think it's worth the cost of filing the lawsuit in the first place. Perhaps you could save yourself the cost of an attorney and just threaten to sue if they don't fix the problem. | does the individual have a legal case against the company? Unfortunately, no. Some details and terms you use are unclear (e.g., "phantom" equity, "manifest" core technology, and so forth), but your overall description reflects that the individual sabotaged himself by signing a contract that does not mention the promise of equity through which he was persuaded to engage. A written contract usually supersedes any prior agreement --regarding the subject matter of that contract-- between the parties. That superseding effect means that the contract formalizes or overrides, accordingly, said agreements or promises. Since the initial promises of equity are not reflected in the "interim" contract, the investor's subsequent silence upon individual's reproach/reminders is from a legal standpoint irrelevant. At that point only the terms of the contract matter. The individual might consider alleging mistake in the sense of Restatement (Second) of Contracts at § 151-154 such that would make the contract voidable and perhaps "make room" for other theories of law. However, that seems futile unless the interim contract contains language that (1) provides specific conditions for its expiration, or (2) reflects the company's [mis-]representations that induced the individual to sign it. Neither seems to have occurred in the situation you describe. There is always a possibility that the contract might favor the individual's position and he just has not noticed it. But the only way to ascertain that is by reading the contract itself. |
Extortion Hangup I need some clarification on extortion for general curiosity. If a customer is aware of a crime and hires a lawyer to go to the company to request money in exchange for not reporting them to the authorities. Is this extortion? If not extortion is it legal, assuming their are no threats of media outing just legal jeopardy? | Absent a specified jurisdiction, I'm going to assume the US state of New York. This conduct falls squarely within the definition of extortion under New York Penal Law section 155.05(2)(e): A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: [...] (iv) Accuse some person of a crime or cause criminal charges to be instituted against him; There is a defense under section 155.15(2): In any prosecution for larceny by extortion committed by instilling in the victim a fear that he or another person would be charged with a crime, it is an affirmative defense that the defendant reasonably believed the threatened charge to be true and that his sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of such threatened charge. However, in your hypothetical, the customer is just seeking a payout. This defense is meant for situations like a theft victim telling the thief "give me back my property or I'll call the cops;" unless paying the customer is actually a reasonable action to make up for the crime, the customer can't use this defense. If the crime is a federal one, this is also blackmail under 18 U.S. Code § 873: Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both. If interstate communications are involved, 18 U.S. Code § 875(d) can also apply: Whoever, with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another or the reputation of a deceased person or any threat to accuse the addressee or any other person of a crime, shall be fined under this title or imprisoned not more than two years, or both. | Is UPS allowed to take my money and business without intention to fulfill its side of the transaction? No. The company's belated change of mind constitutes breach of contract, and its subsequent refusal to give you a refund completes the prima facie elements of fraud and/or unjust enrichment. The company's acceptance of your package & money and its subsequent act of sending your package to NC strike the applicability of its clause on Refusal of Service (see the link provided in the other answer). The blanket term of "among other reasons" is hardly enforceable at that point. In particular, the existence of a lawsuit between the recipient and the company further weakens any merits of the company's belated change of mind. That is because, by virtue of that lawsuit, the company currently has to deliver to that same recipient other packages anyway. Thus, the company cannot allege that delivering your package "is unsafe or economically or operationally impracticable". Also, since you are the one who paid for the service, the company cannot withdraw on grounds of "the person or entity responsible for payment is not in good standing". | Given that this is a UK based company, the most applicable Act would be the Unsolicited Goods and Services Act 1971 A person who, not having reasonable cause to believe there is a right to payment, in the course of any trade or business makes a demand for payment, or asserts a present or prospective right to payment, for what he knows are unsolicited goods sent (after the commencement of this Act) to another person with a view to his acquiring them [for the purposes of his trade or business], shall be guilty of an offence and on summary conviction shall be liable to a fine not exceeding level 4 on the standard scale. This law specifically refers to [unsolicited] charges for entries in directories. You also mentioned that they're misrepresenting that a company is already a customer and sending out invoices on that basis. That would be a breach of the Fraud Act 2006 A person is in breach of this section if he dishonestly makes a false representation As to their enforceability, that answer is no. If this came before an actual judge, the judge would throw it out in a heartbeat. No agreement was made to provide a service in return for a payment and these companies rely on sending threatening letters via (seeming) third-parties precisely because they wish to avoid that level of scrutiny. | Not all illegal things are crimes. Lack of evidence. They are asked to testify, and they say "what I said in my book was a lie". There is no general law against lying, except when under oath. Statute of limitations. Saying "10 years ago I did smoke drugs" means that any offence is no longer prosecutable. Lack of details. Which jurisdiction were they in? When did they commit the act, how many acts? You cannot be arrested for being a "bank robber" or a "murderer". You are charged with "robbing Bank X on 123 Fake Street the Thursday 25 April 2018" or "murdering Jim Thio in January 2017". Otherwise the defendant would have a hard time defending himself (how to prove that you have not killed anyone at any time?) All of the above combined with prosecutorial discretion in the form that any possible prosecutor will most likely determine that bringing charges would be just a waste of time and resources. UPDATE February 2018: Just for the sake of completeness, a reference to the situation of Jacques Cassandri, who did boast about a serious crime(a robbery in a Societe Generale vault in 1976) in a book. Unfortunately for him, he made some kind of mistake/miscalculation and the crime had not yet expired, so he has become an example of someone being prosecuted by confessing a crime in a book. | must all interaction be through a lawyer after receiving the first letter? Consistent with others' answer, no, you don't need a lawyer. But your question in and of itself is indicative of the steep learning curve you would need to undergo in order to avoid "shooting yourself in the foot", as the saying goes. By this I am not encouraging you to get a lawyer (in fact, here on stackexchange and elsewhere I promote litigation in pro per). Instead, I encourage people to learn about the applicable statutes, procedural laws, how to conduct legal research, and to draft/present their arguments in court. Here are some suggestions regarding your response letter: Avoid sarcastic admissions such as "Right, for sure I am at fault for the employer's [fill_in_the_blanks]". If you ask for a clarification, clearly state that you expect reasonably sufficient detail as well as any and all records that substantiate the alleged damages. Although that won't strictly limit the allegations the employer can make in court proceedings, the attorney's reply might help evidencing the employer's vexatious approach later on. Avoid wording that may be misinterpreted as consciousness of guilt. Be assertive and truthful. Keep in mind the lawyer is gauging (1) how easily he can intimidate you, and (2) whether he can make additional claims to harass you via court proceedings. From now on, all your interactions with the attorney and the employer should be in writing (preferably email, given its reproducibility). When unethical individuals are aware that their position is devoid of merit, they are very tempted to indulge in false accusations (of threat, for example). Thus, communications in writing constitute objectively verifiable proof of who is acting unlawfully. Even if the attorney premises on your contract (or employment agreement/manual, or company's guidelines) the alleged damages, the clauses at issue might be illegal and therefore void. For instance, from 2007-2012 my former employer (an Indian IT intermediary) prohibited me --via contract-- to disclose my salary. The contract contained the typical lawyered babbling, but that doesn't mean that all of it was legal. In 2013 I realized that the prohibition violated Michigan law, and he had no option but to strike the entire clause. That being said, I didn't sue him for that, but for other more important matters which are currently pending review in the U.S. Supreme Court. Absent any further context in your inquiry, it is hard to make additional suggestions on how to proceed. | There are basically two kinds of conduct that you identify. One is backing away from what you believe were oral promises made by the employer and lawyer regarding payment. Whatever the status of the promises made by the employer, the oral statements made by the lawyer would probably be viewed by a court or ethics board as settlement offers or proposals rather than actual binding agreements, and this is unlikely to be considered an ethical lapse. For purposes of ethics questions and fraud lawsuits, lies about what kind of deal you are willing to make with an adversary don't count as lies. This isn't a terribly logical rule, but is is a well established one. Given that: I was told (by employer), verbally and in text/email messages that I "would be paid when the deals closed." It is going to be very hard for the employer to take back those written statements and text and email messages are usually given the effect of signed writings in a court of law. This is going to be taken as a confession of the employer regarding the probably unwritten agreement of the parties regarding your right to be paid on these deals, so you would be well advised to stick to your guns on this issue. The percentages will be another point that is hard for the employer to fight if there is a course of dealings between the parties in which you receive a consistent percentage or there was a written agreement concerning your commission percentage. Also, even if the lawyer did make a promise and breached it, this would still only be a breach by the employer of a contract made on the employer's behalf by his lawyer. It is not an ethical lapse to breach a contract about future conduct, and a lawyer is not personally responsible for contracts he makes as a disclosed agent of your former employer. The second is making a false statement of fact about whom the lawyer has discussed the matter with. Lawyers do have an ethical duty to be truthful and failing to do so is an ethical lapse. But, this duty is generally interpreted to apply only to statements of fact which are material. If a lawyer lies to you about how old he is, or whether he's ever had an affair, in the context of a pre-litigation negotiation like this one, the ethical officials won't care. If a lawyer lies to you about something material to the transaction (e.g. claiming that the employer has money in the bank to pay a settlement when in fact it is overdrawn on all of its accounts and has no money coming in and the lawyer knows those facts), this is a serious ethical breach. It is hard to see how this information would be material, even though it casts doubt on his credibility. Ethically, he owes any duty of confidentiality to his client and not to you, so it isn't your complaint to make from a confidentiality point of view. Also, unless he discusses confidential advice that he provided to his client when no one else was present to you, he has not waived the attorney-client privilege, contrary to the answer by @IñakiViggers on that issue. Of course, proving that the lawyer said anything in an oral conversation at which no one else was present comes down to a credibility fight between your sworn statement and his if the lawyer testifies inaccurately about the discussion. A sworn statement from you is proof and would meet the "burden of production" to provide proof in support of your case at a trial, but wouldn't necessarily prevail easily at trial since the judge might not be convinced regarding who is accurate in their account of the discussion (I have avoided the word "lying" because there are a variety of reasons that people inaccurately recall discussions). What would be the sensible way to use this information to my advantage while trying to resolve these matters with having to bring suit and go to court? Is there anything that this lawyer should fear, if his unethical behavior was brought to light, either in court or to a bar association? The conduct you describe on the part of the lawyer will provide you with little or no leverage in your negotiations and is likely to not even be considered admissible evidence in court since it may be considered a form of settlement negotiations. Your strongest leverage will be the written statements from the employer. But, depending upon the amount in dispute, it may still make sense to compromise given the time and expense and uncertainty of going to court. Even in the clearest case, you probably only have a 90% chance of winning a contested case, and you wouldn't cross the street if you knew you had a 10% chance of being hit by a car as you crossed, even if you knew that the collision wouldn't be fatal. Unless your state has a wage claims act that covers you, you may have little or not prospect of an attorneys' fee award if you prevail, and representing yourself when the employer has a lawyer will always put you at a disadvantage in a court setting. If the amount in dispute is great (e.g. $50,000+), hiring a lawyer is probably worth it. If the amount in dispute is small (e.g. $5,000) you may want to file a suit in small claims court and only hire a lawyer for a couple hours of pre-hearing coaching. | As Putvi says, you are being extorted and this is a criminal matter and thus a matter for the authorities in your jurisdiction. However, you have a second problem entirely apart from that - you almost certainly broke academic ethical rules by submitting a piece of work that you did not write as your own (these things are pretty cut and dried in academic circles). This will not go away. Regardless of whether your extortionists are brought to justice, they can still release your details at any point in time and ruin your career, or it can come out in other ways. Own up to this with your university as soon as possible, and see if you can make it right. This will be hanging over you for the rest of your life, and can drop at any moment - these sorts of things have ruined people before. | Publishing government records is pretty classic First Amendment-protected activity. Keeping in mind that one can find a lawyer to sue for anything, I think that person would likely be operating well within the law. One thing in particular that I'd recommend staying aware of is how one might attempt to monetize this endeavor. There have been a lot of sites publishing arrest records, court records, and mugshots, and then charging people to have them removed to keep them from popping up in a Google search for those people's names. That is -- rightly -- regarded as sketchy behavior; while several states have passed laws prohibiting that business model, I don't believe any such law exists in Washington State at this point. |
Can an unfinished product be patented? Say two companies are working on some software that does essentially the same thing: Can one of the companies patent the idea before it's finished to prevent the other company from working on it, or can they only patent the software once they have a working product? | Patenting does not require a working product in fields where the performance is predictable before hand. Chemistry and biology do have criteria regarding real results. The description in the patent application needs to be detailed enough that someone of ordinary skill in the field could make and use the invention. After company A gets a patent (might be 3 years or never), it can try to stop company B from making, selling, offering to sell, using, or importing whatever is claimed in the issued patent. You say "does essentially the same thing". If you accomplish the identical goal (speaker identification from noisy audio, for example) but accomplish it by following very different steps, then there may be no infringement at all. | You don't say what jurisdiction's patent laws you're interested in, and priority dates can differ in different schemes. I'm answering as to U.S. law only. In the United States, under the current hybrid "first-inventor-to-file" system, the priority date--the date that determines who "wins" if there are multiple claims to a specific invention--is, with some exceptions that I won't go into, the date of your first application. In other words, the date that the PTO got it in the mail. Once your application is submitted, it is--again, with some limitations I won't get into--prior art for the purposes of any later-submitted application. They can't get another application later, grant it first, and then deny your application based on the later-submitted application. Your application date would still win out. Could someone in the USPTO slip your application out of the stack, fudge the dates, and convince some other company to submit a similar application to get priority over you? Not as a practical matter, no. The USPTO isn't one guy in a room; it's a large organization, and the person who opens the mail, types in your application details, and sends you a receipt, isn't the same guy who knows whether your invention is any good or not. And, frankly, very few patentable inventions are going to be worth someone risking their job and/or jail time over--especially when there would be significant evidence of the misconduct--for example, your patent agent's files. So what are the chances that the examiner on your patent: 1) Is a nefarious character who has lived a life of public service long enough and wants to go rogue; 2) Has a friend in the mailroom who is also an expert in the field of your invention; and 3) Has a conduct in industry who is willing to break the law for the rights to your invention? Slim to none. And if you have an invention that is really so revolutionary that it's going to be worth so many people risking so much to steal it, odds are there will be other evidence that you were the inventor. | This sounds completely incorrect to me. First, subsequent research is not normally a "derivative work" for the purpose of copyright, since copyright doesn't protect your ideas but only the particular form in which you have expressed those ideas. Second, as the owner of the copyright, you can permit anyone to make any sort of copy or derivative work, or sell, assign, or license the ability to do so to other parties, without regard to whether the work has been published. The real reason that nonpublication of your work would stifle further research is that researchers will not have access to it. | Registered Trade Marks aren't the only form of trade mark protection. You also have the law of unregistered trade marks. Basically (and this is an over-simplification), it works like this: a business starts using a trade mark for a specified product: beard comb. Let's say that they don't even register a trade mark. they start selling load and loads (thinks 100s of thousands of $ or £ worth) they become well-known in that market segment. They accrue "goodwill" in the (unregistered) trade mark. That trade mark is protectable in law. That's a summary of the law of passing off aka the law of unregistered trade marks. So, if the new manufacturer is still manufacturing them in the country that you want to sell them in, you'll probably have a problem. This assumes that that country has an equivalent of the law of passing off. The tip then has to be - check to see if the manufacturer is still selling them. If you think it's a good business opportunity and worth a small amount of risk capital - a few hundred $ or £, file the trade mark application is see if anyone does anything about it. You can always withdraw it and avoid a dispute. You might also do a search for registered design rights. They protect the shape of the products (not what it's called - which is what a trade mark does). | You need to check if the original game developers patented the mechanics/rules of the game. For your example, Monopoly was patented, but expired in the 50s and while it would not be a copyright violation to mimic the rules/mechanics, it would be a different intellectual property violation (patent infringement). Spry Fox vs LOLAPPS is also relevant as it extends copyright protection to the implementation of an idea, but ideas (like rules/mechanics) cannot, by themselves, be copyrighted. This means that there is an avenue for the original developer/company to sue even if the visual/audible aspects are different, but the overall gameplay is the same. Also see Tetris Holding LLC vs Xio Interactive Inc. as it relates to the visual aspect of the game. | It is certainly possible to incorporate companies with the same name in two different states. If neither company does business in the other person's state under that name, it isn't actionable for either company. If one company was already doing business under its name in a state where another company is formed under that name, it would usually be possible to force the new company to cease and desist from using that name, either with an action directed at the infringer and the Secretary of State (or other official charged with business incorporations in a state) of that state, or in an action directly against the infringer alone. Also, even if a trademark isn't formally registered, it can arise at common law simply through use of a name in a particular market in a particular place. This is harder to prove and the remedies for violating a common law trademark a more limited, but it is not entirely unenforceable. | From what I can see on the USPTO registry, "tweet" is still not trademarked for the purposes you're talking about. Twitter has been working to secure that trademark, but I can't find any record of them having actually secured it. Just the same, I'd predict that using it will get you at least a cease-and-desist letter, and possibly a lawsuit. Whether you'd win that case seems to be a very open question, but that presumes you have the resources to litigate. | There are several issues - one is that patents are given for specific ways of solving a problem, sometimes very narrowly different from other ways of solving a problem, not for a result. There are usually many ways to achieve a result. Another, that you bring up, is “field of use”. That comes into play in method claims but not usually in device or systems claims. A claim to a “thing”- system, device, machine etc. is infringed by another thing (that fits within the claimed definition) just sitting on a shelf in a box. Intended use is not traditionally relevant. If a device for any intended use fits the words of a claim, it infringes. In your case the preamble of a system claim says “system for mixing or compositing in real-time, computer generated 3D objects”. At least in the US that would not usually be limiting to that use but just taken as a description of the thing, not requiring actual specified use to infringe. Read it as “capable of being used for”. Method claims can limit field of use. A method for getting rust cleared from a screwdriver that had a step “provide a rusty screwdriver” would be limited to that use. Another example would be a back scratcher configured exactly as a small garden rake but claimed in a method for scratching one’s back. Assume the garden rake is known - the backscratcher as a thing could not be patented, but a method of using something of a certain shape and design (small garden rake) to scratch your back could be. Someone with a garden rake couldn’t scratch their back even though they owned the garden rake. Note that a small garden sold as good for use as a backscratcher would be committing contributory infringement unless they had a license. Something being covered by a patent owned by its manufacturer does not mean it, or its use, does not infringe some other patent owned by a totally unrelated entity. Of course it is possible a manufacturer has licensed relevant patents of others. The patent you link to is not only described as used for broadcast. Gaming and other entertainment uses are mentioned. As mentioned in another answer, the Intel device works in a way that doesn’t fall under the claims of the sited patent. It has two cameras in total while the claims require a main camera and two additional cameras to do the position determination another with other inertial sensors. Some uses of the Intel device could theoretically infringe method claims in one or more un-sighted, unknown, patents. If someone bolted the intel device to a “film camera” and used the combination as described in the method claim you might get the quality image you need and only use the intel device for the position information. Then you might infringe. |
How is Lyft not infringing on Uber's patent? Uber owns several patents, many of which are for systems that Lyft has as well. As such, how is Lyft not infringing on Uber's patents? For instance, just to pick an example, "providing on-demand services through use of personal computing services." | "Providing on-demand services through use of personal computing services" is a preamble of a patent claim. In the case of one Uber patent, US9230292, claim 1 starts with A method for providing information about an on-demand service on a computing device, . . . The preamble tells the reader what the claimed invention does; the rest of the claim (300+ words in this case) tell the reader the steps it takes in doing it. Two patented inventions can produce the same result and a method could produce the result promised in the Uber preamble but do it without performing all of the steps in the Uber claims, and therefore not infringe the patent. | Self-driving cars (aka Driverless Cars) are being researched widely by different companies. The Nevada State was the first one to allow such cars to be tested in the roads. Google is behind this achievement. Similarly to Uber and some other apps that impact the way we live, each country will have it's fair time of court to debate whether driverless cars are allowed or not. Without a specific jurisdiction in mind, your question is too-broad, but I believe that there will be countries with early authorization of such cars, whereas some countries will still take up a few decades to start introducing this new technology. Up to this day, it is beyond the scope of my knowledge any driverless car in which the company states that a human driver is not required in the driver seat. Considering that it's a brand new technology and the outcomes are still not quite definitive, it's safer to require a human ready to act up and it shields the company from liability. We know the cars are being tested and we know drivers are required to be focused, so if an accident happens the driver is liable. Here is a map of the USA jurisdiction about autonomous cars: Source: Wikipedia Currently, there are news about USA, UK, France and Switzerland allowing such cars to be tested in public roads. | First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply. | The idea for an app is not subject to copyright. Only the artifacts of the app itself (sourcecode, images, texts, sounds, etc.) can be. So if one only copies the idea and creates their own version of all the other assets, then they are not violating copyright. However, in some cases, ideas can be subject to patents. But patents on software are tricky. First of all, only new ideas can be patented. When a supposed new idea was already published before, then that's called "prior art" and you can not patent it. Then getting a patent means a lot of investment in money and time (which is very different from copyright which you get automatically the moment you make something copyright-worthy). So not everything that could theoretically be patented gets patented. And then, many jurisdictions do not recognize software patents at all, and those which do have different limits on what is and is not patentable when it comes to software. This means patents are rarely a concern when copying the app idea of someone else, but not never. And another possible concern is the third pillar of intellectual property: Trademarks. This protects the name of the app. Trademark law oversimplified forbids to create a competing product with a name which might confuse customers. So if you created StevesSuperCoolAppForCoolPeople and I create StevesSuperCoolAppForCoolPeople - Simplified Edition, then I would be violating your trademark, because my product name sounds as if it was your product, when it is in fact an unrelated product with a similar purpose. | Copyright and patents are two very very different things. Copyrighting a standard means the wording of the standard can not be copied without the copyright holders permission. It does not protect the ideas expressed in the document, just the way those ideas are expressed. IEEE standards, for example, are copyrighted by the IEEE and therefore you can't make a copy of the Ethernet specification, you need to buy it from them. That has nothing to do with implementing an Ethernet device. To implement something described in a technical specification might or might not require one or more patent licenses. The authors of the standard may not even be aware that something they require for the standard has already been invented and patented by someone else. Many standard bodies do impose a requirement on participants in the standard's creation that they offer licenses to any patents they own that are needed to implement the standard on a fair and equal basis to all. It is called FRAND - the acronym for fair, reasonable and non-discriminatory licensing. | The most important fact to bear in mind is that there's no way to predict whether a given individual will decide to file a suit against you, though we might say on what basis he might, if he so chooses. There are two basic grounds for a suit, one pertaining to trademarks and the other pertaining to use of names – misappropriation and violating the right of publicity. A word can be a trademark, but the scope of protection is somewhat narrow because the protection is in terms of use within a given business. So calling your computer company "Apple" is out, but calling you roofing service the same is okay (assuming that somebody didn't previously register "Apple Roofing"). The main consideration is the likelihood of confusion. Supposing your business were selling landline telephones and I don't think Apple computer company sells such phones, you might still be in trouble if you called your company "Apple Phone", since they certainly do sell phones. There are thousands of trademarks that include "Puff", including Cocopuffs and various pizza and cheese puffs. Since "Puff" is such a generic word, there is a higher bar to proving infringement (there are thousands of trademarks including "Puff"). "Puff Daddy" is, however, a registered trademark covering perfume, jewelry, clothing and certain online services, so there is a non-negligible chance of confusion. In the case of names (or apparent names), an additional concern is whether this is commercial exploitation without consent of a person's name (which causes harm to the subject). The underpinning of this tort is that such a use falsely implies an endorsement of the product. Again, with a fairly generic word like Puff, there isn't a clear implication that Sean Combs has endorsed a product that is called "Puff Communications", but "Puff Daddy Communications" would almost certainly cross that line. The main issues, then, are the extent to which the name is generic vs. unique, and whether it is likely that a person would interpret the product or service as being the same as another, or would constitute an endorsement. | Tell whatever lawyer is drafting the "official paperwork" about the problem and ask if it is covered or if you need to change the text or add a rider. If neither company competes, a mutual release/license of existing shared code should be perfectly manageable for an experienced attorney. | It would not be a copyright. Names and short phrases are not subject to copyright, but it could be a trademark under common law ( e.g. state law in the U.S.) or could be registered. Some people think a trademark defines a product. That is not the case, a trademark identifies the source of a product or service. |
Why did Reiser's prosecutor agree to a plea *after* Reiser had been convicted? Hans Reiser was found guilty of first degree murder. However, his prosecutor agreed to a plea deal with him of second degree murder after this conviction, on the condition that Reiser reveal the location of his murdered wife's body. I understand why a prosecutor would accept a plea deal for a lesser crime in place of slogging through a trial for a chance of a conviction on a greater crime, but I do not understand why the prosecutor would want to accept such a plea deal after already having scored the conviction of the greater crime. I find it hard to believe that a state prosecutor would particularly care whether the body could be found or not after the associated conviction and already been scored. | I find it very easy to believe that a prosecutor would want to know the location of the body notwithstanding an existing conviction. The prosecutor represents the state an the state stands for, among other things, justice and the protection of its citizens. It is both just and good for the wellbeing of the loved ones of the victims that the body is returned to them and dealt with appropriately. To this day, countries spend millions of dollars exhuming and identifying their war dead - even for wars a century ago: victims of crime deserve no less | How would this scenario play out in the legal system? Prosecutor brings charges against EQM or tries to use that conviction to enhance a subsequent conviction. Defendant EQM raises the pardon as a defense. Prosecutor responds that the pardon was intended to cover EQM Prime, not EQM. The Court holds an evidentiary hearing to determine whether the President intended to pardon EQM Prime or EQM. The Court decides who the President intended to pardon based upon the evidence presented at the hearing, and rules accordingly. The burdens of proof are tricky. Usually affirmative defenses have a preponderance of the evidence burden on the proponent of the defense, but sometimes the defense must be disproved beyond a reasonable doubt. I don't know that part of the law well enough to know without lots of research and the outcome might not be uniform across the U.S. To my knowledge, there has never been a case that got this far in which the true identity of the beneficiary of the pardon was ambiguous. It is possible, but a vanishingly rare possibility. Almost always, someone gets a pardon by asking for it and determining whether EQM or EQM Prime asked resolves it, or a reference to the crime resolves it. If the Court concludes that both asked the same President to be pardoned for the same crime (e.g. if the same crime was committed jointly by father and by son who is named after father and doesn't use Jr. day to day) and the Court concludes that the President was probably confused and didn't realize that there were two requests from different people and not one, the judge would probably give them the benefit of the doubt and treat both as pardoned as that would still reflect the President's intent. | Intent matters here, but yes. Alice could be considered guilty of either Second-Degree Murder or Manslaughter, though the latter is far more likely. Texas has no laws condoning assisted suicide that could absolve Alice. Second-degree murder requires the following: The defendant intentionally and knowingly caused the death of another person The defendant intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and this act caused the death of an individual This is tenuous, but it could be argued this way if Alice intended to cause Bob's death. It certainly meets the second criteria: shooting oneself constitutes serious harm and giving a firearm to someone who has stated an intent to kill themself is reckless. It's more likely that Alice would be charged with manslaughter. The only definition is: A person commits an offense if he recklessly causes the death of an individual. As discussed above, giving someone who has announced an intent to kill themself a loaded gun is reckless. Alice's actions resulted in Bob's death. | The judge would reject the defendant's guilty plea and proceed to trial. This is a common part of a plea colloquy, which is a standard (often scripted) conversation that occurs between the judge and a defendant who is pleading guilty to ensure that the plea is voluntary and made with knowledge of its possible consequences. It seeks to ensure that the defendant is aware of what they're charged with and the consequences of their plea, and that they were not improperly pressured into pleading guilty—for example, because they felt that their lawyer wasn't doing a good enough job. This is required by Federal Rules of Criminal Procedure Rule 11, which requires that: Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement) Many (possibly most/all) US states have similar rules. For example, Pennsylvania law states that "The judge may refuse to accept a plea of guilty or nolo contendere, and shall not accept it unless the judge determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered." Examples of scripted questions to establish this include: Are you fully satisfied with the counsel, representation, and advice given to you in this case by your attorney, Mr./Ms. __________? Are you satisfied with the services of your lawyer? [ Mr./Ms. defendant ], are you satisfied with the representation you have received from [ Mr./Ms. defense counsel]? If the defendant answered that they were not satisfied (and continued to give that answer when informed of the consequences of doing so, as occurred in the below example), the judge would reject the guilty plea and proceed to trial. It's remarkably difficult to find a case in which anyone has actually done this. The only one I could find was this New Jersey case in which the "defendant would not agree on the form that he was satisfied with defense counsel's work." The judge informed the defendant in various ways that this would lead to the plea being rejected and proceeding to trial: Now, if you are not satisfied with your lawyer, I cannot take your plea bargain, sir. ... The only other thing I can do is schedule you for trial, Mr. Cuevas, which you are entitled to. Now, if you are not satisfied with your lawyer, I cannot take your plea bargain, sir. I can't take your plea after you're telling me that you're dissatisfied with your lawyer. If I can't take your plea because it's not appropriate and it's not legal, the only other thing I can do is schedule the case for trial. | Yes the woman is guilty of murder (under the law OP described) The issue of common law mens rea (the guilty conscience) is moot as it is no longer a component of the crime, see here. Almost all jurisdictions today have codified crimes so the common law mens rea is not relevant, for example, in Texas a person commits murder if they "intentionally or knowingly causes the death of an individual"; feeling guilty about it or knowing it was wrong is not an issue. In the facts you describe the person "intentionally or knowingly causes the death of an individual"; the fact that she did not consider the victim to be a person is immaterial. As described, she would have a hard time with an insanity plea in the same way that a white supremacist murderer would for classifying members of other races as "non-persons". You can see why the common law usage would no longer work. | Yes to everything. Justified use of force is assault / battery / homicide (as appropriate). "Assault" means that a person has placed someone in fear of their life or person. "Battery" means that a person has physically struck someone in some way. "Homicide" means that a person has killed another human. None of these definitions speak to the legality of the action. You are right about the example being assault. Justified use of force is de facto legal. Assault, battery, and homicide are normally crimes, but the justifications for using force carve out exceptions. If the circumstances fit within the justification, the person using the justified force has not committed a crime. (Generally speaking, the person targeted by said force has.) If the situation you describe fits within the laws of justification within the state (and to be fair, it probably does), then your co-worker is right about the actions being perfectly legal. Police are picky about what they investigate, and prosecutors are picky about what they charge. If it's 100% clear from the evidence that you were justified in your use of force, prosecutors will (typically) not press charges, and so police will not bother with an arrest or further investigation. It's really not worth the time and effort for a case that has 0% chance of producing a conviction. However, if the police and prosecutors have some doubts (e.g., they think your force was excessive and therefor not justified), they can still press charges. Being charged with a crime does not mean you have committed a crime. And vice-versa. Justification is an affirmative defense against charges of assault / battery / homicide. An affirmative defense does not mean "I confess to the crime but have a really good excuse." It means that you admit to certain facts that would normally be beneficial to the prosecution, but claim additional facts that either mitigate or make you innocent of the given charges. In the case of justified force, you are admitting to the action of assault, but claiming innocence. When making your defense, your theory of defense must be internally consistent. You cannot admit to a fact when convenient and deny it when it is inconvenient. "I was in Santa Fe at the time, and anyway, Sam did it," is an example of a self-consistent theory that gives multiple reasons to acquit. That's good, because the jury only needs one reason that gives them pause, and now you've got two chances at that. "I was in Santa Fe at the time, and anyway, he was threatening my life," is not internally consistent. If you argue justification, you explicitly declaim any alibi. This situation is more dangerous, because your defense rests entirely on the credibility of the justification. But if you argue an alibi, you implicitly declaim any justification. So building your defense on things the prosecution can disprove is much worse than taking an affirmative defense of justification. | Such things are in fact legal in some US jurisdictions, as part of plea bargains. In fact such pleas are not uncommon. More usual is the case where a person pleads guilty to a lesser crime, so as to qualify for a lower sentence, when all involved know that the lesser crime was not committed by anyone. It is simply a device to get a compromise sentence and avoid a trial. In some jurisdictions the Judge, in the course of accepting a guilty plea, requires that the accused admit specific facts that form a minimal legal basis for conviction of the crime pled to. In others no such admission is made. But even where such an admission is made, the truth of such an admission is not usually checked. The Judge will generally make sure that the accused understands the effect of a guilty plea, the rights given up by such a plea, and the possible range of sentences that will result. If the Judge believes that the plea constitutes a miscarriage of justice, for example that a totally innocent person is yielding to improper pressure from the prosecutor, the Judge can refuse the plea, but this is very rare in practice. | Yes Usually, whoever got their hands on the defendant first would have first crack at it. The second jurisdiction would commonly not prosecute provided that justice was done in the first but they can - double jeopardy is not in play as a bar as they are different legal systems but courts usually apply the spirit that a person shouldn’t be punished twice for the same act. |
Is it unconstitutional for sellers to have higher minimum age for gun purchases than the federal government? The last few days (I am writing this on March 1, 2018) have seen several businesses raise the minimum age required to buy a gun to 21. Some examples: Walmart, Dick's Sporting Goods, Kroger. Under current US federal law though, the minimum age necessary to purchase a rifle is 18. Because of this, can it be said that those businesses that will not sell rifles to otherwise qualified individuals between the ages of 18 and 21 are in violation of the Second Amendment? Are there any cases that have treated this in the past? | Volokh commented on this. There is no 2nd Amendment issue, nor does federal law. It may be illegal in some states, depending on whether age is included in public accommodation anti-discrimination laws. For instance, Conn. Gen. Stat. §§46a-64 says (a) It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability or physical disability, including, but not limited to, blindness or deafness of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons; §46a-63 defines "public accommodation" (1) “Place of public accommodation, resort or amusement” means any establishment which caters or offers its services or facilities or goods to the general public, including, but not limited to, any commercial property or building lot, on which it is intended that a commercial building will be constructed or offered for sale or rent Public accomodation laws are how states deal with discrimination in sales, such as selling wedding cakes Illinois 775 ILCS 5/1-103 likewise prohibits age discrimination in public accomodations, but defines "age" as "the chronological age of a person who is at least 40 years old". Connecticut used to define "age" as "any age between forty and sixty-five, inclusive", but that clause was deleted. Lousiana also prohibits age discrimination (La. Rev. Stat. §51:2247). Their statement about age likewise limits anti-discrimination protection to "individuals who are at least forty years of age". Maryland in MD State Govt Code § 20-304 also bans age discrimination, and does not redefine "age" or limit the scope of those ages that are protected. So while it is generally legal to refuse to sell goods to the young (and sometimes mandatory, e.g. alcohol, firearms, tobacco), there are a few states where such a policy would violate state anti-discrimination laws. There can also be city laws (Seattle has very broad anti-discrimination laws), but they exclude age from the Public Accommodation subset of discrimination. | ORS 166.220 suggests this would be illegal - specifically its "unlawful use of a weapon" if a person (emphasis mine): Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge. So what's "within range"? With a homemade bow of unknown construction, draw weight, and unknown arrows I'd say it's pretty much going to be something you find out when an arrow goes that far. I wouldn't expect it to match the range of high-end bows and arrows (I've seen 40lb recurves cover ~250 yards) but 100 yards plus doesn't sound ridiculous - more if it's got some elevation to it. The point is you really don't want to find out the hard way when a shot goes astray giving your neighbours the old King Harold treatment. | As Mark's answer indicates, you are evidently thinking of the Full Faith and Credit Clause. "Public acts" being laws, it may seem at first glance that states must fully respect the laws of other states. But the interpretation of this clause by the courts is rather different, and has evolved a bit over time. The short of the (modern) matter is that it mostly applies to matters concerning the judiciary. SCOTUS has recognized a "public policy exception" to the clause, which limits the ability of the clause to force a state to abide by laws which are in conflict with their own (for the most part: they don't have to). Driving privileges, and more generally who is licensed to do what (doctors, hunting, concealed carry, etc.), within a state falls under that public policy exception. So Texas does not have to obey New Hampshire's laws concerning the legal privilege to drive. As a basic sanity test, if this were not the case, then why wouldn't everybody in Texas not simply bounce off to New Hampshire for a summer to get their license there and then return to Texas and never bother with insurance? It entirely undercuts the state's sovereignty and ability to set their own laws if any other state can so easily create loopholes around them. Moreover, despite what the name might suggest, a "driver's license" is more a certification that you have the requisite skills, physical performance (passing an eye test), and knowledge to drive safely and in accordance with that state's traffic laws. It certainly makes sense for a state to require you to demonstrate at least that much, but they may also impose additional requirements. A requirement for insurance demonstrates your ability to handle financial liabilities that may reasonably result from your driving. All states currently accept a valid out-of-state license in the above sense: that you are certified to have the requisite skills, that it is valid proof of age, etc. Though if you become a permanent resident there they may require you to take new tests. However to legally drive in any particular state you must not only have such certification (a driver's license) but also satisfy any other conditions, such as age requirements and insurance requirements. As an aside, such state-by-state variations as to who is licensed to do what are in fact quite common, especially across history, even on very prominent issues. But even nationwide resolutions of those issues via SCOTUS have never, to my knowledge, utilized the Full Faith and Credit clause to do so. And, really, how could they? By saying since some state could force all other states to do X via the clause, then X must be a constitutional requirement? Or that any one state could unilaterally dictate laws in all other states? Madness! For one example, anti-miscegenation laws, which outlawed (certain) interracial marriages, were quite common until 1967, when SCOTUS struck them all down using the 14th amendment. More recently, gay marriage was forced to be recognized in all states, also via the 14th amendment. In both cases, before those SCOTUS rulings, the courts had generally recognized that the Full Faith and Credit clause did not compel the state to recognize (out-of-state) marriages it did not want to recognize. These both fell under the public policy exception. | In general, people have less expectation of privacy in cars than in their homes. To challenge a search and/or seizure under the Fourth Amendment, a person must have standing - the right to sue (that is, you must have had a reasonable expectation of privacy in the place where the search happened; if you didn't, no standing - can't claim your privacy was violated if you had no privacy). The US Circuit Courts are split on the issue of unauthorized rental drivers and whether they have the same reasonable expectation of privacy as the authorized driver of a rental car would have. Some Circuits allow the unauthorized driver to challenge a car search if the authorized driver gave them permission. Some Circuits look only at the agreement and if the driver isn't authorized on that, they're out of luck. The 6th Circuit is more case-by-case, with a presumption that driver can't challenge the search that can be overcome based on the facts. (All this info from US v. Haywood, 324 F.3d 514) There's a current case before the Supreme Court (argued January 9, 2018), Byrd v. US, on this very issue. This SCOTUSblog page has a lot of information on the case. Edited to add: Texas is in the Fifth Circuit, which follows the rule that unauthorized drivers don't have standing to challenge a search/seizure even with the authorized driver's permission to drive the car; unauthorized drivers of rental cars don't have a reasonable expectation of privacy because they lack a possessory interest in the car and/or they're violating the rental agreement. Basically, even though it seems the cops' stop of the car would've violated the Fourth Amendment if he were the authorized driver, since this happened in Texas, he's not going to be able to challenge the stop. IMO, this is incredibly unjust especially when the cops admitted there was no probable cause, so hopefully the Supreme Court makes this rule obsolete and allows unauthorized drivers to exercise their Fourth Amendment rights. Some law review articles on the topic of unauthorized rental drivers: "Hertz and the Fourth Amendment" "Resolving a Three-Way Circuit Split" | "Explanations relating to the Charter of Fundamental Rights" on the website you linked to is very clear that the Charter of Fundamental Rights only means the EU institutions can't discriminate based on age, and that EU law is not allowed to be age discriminatory. It doesn't mean that individual acts of age discrimination are illegal: In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. The practice of youth and senior discounts is older than the charter of fundamental rights. The charter will be interpreted in the light of continuity, it definitely wasn't the intention to outlaw price discrimination. There are specific laws that make price discrimination based on certain principles legal, e.g. UK equality act: Age discrimination - when discrimination is allowed in the provision of goods or services | It is quite likely that a constitutional amendment was (and is) not needed to ban alcohol. For example, if the Controlled Substances Act is constitutional (and I have no reason to believe it isn't) then alcohol could be added to it tomorrow and it could be removed the day after tomorrow. Right there is the reason that you choose to use a constitutional amendment - it is as hard to reverse as it was to enact; it needs another constitutional ammendment. | My understanding is that this isn't a contractual term, but rather a warning that the items don't satisfy legal requirements for individual sale. The seller and manufacturer likely don't care whether you resell the items, but the government does. In the US, at least, regulations of the Food and Drug Administration require that (with certain exceptions) food items sold at retail must be marked with a Nutrition Facts label, showing calorie counts, fat and sugar content, and so on. The FDA has information on this requirement, including citations to the relevant sections of the Code of Federal Regulations (CFR). For example, if you buy a big multipack of tiny ("fun size") candy bars, the manufacturer usually won't have printed Nutrition Facts on each candy bar's wrapper (because it's too small). There will instead be a label on the outer bag. As such, you can't legally resell the candy bars individually, because they don't meet labeling requirements. In fact, in the FDA page I linked above, you can see that manufacturers are required to print "This unit not labeled for retail sale" on individual items if they don't have Nutrition Facts labels. See the 12th item in the table of exemptions. | Barela was convicted of robbery affecting interstate commerce and faces a sentence of up to 20 years and $250,000 in fines. I assume your issue is that you think this is too high (although I don't see what it has to do with the 14th or 6th Amendments). Fortunately, it's also almost completely unrelated to the actual sentence. The number that was quoted is the statutory maximum for robbery or extortion affecting interstate commerce. It represents the maximum amount that any defendant under any circumstances could receive for one count of that crime. A career criminal who threatened to kill an armored car guard in order to steal $10,000,000 would face the same 20-year statutory maximum as someone with no record who threatened to give COVID to a store clerk in order to steal $90. In some situations, things like the amount stolen or the defendant's criminal record affect the actual crime the defendant is convicted of. At the federal level, that's mostly not the case. Robbery affecting interstate commerce doesn't have degrees or statutory enhancements. Instead, a judge decides what sentence is appropriate. The judge can, in theory, pick anything between the statutory minimum (here there is none) and the statutory maximum (here it's 20 years). 18 U.S. Code § 3553 lays out the factors for the court to consider. In practice, federal courts generally sentence within the range given in the U.S. Sentencing Guidelines. While the statute itself doesn't distinguish between stealing $90 by threatening to cough and stealing millions by threatening to shoot, the Guidelines do. Courts don't have to follow the Guidelines range but typically do. If they don't, it's much more likely their sentence will be overturned as unreasonable on appeal. Popehat has a good blog post on the Guidelines, how they work, and why press releases quoting statutory maximums are basically straight-up lies. Sentencing.us has an unofficial calculator you can use to estimate the Guidelines range for a particular crime. If you plug in 18 U.S. Code § 1951 (which translates to the "Robbery" guideline) and enter in $90 stolen, no weapon used, no threat of death, and no criminal record, then you get a range of 33-41 months and/or a fine of $7,500 to $75,000. This is basically the lowest Guidelines range possible for robbery. For comparison, under California state law robbery is punishable by two, three, or five years in state prison. Robbery is a serious and violent crime, so a sentence of multiple years would not be considered unreasonable. But it takes a lot for the Guidelines range to approach the statutory maximum of 20 years. |
Can victims respond to victim-blaming in court? From this article about a rape case Mr. Khan’s lawyers worked relentlessly to discredit the account of the woman, who was not identified by name in the arrest warrant application. They asked repeatedly how much she had to drink, and how she could claim not to remember certain details, such as how she arrived back at her dorm room, but remembered others, such as the alleged assault itself. They parsed her text messages with Mr. Khan, asking if she had not been flirting with him in the days before the incident. They showed off her Halloween costume, a black cat outfit, and asked her why she had not chosen a more modest one, such as “Cinderella in a long flowing gown.” These questions and arguments just sound like "Gish Gallop" to me. Assuming we can't make lawyers stop victim-blaming: Can a victim respond to such accusations in court? | Hope you have a good prosecutor and a sympathetic judge "They asked repeatedly how much she had to drink ..." Objection: Asked and answered "how she could claim not to remember certain details" Objection: Calls for a conclusion/speculation. The witness is not a brain scientist, she cannot speculate as to why people remember some details and not others. She is testifying as to what she does remember, not as to why she doesn't remember things. "asking if she had not been flirting with him in the days before the incident" Objection: Relevance. Is the defense seriously suggesting that flirtation, if it happened, in the preceding days amounts to consent at the time of the incident? "asked her why she had not chosen a more modest one" Objection: Relevance. Is the defense now suggesting that what the witness wore amounts to consent? | It depends on the jurisdiction but, very broadly speaking, the person might be ill such that: they did not know what they were doing or that what they were doing was wrong (insanity) their ability to understand their actions or make a reasoned decision or self control was highly impaired but not to the degree of insanity (diminished responsibility or perhaps provocation) they were unconscious when they acted (automatism - e.g. an offence committed while 'sleep walking') Clearly they lack the same culpability as a person with "good mental health", who consciously committed a criminal offence, knowing it was wrong. That does not mean the ill person can 'get away with it'. Claiming diminished responsibility as a defence to a murder charge may mean the person will instead be tried for manslaughter, which is also punishable by imprisonment. Depending on the circumstances a court (and subsequent people in authority) might be persuaded that the person is so dangerous they must be indefinitely detained and treated without their consent. Doesn't this sort of allow psychiatrists to make up the law, because they can decide if something is considered a mental condition? Just because a psychiatrist comes along doesn't mean the court will do what the psychiatrist says is best - the court will hear both sides of the argument, establish the facts, interpret the law and deliver a verdict. Some people would argue that someone who would commit such crimes (such as rape) couldn't possibly be in their right mind. Certainly, but so far as I'm aware that defence is very rarely used and never successful. | Yes the woman is guilty of murder (under the law OP described) The issue of common law mens rea (the guilty conscience) is moot as it is no longer a component of the crime, see here. Almost all jurisdictions today have codified crimes so the common law mens rea is not relevant, for example, in Texas a person commits murder if they "intentionally or knowingly causes the death of an individual"; feeling guilty about it or knowing it was wrong is not an issue. In the facts you describe the person "intentionally or knowingly causes the death of an individual"; the fact that she did not consider the victim to be a person is immaterial. As described, she would have a hard time with an insanity plea in the same way that a white supremacist murderer would for classifying members of other races as "non-persons". You can see why the common law usage would no longer work. | There is no requirement to interview the victim and/or the suspect prior to filing charges. Often statements are taken from the parties involved/witnesses by police and presented to the District Attorney's office as evidence. However charges can be filed without either party being interviewed, especially by the DA. This can often be the case in things like domestic violence cases, where the victim refuses to cooperate and the perpetrator refuses to talk ("lawyer up" or invoke 5th amendment rights). Charges can be filed based on circumstantial evidence of the crime (in the example, marks on the fist of the perpetrator and injuries to the victim, along with proximity). The police will try to interview the suspect and/or victim, but usually the prosecutor does not get involved at this point until charges are filed and the defendant has retained a lawyer (or declined one). | A witness is not evidence, but what a witness says (their testimony) may be evidence. Or, the body of a person who happened to be a witness is evidence. I suspect that there is a translation problem. It is always physically possible to try pay a person to lie and AFAIK never legal: the person who lies and the person who induces the lie will be punished by law. The witness who testifies will have to swear that their testimony is the truth. | No That is nothing but fiction. Assuming that this is in the US, the police would (probably, there are some exceptions) have had to deliver the well-known "Miranda" warnings, that the suspect has the right to silence, the right to consult a lawyer, and the right to have a free lawyer if unable to afford one, and that statements may be used against the subject. If, after those warnings, the suspect chooses to confess, or to make a statement, that confession or statement would be fully admissible, even if the suspect did not have a lawyer present, unless there was some other reason for the statement to be excluded. No such reason is mentioned in the question. It is simply not the case in the US that a confession is excluded just because no lawyer was present, nor is that the law anywhere that I know of. If the police failed to give the warnings when they were required, then any statements or confessions would be excluded. The decision in Miranda v. Arizona, 384 U.S. 436 (1966) says: law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said "I didn't shoot Manuel, you did it," they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible. ... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Footnote 4] As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. That tells you exactly what the police are forbidden to do. Nowhere does it say that a lawyer must be present. Indeed it says the opposite: The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. That means that s/he can confess after being warned, and such confession would be admissible, provided that s/he knew and understood those rights. | I am just a foreign patent attorney who is studying common law to pass the California Bar Exam, but I will present my personal view. (I cannot guarantee the validity of my theory) There is an equitable theory called Constructive Trust. If it is established, the victim is entitled to benefit of any increase in value of defendant's (thief) property, meaning in this example victim (plaintiff) can recover $100 million. In order to assert CT, the following must be met: Wrongful appropriation; Here, D stole lottery ticket. Met. D has title; Here, D has title to $100 million. Met. P can trace his property to D's property; P can trace from P's $1 lottery ticket to its possession by D and collection by D of $100 million. Met. Unjust enrichment by D; D was enriched by stealing P's property (the lottery ticket). Met. Thus, it is highly possible that a court will order D to hold the property ($100 million) in constructive trust for P. This means, in plain language, that P will recover $100 million. | A statement cannot be libel unless it actually identifies the plaintiff to defame him. The identification need not be by name, but it must be specific enough that the public would be able to determine who the statement referred to. You can read more about this concept at Prof. Eugene Volokh on Libel Law Therefore, if nobody other than the plaintiff or defendant learned about the connection before the filing of the case or the publication of discovered emails, the original work of fiction was not a libel. And by telling everyone that the connection existed, yes, the plaintiff was impliedly consenting to any further alleged libel and it would be a defense from liability for the plaintiff. Furthermore, there wouldn't be libel unless whatever the fictional character did was untrue (something the real plaintiff didn't do) and the public would think that whatever the character did was actually an assertion that the real plaintiff did it. I could write a satire about a President Brock O'Bama who is actually a lizardman in disguise, and that's my First Amendment right, not a slander of the President. Disclaimer: only describing the common law and majority rules. State laws may differ. |
Can the federal government force state/local governments to share resources with neighbouring states/localities? There is an increasing amount of tension between multiple states associated with essential resources like water. Here's a link - https://m.huffpost.com/us/entry/2789784 . If a state tries to build a dam to block water flowing to another state, or uses some other drastic measure, can the federal government force one state to share water (or other) resources with the neighboring states? What are the legal implications? Would U.S. Supreme Court have to intervene? | Civil Procedure In Interstate Disputes Legal disputes between U.S. states (or between the United States government and a U.S. state, or both) are resolved in the U.S. Supreme Court and in these disputes, the U.S. Supreme Court has original jurisdiction.* This means that the U.S. Supreme Court functions as a trial court, rather than as an appellate court in these cases. The original jurisdiction of the United States also includes cases involving ambassadors and suits by a U.S. state against someone who is not a citizen of that state. So, for example, if there was a question over the correct boundaries of the property upon which the French embassy is located, between it and a neighboring property owner, that would be decided in the U.S. Supreme Court in the first instance. In practice, the U.S. Supreme Court appoints a "special master" (i.e. a magistrate appointed on an ad hoc basis in that particular case only) to take evidence and receive legal arguments from the parties who then provides a summary of the facts and the relevant law to the U.S. Supreme Court justices which they use as a foundation render their opinion. Apart from the unusual forum of the litigation, the relevant law is basically the same as any other private civil litigation, although these suits tend to involve only moderate amounts of discovery and many key facts are routinely stipulated by the parties as represented by their state solicitor generals (the solicitor general is the lawyer within a U.S. attorney general's office or state attorney general's office in charge of state supreme court and U.S. Supreme Court litigation). But, nonetheless, these cases routinely go on for many years. Generally speaking, once the U.S. Supreme Court issues an order in an original jurisdiction case involving U.S. states, the U.S. state parties then comply voluntarily with the order, so it isn't necessary to have federal marshals or the U.S. military, for example, insure that the orders are carried out. Disputes involving local governments are usually handled in federal trial courts unless a state in which the local government is not located is a party and does not consent to another forum. U.S. states routinely waive their right to a U.S. Supreme Court or state court forum and instead consent to the jurisdiction of the U.S. Bankruptcy Court in cases where the U.S. state is just one of many parties with a claim in a bankruptcy estate, for example, for unpaid taxes or fines or contract debts owed to the state. For example, when General Motors went bankrupt, multiple U.S. states were owed money for unpaid taxes by this large interstate corporation, but all of the states owed money chose to participate in the U.S. Bankruptcy Court process by consent, rather than litigating their indirect dispute with other states over their share of the available assets in the bankruptcy in the U.S. Supreme Court, even though they had a right to do so. Substantive Law In Interstate Disputes In practice, most of the one to two cases a year on average filed in the original jurisdiction of the U.S. Supreme Court between U.S. states (on average about one of the two to three original jurisdiction cases a year involve disputes other than water rights or boundary disputes between states) involve water rights in the arid west of the United States, and these water rights are governed by interstate compacts, which are like treaties entered into between U.S. states except that they must be approved by Congress to be valid, or boundary disputes. From the link above: On average, only two to three of the nearly 100 cases heard annually by the Supreme Court are considered under original jurisdiction. However, many are still important cases. Most original jurisdiction cases involve border or water rights disputes between two or more states, meaning they can only be resolved by the Supreme Court. For example, the now famous original jurisdiction case of Kansas v. Nebraska and Colorado involving the rights of the three states to use the waters of the Republican River was first placed on the Court’s docket in 1998 and was not decided until 2015. These interstate compacts have detailed provisions governing how U.S. states that are parties to the contract must manage their water resources to insure that a sufficient flow of water makes its way from upstream states to downstream states and then further (in some cases) to Mexico with whom the United States has a similar treaty governing water rights. For example, the interstate compacts prohibit upstream states from diverting too much water via groundwater wells from interstate rivers that are subject to the compact, thereby reducing the amount of water that downstream states receive. A suit on that ground involving Texas and New Mexico and Colorado and the United States Government, over water rights in the Rio Grande River, is pending right now. An interesting non-water rights case between U.S. states that recently came before the U.S. Supreme Court and was ultimately dismissed, involved a claim of nuisance filed by the States of Nebraska and Oklahoma against the State of Colorado, alleging that Colorado's state regulated marijuana industry caused a nuisance that affected Nebraska by providing a source for illegal interstate marijuana shipments to Nebraska which burdened state law enforcement resources. The Question So if a state tries to build a dam to block water to flow in the other state or uses some other drastic measure then can the federal government force one state to share it's water (or other) resources with the neighbouring states, because it's part of the same nation?? What > are the legal implications? Would U.S. supreme court has to intervene to > stop such events? Yes. The aggrieved state could demand that the other state not block its flow of water and could enforce its rights in a lawsuit filed in the U.S. Supreme Court. Also, the fact that the U.S. Supreme Court can and will intervene in situations like these creates a strong incentive for U.S. states not to violate their legal obligations to neighboring states. The vast majority of the time, when happens in a situation like this is that the state attorney general or governor of the aggrieved state writes a letter to and/or meets with a counterpart holding the same office in the state engaged in the misconduct in person or by telephone and raises the concern and the dispute is worked out via direct negotiations between the parties. Just as 95% of lawsuits between private parties are resolved by settlement, the vast majority of disputes between U.S. states are resolved by settlement, although in disputes between U.S. states, those settlements are far more often reached before, rather than after, a lawsuit is filed. But, while the legal basis of the ruling in the interstate water dispute could be the fact that it is part of the same nation, and that was the legal basis of some rulings in the early days of the United States, these days the ruling would usually be based upon an alleged violation of an interstate compact to which all states involved and the U.S. Congress had agreed setting out the right and obligations of the respective states in detail. So, it is no longer necessary to resort to court made common law precedents to resolve most interstate disputes (although boundary disputes between U.S. states often do involve the common law of property rights). Also "force" is a bit of a dramatic choice of words for how the right is enforced. I'm not aware of any instance in U.S. history when a state government defied a federal court order in a case to which it was a party to take action once a judgment was entered in that case. (The famous Little Rock desegregation case in the 1950s in which the National Guard was sent in to enforce a federal court order involved defiance by a local government rather than a U.S. state.) Commentary It is somewhat remarkable how well the system of resolving disputes between U.S. states within a single country through the courts works compared to the dealings between comparable sovereign nations that have similarly strong economic ties to each other (with the obvious exception of the U.S. Civil War, which nonetheless probably would have happened much sooner but for the role of courts and federal institutions in resolving disputes between slave and non-slave states in the decades leading up to it). Part of why this works as well as it does is that the appellate role of the U.S. Supreme Court over state court actions, the role of the federal trial courts in sanctioning violations of federal rights by local governments and state officials, and the incentives created by federal statutes for state governments to submit to myriad programs coordinated between the federal government and state governments, means that state governments aren't nearly as autonomous and independent from each other and from the federal government as a naive cold reading of the U.S. Constitution would suggest. U.S. states are in the habit of conforming to federal law in comparatively minor matters, like how they handle serious criminal trials or how police exercise their discretion in traffic stops, so the legitimacy of the federal government and the U.S. Supreme Court, in particular, to intervene authoritatively and decisively in their internal affairs is fully acknowledged. | Under the commerce clause, a state cannot (without authorization from Congress), forbid its residents to travel to another state, nor tax such travel. It cannot prohibit imports from, or exports to, another state. It cannot tax products from other states in general, or from specific states, at a different rate or in different ways from products made within the taxing state. However, a state government may decide where its own employees will go on official business. It may decide where its own funds will be spent, and what products or services it will purchase for its own use. It may decline to purchase products from states with policies it disapproves of. It may forbid official travel that it would be responsible to pay for to such states, if it so chooses. It can probably also encourage its citizens and residents not to travel to or buy from such states, as long as it sticks to persuasion, and does not impose any penalty or tax on those who do so trade or travel, and also does not refuse to deal with people who do deal with the state it dislikes. | No Governments have sovereign power. Subject to constitutional and legislative constraints, governments can change laws as they wish. That includes legislative changes and administrative policies. Most governments tend not to use this power arbitrarily because it tends to make investors wary - economists call this sovereign risk. Like any other risk, the higher it is, the greater return an investor expects - countries with high sovereign risk get less foreign investment and pay more for it. Further, most governments don’t make laws that are retrospective but unless there is a constitutional prohibition (like there is in the United States, for example), they can. So Ireland could not only change the rules going forward, they could change the rules that applied in the past (assuming the Irish constitution doesn’t prohibit this, which I don’t know enough about). If Ireland were to change this law, it’s likely there would be plenty of forward notice. The arrangement you spell out between mother and son is not enforceable unless it’s a contract and the presumption is that such familial agreements are not contracts. Such a presumption can be overcome by an explicit declaration by the mother and the son that they intend for it to be legally binding, preferably in writing. Now, governments can and do enter contracts which are enforceable by the courts but that is a one-on-one relationship between a government and a contractor; not a decree that must be followed by everyone. Unless, of course, they are the sort of government that doesn’t follow their own laws - I’m sure you can think of some - but they are huge sovereign risk. | Congress imposed price controls on various agricultural and manufactured goods under several of the "New Deal" anti-depression measures, particularly the National Recovery Act, or NRA. There were constitutional challenges to these, and the were upheld under the Commerce power. I'd need to do some research to find the exact cases. (Update: Relevant cases include Wickard v. Filburn, 317 U.S. 111 (1942 (Federal productioin quotas for wheat, even if consumed on the same farm where it is grown), Nebbia v. New York, 291 U.S. 502 (1934) (Regulation of price of milk by NY state), Olsen v. Nebraska, 313 U.S. 236 (1941) (state regulation of commissions charged by private employment agencies), Bowles v. Willingham, 321 U.S. 503 (1944) (wartime Federal rent control), and United States v. Carolene Products Company, 304 U.S. 144 (1938) (Federal regulation of interstate milk shipment) See also the Hepburn Act of 1906 (Federal power given to the ICC to control railroad prices), this law review article on price control cases, and this article on Price Controls from the Legal information institute) Cases imposing minimum wage laws, both by Congress and by the States, were also challenged and upheld. Those are one from of wage control. I think that West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) was the key case on that issue. By the 1970s this was probably regarded as settled, and so was not raised in the challenge to the laws of that date. | Under Article VI of the US Constitution, the federal constitution and valid federal laws are the supreme law of the land, and judges in every state are bound to apply them regardless of anything in the laws or constitution of any state.* If a state legislature passes a law banning same-sex marriage, a state court is required under the federal constitution to instead apply the federal constitution (as interpreted by the US Supreme Court in Obergefell v. Hodges) and rule as though same-sex marriage is legal. When it comes to a federal court, things are even easier: a state cannot command a federal court to do anything. A federal court’s authority is laid out in Article III of the federal constitution and in federal statute, which (per Article VI) is supreme over anything in the laws or constitution of any state. There have been times where states attempted to challenge federal supremacy. Normally, this is handled by going to federal court. Decisions in state courts can ultimately be appealed to the US Supreme Court, which can reverse them if they incorrectly applied federal law. Most of the time, that’s the end of matters: when a federal court rules, state officials comply. Occasionally, that’s not enough. If a state disobeys the orders of a federal court, they can be enforced by federal agents. If even that isn’t enough, the President can deploy the armed forces to uphold federal authority. * There are situations which are more complicated, like when something is a federal crime but not a state crime. I can do more research on that if you want, but for now I’m going to leave it at “it’s more complicated.” | You have a third option: Sue the district for violating state or local law. There are lots of recent news stories about people doing just this and winning. The US Constitution Can't Help You: The school district is not violating your constitutional rights by installing lights at the stadium. The only constitutional protection remotely connected to your situation is the "takings clause" of the 5th Amendment. It says, "nor shall private property be taken for public use, without just compensation." Unfortunately, the "takings clause" only applies if there is a "taking." A "taking" is generally understood to be exactly that -- you lose your property. The loss can be literal -- the government takes title to your house and turns it into a football field or freeway on-ramp -- or figurative -- the disturbance from the football field or on-ramp is so pervasive that your property becomes worthless. Since having the lights on will not destroy the value of your property, the takings clause does not apply to you. As one Justice said in a related case, the lesson here is simple: "the federal Constitution does not prohibit everything that is intensely undesirable." State or Local Law Might Help You: Even though you don't have a constitutional claim, depending on what state and city you live in, you may have a claim under state or local law. (These might be statutes, regulations, ordinances, or even your state constitution.) For example, in 2010 a group of home owners in Atherton, California who lived near the local high school sued when the school announced plans to install stadium lights. The suit claimed the lights violated local height limits, and that the night games would violate noise ordinances. The suit, plus a savvy pr campaign, got the school to agree to limits on night games. Atherton is not alone. All the way across the country, in Greenwich, Connecticut, neighbors upset about stadium lights sued and got an agreement about the use of lights. A search using high+school+lights+neighbors+sue turns up plenty of other examples. You will have to talk to a local attorney to find out what state or local laws you can use. | This is a hard question, but a good question. The following relates to the issue from the perspective of the USA. You ask "...if the US wants to invade France, can they officially declare war by...", You have to make clear what you mean by "can". If you mean whether or not the US has the physical ability to do this, then of course they do. If you mean whether they are allowed, then this is another question. When you ask whether something is allowed, then you have to make reference to a moral code or a law that determines what is and what isn't allowed (legal). Normally each country will have laws that govern what is and what isn't legal for it's citizens to do. That hard part is how this applies to nations. There are two sides to the question. (1) What are the leaders allowed to do under their own laws, (the domestic laws) (2) what are countries as entities allowed to do? (the international laws) It sounds a bit like you are asking about the second thing. Here treaties govern what is and what isn't "legal". However, usually when someone breaks a law, other entities have the power to enforce that law and decide (judge) whether the person has broken the law. The question is: who decides whether a country has broken a treaty or an international law? And if a law is broken, what exactly can be done about it? This is hard to answer. Consider for example the conflict in Ukraine. Here many will argue that Russia has piratically invaded Ukraine. There should be war between the nations. But Russia denies this and other world powers have done little beyond imposing sanctions. This illustrates how hard it is to deal with this question. One question that comes up is what the purpose of international treaties are if a country can just violate them without much consequence. Pointing out two points about this. (1) If, for example, a president wants to convince his/her own congress that the country should engage in war, then it makes a stronger point if you can show how the country you want to engage has violated international trities. (2) After you have won a war, you might want to prosecute the leaders of the loosing power. Here you will stand stronger if you can make references to some international law that existed before the conflict started. This second point is illustrated in the Nuremberg principles. Here it was exactly stated that "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." According to the US constitution "Congress shall have power to ... declare War". That means that historically Congress has the power to decide where to wage war. The War Powers Resolution says, for example, that "The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities ...". Note that this doesn't mean that the US has do formally declare war before going to war. Example: The Iraq War was authorized by Congress, but there never was a formal declaration of war. It is interesting that you ask about the timing for when the declaration should be given. The Japanese wanted to deliver their declaration of war just before the attack on Pearl Harbor. But because of issues with decrypting the message from Japan to the Japanese Embassy, the declaration wasn't delivered until after the attack. Remember also in all of this that the winning party to a conflict, usually decides what was and wasn't legal! One good reference for more on all of this is the report by the Congressional Research Service called "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications". Here you can see more on what I have tried (and failed?) to say above. | It is certainly possible for the same action to break multiple laws, and be chargeable as multiple crimes. For example, shooting and killing someone may be assault, assault with a deadly weapon, and murder all at the same time. For a different example a person who simply omits to file an income tax return may be guilty of both failure to file a required return, and failure to pay tax due, and in some cases failure to par required estimated tax due as well. For yet another example, driving well above the speed limit may be a violation of the speed limit law, and also careless driving, and possibly also reckless driving. In the first case the assault etc may be lesser included offenses in the charge of murder. That means that they are automatically available to a jury (or judge) trying the accused, who can convict on one of the lesser included charges if they do not convict on the primary count. For the more general case, I don't know of any special term for the situation. It is not usual to have law A which says "do not do X", and also law B which says "you must follow law A". There is no general principle against having such redundant laws, nor is there, in the US, any Constitutional rule against such laws. But legislatures do not normally bother to enact such redundant laws. Laws which will sometimes overlap in their coverage, but in some cases do not overlap are common. |
Why does the 7th amendment not apply in traffic cases? In my city (Lansing, Michigan), and apparently in many other cities, you are not allowed trial by jury for traffic violations. This seems to be in direct contradiction to the 7th amendment. Is there a reason for this? Is it unconstitutional? | The Seventh Amendment's jury trial provision does not apply to the states. The Bill of Rights does not inherently restrain the states at all, merely the federal government. The Fourteenth Amendment does restrain the states; notably, it forbids a state from depriving any person of life, liberty, or property without due process of law. Courts have read into "of law" the added requirement that the law be compatible with the fundamental rights that are implicit in the concept of ordered liberty; this means that most stuff that would violate the Bill of Rights if done by the feds violates due process if done by the states. However, not all provisions of the Bill of Rights have been incorporated (i.e. applied to the states); the requirement for a jury in a civil trial is one of the few that hasn't been incorporated, because courts do not consider it a fundamental right (merely one protected in the federal courts). Now, many traffic tickets are actually misdemeanor offenses, and a jury-trial requirement for crimes is incorporated. However, even for federal offenses, the courts have generally found that the Constitution doesn't require jury trial for petty crimes (those with a maximum sentence under 6 months). | On the contrary there are hundreds of federal statutes that sanction civil forfeiture, as well as 18 U.S.C. § 983 (and other subsections inter alia) that governs civil forfeiture. What you seem to be more concerned with is the judicial oversight and regulations around civil forfeiture. The burden of proof varies between, and within, states - in some, prima facie/probable cause is all that is required, in others, a preponderance of evidence, or clear and convincing evidence is required. Just three states require proof beyond a reasonable doubt and civil forfeiture is only illegal in New Mexico. Civil forfeiture is subject to judicial review: a list of notable cases in civil forfeiture is available on Wikipedia. Here's some of the more interestingly-named ones: Marcus v. Search Warrant One 1958 Plymouth Sedan v. Pennsylvania Marcus v. Search Warrant held that the search and seizure procedures in that case lacked safeguards for due process, freedom of speech, and freedom of press. One 1958 Plymouth Sedan v. Pennsylvania held because the vehicle was searched without a warrant, and the untaxed liquor found thereby was used to invoke the forfeiture, the forfeiture was illegal (the Fourth Amendment protects against unreasonable searches and seizures). So, what is the legal framework? Broadly speaking, 18 U.S.C 983, as well as state legislation. What recourse is there? Judicial review. However, the procedures vary between jurisdictions. | The problem with Solution 2 is that government officials in the United States enjoy qualified immunity with respect to actions that they did while acting under color of law. It's not total immunity, but if they do things by the book, they cannot be prosecuted even if something goes wrong (even when doing things by the book, Police deal in very volatile situations and things can still go wrong because of an X factor to specific for the training manual to cover.). In other cases, it may be because multiple officers are working the scene and Office A lied to Officer B about the situation. Consider Officer A pulls over a suspect and realizes it was someone who was suspected of a crime, but couldn't prove it. He calls for back up and Officer B arrives. Upon arriving on scene, Officer A tells B to search the trunk of the car despite the fact that A had not received consent from the suspect nor has a warrant, nor cause to make a search of a trunk of a vehicle. B makes the search and finds [the bloody knife/the stash of drugs/the smoking gun/the match to a child's shoe that was missing from the kidnapping scene/ insert other incriminating evidence]. Under system (2), since it was Officer B who made the illegal search, B would be liable for it, even though Officer A lied about having legal reason for a search of the trunk space. But what's more... if the evidence is gonna be used anyway, what's to stop the cops doing it again? After all, there is very little recourse for those who are illegally searched to contest this in court (If I'm illegally searched and don't have anything on me, I have to take this to civil court, which is a different animal than Criminal Court and exposes me to broader Discovery... aka gives the cops free reign to search my property for a hell of a lot more illegal things.) or just sit back and count my 4th amendment rights (the section of the constitution protecting against unwarranted search and seizures) as worth less than the paper they're printed on. Oh, and by the way... that second word seizure... that means that they will be taking my property (or myself if they arrest me) and will not be giving it back for some time while they process it... if it's a legal to hold item (like my laptop that I do work on) that's going to make it harder for me to do my job which injures me further in lost business and income. In other cases, it could be they have a warrant for a large item (a stolen big screen tv) and while searching for it, open my sugar bowel and find evidence of a crime unrelated to theft of the television (i.e. opening a baggie of weed). This is actually an illegal search because, unless I am a wizard, a Time Lord, or Mary Poppins, there is no reason why a container smaller than a big screen TV should ever be searched when looking for a Big Screen TV and the cops should logically see this as out of bounds of the search warrant. The nature of this is damaging before the legality of the search can be determined, and because the search may have been out of scope of the warrant that was otherwise justified, the rule of making the evidence of a crime inadmissible was held in order to prevent LEOs from doing this because they could. This rule also started to take formation prior to the Revolutionary War. British Law had ruled against compelled confessions being inadmissible as evidence in 1769, a full six years before the Revolutionary war started (1775) and seven years before the publication of the Declaration of Independence (1776). Now there are some exceptions that can get the evidence brought back in, such as plain view ("The suspect's vehicle is a pick up truck with an open bed, the murder weapon was lying in the bed covered in blood"), inevitable discovery ("We have developed evidence by other means that would have lead us to this evidence legally") and Exigent Circumstances ("We believed someone inside the property was in grave danger if we did not enter the property immediately and that's when we found a cache of stolen Big Screen TVs!) and Good Faith (the Warrant was authorized for the wrong street address of the target but we found the evidence of an unrelated crime in a place the warrant authorized us to search. Everything but the goofed up address was done by the book.). | In the United States, the government has, multiple times, destroyed homes while trying to catch a fugitive. And the homeowner sometimes makes a claim in federal court that this is an unconstitutional taking without compensation in violation of the 5th Amendment. In Lech v. Jackson, the 10th Circuit decided that the police and city were not liable for destroying a house while trying to arrest a criminal who had fled there. The Supreme Court declined to hear the case. But in Baker v. City of McKinney, Texas, less than 3 months ago, a district court declined to dismiss a case in which police destroyed a home to catch a fleeing criminal. Allegedly, in this case the police were given a key to the door, a garage door opener, and the code to the back gate by the homeowner - and instead of using those, they used explosives on the garage door and used a BearCat to knock down the fence and the front door. I'm not sure to what extent those facts, perhaps showing that the scale of the destruction was unnecessary, matter. To the best of my knowledge the case is still ongoing. | The fourth amendment does apply to traffic stops. In general, they are a violation of the fourth amendment in the absence of reasonable suspicion or probable cause. Even then, there are some circumstances in which suspicionless stops are acceptable to the Supreme Court, most notably in roadblock-style checkpoints for enforcing sobriety or immigration. See, for example: Michigan Department of State Police v. Sitz (on Wikipedia) United States v. Martinez-Fuerte (on Wikipedia) Most traffic stops, however, occur after an officer observes a traffic violation. This gives the officer the necessary justification to detain the motorist. Wikipedia says: A brief, non-custodial traffic stop is considered a "seizure" for the purposes of the 4th Amendment and must therefore be supported by reasonable suspicion or probable cause. (Source: https://en.wikipedia.org/wiki/Reasonable_suspicion#Traffic_stops) Also: In constitutional law in the United States, a traffic stop is considered to be a subset of the Terry stop; the standard set by the United States Supreme Court in Terry v. Ohio regarding temporary detentions requires only reasonable suspicion that a crime has occurred or is about to occur. (Source: https://en.wikipedia.org/wiki/Traffic_stop#United_States) You can also read more about Terry v. Ohio on Wikipedia. You may disagree with the Supreme Court on the question of whether suspicionless sobriety or immigration checkpoints should be allowed under the fourth amendment, but the way the system works, such stops are allowed under the fourth amendment simply because the Supreme Court has said so. | In order to challenge a search at trial via an evidence suppression motion, the particular defendant has to have Fourth Amendment "standing"1 with respect to that search: Rakas v. Illinois, 439 U.S. 128 (1978). From the syllabus: Fourth Amendment rights are personal rights which ... may not be vicariously asserted ... a person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. Subject to the various exemptions to the exclusionary rule discussed at this question, the evidence in your scenario would not be admissible against Bob, but would be admissible against Rob. This does not necessarily mean that Bob would go free. As noted in that other question, if police/prosecution have other evidence, independently gathered, or sufficiently attenuated from the illegal search, they may still have a case against Bob. This also doesn't mean that an unconstitutional search of a person who will not even be prosecuted is without a remedy. See this answer for a discussion of civil remedies available for a person who has suffered an unconstitutional search. 1. The Court has distanced itself from the term "standing" in this context, so I am using it somewhat colloquially as it is still in common usage in this sense. The Court instead just conceives of whether the defendent even experienced a Fourth Amendment search; the notion of standing is either redundant with or subsumed by such analysis. | The answer to this question will be almost entirely informed by the why that you've asked us not to consider. If the prosecutor or judge is a witness, the defendant should be able to call them, but that also means they would have to withdraw from the case under either Rule 3.7 or Canon 3. If the defendant believes the prosecution is tainted by some improper motive, the defendant may raise that objection under Crim. R. 12, but he must do so pretrial. I can't think of any circumstances where the defendant could question the judge or prosecutor in the jury's presence. | Unless there is enough evidence to convict one or more of the suspects, none will be convicted. In general the argument: We know it must be one of you, but we don't know whch, so we find you all guilty. is not allowed in any non-dictatorial jurisdiction. Just how much evidence is needed for a conviction varies by jurisdiction in theory, and by judge or jury in practice. Also, it would be possible to charge several of the residents with having acted jointly in the crime, but there would still need to be sufficient evidence against each defendant to obtain a conviction. |
In USA, is it possible to end up being called to jury duty even if you have not registered to vote? My friend received a letter summoning her to jury duty. She has not received anything like that before, even though she is now in her 40's and has been a U.S. citizen all her life. Also she never registered to vote (due to personal conviction) in any election and thought that a summon to jury duty is only sent to people who have registered to vote. Consequently she is wondering if this summons is legitimate. I am not able to answer from experience as I am not a U.S. citizen, but thought that I ask here: In USA, is it possible to end up being called to jury duty even if you have not registered to vote? | Yes, it is possible. The requirements are (1) you are a citizen (the burden is on the prospective juror to pay attention to that requirement) and (2) the court knows that you exist and calls you up for jury duty. Apart from voter registrations, drivers license data is also used (and can be dangerous, because non-citizens can have licenses and may not know that you must be a citizen to serve on a jury). Another source in unemployment benefits lists. The correlation with voter registration is one way of avoiding that problem. In fact, Florida law states that the list of candidates "shall be taken from the male and female persons at least 18 years of age who are citizens of the United States and legal residents of this state and their respective counties and who possess a driver license or identification card issued by the Department of Highway Safety and Motor Vehicles", and does not sanction using voter lists. The Holmes County Supervisor of Elections confirms that only federal courts use voter lists, and state and local courts only use driver / ID card lists. | In the US it is not a crime to be in the country illegally. As a general rule, it is not a crime for a removable alien to remain in the United States. Arizona v US So it's illegal, you get a state induced consequence (deportation) but it doesn't make you a criminal e.g. you don't go to jail for it. I have no idea if that's what's going on over there but it's a plausible explanation. | You could ask the bailiff to bring this concern to the attention of the judge. If you feel the need to protect yourself, you should. If you are really sincerely scared, stand your ground and refuse to participate for this reason in your response to the judge, even if this puts you at risk of a contempt of court sanction - better to being in jail briefly than to be physically harmed by another juror. The judge might release you from jury service or dismiss the threatening juror, or might declare a mistrial if you bring this to the judge's attention. The mistrial could result in the de facto acquittal of the defendant in a criminal case, especially if no alternates are available and dismissing you or the threatening juror would bring the jury below a quorum, so keep this in mind. I would also not tell the bailiff what position you are being coerced to take, merely that you are being coerced with physical threats. And I would identify the threatening juror (who might also be removed). Of course, if you are actually on a jury right now, you are almost surely violating your obligations as a juror by going on line to ask this question. | There are instances when the testimony may still be admitted. For example, a deposition may be admitted at trial either for impeaching or when a witness cannot attend, which involves the circumstance of death (FRCP 32(a)(4)(a)). Additionally, regarding hearsay, there are numerous exceptions. My Evidence professor said in class "If you cannot find a way to get evidence around a hearsay objection, you are not trying hard enough." One such hearsay exception states in the committee notes: Accordingly, the committee has amended rule 803(8) to refer to the provision of [proposed] rule 804(b)(5) [deleted], which allows the admission of such reports, records or other statements where the police officer or other law enforcement officer is unavailable because of death, then existing physical or mental illness or infirmity, or not being successfully subject to legal process. | Quoting from here, Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding. In essence, a jury decides that a law should not be legal in the situation, and as such the charge is unwarranted. One of the first cases was in the trial of John Peter Zenger, in 1735, where a law against libels was used against him, and subsequently nullified by a jury. It was subsequently used against the famous Alien and Sedition Acts, as well as The Fugitive Slave Laws. Zenger was the first case in America; in 1670, it was used in the case of William Penn and William Mead, who were acquitted of "illegal assembly" as Quakers. In an interesting twist, the jurors were imprisoned, as jury nullification was not explicitly legal, but they were later released. Interestingly enough, according to The New York Times In 1895, the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn’t have the power, or that they couldn’t be told about it, but only that judges were not required to instruct them on it during a trial. The Times also wrote that nullification had been used against laws against alcohol and gay marriage, though it did not cite specific cases. | Short Answer This account would be a fairly extreme outlier relative to normal practice in jury selection, but it is certainly something that could possibly happen (except for one small detail that isn't very relevant to the core issues that it raises; this detail is discussed below in the last heading of this answer). The substantive points made in the Facebook post about what the facts recounted say about the state of women's conditions and attitudes about women in our society, and the poster's skepticism that a judge who made decisions like these really acted appropriately, are well founded, fair, and appropriate to raise. These concerns are within the heartland of what the case law on these kinds of issues discusses and struggles with, although because of the procedural posture of this issue, there isn't a lot of case law on this issue. Long Answer My Sources Of Knowledge I have participated in choosing perhaps half a dozen juries in which I was counsel, and I have observed the process in other cases one or twice and have previously been in a couple of jury pools myself (I've never been actually selected to serve). I'm also familiar with accounts of others practitioners regarding their experiences with jury selection, I know what I was taught in law school about the process, and I am familiar with the academic and practitioner oriented literature about the process. I am answering based upon U.S. law, because I don't have intimate familiarity with petite jury selection in other common law countries, although the broad outlines of the process are similar. As a caveat to this answer, however, recognize that judges have very broad discretion in the jury selection process and that not all judges adhere to "best practices". Further, in many states, judges are partisan elected officials who tend to end up in there positions because of, rather than in spite of, their extreme views and positions of legal issues over which they have discretion relative to the average lawyer or judges in places where the judicial selection process is less partisan. Your Questions How often are jury members subject to separate examination by defense counsel (or prosecution counsel) during jury selection? This usually happens in any case more serious than a simple traffic offense. It would be unusual to examine every single member separately in a separate room, but normally quite a few jurors a questioned separately on one point or another. This process is called voir dire (a situation in which U.S. legal terminology borrows from French rather than Latin). How frequently are jury members dismissed in the presence of other members? Jury members are usually dismissed in the presence of other members, but the specific juror responses to the reasons for doing so may or may not be discussed in the presence of the other jurors. Less sensitive questions (e.g., do you still live in this county, are you a U.S. citizen, do you speak English, do you have scheduled health procedures during the anticipated trial or a trip with a non-refundable ticket or similar issue, and a few other "categorical" exclusions) are usually discussed in the presence of other members, as are responses to general questions that are unlikely to be grounds by themselves for a dismissal for cause, but could inform peremptory challeges of jurors. The better and more common practice is for sensitive questions, such as a previous incident of being assaulted, to be discussed out of earshot from the other panel members, but in the hearing of the judge, at least one lawyer for each side and the court reporter who includes the bench conference in the trial transcript. Alternatively, how often are dismissed jury members informed of the selection or elimination of fellow jury members? Normally, jury pool members leave the courtroom and get on with their day once they are dismissed. But, if they choose to stick around, they will learn who is selected to serve on the jury, and who is eliminated from the jury pool. Is the defense counsel able to eliminate (all twelve) jury members from consideration (for cause) without objections by prosecution counsel? Terminology First of all, here and in your prior questions it is important to distinguish between the jury pool (a group of randomly chosen people who might end up being jurors) and the jury (a group of people ultimately selected to decide a case after challenges for cause and peremptory challenges are complete). The Voir Dire Process There is, in principle, no limit on the number of members of the jury pool who can be dismissed for cause, and if they run out, everyone goes home for the day and comes back the next day with a supplemental batch of jury pool members. In an obscure civil case or minor low profile felony case, the jury pool would typically be 30-60 potential jurors. In a death penalty case or case that has famous parties (e.g. a civil case involving Taylor Swift held in Denver recently), the jury pool would typically be several hundred people and the first round of voir dire would happen over the course of several days or even weeks. Any time that either party requests that a juror be dismissed for cause, the other party can choose to not object, or can object and argue that the juror should not be dismissed for cause. The judge doesn't have to dismiss a juror even when both parties agree to strike the juror for cause and not infrequently will refuse to dismiss a juror even when both parties agree to strike a juror for cause. This is because the judge has an institutional incentive to discourage jurors other than the one that a party has moved to dismiss from the jury pool from giving a lame excuse to try to get out of jury duty, even if the parties, who don't have that institutional concern, don't care about that. Why Might A Prosecutor Fail To Object? The downside of objecting to a request to dismiss a juror for cause is that it creates an almost automatic appellate issue for the party seeking to dismiss the juror if the juror is not dismissed. So, a prosecutor might not object to a questionable request to dismiss a juror for cause in order to reduce the likelihood that a conviction obtained by the prosecutor would be reversed on appeal. Giving the defense the jury it wants also makes it more likely that if the case starts going badly that the defendant will agree to a plea bargain mid-trial rather than risking a conviction by the jury, because any conviction obtained is more likely to hold up on appeal. A defendant may appeal a ruling denying a motion to dismiss a prospective juror that is denied after a conviction, if any, is entered. If the jury acquits the defendant (the unfavorable outcome the prosecutor would like to avoid by not having a juror dismissed for cause), the prosecutor can't appeal the case, and if the jury hears evidence, the case can't be dismissed without prejudice or retried unless there is a conviction that is reversed or there is a mistrial (the mistrial rules are bit complicated). So, if the prosecutor was really appalled by the dismissal for cause of so many women and felt that this would impair the prosecution's chance of obtaining a conviction materially, the prosecutor would have to dismiss the criminal charges so as to vacate the trial, before evidence was presented to the jury, and then refile the charges (assuming that this would be possible consistent with statutes of limitation and speedy trial requirements). But, this would be an extraordinary move with high stakes, because the prosecutor has a long term strategic interest in not pissing off a judge in any case because that could cause the judge to exercise the judge's discretion against the prosecutor in future cases. The judge and prosecutor may have to deal with each other in future cases for decades and will do so on a regular basis every few weeks or months. A judge is likely to be pissed off in this situation because dismissing a case ready to go to trial and scheduled for trial with a jury fully selected because the prosecutor was unhappy with the judge's rulings on motions to dismiss jurors for cause would not be appreciated by the judge who naturally believes that the rulings made on those motions were sound even if that belief is unreasonable. I strongly suspect that this was the reason that the prosecutor allowed all twelve women in the jury panel to be stricken for cause in the case that you describe (assuming, of course, that the Facebook account is factually accurate, which is sometimes the case and sometimes not the case – even if the gist of the account was accurate, it wouldn't be surprising if some technical details or nuances were incorrectly recounted). It Would Not Be Normal For A Prosecutor To Not Object In This Case Despite these procedural considerations, it would be very unusual for a prosecutor to not object to striking all twelve women on a jury panel for cause in these circumstances and it would be very unusual for a judge to agree to strike all twelve women on the jury panel for cause in these circumstances whether or not the prosecutor objected. Generally speaking, merely having had a prior experience of having been assaulted would not be sufficient to strike a prospective juror for cause. Normally, the prosecutor and/or the judge would ask the prospective juror if this experience made it impossible for that particular juror to be impartial in this particular case, and normally most of the prospective jurors asked that question would say "no". Usually, in that situation, the judge would not agree to dismiss that prospective juror for cause. Most prosecutors would expect their objections to a request to dismiss a prospective juror for cause in this situation to be taken seriously by the judge and for only a few of these requests that cast the most doubt on the impartiality of a potential juror to be granted. And, most prosecutors would not consider the appellate risk involved in opposing a request to dismiss a prospective juror for cause in the typical scenario that I outlined above very troubling, because a judge has fairly broad discretion on dismissals of jurors for cause in the face of a marginal fact pattern. The fact that the judge allowed this also suggests that the prosecutor may know that the judge is very unenlightened and has misogynist leanings and that fighting the judge's ruling in this case would be a lost cause that is hard to appeal. (Of course, if any of the women had previously been assaulted by the defendant in this particular case and personally knew that defendant well, that would normally cause the potential juror to be dismissed for cause.) After Challenges For Cause Keep in mind also that after dismissals for cause are completed, a certain number of jurors equal to the number of peremptory challenges allowed to the prosecution and defense combined plus the number of jurors who need to be left over to decide the case would be put in the second stage of narrower jury pool. In this second stage, during which the narrower jury pool is honed to the actual final panel of jurors who will hear the case, each side exercises their allocated number of peremptory challenges (normally alternating back one forth, one juror at a time). While peremptory challenges can generally be made without good cause, you can not make a peremptory challenge solely based upon a potential juror's race or sex. If a side dismisses all women, or all men from the jury pool, there is a presumption that this is what was done by the party striking the jurors that must be overcome with convincing reasons not based on race or sex. The same analysis, strictly speaking, doesn't apply to motions to dismiss jurors for cause because in those cases a non-discriminatory reason has been definition been advanced by the party seeking to dismiss the prospective juror and accepted by the judge as convincing based upon the voir dire evidence. One reason not to fight very hard to dismiss a juror for cause is that many of those jurors who seem most favorably inclined to your case, although not necessarily all of them, are likely to end up being dismissed in a peremptory challenge in any case. A Footnote on Ex Parte Proceedings Ex Parte Voir Dire Is Improper The author of the OP also clarified that: When I asked, "How often are jury members subject to separate examination […]?", I meant that only one party (or counsel for one party) is examining the jury at a time. E.g., first the judge and prosecution counsel examines the jury (without defense present) then the judge and defense counsel examines the jury at some other time. Normally, the judge asks boilerplate routine questions first, then one side asks questions, then the other side asks questions. But, it would be almost unheard of (and it would be improper and unethical) for this to happen without lawyers for both sides present to see what transpires during the other side's questioning, even if the prosecution wasn't planning to make challenges for cause, so as to gather up information needed for the preemptory challenge phase of jury selection. To have a proceeding without both sides having a lawyer present is called an ex parte communication with the judge which both the judge and the lawyer doing so have an "ethical" duty to avoid in this part of the jury selection process. An ethical duty means that the judge could be, in theory, kicked of the bench or temporary suspended or public reprimanded or require to take a judicial ethics class for doing so; and that the lawyer could similarly be disbarred or suspended from the practice of law or publicly reprimanded or required to take a legal ethics class for doing so. Conducting the proceeding ex parte could also be grounds for a mistrial ruling that would not prevent the defendant from being retried (because it would have been done at the request of and for the benefit of the defense counsel), or for an appeal in the appropriate cases. (There are ex parte proceedings which are ethical and permitted such as applications for search warrants and arrest warrants, but juror selection is not a proceeding to which an exception to the general rule applies.) The Prosecution Could, In Theory, Waive The Right To Participate In principle, the prosecutor could waive the right to be present while the judge and defense lawyer examine prospective jurors, but this would be almost bizarre conduct that would only happen if someone was calling about an incredibly urgent development that threatened to shut down the courts or put the prosecutor or co-workers or family at immediate risk of physical harm happened. For example, a prosecutor might waive a right to be present if the prosecutor wasn't planning on objecting to any jurors for cause and was learning that the 9-11 attacks were underway, or that a mass shooting at the prosecutor's offices had happened or was in progress, or a prosecutor having a spouse who the person they stepped out to talk with was in a newly discovered hostage situation, or the prosecutor suddenly feeling an intense need to vomit or being on the verge of passing out or feeling like a heart attack might be in progress. Even then, however, it would be more common for a judge to call a recess for a little while in any of those circumstances. The Case Description Is Probably Incorrect Or Misleading On This Point The ex parte examination of prospective jurors, which was apparently described, would be so far outside the norm of typical jury selection conduct, that I suspect that this part of the account is inaccurate or was confusingly worded. For example, the post's wording arguably misleadingly implied that there was an ex parte proceeding as part of the jury selection process, but it wouldn't be necessarily inconsistent with a scenario in which a prosecutor was already present with the female jurors "before the remaining candidates were led into a room to meet the judge and defense attorney." For example, it could be that what really happened was that a member of the prosecutors office was introduced to the in the jury assembly room, and led the prospective jurors to the correct courtroom without making any comments to them, and then they met the judge and defense counsel, which would be entirely proper and not unusual. | It Depends on the state and court How much mental capacity is required depends on the jurisdiction. In every state, there's a law that describes who has to serve jury duty, and who is exempt, and if a style of dress is prescribed. In the following, I will grab a couple of random states to illustrate, using https://www.juryduty101.com/ as the main source, because they give a good overview for all 50 states but are not fully reliable for all details. Look up your proper state statute using the reference links from the site. Do also note that courthouses might have additional requirements that might be higher or more specific, especially in the dress code (some might require to wear face masks, others don't) or current health status (like testing negative for COVID). It's required to read the call for jury duty for those. As a random example: the Eastern District of New York tells its expectations (almost mimicked by most other courts): Proper court attire is mandatory. No jeans, shorts, tank tops, sweats or other very casual attire is permitted. Dress "business casual" or "business" for your appearance. In connecticut, there's a rather simple list of who's exempt from Jury Duty in the first place. The page is listing, among others, disability as an excuse from Jury Duty, and you need to qualify in the first place. The Qualifications demanded from a juror, among others, are this: have the ability to read, speak, and understand English be of sound mind to the capability of "rendering satisfactory juror service, being able to perform a sedentary job requiring close attention for three consecutive business days for six hours per day, with short breaks in the morning and afternoon sessions." The bolded portion is why people with ADHD might get an excuse in Connecticut, while the sound of mind part allows someone with a mental disability to claim disqualification. In arkansas, the qualifications demand the prospective juror to consider themselves of sound mind and good moral character - which appears as a self-estimation. The actual legislation for disqualification for sound mind and good moral can be found here, and doesn't make it a self-estimation but makes it appear a thing of fact, without elaborating how that is determined. missouri, boldly demands a juror must not be mentally or physically ill or infirmed. or... actually that is too broad of a characterization, as it omits some crucial words: MO Rev Stat § 494.425 Persons ineligible for jury service. 494.425. The following persons shall be disqualified from serving as a petit or grand juror: [...] (8) Any person who, in the judgment of the court, is incapable of performing the duties of a juror because of mental or physical illness or infirmity. The juror or the juror's personal representative, may provide the court with documentation from a physician licensed to practice medicine verifying that a mental or physical condition renders the person unfit for jury service for a period of up to twenty-four months. | Signing as a witness binds you to nothing. Do not sign if you do not qualify as a witness (e.g. Time known, occupation) but otherwise go for it. It is unlikely that anyone would check your bona-fifes but if they did a statutory declaration would probably be satisfactory. Remember, the point of witnessing is to show the form was actually signed by the person. |
Under the GDPR, should transaction data be deleted on account deletion or on user request? Given the EU GDPR "right to be forgotten" when the user of an eCommerce website deletes their account, or requests, should the data related to their purchases be deleted? Or if the user can buy without having an account on the website, but just by specifying their email every time they purchase something, should the entire record be deleted or just clear the personal data (email) in the record? | This will depend partly on what you use the e-commerce website for. If it is simply a point-of-sales and your accounting records are kept elsewhere, then it may be possible to delete their account including associated orders and payments, though you should check that the software doesn't simply update the record by setting the value for a column named deleted or del for short to 1 instead of 0 to identify deleted records, but instead actually deletes the record from the database. You should consider how you will refund a customer if required after doing so!! (i.e. perhaps you acknowledge the request but keep the information for at least as long as the customer is eligible for a refund, and then delete it). If the system is also used for accounting records, then if a customer/user wishes to assert their right to be forgotten, it is likely you'll need to disable the account and apply some kind of pseudonymisation (essentially replacing personal identifiers such as name, email address, date-of-birth, with dummy/null data), in order to preserve the integrity of your financial records. For example, in the UK, there is a statutory obligation on companies to retain financial records for at 7 years. In cases where data cannot be immediately erased due to other legitimate reasons for which it must be kept, once those retention periods expire the data must be erased. You'll need to keep a record of anyone that requests to be forgotten, and remember to follow-up to complete erasure at the appropriate dates if it can't be done immediately, and when the data is destroyed the user needs to be informed. | As I understand it there is no obligation to 'triage' SARs or keep data 'just-in-case' that would otherwise be deleted as a matter of routine. Can we amend or delete data following receipt of a SAR? It is our view that a SAR relates to the data you held at the time you received the request. However, in many cases, routine use of the data may result in it being amended or even deleted while you are dealing with the request. So it is reasonable for you to supply the information you hold when you respond, even if this is different to what you held when you received the request. However, it is not acceptable to amend or delete the data if you would not otherwise have done so. Under the DPA 2018, it is an offence to make any amendment with the intention of preventing its disclosure. https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/right-of-access/how-do-we-find-and-retrieve-the-relevant-information/ | Recital 47 contains: The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest. So even if you never explicitly gave your consent for any marketing purposes, they can send you marketing (e)mail. However, art. 21, paragraphs 2-4 contain: Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing, which includes profiling to the extent that it is related to such direct marketing. Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes. At the latest at the time of the first communication with the data subject, the right referred to in paragraphs 1 and 2 shall be explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information. So you can object, and they must stop sending marketing mail. They should also have told you that you can object. And it does not matter how the marketing is presented. A unique code does not change anything (regarding the GDPR). Also, they are not allowed to add marketing to any mail you want to receive, like service availability notifications, after you have objected. | In my opinion, this should be enough. The GDPR regulation is general - it does not attempt to address these issues directly, precisely for the reasons we see here: You can never predict how the technology will develop. When interpreting the GDPR, we must keep the intended goal in mind. What is the purpose of the "right to erasure"? To prevent anyone from further processing the personal data. If you "crypto-shred" it, it can't be processed anymore, not even theoretically. The encryptec file cannot be used to identify the subject, therefore it is not even personal data anymore. In case it can be decrypted in the future... Well, that is just a speculation. The courts can go to great lengths in interpreting what personal data is (dynamic IP address is considered personal data, since it can be linked to a person by the police with a court order), but i am pretty sure that "it can be theoretically possible in some distant future" is beyond the limit. As for the second question, I am not aware of any applicable case-law, but I guess that current security and technological standards will be used to assess the delay. You have a right to protect your data, the subject has a right to erase them. Those rights must be balanced, neither fully overrules the other. The delay should be short enough so the right to erasure is effective, and it should not extremely long compared to other (economically viable) backup solutions available, in line with current industrial standards. | Alice's business sells database management software. Organisations buy or licence the software, deploy it on hardware they control and use the software to help store and, process and analyse 'personal data' within the meaning of GDPR. Alice's business has no access whatsoever to the personal data being stored and processed by those organisations. In respect of that personal data, GDPR is not engaged by Alice's business. The business is neither a 'controller' nor 'processor' of that personal data. Who does the data protection law apply to? - European Commission Who does the UK GDPR apply to? - Information Commissioner's Office | Well actually... I think you'll just need to wait a little more. I monitor the situation quite closely and I can tell you that it's just a matter of time. Microsoft was one of the first (if not the first) to communicate openly about the GDPR and the changes that follow. From the blog post: If your organization collects, hosts or analyzes personal data of EU residents, GDPR provisions require you to use third-party data processors who guarantee their ability to implement the technical and organizational requirements of the GDPR. To further earn your trust, we are making contractual commitments available to you that provide key GDPR-related assurances about our services. Our contractual commitments guarantee that you can: Respond to requests to correct, amend or delete personal data. Detect and report personal data breaches. Demonstrate your compliance with the GDPR. Microsoft is the first global cloud services provider to publicly offer you these contractual commitments. We believe privacy is a fundamental right. The GDPR is an important step forward to further clarify and enable individual privacy rights and look forward to sharing additional updates how we can help you comply with this new regulation and, in the process, advance personal privacy protections. Microsoft has set up an informational site on GDPR here. If your eyes are on any other provider, I think the only way to learn more is getting in touch and inquiring about their progress and process. Hope this helps. | Per GDPR Art 12(5), “any actions taken under Articles 15 to 22 and 34 shall be provided free of charge”. The right to rectification is Art 16 and reads in its entirety: The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement. Thus, I think it would be invalid to charge a fee for an address change if that change was made in exercise of your data subject rights. If you didn't invoke this right, it's debatable whether charging a fee would be proper. On the one hand, they can charge whatever service they want (provided that this was part of the contract you entered). On the other hand, they have an obligation to assist you with your exercise of data subject rights. This includes recognising a data subject request even if you didn't explicitly invoke the specific GDPR article. For example, refusing a request for erasure just because you didn't invoke some magic GDPR words would be clearly noncompliant in my opinion. If the company offers multiple customer service options, charging for some of them may be all right. Typically, the lowest-cost solution for a company to deal with GDPR requests is to offer an online self-service option. An email to the data protection officer would typically also be free. Charging for phone support might be fine though. In an insurance context, there could also be a legitimate claim that updating your address is not a mere correction of your personal data, but a modification of the contract (depending on what you're insuring). Another possible counterpoint (which I think is not valid though) would be that the company never stored inaccurate data and therefore doesn't have to satisfy a rectification request. | Among other things, GDPR regulates what you may do with the data within your systems. You can use it for the contracted purpose, or in accordance to law, or with informed and revokable consent, or for some other enumerated purposes. Even with consent, you have to take security measures to avoid the misuse of the data. Remember the software shrink-wrap licenses? "By opening the package, you agree to the terms inside." GDPR makes the equivalent in the cloud world impossible. You have to document exactly what you do with the data, and for any use that is not necessary to perform the service the customer can opt out. In the scenario you describe, it is possible that you are not the data controller under GDPR but the data processor, and that you have a duty to keep the data from separate controllers apart. And delete any batch at the end of contract. If you want to do this professionally, you need to consult a lawyer for your specific plans. |
How blatant the circumvention of the Constitution has to be for SCOTUS to act? Consider the 3rd Amendment: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Suppose now that the US Congress were to pass this law: Any soldier can at any time commandeer any dwelling for himself or any other soldier regardless of the objections of the owner. Does this contradict the 3rd? After all, the amendment says "in a manner to be prescribed by law" and the law does prescribe the manner. PS. The relevant part is not "State" vs "Federal", but whether a law that makes a constitutional clause effectively null and void would be ruled unconstitutional by SCOTUS. PPS. I am not a lawyer, and English is not my native language, so I am at a double jeopardy trying to communicate my question. Please be patient. | Your question: "How blatant the circumvention of the Constitution has to be for SCOTUS to act?" indicates some confusion about the big picture of how contesting the constitutionality of a law works. SCOTUS doesn't proactively do anything. The Supreme Court cannot simply review a law that has been enacted and say it is unconstitutional of its own accord, or at the request of someone involved in the political process (some countries allow this, the U.S. does not). The U.S. Supreme Court is not equivalent to the institution of a "Constitutional Court" found in many countries. It is just the last court of appeal for all U.S. Courts. It often ends up resolving constitutional questions, but only after other courts have already done so in cases where there are real tangible immediate consequences to the decision. A lawsuit must be brought by someone who is actually injured for the courts to act In your example, nothing would happen unless a home owner could show that soldiers had actually commandeered his home without consent or compensation, or places him in imminent fear of having this done. If someone can't show that, then no lawsuit to determine the constitutionality of the law is allowed even if it is blatantly unconstitutional and the question of the law's validity will remain unresolved by the courts. This limitation is called "standing" and requires that there be an actual case and controversy with a suit brought by someone who has suffered a legal injury before anyone can bring any lawsuit. In point of fact, there are all sorts of laws in the United States that are clearly unconstitutional, but which are never brought before the courts to declare unconstitutional, because the government agrees that those laws are unconstitutional and makes a point of not enforcing those laws. All cases (with exceptions not applicable here) start in trial courts Suppose soldiers do commandeer Bob's house at the express direction of the President without Bob's consent or following any procedure that amounts to due process. What does Bob do? Bob brings a lawsuit against the soldiers and their commanders up through the President and the United States in the U.S. District Court for the state where the house is located or where the defendants live. Suits against the U.S. and its employees must be brought in federal courts rather than state courts. SCOTUS can hear cases as a trial court, but only in cases involving a state or foreign country or a diplomat as a party (and in practice, even those cases are referred to a temporary judge called a special master for evaluation and SCOTUS only considers the case after receiving a recommendation from the special master). None of those circumstances apply in this case. A federal trial judge hears the case and decides if the law is constitutional or not, and if it is held to be unconstitutional may decide that Bob is entitled to a remedy. There will also be other separate issues to decide in the case. For example: Was the lawsuit brought within the statute of limitations? Are the soldiers immune to suit for damages against them personally, which depends upon how clear it was to the soldier that he was acting unconstitutionally? Were the soldiers violating orders or following orders? Did Bob meet other procedural requirements during the course of a lawsuit (like making the proper disclosures of information and showing up to hearing he is required to attend, and presenting evidence in accordance with the rules of evidence)? If the trial judge finds that the law is unconstitutional, the trial judge can issue an order saying so and that is the law of land that binds the parties (including the U.S. in any other case presenting the same issue under a principle called collateral estoppel) unless someone appeals the case. Every state and federal judge in the United States from small claims court judge to a U.S. Supreme Court justice has the power to declare laws unconstitutional if it comes up in a case properly heard in that judge's court, not just SCOTUS. SCOTUS (with exceptions that don't apply) doesn't hear direct appeals A handful of cases are directly appealed from a trial court to SCOTUS (mostly election law cases). But the vast majority of cases, including this one, would go to an intermediate court of appeals first. If someone does appeal the case, it goes to the U.S. Court of Appeals for whatever circuit the state of the District Court is located in. It reviews the judge's ruling in light of the evidence presented and can either reverse the trial judge's decision or affirm it. Only after the U.S. Court of Appeals has ruled (sometimes with one more layer of decision making within the U.S. Court of Appeals), any party can appeal the case by a writ of certiorari to the U.S. Supreme Court. SCOTUS often declines to reconsider Court of Appeals Rulings The U.S. Supreme Court doesn't have to take the case and 98% of the time that cases are appealed to it, it doesn't take the case. If it doesn't take the case, then the U.S. Court of Appeals ruling is the law and that ruling is binding on any other federal court in its jurisdiction in future case. The U.S. Supreme Court will usually only take the case if it feels the decision was wrong, or there are conflicting precedents that have to be resolved from different courts. Whichever judge decides constitutionality (a power not reserved to SCOTUS) that judge will try to follow the law to make the right decision whether the violation of the constitution is blatant or subtle. If the U.S. Supreme Court does decide to take the case, it can affirm that U.S. Court of Appeals ruling (which is then binding on all U.S. Courts as precedent), or it can reverse the U.S. Court of Appeals. In each case, at the trial court level, at the U.S. Court of Appeals level, and at the U.S. Supreme Court level, the only question is whether the law conflicts with the constitution as interpreted by the case law already decided over time. Only a handful of cases in the history of the United States have ever squarely addressed whether a law violates the 3rd Amendment so there isn't a lot of directly applicable precedent, but the judges would also consider how similar provisions of the constitution, like the 5th Amendment, have been treated and would consider law review articles and historical records about the intent of the Third Amendment as well. Judges have quite a bit of freedom in interpreting the law, but will try to rule in the way that most fairly represents what the total body of the law and interpretative information about the law says in the context of the facts before it. In this case the government would probably lose but you can never be sure In a case as clear as your example, the Government would very likely lose although no case is entirely certain, because it allows action at any time even though it is not a time of war, does not consider the home owner's consent, and does not create any meaningful procedure for exercising the right. But, it really doesn't matter if the violation is blatant or if it is subtle. The court even routinely rules that laws are unconstitutional not because they actually violate a provision of the constitution directly, but because they merely "burden" the exercise of a constitutional right. A law that effectively nullifies a constitutional provision would usually be invalidated. Sometimes lawyers informally and in private call an argument that is technically valid (for example, by creating a procedure albeit a meaningless one) "too cute." Arguments like that usually lose. The U.S. Supreme Court routinely invalidates laws that violate the constitution only in very subtle ways (e.g., requirements that have been interpreted to pose minor barriers to voting could be held unconstitutional), and the U.S. Supreme Court now and then refuses to invalidate laws that seemingly blatantly violate the constitution (e.g., "In God We Trust" on U.S. coins). Often a non-constitutional or settled constitutional law question is resolved purposely in a way that avoids the need to rule on an unresolved constitutional question Often, constitutional cases are resolved on the question of standing, or whether the right person has been sued, or by interpreting a law in a manner that is unnatural, in order to avoid having to address the question of the constitutionality of the law itself. For example, in your case, a judge might say that "at any time" in the statute, really means "at any time during a war", and that "regardless of the objections of the owner" really means "over the unreasonable objections of the owner", and that there is a duty to pay fair market value for the use of the house under the statute because the law is silent on that point, even if none of those things, in a cold plain reading of the statute would seem to be reasonable interpretations of its plain language. And then the judge might say that interpreted in this way, the law is constitutional, but the government violated the law and the court might then award a remedy to Bob, because the government violated the law so interpreted rather than because the government enforced an unconstitutional law. But, if it decides to take up a constitutional question because it isn't satisfied with how the U.S. Court of Appeals resolved the issue, it won't hesitate to do so. | The comments have basically covered this, but: It's a slightly weird parallel structure ("who shall not be at least 25, and been a citizen for 7 years, and who shall not be a resident"). The Constitution is not written in fluid 21st-century English. But the obviously correct way to parse the sentence is that no one can be a representative who isn't a 25-year-old or older who's been a citizen for at least 7 years; furthermore, no one can be a representative who wasn't a resident of the state they represent when they were elected. With some parts of the Constitution (like the Second Amendment), the drafting results in actual disputes about the intended meaning. With other parts (like here), only one reading makes any sense. It's the same with the requirements to be President. The Constitution says "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President," which could be read as "you're not eligible unless, when the Constitution was adopted, you were either a citizen of the US or a natural-born citizen." But that's a silly reading, so "at the time of the Adoption" is read as only applying to "a Citizen of the United States:" natural-born citizens are eligible period, and people who were born before the US was a thing but were citizens by the time the Constitution was adopted were grandfathered in. | The Supremacy Clause makes Federal laws superior to state laws and even state constitutions, but that is only true for Constitutional federal laws. If Congress passed a law seeking to restore the effect of the now overruled Roe decision, there would be a question as to what provisions of the constitution empowered Congress to do so. Such a law might be challenged, and if no convincing source of congressional authority to pass such a law was cited, it could plausibly be overturned. One supposes that the members of the majority in Dobbs would be reluctant to see that decision superseded by a new Federal law. One hopes that they would take a principled stance, and only overturn such a law if there was good legal reason to do so. Without seeing the text of such a law, and the constitutional arguments for and against it, there is no legitimate way to judge if it would be within the power of Congress. As a political matter, I doubt that the current Congress will pass such a law. | Impeachment is unique in that it is a question of politics, not a question of law, that is being discussed at trial. The other exception is that the Senate, not the Supreme Court, is the High Court of Impeachment (that is, legal precedence is based on what the Senate says, not what the Supreme Court or any other appellant court says). There are a few minor details, but the main part of the trial will play out like a criminal trial, with the Managers (people named by the house to argue the case) taking the role of the Prosecution and the Senate as the Jury. Because the trial is purely political in nature, a jurist decision to on the matter before evidence is presented at trial is entirely legal. It's actually perfectly legal to have your own opinion prior to trial start in a normal criminal jury and to vote on that ground... but the attorneys will dismiss you from the pool if they find even a hint of this. Unlike the judicial system, the jurists of Impeachment Trial are the same 100 people (presently) and cannot be dismissed for any reason, including comments about how they will find in the trial. Jury Fixing or tampering is when the decision a jurist makes is colored by some outside motivation to the jurists own convictions (i.e. the crime boss has your family and won't kill them if you find his hired goon innocent.). It could be an issue if a senator was given some pork to vote against his/her choice, but Impeachment is incredibly rare in the U.S. system and there hasn't been any case where this was an issue (If Articles of Impeachment are brought, this will be the 20 case to reach the trial stage since the adoption of the Constitution, and the 3rd for a President.). | I think the Washington law and order is fairly clear: you must stay home unless you are engaged in certain allowed activities. The underlying law, RCW 43.06.220(h) empowers issuing an order prohibiting "Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace". Therefore I can walk my dog. When I do, there are a lot of people also out walking their dogs, so that provides a letter-of-the-law permitted exception to the stay-at-home order. Nothing in the order specifically addresses the situation where you pause your dog-walk to talk to a neighbor (the "appropriate social distancing" sub-rule only applies to recreational departures from your home). It is well-established that the central legal issue is what the "compelling government interest" is, and whether these restrictions fail on grounds of narrow-tailoring or least-restrictiveness. The failure to include "go to your brother's place for lunch, provided you follow appropriate social distancing guidelines" as a permitted activity is a candidate for not being least-restrictive. The problem is that the courts will not engage in an infinite regress of second-guessings about whether certain measures are "truly necessary". There is a SCOTUS challenge where the Pennsylvania Supreme Court upheld that's state's order, but a SCOTUS order requires the state to reply to a petition by Monday. The "status quo" is that these orders are legal, until someone constructs a compelling argument that they are not, and that matter is then resolved in favor of petitioner by SCOTUS (which has not happened). So far, governors have prevailed at the state level. | Vice President Aaron Burr was indicted in his last year as Vice President in both New Jersey and New York. The crime was killing Alexander Hamilton in an (illegal) duel. His solution? Simply don't go to those states. Eventually the charges were dropped on technical reasons. But it was nevertheless clear that no one considered it a particular problem for a sitting Vice President to be indicted in multiple states at a time, or even just one. This bit of history is even mentioned in the revised DOJ opinion referred to in Putvi's answer. Ultimately that opinion decides that the comparison between a Vice President and President is apples-to-oranges nonsense—their relative levels of power, importance, and constitutional stature are radically different—, and no substantive inferences could be made from a VP's indictability to the President's. Of course, this DOJ opinion is just the opinion of DOJ lawyers. It is not a court opinion, nor otherwise binding. It does strike me as well-written and logically strong, but it is wholly untested in a court of law (SCOTUS or otherwise). It is simply their advice on what the best course of action the DOJ can take is, given their particular function and powers within the US government and overall constitution. The main conclusion being that those functions and powers are inadequate for the DOJ to decide if it is constitutionally sound to indict a sitting President (that's a job for the judiciary), and so simply advises that they avoid that powder keg and never do so. The opinions actually do specifically hold that it might be constitutional in the right situations; they simply conclude they cannot and should not be the ones deciding if a particular case qualifies or not. For a more definitive answer, you may have to wait for various court cases against President Trump and his administration to make their way through the system. In several of them the President's/White House's lawyers have argued for absolute immunity on all criminal matters, state or federal. The judges have, to date, seemed disinclined to agree; many seem straight-up shocked that this is being seriously proposed to them. But those cases are still in progress, so we can at best make random guesses at what the actual opinions will be, and it is even harder to know what will happen on the almost-certain appeals up to the Supreme Court. | States have a general police power, meaning that they can pass laws about whatever they want unless there's a specific reason they can't. A state does not have to give special justification for why something is in the realm of stuff they can regulate; someone challenging it has to say what specific section of the Constitution it violates. For a time, the Due Process clause of the US Constitution was considered to imply freedom of contract. This time ended in the 1930s. The doctrine of a constitutionally protected freedom of contract is pretty much completely dead. A state can't abridge the freedom of contract for no reason, but that's because just about any law needs some reason to be allowed. The level of review is that the law is rationally related to a legitimate state interest; this is not a very demanding level of review. Source State bar associations are given power by laws making it illegal to practice law without being a member of the bar and requiring licensed lawyers to comply with bar rules. State bars that control admission to practice are generally government agencies (specifically, agencies of the court system). When the state bar is not a government agency, attorney discipline and licensing is handled by a government agency (lawyers might have to join the bar, but the bar has to accept licensed lawyers as members; the bar's power in these cases is limited to recommendations to the courts). | Dale M's answer is not supported at all by history, or any mode of constitutional interpretation. I also don't find it likely. I'd say that if a duly ratified amendment said as much, that would be the law. It is certainly correct that the court could try to narrow the meaning. It's also possible to simply not follow the Constitution (as we do with state immunity and the 11th amendment). But to assume that would be done here is just speculating blindly. Of course, this question doesn't warrant much more attention than blind speculation, so my comment is not a very offensive accusation. As a few counter points, we have radically change the form of our government many times within the current constitution. Reconstruction, The New Deal and so on, all represented huge changes. Most importantly, the 17th amendment can easily be viewed as more radical than the question's proposed amendment. It completely flipped the political system upside down, orienting power in the people and the federal government, and treating the states as some weird intermediary: but we now see it as a relatively boring enactment. Certainly we could come to see the formal abolishment of the amendment process similarly, especially if it were (which it would need to be) accompanied with a new found comfort with non-textual interpretation to effectively "amend" through interpretation, i.e. If the textualists lost badly this amendment would seem like a relatively natural way of announcing their demise. Remember that Scalia's whole point, is that strict originalism (not saying he was actually so strict himself) would democratize by forcing change through the amendment process. If we rejected that notion (as deceptive, for example) we could (as in its not completely ridiculous to imagine) announce that rejection with the proposed amendment. |
After US Supreme Court overturns precedent, are old cases revisited? Hypothetical scenario: 1950: government uses method A to convict John Doe of crime B, SCOTUS upholds conviction 1990: government uses method A to convict Jake Smith of crime B 2000: government uses method A to convict Jane Roe of crime B, SCOTUS overturns decision from 1950, vacates Roe's conviction What would now happen to Smith's conviction, if anything? | The standard is this, from Teague v. Lane: If a case announces a “new rule,” an opinion by Justice Sandra Day O’Connor said, the new rule will apply to all cases pending on direct review; but in most cases it will not apply to cases already final. There are two exceptions: First, a “new rule” will apply retroactively if it is “substantive,” meaning eliminating certain crimes (all sodomy cases, say, after Lawrence v. Texas) or protecting certain classes of people from certain punishments—as in the Court’s recent decisions that juvenile offenders and the intellectually disabled cannot be sentenced to death. The issue in Montgomery is whether the new rule against “true life” sentences for juvenile is that kind of “substantive” rule. The Miller Court said that states could no longer subject juvenile defendants to automatic sentences of life without parole; it didn’t say that a court could not sentence any juveniles to that penalty. Is that a “substantive” exclusion of juveniles—or a requirement of individualized sentencing that makes a mere “procedural” change to the law? The second exception to Teague is for a “watershed rule of criminal procedure,” meaning one that the Court finds to be an “absolute prerequisite” to a fair and accurate trial. This is a terrific exception except that, well, there seemingly aren’t any “watershed cases.” | united-states Procedures differ on such things. The closest I know of to an outcome of "not enough evidence" is the classic "scotch verdict" of "Not Proven. In the US, the prosecutor can wait to proceed with a criminal case while s/he does (or has done) as much investigation as s/he thinks is advisable. But once the trial starts, it normally proceeds to a conclusion. If there is not enough evidence to convict, the result should be "not guilty" and that will bar any future trial of the same person for the same offense under the doctrine of Double Jeopardy. Circumstantial evidence, as described in the question, can be enough to convict, if the jury (or judge in a bench trial) is convinced beyond a reasonable doubt that the accused is guilty. Exactly how much evidence it takes to convince a Jury varies, and there is not a clear standard other than the phrase " beyond a reasonable doubt". The judge, or a later appeals court, can set aside a jury verdict for insufficient evidence, but only by finding that no reasonable jury could have convicted on the evidence pre3sented, taking it in the light most favorable to conviction. Judges are reluctant to set aside jury verdicts unless they appear badly wrong. If further evidence is found during the trial, which tends to show the accused is not guilty, the prosecutor can request that the trial be halted. This may or may not bar a future re-trial of the same defendant, depending on whether the dismissal is 'without prejudice", a decision the Judge makes. But once evidence has been started to be presented, dismissals are usually "with prejudice" meaning that double jeopardy applies. The defense can also request a dismissal, most often at the end of the prosecution case. In rare circumstances the Judge may dismiss without a request from either prosecution or defense. These will most often be "with prejudice" It is possible for the trial to be recessed while new evidence is evaluated or sought, but this is rare and usually only for a short time -- a day or two, perhaps. In general a prosecutor is not supposed to schedule a trial if there is any reasonable chance of additional evidence coming to light. It can and does happen, but the system tries to avoid it, and does not easily accept that it has happened. This answer is US-Specific, and different answers may apply in other places. | Is there precedent for Supreme Court justices recusing themselves from cases when they have strong ties to groups with strong opinions on the case? Not really. Supreme Court justices decide unreviewably whether or not to recuse themselves from cases, informed by general canons of judicial ethics which guide their decisions even though they are non-binding on Supreme Court justices. There is a strong record of Supreme Court justices recusing themselves from particular cases in which the justice was involved as lawyer prior to becoming a Supreme Court justice. There is also a fairly strong record of Supreme Court justices recusing themselves from cases where they have a strong, personal, and particularized to them (as opposed to general to people of their class and situation) financial interest (e.g. from cases involving companies in which they have large investments or family members who are top managers). In the example given of the 303 Creative LLC v. Elenis case, her strong ties to anti-gay Christian groups would normally not be a ground for recusal. General strong policy dispositions are normally not a basis for recusal. But, if instead, she were an investor in (or even a long time regular customer of) 303 Creative LLC, she would probably recuse. | A party can ask a judge to recuse at the outset of a case for bias or other reasons (e.g. a family connection to a party). Generally, a judge rules on that motion personally and it is an interlocutory motion not subject to appeal except by extraordinary writ (or the equivalent) to the state supreme court. It is not generally proper to do so during a trial. Moreover, one jeopardy has attached in a criminal trial (which happens when the jury is sworn) if the trial ends prior to a jury verdict for reasons other than those attributable to the defendant, the defendant cannot be tried again on those charges and is functionally acquitted. There are probably some arguable exceptions to this rule in extraordinary circumstances that are not the fault of either party (e.g. if a meteor hits courthouse and kills the judge and some jurors mid-trial, or if it is revealed that the judge committed the crime for which the defendant is being tried). But the threshold for exceptions to the general rule is very high. | NO If there were no extenuating circumstances (or they should not have been looked at as they were not presented), the losing party can petition for reconsideration and appeal the decision as a matter of law. The Judge/court of appeals then reviews the case and decides if the verdict stands. But you can't plead new facts at that stage, so if the losing side's lawyer messed up the case, that's up to them, not the judge. If it was a criminal case, the victim can't force the DA to appeal either, though they can try to get an injunction in related civil cases. But no person, or for the matter neither party, can sue the judge at all for misbehavior on the bench because judges have judicial immunity. Even when they did something so out of scope, such as a judge ordering from the bench that a lawyer shall be beaten up by police because they missed a court date, they get immunity as they acted as a judge (Miles v Waco). Indeed, let me quote from the first section of that SCOTUS case (emphasis mine): A long line of this Court's precedents acknowledges that, generally, a judge is immune from a suit for money damages. See, e. g., Forrester v. White, 484 U.S. 219 (1988); Cleavinger v. Saxner, 474 U.S. 193 (1985); Dennis v. Sparks, 449 U.S. 24 (1980); Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U.S. 719 (1980); Butz v. Economou, 438 U.S. 478 (1978); Stump v. Sparkman, 435 U.S. 349 (1978); Pierson *10 v. Ray, 386 U.S. 547 (1967).1 Although unfairness and injustice to a litigant may result on occasion, "it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." Bradley v. Fisher, 13 Wall. 335, 347 (1872). ... Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Pierson v. Ray, 386 U. S., at 554 ("[I]mmunity applies even when the judge is accused of acting maliciously and corruptly"). See also Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) (allegations of malice are insufficient to overcome qualified immunity). In the example OP posed nobody, not even the police, becomes liable for the actions of Bob but Bob himself: Police does not need to help you, even if they know for a fact that something is happening right now. There's a huge error in the case as presented by OP You start to work up a case, and points 1 to 3 are fine. But you start to get off the rails starting in point 4: The evidence does not say that someone is to be locked up, it only indicates what the facts of the case (upon which is to be decided) might be. The decision if someone is to go to jail or not is only up to the verdict - which happened in dot 5. Dot 5 however indicates that the judge looked at extenuating circumstances which is also evidence, so point 4 is presented incompletely. Let me present a more complete version of point 4: Evidence from side A was presented, as was other evidence by side B. To the victim, it seemed that side A (either her attorney or the DA, not clear from OP) had the better evidence and might get a conviction on side B. But the Judge did weigh the evidence differently than the observer and declared a verdict favoring B in point 5 to the dissatisfaction of the victim The missing bullet between 5 and 6 (a motion for reconsideration or appeal) does not seem to happen. Assuming it did not happen, because months go by, the verdict becomes final and the case becomes res iudicata - the case is closed. Point 6 is a different and separate crime. The case files of the earlier case can get pulled to show a pattern of behavior, but not to re-adjudicate the earlier case. Finally: Point 7 does not matter before the law: If-Then hypotheticals can't be adjudicated. Because the counterpoint to the presented argument in this point is: Would the lawyer of Side A have filed for reconsideration and/or appeal, the verdict would not have become final and waiting for the verdict from the court of appeals, Bob might still await the next step of the trial. tl;dr As presented, the rundown of the hypothetical case does not present anything that the judge could be liable for but instead shows that side A did not take the necessary steps to ask for reconsideration or file an appeal to the verdict they didn't like. The separate incident opened a new case, the hypothetical that side B would sit in jail is conclusory. | You can be tried again for the same offence; double jeopardy only applies if you are found "not guilty". It is not uncommon for appeals courts to invalidate a guilty verdict and require a retrial. Similarly a mistrial can result in a new trial at the prosecution's discretion. In addition, some jurisdictions have abolished double jeopardy for crimes like murder (e.g. New South Wales, Australia). New evidence coming to light can be grounds for appeal - in the case of the Fugitive where there have been no appeals this is one avenue open to Kimble. Where appeals have been exhausted; this is more problematic. One of the principles of justice is that there should be finality to the verdict. Kimble has gone from presumed innocent to presumed guilty - enough evidence would need to be gathered to demonstrate a clear and unambiguous miscarriage of justice. This may not be within the purview of the judicial branch of government - he may need a pardon from the executive. In real life (as opposed to Hollywood) Dr. Kimble is still in serious trouble. In some jurisdictions there may be some "innocence" laws that can allow review of convictions outside the appeal process. Notwithstanding, Dr. Kimble is going away for a long time for "escaping lawful custody" anyway. | In the US, a person is generally protected from being tried for the same offense twice, but they are not necessarily absolutely "protected". If a jury convicts a person but the judge enters a directed verdict of not guilty, the prosecution can appeal that action (Wilson v. US, 420 U.S. 332). The reason is that the acquittal could be disposed of on appeal without subjecting the person to a second trial. In contrast, in Fong Foo v. US, 369 U.S. 141 the trial judge ordered the jury to enter a verdict of acquittal. The appeals court rejected the judges basis for ordering an acquittal: but Fong Foo was "protected" because there could not be a second trial (double jeopardy), and it does not follow that the jury would have convicted but for the judge's order. The question reduces to the limited circumstances under which the prosecution can appeal a verdict. For instance, the prosecution can appeal a tre-trial motion to dismiss, and since there was no trial, there is no second jeopardy. Within a single jurisdiction, the only circumstance allowing a second trial involves bribery of a judge (Aleman v. Judges of the Circuit Court of Cook County, 138 F.3d 302), where the basis for allowing a second trial is that defendant was not in jeopardy with the first trial. New evidence does not override a defendant's protection against a second trial, whether it is new DNA evidence or a confession. It does not matter if this evidence arises seconds after the final verdict is entered, or months after. Or even before, but the prosecution was unaware. | tl;dr: Precedent takes effect on the decision date. You didn't list a jurisdiction, so I'll give a U.S. example. In Citizens United v. FEC (U.S. 2010), there are three dates listed in the header: Argued March 24, 2009 Reargued September 9, 2009 Decided January 21, 2010 Precedent attaches to a decision date. That's also why we see 2010 in the case citation above. However, it's important to note that not all precedent is binding. A decision made in the 7th Circuit isn't binding on a district court in the 2d Circuit, and vice versa. As to the impact on cases in progress, the party that is more favorably impacted by the change can bring it to the judge's attention. The outcome will depend on the a) whether the decision is relevant, b) whether the decision is binding, and c) how far along the case at bar happens to be. Note: most U.S. cases never go to trial. It is (relatively) lower stakes to incorporate new legal theories in the pleading or discovery stage. |
Client threatening me with patent I created a computer program for a client and things went bad. I think the client is trying to scam me. The client sent me an email informing they have filed a patent to the program I made, and even if I refuse to agree to additional paper work they still own everything and don't have to pay me. They sent me a description of the patent. A lot of the things are very generic, and I was wondering if someone could confirm if such things can be patented or are too generic? TL;DR does the following transcript from a message deserve any attention? The program functionality has now been filed for patenting. This entails I own functionality on: A program that runs on any Computer, Smartphone, Tablet, Electronic device, that can create a/multiple box shape filled in with any colour or blank with an outline. A program that runs on any Computer, Smartphone, Tablet, Electronic device, that can create a/multiple Free Form Shape(s) filled in with any colour or blank with an outline. The box(s) can overlap any other source on a monitor, or box(s) that do not overlap any other source on a monitor. The Free Form Shape can overlap any other source on a monitor, or Free Form Shapes that do not overlap any other source on a monitor. Box(s) can be deleted at anytime. Box(s) can be deleted individually. Box(s) can be locked in place. Box(s) that can be moved around. Free Form Shape(s) that can be deleted at anytime. Free form shapes that can be deleted individually. Free Form Shape(s) can be locked in place. 10 Free Form Shape(s) that can be moved around. Now that I have a patent, any program that has any of those specific functions is now under the patent that I own and can only be released under my written consent. This means you cannot use what you have done for anything beyond using it for your own personal use. Failure to do so means I will press legal action against you. Because you have been informed of the patent you cannot show the program to anyone else without disclosing that there is a patent on the functionalities and that you do not own the patent on them. Failure to do so will hold you legally liable against the individual(s) you have told. I will take legal action against said individual(s) and yourself. We never discussed ownership and no contract was agreed upon. This sort of came out of the blue. | A pending patent has no legal effect. It only has effect if it is granted, and software patents are very hard to obtain these days. Also, any legitimate claimant to a patent would provide the Patent and Trademark Office patent pending number, allowing you to verify that there really is a filing and to alert the PTO if there have been misrepresentations made about who the inventor of the patented item is in fact. Lying on a patent application can have severe consequences. | How can I find out whom the intellectual property now belongs to? For the patent, is this possible through the patent office? If it is a patent, the patent office; if it is a copyright, the copyright registrar. You could also look at the return from the auction in the bankruptcy court case file, which would control even if the patent office and copyright registrar records haven't yet been updated. You could also call the person who conducted the auction, or the lawyer who arranged for the auction, to ask. Often they would cooperate in telling you this information since a bankruptcy auction is, by definition, a public sale anyway, and cooperation might help them gain positive referrals from you in the future. If the assignee has not been changed in the patent register, is it possible to reassign the patent to myself, since the company has apparently neglected to do so? No. Doing this would be a form of fraud or embezzlement. The intellectual property became the property of the bankruptcy estate. If the bankruptcy estate is determined to have property not disposed of in the case, you would have to petition the bankruptcy court to have the remaining assets sold for the benefit of the creditors of the estate at fair market value. The Follow Up Questions I'm going to decline to answer the follow up question about how to arrange to purchase intellectual property from someone when you would like to own it, once you determine who the owner is. This is a more general question that applies to lots of circumstances and is as much a question of economics as law. There is an Ask Patents.SE forum, which might be a more appropriate place to ask that question. | A basic rule of trademark law is that a trademark is protected only for use in the same industry, or in regard to the same general sort of thing. "Maxwell House" for example, is the name of a brand of Coffee, and no doubt a trademark. If A business used it as the name of a brand of mobile home, it would not infringe the mark of the coffee brand. "Java" as a term for coffee , has been slang for any and all coffee at least as far back as WWII. I doubt that it is a currently active trademark in any case. It is, however, the name of a currently active programming language. Calling a new computer technology "Java" would probably infringe that (although the makers of javascript, a quite different computer language, seem to have gotten away with it). But it is hard to see how a realty company would so infringe. Of course there might be details which would cause this name to be infringing in fact, that I have no way of knowing. You could play safe with Sumatra Realty instead. Evin a quickly dismissed suit for trademark infringement could cost a startup time and money that might be a fatal handicap. | A patent grants the holder exclusive rights to make, use and sell the patented item. As such, you can look at the patented object, you can document it, you can study it, you can draw up plans for it. A patent cannot be granted unless the applicant discloses what exactly is being patented. So you can get all the details of a patent from the USPTO (US Patent and Trademark Office). You cannot, however, make one without infringement unless you have permission, usually a license, from the patent holder. Now I am not in any way recommending this but as a practical matter, if you, as an individual, were to make such a piece of furniture incorporating a patented feature for your use, how would they know? There are no "patent police" going from door-to-door looking for infringers. On the other hand if you were to begin selling copies of this piece at your small shop, that might come to the patent holder's attention and they might take action against you. | I know that I have to provide detailed information which data I save and how I use it. Yes, you should, if you are getting access to users' Dropbox accounts, which will contain all sorts of private data, copyrighted (and illegally copied copyrighted files), etc. You provide the detailed information to your users through a click-through Privacy Policy - TOS (Terms of Service) in your App, like any other App out there. Click wrap (Wikipedia) user agreements are legally binding in many jurisdictions. Even if you don't access files and information - such as personal information or files - you still need a clear TOS for your App, for both your users' and your own legal protection. But I am a poor student who don't want invest money into a lawyer to write me a privacy policy ... I do not plan to get paid for (this app)... Being a free or paid App doesn't make a difference when it comes to the TOS, if you need one, and if you need to pay for one to be drafted. But not investing money in a lawyer can be a critical mistake if your App will be distributed on the popular App directories like Google Play and iTunes and your TOS does not clearly and legally outline all possible usage and data polices. Lawyers have experience in covering all the bases. Is there any way I can do this privacy policy on my own? Sure, you can: https://www.google.com/search?q=privacy+policy+generator But you run considerable legal liability not having a TOS that correctly and legally addresses all users' privacy concerns and clearly outlines what you do to insure security. That's what lawyers are for. Is it possible to just create some “I save all your data“ policy which would of course be to much but it would include all data I save and so I would not miss anything in my policy? Sure, you can simply say I save all your data. But how can you be sure that you've haven't missed important policy details and scenarios that could result in legal action against you? Like how long do you save data? When will you delete it? How secure is it? Can the user ask for deletion? What happens if you get hacked? What about users in countries other than the US? Users under 18 years old? You must use arbitration for any disputes? And on and on. The considerable legal liability of using a non-professionally drafted TOS means you run the risk of getting sued. You have to decide if it is worth the risk. | "LearnIT" and "Learn it" are both descriptive, and thus are generally weak trademarks. It is not unlikely that a challenge would result in cancellation of any trademark on either, or in allowing a similar trademark in an unrelated category of business. For the matter of that, you don't seem to have determined whether the other company is making any trademark claims. In some countries there is no trademark protection unless a mark is registered. In others, including the US, use without registration can create some protection for a mark. It will also be relevant where the other company is doing business, and where you plan to. Trademark protection is always specific to a particular country, and generally requires proof of use in commerce in each such country (or of a plan to start such use in the near future). Domain registration is a different thing, and is not necessarily tied to a trademark (although registering a domain that infringes an existing trademark will often be disallowed). It appears that "learnit.net" is listed as available. That does not mean that a dispute filed by the other company would not be successful. The Uniform Domain Name Dispute Resolution Policy (UDRP) states in section 2 that: By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate; (b) to your knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party; (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations. It is your responsibility to determine whether your domain name registration infringes or violates someone else's rights. If you register a domain name, and another person or firm complains that the name is "confusingly similar" to an existing name or to a valid trademark, you might be required to participate in an arbitration proceeding under the UDRP, or else forfeit the registration. Note that nothing happens if no one complains. Section 4(s) of the policy reads: You are required to submit to a mandatory administrative proceeding in the event that a third party (a "complainant") asserts ... that (i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) you have no rights or legitimate interests in respect of the domain name; and (iii) your domain name has been registered and is being used in bad faith. In the administrative proceeding, the complainant must prove that each of these three elements are present. "Bad faith" can be shown by evidence that you obtained the domain for purposes of selling or renting it, not for use; that you intended to prevent a valid trademark owner from obtaining the name, and have engaged in a pattern of such conduct; that your purpose was to disrupt the business of the other; that you intended to attract users who were looking for the other site. The page "What Are 'Look-Alike' Domain Names?" states: An essential element of any domain name dispute is whether the domain name bears some important resemblance to a relevant trademark. The Uniform Domain Name Dispute Resolution Policy (UDRP) refers to this as the “identical or confusingly similar” test. In many cases, a disputed domain name actually contains the trademark, and in other cases it may contain a typographical variation of the trademark (such as by omitting a single letter; transposing two letters; or substituting one letter for another, often adjacent to it on a keyboard). Yet in other cases, a disputed domain name may simply look like the trademark at issue, even if the domain name doesn’t contain the trademark or fall into any of the popular cybersquatting tricks described above. I refer to these simply as “look-alike domain names.” You may wish to determine if the operator of the learnit.com site has in fact obtained a trademark on "learn it". Most national trademark systems provide a means to search the trademark registers. This will not be conclusive, but may give a reasonable idea. One option is to consult a lawyer skilled in trademark law. Another might be to reach out to the exposition firm and ask if they would have any objection to your proposed blog. If they don't object, the will be no problem. Another option is to choose a domain that is not as similar to that of the existing site. One technique that can help avoid an accusation of bad faith is to provide an notice where someone first opening the blog site will see it, something like: This is XY.net. You may have been looking for XX.com,which is about {short description} If co, click here. with a link to the other site. Such a notice might help establish that you were not using the domain to improperly attract traffic looking for the other site. | You don't say what jurisdiction's patent laws you're interested in, and priority dates can differ in different schemes. I'm answering as to U.S. law only. In the United States, under the current hybrid "first-inventor-to-file" system, the priority date--the date that determines who "wins" if there are multiple claims to a specific invention--is, with some exceptions that I won't go into, the date of your first application. In other words, the date that the PTO got it in the mail. Once your application is submitted, it is--again, with some limitations I won't get into--prior art for the purposes of any later-submitted application. They can't get another application later, grant it first, and then deny your application based on the later-submitted application. Your application date would still win out. Could someone in the USPTO slip your application out of the stack, fudge the dates, and convince some other company to submit a similar application to get priority over you? Not as a practical matter, no. The USPTO isn't one guy in a room; it's a large organization, and the person who opens the mail, types in your application details, and sends you a receipt, isn't the same guy who knows whether your invention is any good or not. And, frankly, very few patentable inventions are going to be worth someone risking their job and/or jail time over--especially when there would be significant evidence of the misconduct--for example, your patent agent's files. So what are the chances that the examiner on your patent: 1) Is a nefarious character who has lived a life of public service long enough and wants to go rogue; 2) Has a friend in the mailroom who is also an expert in the field of your invention; and 3) Has a conduct in industry who is willing to break the law for the rights to your invention? Slim to none. And if you have an invention that is really so revolutionary that it's going to be worth so many people risking so much to steal it, odds are there will be other evidence that you were the inventor. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. |
Can you patent a card game? I have created a card game, the idea is somewhere between poker and slots. I hope to create a website to monetise the game but do not know whether I am able to patent the game in order to stop big companies from stealing the game. How effective is a patent at protecting a card game? Also, if so, then must I patent all small variants of the game also? It should be noted that I am from Australia where gambling websites are legal. Thanks. | Yes. The AusPat database is an excellent source for looking for Australian patents. I did a quick search for "card game" and came across 276 results fitting those keywords. Not all involve the classic generic-52-card-deck format, but some do. A good example - and one that seems similar to your idea - is "Modified blackjack game using non-standard blackjack card values", by Davinder Signh Sandhu. There's no direct link to it from AusPat.1 So yes, you can patent a card game in Australia. At the moment, I don't have enough information to answer your other two questions. 1 I found a similar American patent with more information, though I have no proof that the two are in similar formats. | united-states Names and short phrases are not subject to copyright protection. A list of such phrases is probably not protectable either. Game mechanics are not protectable either. While short phrases can be protected as trademarks, they can be so protected only if they are used to identify a product or service, or to advertise that product or service. Terms used within the game are not normally subject to trademark protection. Even if such a term did have trademark protection, using it within the game would not be using it "in commerce" or "in trade", that is to identify or market the game. A brand name, a slogan, or a logo are typical trademarks, the name of a thing within the product is not. In short, a list of character classes would not, in the US at least, infringe copyright or trademark protections on another game. | Cheating in video games is not against the law. (If it's not for profit) IANAL The legality of cheating in video games has already been challenged in a court of law. You see, Nintendo didn't want people to cheat. Fearing it would lower the financial value of their games if you can beat them in just a few minutes. It was argued in court that a video game is no different than a book. If you want to read the end of the book, skip to your favorite chapter or skim quickly through a boring part you can. The conclusion is the game is yours to enjoy in anyway you want. Nobody can tell you how to play your game. There's an interesting and short documentary about the legal history of cheating in video games by the gaming historian. Also it doesn't matter what the TOS says. TOS is not legally binding Good news: another federal judge has ruled that violating a website terms of service is not a crime. But there's bad news, too — the court also found that bypassing technical or code-based barriers intended to limit access to or uses of a website may violate California's computer crime law. However, I've read you can be sued for breach of contract, if the site can prove any damages based on your cheating. I found that answer here on Law.SE and they didn't provide a source so I can't verify if it's true. | Whenever there is a license to share things, the license creator wants the license to be widely used, but absolutely does not want slightly different licenses that could be used to trick people, or that just cause legal problems when used. Normal copyright law applies. And for the reasons above, the GPL license as an example allows you to copy the license verbatim but absolutely doesn’t allow you to make any modifications other than changing who is the person licensing a work. I would be curious what happens legally if someone licenses something with a sneakily modified copy of the GPL and then makes claims against a licensee who assumed it was the original GPL. | By itself, a chess position is not personal data. Personal data is “any information relating to an … identifiable natural person”. Since the file in question includes the name of the opponent, it is clearly personal data about the opponent. If the files are used for “purely personal or household purposes”, the GDPR won't apply per Art 2(2)(c). If the files are shared more widely – especially if the files are published – then GDPR becomes relevant. The person/entity who is data controller has to consider GDPR compliance. Data controller is whoever determines the purposes and means of processing of personal data (the “why” and “how”). The first question would be under which legal basis this personal data about another person can be shared. The GDPR offers multiple legal basis, notably “legitimate interests” and “consent”. Consent is always an option, but must be freely given (entirely voluntary). Legitimate interests can serve as a legal basis after a balancing test between your interests and the data subject's rights and interests. This balancing test also depends on the reasonable expectations of the data subject, which in turn depends on the more general context. For example, in a chess community where such sharing is completely normal there would likely be a legitimate interest for you to share games as well, if the games occurred in the context of this community. But if you play a game with a friend who is not part of this community, the friend cannot reasonably expect that their name and associated personal data would be shared. The second question would be how you would satisfy further GDPR compliance obligation, in particular the Art 13/Art 14 right to information. When collecting personal data, it is necessary to provide certain information such as your identity, what processing is being carried out, and how the data subject can invoke their GDPR rights (a privacy notice or privacy policy). This might be difficult or awkward to do. Practical solutions to these problems: If you want to share a game but aren't sure that the opponent is OK with this, remove identifying aspects such as names. For example, you could crop a screenshot, or describe the game in textual notation without listing the opponent's name. Play the game via a chess website that publishes the game. This way, the website is the data controller, and you and the opponent are the data subjects. This avoids having to act as the data controller yourself. This might work for private interactions, but not e.g. if you run a chess club and require members to play via that website – you might still be in a data controller role then and have full compliance obligations. | You can't You are asking the analogue of "What happens when you start a game of chess with the black queen on D1?" and the only correct answer is "That is not a legal starting position, the only position the Black Queen may have at the start of the game is D8. Re-setup the board to how it should be." An AI can't hold property, because it is not a recognized legal entity, and trying to file for a transfer to an illegal recipient is in itself impossible. As such, all your plan fails on step 1 (transfer property to AI) and all other questions are moot - the position required can't come up legally, and attempting to get it done results in the documents that tried to do it being all Void and Null: The person that tried to get rid of the company is the owner. That person is liable for all the tax that needs to be paid. All lawsuits against the corporate or the owner proceed as if nothing had happened. YES, you could be sued for attempted tax evasion, communally called "tax fraud". | I think you would have difficulty distorting the situation - Pokemon Go is not magic that defies existing laws, and this would be no different to a mall issuing a trespass notice (which is effectively how they would kick you out) for any other reason. I would question the ability of a store to "Arrest" you - that is a job for the police - After they trespass you (ie by giving you notice to leave), if you come back again then they can call the police to arrest you - but its not as clear-cut as someone seeing you playing a game and arresting you. I don't think Pokemon players are a "protected class" of people, so finding a valid cause of action might be tricky. About the best you could do would be to talk with your wallet (ie shop elsewhere with your friends), but for my money that would make me more likely to go to that mall ! | What is the legality of someone putting a virtual hot spot on your property without permission? I know we are in uncharted territory but how would this compare to setting up a contest that would require going on your property without permission? The existence of a game does not authorise entrance to private property, barring some agreement with the owner. That is - if it is trespassing without Pokemon Go (or, for that matter Ingress), then it is trespassing while playing them. That being said, the creators of the game are free to place their in-game targets anywhere they please, and it is hard to imagine a scenario where they would be liable for their users' actions, unless they have not taken reasonable steps to prevent their users from doing so - Niantic clearly instruct their users to respect the law and also, only require that their users be within a certain distance of these points, not actually be at them. Is it currently legal to say Go to person X house and touch a tree? If not, does the current law extend to augmented reality? Nope, unless it can be done without entering private property (which includes the airspace above the property, to some extent). And there are no special cases for augmented reality. Now, there is some possibility that if they create a private nuisance - by being too loud, or by otherwise interfering with the use of the property - owners of a property could bring a claim in tort against players for doing so - or charges for a public nuisance, when done in a public area. |
How does the US legal system prevent successful evidence tampering from reducing total punishment? Flavor text: You're suddenly startled by the feds knocking on your door. Someone must have squealed about the methamphetamine operation you've picked up as a hobby to try and save some money for your family. You quickly Google the punishment for evidence tampering and find some law firm's webpage. Under U.S. Code 18 Section 1519, federal evidence tampering can be charged as a felony and is punishable by up to 20 years in federal prison and a fine of up to $250,000. That doesn't sound so bad compared to the life sentence you would surely face as the convicted kingpin of a meth empire. Before opening the door and welcoming in the DEA, you quickly destroy documents that are crucial for a successful conviction. How does the US federal legal system deal with such a scenario? Does the US legal system have specific mechanisms to ensure that evidence tampering does not allow one to reduce total punishment? As examples, can proof of evidence tampering be used as evidence of the original crime? Can a sentence for evidence tampering somehow scale to be at least as great as any crime it successfully covers up? Alternatively, are there scenarios in the US legal system where destroying evidence could be the rational thing to do (assuming you will succeed in covering up the original crime but be convicted of evidence tampering)? Assume US federal law. | The US legal system deals with this by punishing you for the crimes of which you are convicted. That is, those where the evidence (whatever it is) convinces a jury that you are guilty beyond reasonable doubt. If there is insufficient evidence, for whatever reason then you would not be convicted. The prosecution can, subject to admissibility, put forward whatever evidence they like in order to convince the jury. This can include a pile of ash that they allege contained convincing and unambiguous evidence of guilt. Of course, if that's all they've got the prosecution would probably be censured by the judge for wasting everybody's time and money, more likely, a prosecutor wouldn't lay charges in the first place. As to punishment for an evidence tampering conviction: you have been convicted of evidence tampering, not drug production so you will be punished for evidence tampering, not drug production. The legislature sets different punishments for these for a reason, possibly a reason known only to them but a reason nevertheless. The judge has discretion to apply anything between the minimum and maximum sentence prescribed. A conviction for evidence tampering in a drug case rather than, say, a jaywalking case, is likely to get a more severe sentence all else being equal. | No. A federal court may not vacate the conviction which the state court declined to vacate under these circumstances. On March 22, 2009, a jury found Luis Villavicencio‐Serna guilty of first‐degree murder of Armando Huerta Jr. Scant physical evidence linked him to the charge. The conviction instead was largely based on testimony from three of his friends, all of whom later recanted. Villavicencio‐Serna exhausted his state‐court appeals and then sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). Throughout these proceedings, he consistently has challenged the sufficiency of the evidence to support his conviction. He emphasizes the lack of physical evidence connecting him to the murder, and he suggests that several factors - inconsistencies between the testimonies of his three friends, their subsequent recantations, and the interrogation tactics used by the police—reveal that the police pressured his friends to implicate him. Finally, he offers an alternative theory that links another group to the murder. In the face of these arguments, the Illinois Appellate Court upheld his conviction. The [federal] district court, applying the double‐layered deference required by section 2254(d), concluded that the state court’s decision was not unreasonable, and so it refused to issue the writ. See Villavicencio‐Serna v. Melvin, No. 17 C 5442, 2019 WL 2548688 (N.D. Ill. June 19, 2019). Although we sympathize with the district court’s observation that “the lack of any physical evidence in this case is troubling,” we too conclude that Villavicencio‐Serna has not shown enough to entitle him to issuance of the writ. We therefore affirm. | In US law, there was, as far as the question indicates, no probable cause to search her phone at all, Therefore (unless there is some cause not mentioned in the question), any such search is illegal, and any evidence found in such a search, or that is found as an indirect result of such a search (pointers toward it are found in the search, and followed) would not be admissible in any criminal case against Alice. In the case of Bob, if his friends and family approach the police or other authority with a vague suspicion that Bob might be involved in the creation of illegal content That will probably not constitute probable cause for an arrest of Bob or a search warrant for his phone. Unless the accusation does prove to constitute probable cause, any evidence found during such a search would not be admissible against Bob in a criminal case. In practice, most US police would not undertake either search without better evidence than is described in the question. But some police will overstep the lines, which is what the US exclusionary rule is for. Legal procedure does not as far as I know make a distinction between "exploratory" and "confirmatory" evidence. Instead, evidence is either admissible or not. The rules for when evidence is admissible are quite complex, and vary by jurisdiction. Some of them are more traditional than logical, and some of them are addressed to particular problems that have arisen in particular circumstances. But the US Fourth Amendment protections against unreasonable searches, and the requirement of probable cause before search or arrest warrants are issued, serves some of the same purpose. Other countries have different rules, but many of them restrict the authorities to some extent from making arbitrary searches with no initial evidence. Response to the Revised Question As the question has been edited, there seems to be fairly clear probable cause to search Alice's phone, and if clear evidence of "illegal pornographic content" presumably actually child pornography, as no other kind is illegal simply to posses) is found, she can be brought to trial and perhaps convicted. The mere "suspicion" of Alice's "friends and relatives" would add little and mi8ght well not even be admissible. The facts, if any, on which those suspicions are based might be admissible, one cannot tell from the summary in the question. The case against Bob, however, remains weak. Indeed there still seems to be no probable cause either to arrest Bob nor to se3arch his phone, and the results of any search that was done would not be admissible. Probably none would be done without more evidence. The OP wrote: Thus, although the situation looks grim for both, since the evidence against Bob is confirmatory, it might be considered stronger. Not so, the case against Bob is weaker, indeed so weak that an arrest would be unlikely, and if one were made, the case would likely be dismissed before going to trial, assuming no more evidence than was included inn the question. The evidence prior to the search seems to consist only of vague suspicion not supported by any actual evidence, and so there is nothing to confirm, and no valid search would occur. That suspicion of Bob came before the search, and the search is thus "confirmatory" is not relevant. The question is, what evidence against each defendant is admissible, and does the totality of the admissible evidence amount to "proof beyond a reasonable doubt" no matter what order it was discovered in, or what idea was in the minds of the investigators, provided that they were acting lawfully so that their findings are admissible. | As pointed out in comments, the exact answer depends on the jurisdiction, and on the nature of the crime(s). As a general statement: In many jurisdictions, old criminal records are sealed (=made less available), or even completely deleted after some time. The timespan will depend on many factors, particularly (but not only) on the number and severity of the crimes. Extremely serious crimes may never be sealed/deleted. Sometimes the sealing/deletion may be automatic, sometimes only at the request of the perpetrator, and there may be additional conditions. As an extension of the above, some jurisdictions have special rules for criminal records created while the perpetrator was a minor. Some time spans may be shortened, or minor crimes may be excluded. So, to directly answer the question: Yes, crimes as minor may be kept in your records and influence sentencing as an adult, or they may not - it depends. That is about all you can say in general. | A fundamental requirement of criminal culpability is intent. Based on the description this whole process is happening after a user has already had their phone seized. If a person was not aware of Signal's hidden files to damage the police's data forensics software, they will not have met the criminal intent requirement, either maliciously or under a criminal negligence theory. None of the prongs of CFAA are strict liability statutes (18 U.S. Code § 1030 "Whoever having knowingly accessed a computer..."), so that would not apply here. If we imagine a person that is aware of all the information from Signal about their app intentionally abusing Cellebrite's package and with intention to cause damage downloads Signal's malicious files to their phone, I think it's an open question whether or not they would be liable under the CFAA. Specifically, 18 U.S. Code § 1030(a)(5)(A) (emphasis mine) Whoever knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; An argument on this could go both ways. On the one hand, the owner of the phone could be found to not have substantially caused the information to be transmitted to a protected computer, as the police were the integral cause for that in executing their warrant. On the other hand, this sort of file could be considered a digital "booby trap," and booby traps are illegal for essentially this reason, that they have a foreseeable effect of causing harm to people who are lawfully inside a building without the owner's permission. In this case, the owner's trap was sprung by law enforcement but still placed by the owner in order to damage them. | Many times. See pages 4 and onward here. The 11th circuit (which includes FL) recognizes sentencing manipulation but not sentencing entrapment. The one example from the 11th circuit in that document (US v. Ciszkowski, 492 F.3d 1264) was an unsuccessful claim of sentence manipulation, but it shows the analysis that goes into deciding these types of claims. They say: While our Circuit does not recognize sentencing entrapment as a viable defense, we do recognize the outrageous government conduct defense, and we have considered sentencing manipulation as a viable defense. ... Ciszkowski, however, has not met his burden of establishing that the government's conduct is sufficiently reprehensible to constitute sentencing factor manipulation. Government-created reverse sting operations are recognized and useful methods of law enforcement investigation. Sanchez, 138 F.3d at 1413. The fact that law enforcement may provide drugs or guns essential to a willing and predisposed offender does not necessarily constitute misconduct. We have previously declined to find that the government engaged in prohibited sentencing factor manipulation in other similar contexts. | You've omitted a critical part of paragraph (b)(2)(C): make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony So if the crime in question is a felony, the agent does not have to have witnessed its commission; they only need "reasonable grounds to believe" that the person they're arresting did it. One possible felony that may come into play is 18 USC 1361: damage or attempted damage to federal property in excess of $1000 is punishable by up to ten years imprisonment. Anything greater than one year is a felony. | In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order. |
Per the First Sale Doctrine, can I stream a DVD? If I buy a DVD or Blu-ray, rent it to someone, and stream it to them for their personal/private use, is that permissible via the First Sale Doctrine? Note that I'm not ripping the DVD or Blu-ray, but inserting the physical copy into the computer drive and streaming it to someone else. | First sale doctrine is about selling something that you bought. You buy X, you pay your money, you have it and you own it. You don't want it anymore, so you sell it to me for money. Now you don't have X anymore, but I have it. That's what First Sale Doctrine is about: That you can buy something, and then you sell everything you have, including all the copies, to someone else. What you are suggesting is absolutely nothing like that. You buy a DVD, you stream it, and after that you still have the DVD. That is absolutely not covered. What would be covered is that you sell the DVD to me, you hand over the DVD for cash, and you hand all the copies that you made over to me as well and destroy any traces that you still have. After the sale, you have my money and nothing else. | A matter of terminology, what you want is not the copyright, but a license to use the copyright, presumably a non-exclusive license. You would probably need to approach a licensing department at Disney. They will ask lots of questions, and if they are open to the possibility, will quote a fee, which will, i would think, be sizable. Anyone should be able to ask, but I suspect that most requests are refused. It would probably be well to have a business plan laid out, and exactly how the images would be used in your plan. Disney can refuse any license, or offer one on whatever terms it pleases. | You are free to sell or not to sell to whoever you like (unless it is illegal discrimination, like not selling to white Christians), but it doesn't make a difference, because anyone who buys the software from you can legally sell it on to anyone they want. So you cannot control who ends up owning the software. If I want the software and you don't sell it to me, and I still want it, I'll just ask a friend to buy it and give them the money. Other people would just get a pirated copy if you refuse to sell to them (and would have very little bad conscience since they offered you cash and you refused to take it). You can put terms into a license, and in the USA this is binding. The customer may not agree with the license, and in that case they have the right to get a refund for the software. In the EU, I don't think a license is binding, so you'd have to sign a legally binding contract with the buyer. Apart from all that, you have very little chance to find out if the software is used against your wishes and to do anything about it. | You also retain the right to license the work to others. Therefore you can sell similar rights to MusicBook and anyone else, as long as you do not grant an exclusive license (you have already licensed another party to distribute). They do not gain the right to sub-license your work. If you had executed a copyright transfer, you would have no rights to the work whatsoever (leaving out moral rights for jurisdictions that have them and where they are absolute). | There is no such law; copyright secures exclusive rights for the copyright holder (and related rights sometimes secure certain rights for the author which cannot be sold or given away except through death), but it cannot be used to force them to spend money to distribute it in a form that you can conveniently use. Such a rule would defeat the purpose of copyright law, which is to give the copyright holder control over the use of the work, not take away their ability to do so. You can certainly request that they release the work, and can offer to pay them for doing so. But someone who does not own the copyright or any related rights cannot use copyright law to force the person who does own the copyright to spend their own money to convert a show into a new format. | The section you quote as clearly saying a thing is not clearly saying the thing. However: you cannot pass on or resell any license keys seems to say a thing clearly. However, one could argue that it's the sharer of the account who is in the wrong, and not the person receiving and passing on the account. I'd say that that piece of the agreement, combined with this: must not... let other people get access to anything we've made in a way that is unfair or unreasonable says that, yes, they are out of bounds. | You can licence your copyright under as many licences as you like to as many people as you like It's your copyright - you can do what you want with it. What you can't do is give someone an exclusive licence and then give licences to others - that would be a breach of contract with the exclusive licensee. How you let people know about the available licences is also up to you - your bio on Stack Exchange is fine. | This is relatively uncharted legal territory, so until multiple cases establish some sort of precedent, we can only guess. I know of no legal requirement that a Browser or User has to submit cookies or referrer data or other meta-information accurately. In that regard, a user is unlikely to be prosecuted just for submitting HTTP headers. It is likely closely related to Free Speech issues. The DMCA spells out that it is illegal to circumvent copyright protection measures. While this law is typically used to make it illegal to copy DVDs, video-games or streaming movies, it is possible that the "3-free articles" policy could be interpreted as a copyright protection mechanism, and defeating it by changing HTTP headers is a circumvention. A good summary is here. A specific site's TOS (Terms of Service) probably contains language that spells out it is a violation to use the site in a manner other than as it is intended. This is a typical anti-hacking, anti-screen-scraping provision. Altering a browser session to circumvent their services is probably a violation of the license to access the site, and may open a user to a civil lawsuit for damages or even criminal hacking charges (the details of which are different state-to-state) |
What is the differences between lying and fraud? I sort of intuitively knows that most lies are legal. Someone asks me to visit him, I pretended to be busy, even though the truth is I just don't like the guy. That seems legal. But some lies are fraud. Are there clear definition on why certain lies are acceptable and others are illegal? Some definitions I read is that something is a fraud if the lie is done to get something. Well, that's not really clear cut. If I said I am busy, for example, I am getting something, namely, I look less like a jerk. So, what's the difference? What kind of lies are legal, what kind of lies are illegal, what is fraud, and what is scam, and what's the differences between all those? | The legal definition of the most straightforward form of fraud (a direct fraudulent misrepresentation) is that the guilt person: Says something that is not true about a presently existing material fact which is not an opinion; With the intent that someone else rely upon that statement to their detriment; They do indeed rely upon that statement; Their reliance is justifiable; and Their justifiable reliance causes them damages. A promise broken is not fraud unless it was made with a present intent not to fulfill the promise. Generally, a statement about the future cannot be a basis for fraud unless it clearly implies something about a presently existing material fact that is not true. In lieu of a fraudulent misrepresentation, there can also be fraudulent concealment which involves an omission of a presently existing material fact under circumstances when there was a duty to disclose it, with an intent to mislead that does justifiably mislead and causes damages. Lots of lies don't qualify as actionable fraud including: Statements about immaterial facts. Statements of opinion (e.g. the house is worth $300,000) or about one's feelings. Promises about the future that you intend to keep and then don't. Predictions that don't pan out. Statements made believing, inaccurately that they are true. Ambiguous statements that are taken the wrong way and do mislead but weren't intended to mislead. Statements that weren't intended to be taken seriously or relied upon. Lies that aren't relied upon or that a reasonable person wouldn't have relied upon. Lies that don't cause economic harm, including lies that are disavowed before they cause economic harm. This includes lies told with the belief that they are in the best interests of a person who could be harmed by the truth (e.g. a child or a mentally unstable person or some who is so fragile that the truth could trigger physical harm). Lies that are relied upon an unintended recipient (e.g. you lie to a prospective business partner at dinner about something related to a business deal and someone who eavesdrops on the conversation relies upon it). Some lies told on behalf of and solely in the name of someone else (e.g. a false statement of a prospectus for an investment published solely in the name of the company offering the investment without attribution of who wrote it). Lies that are mandated by another greater legal duty (e.g. lies by a spy, a diplomat, a cop trying to catch a criminal - but not a prosecuting attorney, by a soldier). | Presumably you mean "and make untrue accusations of wrong-doing". In the US, defamation involves statements about a legal person, and a place, government or government body, or industry is not a legal personal (a specific business can be, however). In the course of "defaming" a city, you might end up defaming a supposedly fictitious individual who bears a striking resemblance to a real person, for example a made-up New York real estate tycoon named Ronald Rump who runs for president. Or you could defame the "police department of Bug Tussle" which in fact is composed of only one person -- that is, you refer to a group but the group is so small that it actually refers to an identifiable individual. See this answer regarding defaming people in fiction. Okay, it's not actually true that a government can't be a legal person. The fact that in the US a government can't sue for defamation would be rooted in the First Amendment, and is surely embodied in case law that is lurking. In Canada, governments have had more power to pursue critic via defamation suits. In Ontario, Halton Hills (Town) v. Kerouac 80 O.R. (3d) 577 (2006) says that "a government may not sue in defamation". I expect that there is some such ruling in the history of US law. | Nobody know what constitutes "scamming", because it's not a legal concept. There is no sense in which receiving a gift itself constitutes "scamming". Since scamming is vaguely about dishonesty, there is an imaginable scenario where you could be liable for a false representation, for example if you impersonated someone else in order to receive something of value, you could be prosecuted in California. You should not assume that a police officer saying "That's not our problem" is proof that you committed no crime or civil tort. Your lawyer can give you advice as to whether you have anything to worry about, legally. The other stuff about being called a scammer or having pictures posted might be a violation of Facebook's TOS, and you can always complain to Facebook central authorities. Technically, uploading a picture that someone took is a violation of copyright law, if you didn't give permission to do so. It might run afoul of some state~provincial or national privacy law, depending on where this takes place. | Yup, it's illegal. You want something, they have something you want. They let you have the thing provided that you do certain things, otherwise they won't give it to you. So providing a credit card is material to the contract. You know that the credit card number is false, you are representing that it is true, the card is a material fact, you intend to get them to allow you in using this false representation, they don't know it is false and they rightfully rely on your truthfulness. They have been harmed by your false representation (maybe: it would cost you a lot in attorney fees to try to challenge on this point). This is fraud. | In the US, it is not illegal to lie in general. This includes lying about someone: it's not illegal per se to lie about them. What is illegal is slander and libel: lying about someone in a way that hurts their reputation. The defamation doctrine in the US is generally a common-law doctrine (i.e. the rules and limits are based on court decisions, rather than on laws passed by legislatures), although it may differ state-by-state. Depending on the state, some defamation may be criminal; there is no federal criminal defamation. US defamation law is largely defined through its interaction with the First Amendment. While libel is not constitutionally protected, punishment for libel is seriously limited by the need to avoid either punishing protected speech, or chilling potential protected speech (i.e. discouraging people from saying something that would in fact be protected, because they aren't sure whether or not it's protected). Libel in the US only applies to a false statement of fact, or an opinion which implies some false fact. If it can't actually be proven incorrect, it can't be libelous in the US. The question of whether it's a statement of fact doesn't just depend on the literal speech; it includes things like the context, and is a question about what a reasonable person would think. If I were to claim that someone was "literally Hitler," for instance, no reasonable person would think I was seriously claiming that the person was the former leader of Nazi Germany. Now, no reasonable person who is familiar with Twitter would ever assume that the tweet meant Obama literally stood up in front of the UN and said "Please accept this nothingburger in place of a respectable climate plan." So, it only counts as libel if a reasonable person would think it implies some fact. But a reasonable person familiar with Twitter would most likely think Miesel is saying "The president's pollution plan is a pointless piece of political puffery planned to placate principalities and potentates." This is basically a matter of opinion. Even to the extent that it's not a matter of opinion, public figures in the US cannot win a defamation suit unless they show "actual malice:" the speaker must actually know or actually strongly suspect that their statement is false in some material way. It's not enough that a reasonable person would think "this might not be true;" the speaker themselves must doubt the truth of it (they must be reckless, not just negligent). Courts are also extremely deferential to defendants in these cases. While it is technically possible for a public figure to prove defamation, it is exceptionally difficult. If the person didn't know they were falsely attributing the quote, and honesty thought it was correct, they're in the clear. If the quote isn't supposed to be a statement of fact, but it implies false facts, but the speaker honestly thinks those facts are true, they're in the clear. Private figures don't have to meet the actual malice standard to prove defamation. They still need to show that the statement is a statement of fact or something implying false facts; if it's obviously a summary of something they really said, possibly with added editorial comment, they can't prove defamation. | Cheating is not a legal concept, fraud is. Obtaining an essay written in India or by your mother is not fraud. Fraud comes in inducing the university to give you something of value (a passing grade, or perhaps admission) based on a material false statement ("I wrote this myself", or making false statements about your interest in tennis). A number of people were recently charged with various forms of fraud (mail fraud and honest services mail fraud) for similar actions (spelled out here). I do not know of any case where a student has been criminally prosecuted for turning in a purchased essay, but in principle it could happen. | This doesn't sound like fraud (against you, at least), but it does sound like an unfair or deceptive trade practice, which is outlawed by Section 5 of the Federal Trade Commission Act and perhaps the Pennsylvania Unfair Trade Practices and Consumer Protection Law, both of which prohibit unfair and deceptive trade practices. I don't know about Pennsylvania, but the FTC has on many occasions taken action against companies for engaging in just this kind of behavior. To find out whether you would be able to take action against the other company, you'd want to find a good competition lawyer in Pennsylvania. For some more basic background on the FTC's rules, check out this primer. | Impersonation Giving a false name, or impersonating someone, is not in all cases illegal. However, doing so in order to obtain a financial or other benefit, or in order to unfairly deprive someone else of advantages might well constitute fraud. This is usually grounds for a civil lawsuit, but in some cases may be a criminal offense, depending on the jurisdiction and the detailed facts. Trademark The names of businesses, products, and services are often protected as trademarks. Using a trademark, or a confusingly similar word, phrase, or graphic, in order to create confusion or induce a consumer to falsely believe that ones is affiliated with or endorsed by the trademark holder is normally trademark infringement, and can subject the infringer to a lawsuit. However if such unauthorized use of a trademark is not done "in commerce", that is not identifying or promoting a product or service, it may not be trademark infringement. In any case, trademark infringement is a tort, not a crime. This means that the trademark holder may sue an infringer if the holder so chooses. But the police will not normally arrest someone for trademark infringement, nor does a third party who is not the holder have a right to bring a legal action for trademark infringement. Crime If the impersonation is part of a scam intended to gain financial benefits improperly, that may well be a crime. As such it can be reported to law enforcement. It is generally up to the law enforcement agencies or government prosecutors which crimes to prosecute, and which ones to leave alone. There authorities have limited resources of money and personnel. Attempted scams where no money or value was gained by the scammers are often not of high priority. The victim cannot force the authorities to take action in most jurisdictions. |
In US do you have right to stop thieves from leaving? https://9gag.com/gag/a3KMe67 A woman is caught shoplifting and in this video the guard called the police. Is what the black man did illegal? I've heard before that a thief have "right" to flee, and trying to knock him out is not justified because you can only use violence to protect your self, instead of yourmoney. | In most U.S. states, a citizen's arrest using proportionate non-deadly force is authorized when the citizen has witnessed the crime or has been asked by a law enforcement officer to assist in making an arrest. The U.S. Constitution is not violated by this authorization. For example, in Colorado, citizens arrests (not made at the direction of a law enforcement officer) are authorized by Section 18-1-707(7) of the Colorado Revised Statutes, which states that: A private person acting on his own account is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to prevent the escape from custody of an arrested person who has committed an offense in his presence; but he is justified in using deadly physical force for the purpose only when he reasonably believes it necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force. Generally speaking it is illegal in the context of a citizen's arrest to use: disproportionate force, force applied to punish rather than detain someone, or deadly force, although there are times when deadly force is authorized for reasons similar to those that would apply for self-defense in the absence of a citizen's arrest. Deadly force is generally not authorized to protect tangible personal property or most forms of real property, but some places authorize the use of deadly force to protect a residence. I've heard before that a thief have "right" to flee, and trying to knock him out is not justified because you can only use violence to protect your self, instead of your money. While it is understandable that you might think this based upon U.S. Supreme Court cases like Tennessee v. Garner (1985), the law is actually more nuanced and that case held that: when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless "the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." It was found that use of deadly force to prevent escape is an unreasonable seizure under the Fourth Amendment, in the absence of probable cause that the fleeing suspect posed a physical danger. Thus, it is illegal to shoot to kill a fleeing thief or shoplifter, even though it is not illegal to restrain a shoplifter physically to prevent that shoplifter from fleeing the scene prior to the arrival of the police. | I don't think that's an accurate interpretation of the statement. The key difference between the two scenarios is the defendant's legal assessment of who owns the necklace. In the first he thinks he is the owner and can claim mistake of law; in the second, he he thinks someone else is the owner, so he cannot. To say he believes "the law allows for someone to do whatever they want with lost property even if they know who the rightful owner is" is very different from saying he thinks he's the owner. He doesn't think he's the legal owner, he just thinks he has legal rights that include some rights associated with ownership. So if the defendant's statement had actually been, "I thought I was the owner," that would have been a successful defense when the crime requires depriving the owner of the property. The defense was actually, "I thought I was allowed to deprive the owner of the property," which is an admission of guilt when the crime requires depriving the owner of the property. There are a couple questions here: a. A different crime that did not require intent -- or even required a different kind of intent -- could still lead to a conviction. A legislature is free to define larceny differently, so it could say that anyone who recklessly or negligently deprives another of property is guilty. Or it could say that your state of mind doesn't matter and that depriving another of property is larceny regardless of intent. b. In most cases, the mistake of law defense requires that the defendant honestly believe in the mistake; unlike mistake of fact, it does not require that his belief also be reasonable. Either way, the question of reasonableness would probably be a question for a jury, so a judge wouldn't be able to reject it (except in a bench trial). c. Mistake of law is a potential defense to any crime that requires an intent to do something that requires an assessment of what the law is. So if it's illegal to intentionally have sex with a woman who is not your wife, and you mistakenly believed you were in a legal marriage, sex with your non-wife would not be a crime. It has potentially very broad implications, but keep in mind that in many cases, the mistake a defendant would have to claim would be pretty far out there. If it were illegal to intentionally let anyone under 21 years old into your bar, I guess you could argue that you only let a 20-year-old in because you thought the law started calculating at conception, but I doubt you'll convince a jury. Mistake of law defenses still pop up pretty regularly. Here's one just yesterday from the Tenth Circuit. And this one is a Kansas case where a conviction for carrying a weapon while a felon was overturned because the court wouldn't allow a mistake-of-law defense. The Kansas case, though, uses the more modern definition of mistake of law, which also includes reasonable reliance on official statements from the government. In that case, the felon's parole officer had told him that it was OK to carry a pocketknife, but in reality, the law titled "Criminal possession of a firearm by a convicted felon" prohibited carrying knives, as well. | In California (where lost+found laws have been discussed quite a lot), this would be either "lost property" or "abandoned property". With abandoned property, you can do what you want. With lost property, it is legal to ignore it. If you take it, you have the obligation to try to return it to the owner. If you don't do that, it's theft. If you don't take it, you have no obligation whatsoever. Put it somewhere where the loser (the person who lost it) is more likely to find it, for example on the street. Don't take anything. Clarification for comments: There is a box. And the owner of the box is nowhere to be seen. That box is by definition lost or abandoned - it is abandoned if the owner got rid of it intentionally, it is lost if the owner is looking for it. We don't know. We can make guesses depending on the situation. No matter whether lost or abandoned, you are legally absolutely fine if you just ignore it. You have no reason to try to return it to its owner. If you don't make it your business, it's not your business. But if you decide you want the box, or bits of it, and it isn't abandoned (which is hard to know for sure), then you have to try to find the owner first, and if you don't find them, then you can keep it. | I think the officer is probably lying, not just mistaken, but they are not required to always be truthful. In addition to the law against possessing ID with intent to commit, or to aid or abet, any crime, it is also against the law to be knowingly in possession of a stolen credit card, or any other property. An example of a strict-liability possession crime, which the officer knows of, is that it is a crime to possess heroin, period. I am skeptical that the officer actually believes that there is a law making it a crime to be in possession of a credit card with permission, and suspect that he thinks it is stolen. | The need to prove a negative arises only from the way you've phrased the problem. In the UK, theft is defined as— dishonestly appropriating property belonging to another with the intention of permanently depriving its legitimate owner of it. All five elements must be proved in order to secure a conviction for theft. In the case of an item removed from a store, the prosecution must prove beyond a reasonable doubt that— the defendant had a dishonest intent; the defendant appropriated the item (treated it as his own); the item was 'property' (straightforward in this case); the item belonged to someone else (ditto); and the defendant intended to permanently deprive the owner of it. Clearly proving that the defendant left the shop without paying would be an important element in proving (2) and (5) above. Note that the prosecution must prove that he left without paying, not that he did not pay. In this example, the prosecution might adduce CCTV or witness evidence of defendant leaving without paying. If the defendant did pay for the item but doesn't have a receipt, he can still give witness testimony in his own defence. The prosecution is unlikely to have strong evidence to the contrary if payment was in fact made. The totality of evidence, put before a jury or summary court, will be considered in the round when establishing guilt. | "If it were not assize-time, I would not take such language from you." (said while grabbing the handle of sword) This is a famous conditional threat where the speaker/actor was not found to express intent to do harm; perhaps better called a negative condition. This probably confuses matters but if you are to search for more answers this could be a good place to start. One of the elements of common law assault is that the threat must be able to be carried out immediately; it must be imminent. I do not have a cite for this but I recall that this means that conditional threats are excluded from assault. So calling a politician on the phone and telling them that if they do not drop out of a race you will hurt them is not assault. So, "You cut that out now or you’ll go home in an ambulance" sounds a lot like, "stop or you will get hurt." The victim has the opportunity to avoid the danger; the threat is not imminent. But the facts here are interesting because the speaker touched the victim while speaking which might mean fear of imminent was real. But they were in a crowded room in front of cameras - could the victim really feel that threat was imminent? Plus, the "you will go home" implies a future harm. Oh, and the speaker does not say "I will hurt you," maybe she was actually trying to protect the victim from someone else's actions. Like when my teacher knew someone was waiting outside the classroom to fight me and she told me, "if you go out there you will get hurt!" I would hope that a jury would consider this hard bargaining. | Yes, they're able to discriminate as long as its not illegal discrimination; and there's currently no law protecting people with these views. Both at a physical or digital store, they can be refused service and told to leave. | As a concrete example, consider Missouri v. Coleman, where Coleman handed a teller a plastic bag and said "I need you to do me a favor. Put the money in this bag", and later as the manager approached, said "Ma'am, stop where you are and don't move any farther". Coleman was convicted of second degree robbery: but the appeals court found that he had not acted forcibly, so his conviction was overturned. Instead, the court entered a conviction for the lesser offense of stealing which is when one Appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion The act may also be termed "theft", as in Washington state. The thief is acting deceptively and thereby gaining control over property. |
May I use common symbol (like #, §) as a logo for a company or product of a company? May I use common symbol (like #, §) as a logo for a company or product of a company? As a trademark? What if I slightly change it? May it be a registered trademark? (Related to the US mainly) | It depends. Symbols which are not entitled to trademark protection in a market, usually because they are merely descriptive or generic or functional, are in the public domain and may be used by anyone, but a person using a descriptive or generic symbol can't prevent someone else from using the same symbol to promote their own business. For example, I can use the scales of justice symbol to promote my law practice on my law firm website. But, since that symbol is a generic one in the law firm market, I can't sue a competing law firm from using the same symbol on their website. The essence of a protectable trademark that an owner of can legally exclude competing firms in the same market from using, is that your firm manages to infuse into the distinctive affectation for which trademark protection is claimed with what is called "secondary meaning" to the words or image or other manifestation of the trademark when it is used in the market where the owner of the mark wants to obtain trademark protection. For example, descriptive trademarks are not eligible for trademark protection and are instead in the public domain and can be used by anyone in a market where the mark is descriptive. You can't gain a legally protected right to use the word "liquor" to describe a business that is engaged in selling liquor, and you can't gain a legally protected right to use the words "doughnut shop" for a business that sells doughnuts. But, if you use the words "doughnut shop" to describe a business that sells liquor or bras, rather than doughnuts, and those words come to be associated in the mind of the public with your particular chain of liquor stores or lingerie stores, then the words "doughnut shop" have acquired a "secondary meaning" which can be legally protected by trademark law allowing you to deny other businesses the right to use that trademark in the economic market where it has acquired a secondary meaning. (The scope of an economic market can be both geographic and conceptual related to the nature of the products sold. The manner in which an economic market is determined for a mark is beyond the scope of this answer or the original question.) The analysis with respect to symbols is analogous. You can't gain legal protections for using a common symbol in a manner that merely conveys its pre-existing common meaning. For example, if you use the hashtag sign # to mean "number" or "pound", that probably cannot be legally protected by trademark law. But, suppose that one particular firm (e.g. Twitter) uses the hashtag sign in a novel sense associated exclusively with a service that this particular firm provides, in a manner that is not semantically derived from its pre-existing meanings. In that situation, the firm might very well be permitted to claim trademark protection for the use of that common symbol in this new sense that has a "secondary meaning", which associates that symbol in a certain context exclusively with that firm, in the market where that firm does business. Similarly, you could probably not gain trademark protection for the common highway "yield sign" design to mean "yield" or be careful or some other similar semantic meaning. But, if you used the common highway yield sign to sell spaceships, and people came to associate that symbol with the spaceships sold by your particular firm, rather than with spaceships in general, you might be able to secure trademark protection for the yield sign symbol in that marketplace. It is easier to develop a "secondary meaning" for a distinctive and particular stylized presentation of either words in a particular script, or a variation on what would otherwise be a common symbol, than it is to develop a "secondary meaning" for generic words or a generic symbol that is has an existing meaning in other contexts. For example, while Apple could probably not have claimed trademark protection for an image of a clock spinning clockwise while the user has to wait while the computer is thinking about something, Apple's distinctive variant of this image (which some people call the "pinwheel of death") might very well be eligible for trademark protection.' The AppleOS pinwheel of death | Yes, if you do not use the trademarked name. In the U.S. the graphical shape of fonts are not protected by copyright. See 37 CRF section 202.1 Typefaces are specifically excluded. Excluded are under (a) "mere variations of typographic ornamentation," and (e) "Typeface as typeface." The computer code that a font/typeface program uses to produce the shapes can be copyright. Importantly, fonts are protected by their trademarked names. | There must be a use in commerce Assuming there are no other barriers to trademark protection, you are asking what amounts to a "use in commerce" that is sufficient to warrant trademark protection (I'm assuming in United States law). In the United States, the protection comes from the Lanham Act, and protection requires "use in commerce". See e.g. International Bancorp, LLC v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco, 329 F.3d 359 (4th Cir. 2003). This requires "the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark" (15 U.S.C. § 1127). This does not require a sale and token sales are not determinative However, "the existence of sale or lack thereof does not by itself determine whether a user of a mark has established owenrship rights therein" (Planetary Motion v. Techplosion, 261 F.3d 1188 (11th Cir. 2001)): announcement of a title ("Plasmer") to 13 million comic book readers and promotion at a trade conference was sufficient to establish trademark rights, even without sales but a toy manufacturer's promotional efforts were not sufficient—they only made a few presentations and even made one sale to a toy retailer The talismanic test is whether or not the mark was used "in a way sufficiently public to identify or distinguish the marked goods in an appropriate segment of the public mind as those of the adopter of the mark" (Windows User, Inc. v. Reed Business Publishing Ltd., 795 F. Supp. 103 (S.D.N.Y. 1992), citing New England Duplicating Co. v. Mendes, 190 F.2d 415, 417 (1st Cir. 1951)) The Court in Planetary Motion says "Courts applying the 'totality of circumstances' approach routinely have found evidence of a few sales of goods to which the mark had been affixed insufficient to establish trademark ownership." In the particular case in Planetary Motion, the Court found that free distribution of software using the "Coolmail" mark constituted a "use in commerce." The factors they noted were: the distribution was widespread there was evidence that the public actually associated the mark with the software distribution was not limited to a trade show or a group of friends or small circle the software was posted and accessible on the internet using the filename bearing "Coolmail" users were communicating about the software using the word "Coolmail" the software was incorporated into other software that was sold the software was distributed under a GNU General Public License—"the sufficiency of use should be determined according to the customary practices of a particular industry" Application is fact-based, looking at the totality of the circumstances Applying the principles from above to your hypothetical, the fact that there are not widespread sales would raise an immediate issue that could be argued in litigation. The question would come up as to whether this was a "bona fide use" and not use "made merely to reserve a right in a mark." In my view, the single donation of one dollar would not change anything; nor would even a literal sale of a single shirt. The question would turn on whether the distribution of 100,000 shirts, even without sale, created a connection in the minds of users between the mark and a product (presumably clothing?), and put others on sufficient notice that this mark was to be used in commerce. This is a heavily fact-based inquiry, and on the facts of the hypothetical, we just don't have the information to answer this. | From those articles, it seems that at least some versions of the "Supreme" Logo have been successfully registered. Therefore, any "confusingly similar" logo would be infringement, and could subject anyone using such logos in trade to an infringement suit. And it seems that the owners of the Supreme line are quite willing to sue. It does not, therefore, follow that every possible logo consisting of a red box with white lettering in the Futura font would be an infringement. Similarity depends on the overall effect of a mark, and the main test is the likelihood of confusion or deception of reasonable customers or potential customers. If the text is, say, multiple words, none of which is the word "supreme" or any similar word, then it might arguably be not the Supreme logo, but a different logo that has some similar elements. (If you describe it as "the Supreme logo but" you make your opponent's case for them.) Whether a specific choice of words would be confusingly similar is more specific than this forum can get. You should consult a trademark lawyer for advice on that point. But if in doubt you might want to go with a greater difference. How about a blue box instead of a red one? | There is a general belief that a term being trademarked means that it's illegal to use the term without permission from the trademark holder, but that is false. It is illegal only if it is done in a manner that suggests endorsement by the trademark holder. For instance, selling a football as a "Super Bowl football" would be trademark infringement, as it implies NFL involvement in the production of the football. Simply talking about the Super Bowl, such as saying "Our construction company built the stadium the Super Bowl is being played in" is not trademark infringement. Simply using a trademarked term to discuss the thing it refers to, without implying endorsement, is known as "nominative use". However, even if one would be on solid legal footings and could win a lawsuit on the basis of nominative use, one might avoid using a trademark to avoid the hassle of being sued. | I am assuming that you are in the United States for this question. Please correct me if this is not the case. MathWorks still holds the right to take action, which may be anything from cease-and-desist letters up to litigation. You have followed the correct process in asking for permission to use a trademark. The owner of the trademark, MathWorks, has given you their answer, which is quite simply, "no". You may not feel that their reasoning is fair, but the default state of trademarks is that they are under ownership of whomever created them, and you do not have permission to use them. Things will remain that way unless MathWorks changes their mind. It doesn't matter if it feels dismissive of them; they are under no obligation to even consider requests to use their marks. If they didn't explicitly say, "sure, go ahead", or even, "yes, you may use it provided you follow a list of conditions", then using their trademark will be an unlicensed usage. If you still would like to pursue getting permission to use their trademarked assets, you will need to try to contact them again. Until they say otherwise, using their trademarks will be considered unauthorized use. (Edited to add this clarification brought up by @David Siegel): However, your usage might not be violation of trademark. The primary purpose of trademark restriction is to stop someone from misrepresenting a product as being from the entity that owns the trademark; this stops someone from, for example, selling a cola soft drink called "Coke-a-Cola". The reasons for this are manyfold, but the basic idea is that allowing that type of usage means that consumers might not be able to tell that your product is distinct from the original, and could then mistakenly attribute the quality and level of service of the previous brand with the new product. If your usage of MATLAB marks is such that you are identifying the products used as from MathWorks, and not yourself, and are doing everything in good faith to disassociate your website and/or offerings from MathWorks, it is possible that your usage would be considered correct usage of trademark. Even if it is legal usage, MathWorks still may decide to take action. If MathWorks believes that your usage is unauthorized and that it is trademark violation, they may decide to take action. This is regardless of whether it actually is; until you have this case in front of a court, you will not get a definitive answer. We cannot answer whether this is a legal usage of trademark. Ultimately, whether or not a usage of a mark is considered to be correct usage is a question that can only be answered by the courts, which means the only person who can give you concrete advice on a course of action is a lawyer. In lieu of proper legal advice, you will need to weigh the risk of MathWorks taking action against your usage with the benefit you receive from usage. (Edited to add this clarification by @Dale M): Regardless, you may be breaking copyright by using the logo. There is a separate issue besides just trademark at play here. The copyright for the MATLAB logo belongs to whomever created it/owns it (presumably, MathWorks in this case). Using the logo without permission is a copyright violation. The only case in which this would not be a violation is if the logo is released for use in general under a compatible license, such as Creative Commons; do note that these licenses typically have additional conditions, such as requiring attribution. If you are unaware as to whether there is a such a license, or if you fail to follow the terms of the license, usage of the logo almost certainly constitutes copyright infringement. | I think you will find that "sign" here means "mark" and includes a word, a phrase, or a logo, or a combination of any of these. Indeed section 6 of the act defines this: "sign" includes the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent. The main test is whether the two marks are "confusingly similar" or whether prospective customers are likely to be confused into thinking that one seller is actually the other, or into attributing to one the goodwill or reputation of the other. (This standard is much the same under US law or the laws of a good many other countries.) This is a very fact-intensive determination, and is to some extent a judgement call. But a difference in one letter only, with little or no difference in sound, might well be sufficiently similar to cause confusion. Note that section 10 of the law defines this: For the purposes of this Act, a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion, and thus this might well be a case of infringement. Note that for infringement to be found, in addition to the marks being "deceptively similar", the goods or services must also be similar or in the same category, (or goods "closely related" to protected services or vice versa) unless the mark being infringed on is "well known". | Being or not being open source makes fairly little difference in trademark law. If a commercial firm (Yoyodyne, say) had used the name "Portable Network Graphics" and the abbreviation "PNG" in trade, and taken such further steps as would be needed to protect it in the relevant countries, that firm would have a protectable trademark. Note that in some countries, a trademark must be registered to have any protection at all (much of the EU follows this rule). In others, use in commerce can offer some protection even without registration (the US follows this rule). Had this happened (in an alternate reality) Yoyodyne could have sent a cease and desist letter when open source developers started using the mark. If the devs did not cease, Yoyodyne might have obtained an injunction, or damages for trademark infringement, or both. They could also have issued a takedown notie to the site hosting the project. But had Yoyodyne failed to defend the mark effectively and allowed it to become generic, Yoyodyne might have lost all rights to it. Also, had Yoyodyne ceased to use it in trade for a significant period, they might have lost rights. This is a place where the different laws in different countries might lead to different results. Note that "Portable Network Graphics" is rather descriptive, and not particularly distinctive. Descriptive marks, like "Tasty Pizza" generally get weaker protection, while more distinctive marks, such as "LuAnn's Tastee Pizza" are more strongly protected, in general. Again this depends on the country, and the specific facts. In general the first to use, or to register a mark, gets the rights. When one entity is the first to use, but a different one is first to register, things can get confusing, and results will be different in different countries. Note that a Cease and Desist letter is not a legal requirement. It is a threat of possible future legal action, and often an offer to avoid such action if the recipient does as the sender requests. The recipient can comply with the letter, wait for court action, or try to make some sort of compromise deal. Open source projects, as other answers suggest, often choose to comply. |
Can you be found guilty of unsafe speed for conditions if no unusual conditions existed? How can you be guilty of driving at an unsafe speed for conditions after an officer testifies in his own words in response to certain questions that you were maintaining a safe distance from the vehicles in front of you and that no unusual conditions existed? | California Vehicle Code chapter 11, division 7, article 1, section 22350: No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property. Section 22358.5: It is the intent of the Legislature that physical conditions such as width, curvature, grade and surface conditions, or any other condition readily apparent to a driver, in the absence of other factors, would not require special downward speed zoning, as the basic rule of section 22350 is sufficient regulation as to such conditions. Without knowing exactly what questions the officer was asked, it's impossible to know why you were ticketed and why you were found guilty, but "reasonable or prudent" and "endangers the safety of [others]" covers a great deal of ground. | The person who is changing lanes has the responsibility to make sure that they have space to move into. Suppose there was a person in front of you in the destination lane who hit the brakes suddenly - if you change lanes and rear-end them, that's your fault, because you failed to leave enough distance. I don't see how it's any different in this case, where the person is behind you and accelerates suddenly. A turn signal doesn't give you the right to change lanes at will, you are responsible for making the maneuver safely. It's poor driving etiquette for the other guy to cut you off like that, but it's up to you to ensure there's space as you move over. From your description of the incident, it sounds like your actions initiated the sequence of events, and it was also your actions that prevented the accident. From that, it seems highly likely you'd be found at fault if the accident had happened - in that scenario, your actions would have created the situation, and you also would have failed to take action to avoid the accident. | While this question may or may not have a theoretical answer, the practical answer is that you should slow down to 20 mph if there is any chance that the school zone speed limit will be in force at any time that you pass through it. If you do, you will definitely not be cited. If it is at all a close call (say within five minutes of being active), normal differences in time keeping between unsynchronized watches and a lack of any way to prove precisely when you vehicle was where and traveling at what speed, mean that the question of whether the school zone was in effect at the time you were cited will be a question of fact to be resolved based upon the credibility of the witnesses. The witnesses will probably be only the citing officer and you. As a practical matter, you are going to lose the credibility contest on this question of fact 95%+ of the time, and that credibility determination will not be an issue that could be raised on an appeal. Therefore, you should slow down before entering the school zone if it is remotely close to being time for it to be effective to leave a sufficient margin of error against traffic law enforcement officer inaccuracy, which includes any time that the school zone takes effect while you are in it. Even if you could perfectly prove that you were half way through the zone when the speed limit fell from 30 mph to 20 mph, the argument that you needed to break suddenly to comply doesn't cut it. Violating a speed limit is a strict liability offense and you have a duty as a driver to anticipate what you need to do to comply with the law at every stage of your journey. Even if your speed was legal when you entered the zone, you knew or should have known that it was on the verge of being triggered and should have slowed down in advance. | In the UK, s28(4) Road Traffic Offenders Act 1988 states that Where a person is convicted (whether on the same occasion or not) of two or more offences committed on the same occasion and involving obligatory endorsement, the total number of penalty points to be attributed to them is the number or highest number that would be attributed on a conviction of one of them (so that if the convictions are on different occasions the number of penalty points to be attributed to the offences on the later occasion or occasions shall be restricted accordingly). In other words, if you commit two or more offences 'on the same occasion', a court will only award penalty points attributable to the offence attracting the most points. 'On the same occasion' is interpreted by the court. I'm not aware of any case law on this point, so a court will be able to apply its discretion. Note that this only applies to the penalty point aspect of the sentence: the convictions will all stand, and any fines awarded as a result are not subject to the same rule. Of course the police may use their own discretion and charge a subset of the offences actually detected. A short glossary endorsement means that the offender's licence will be 'endorsed' with a number of penalty points. penalty points are recorded on the driver's record at DVSA and expire after a number of years, depending on why they were awarded. A minor speeding offence will normally attract three points which last four years. Receiving twelve points within three years normally results in an automatic twelve-month ban; newly licensed drivers can have their licence revoked on reaching six points. | Close to zero. The police typically don't dole out traffic or parking tickets for infractions they haven't personally witnessed. | Has friend A got any chance of disputing the cost of the seizure as the police didn't issue the notification? I don't think so (see below for why), but you should pay a lawyer if you need legal advice. The met say A FORM 3708 seizure notice will have been given to the driver where practicable, giving full instructions on the reverse. A notice letter will also be sent to the registered keeper, if they were not the driver. In the meantime, this information will assist you. (my emphasis). Section 165A of the Road Traffic Act 1988 does not, so far as I can see, mention any legal requirement for the Police to issue a paper document at the time of seizure. Here's 165A in full 165A Power to seize vehicles driven without licence or insurance Subsection (5) applies if any of the following conditions is satisfied. The first condition is that— a. a constable in uniform requires, under section 164, a person to produce his licence and its counterpart for examination, b. the person fails to produce them, and c. the constable has reasonable grounds for believing that a motor vehicle is or was being driven by the person in contravention of section 87(1). The second condition is that— a. a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143, b. the person fails to produce such evidence, and c. the constable has reasonable grounds for believing that the vehicle is or was being so driven. The third condition is that— a. a constable in uniform requires, under section 163, a person driving a motor vehicle to stop the vehicle, b. the person fails to stop the vehicle, or to stop the vehicle long enough, for the constable to make such lawful enquiries as he considers appropriate, and c. the constable has reasonable grounds for believing that the vehicle is or was being driven in contravention of section 87(1) or 143. Where this subsection applies, the constable may— a. seize the vehicle in accordance with subsections (6) and (7) and remove it; b. enter, for the purpose of exercising a power falling within paragraph (a), any premises (other than a private dwelling house) on which he has reasonable grounds for believing the vehicle to be; c. use reasonable force, if necessary, in the exercise of any power conferred by paragraph (a) or (b). Before seizing the motor vehicle, the constable must warn the person by whom it appears that the vehicle is or was being driven in contravention of section 87(1) or 143 that he will seize it— a. in a section 87(1) case, if the person does not produce his licence and its counterpart immediately; b. in a section 143 case, if the person does not provide him immediately with evidence that the vehicle is not or was not being driven in contravention of that section. But the constable is not required to give such a warning if the circumstances make it impracticable for him to do so. If the constable is unable to seize the vehicle immediately because the person driving the vehicle has failed to stop as requested or has driven off, he may seize it at any time within the period of 24 hours beginning with the time at which the condition in question is first satisfied. The powers conferred on a constable by this section are exercisable only at a time when regulations under section 165B are in force. In this section— a. a reference to a motor vehicle does not include an invalid carriage; b. a reference to evidence that a motor vehicle is not or was not being driven in contravention of section 143 is a reference to a document or other evidence within section 165(2)(a); c. “counterpart” and “licence” have the same meanings as in section 164; d. “private dwelling house” does not include any garage or other structure occupied with the dwelling house, or any land appurtenant to the dwelling house. Also what consequences could Friend A face for knowingly allowing friend B to drive his (Friend A's) car whilst he was drunk and didn't hold a valid license or insurance? A few random thoughts: B is clearly committing several criminal acts and A appears to have possibly aided and abetted them. I imagine A's insurance company might consider this invalidates A's insurance. I'm just some random bloke in the intertubes, not a lawyer. | This is a no win situation. People who try to stop in a safe public place fearing that the cop may be an imposter risk prosecution for resisting arrest. But, no one will offer you any remedy if the cop was an imposter who was victimizing you. One recommended course of action if you doubt a cop is real is to call 911 as you pull over to confirm that the cop trying to pull you over is real. | The route described is probably in violation of Section 22100 of the vehicle code: Except as provided in Section 22100.5 or 22101, the driver of any vehicle intending to turn upon a highway shall do so as follows: (a) Right Turns. Both the approach for a right-hand turn and a right-hand turn shall be made as close as practicable to the right-hand curb The approach for the second turn is being made from the middle of the road. Neither of the exceptions apply, as 22100.5 is about U-turns at traffic lights, while 22101 is about turns controlled by markings or signs. Additionally, since you describe the route as a "curve to the street and turn right out", it's probably in violation of Section 22105: No person shall make a U-turn upon any highway where the driver of such vehicle does not have an unobstructed view for 200 feet in both directions along the highway and of any traffic thereon. Since the driver didn't make a complete right turn, it's likely that the forward view of oncoming traffic was partially blocked by the car's A-pillar or even the passenger seat, while the backward view of traffic was limited because none of the car's mirrors was pointed in the correct direction. It's certainly in violation of Section 22108: Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning. The side road's not a hundred feet wide. There's no way the driver could have given the required signal for the second right turn. There's a decent chance this is also in violation of Section 22102 of the vehicle code: No person in a business district shall make a U-turn, except at an intersection, or on a divided highway where an opening has been provided in accordance with Section 21651. The six lanes of the main highway make it likely that this intersection is in a business district. "Business district" is rather broad, including not only roads lined by businesses, but roads lined by apartment complexes and other multi-family housing developments. And finally, the catch-all offense of "reckless driving" (Section 23103) could probably be applied: A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. |
Why did Microsoft not have to publish the protocol for Skype? Microsoft was forced to publish its protocols in 2007 as a result of the competition case brought by the European Commission. These are available at Microsoft's Open Specifications page including, for example, "Kerberos Protocol Extensions" and "Excel Binary File Format". In 2011 Microsoft bought Skype, which they used to replace Messenger and Lync. Why did they not have to publish the Skype protocol? | Because the agreement covers the IP relating to a specific list of file-sharing, printer-sharing, and user-management protocols (the Workgroup Server Protocol Program) — basically, things relating to Samba — and not everything that Microsoft ever did or ever will do. | For land ownership records and other similar scenarios such as business directors, the requirement for these to be public will be in legislation rather than a contract - this provides the legal basis, see GDPR Article 6(1c). Additionally when government departments are doing it they also have 6(1e) as lawful basis: "1. Processing shall be lawful only if and to the extent that at least one of the following applies: ... (c) processing is necessary for compliance with a legal obligation to which the controller is subject; ... (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" -- GDPR, Article 6(1c,e). I'm not familiar enough with the specific legislation that will apply here but pretty sure this will be the case, and having said this you may well find public registries also become less public going forward. The reason ICANN has come under fire, is partly because under GDPR privacy is a protected fundamental right and therefore to comply personal data should be kept private by default and privacy never something you would be required to pay extra for. Any contract ICANN have in place with their registrars will not override legislation, it is in fact the other way around. "2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons." -- GDPR, Article 25(2). This doesn't stop ICANN from maintaining a register of domain name owners (registrants), but it does mean they can't just publish all records upon request to anyone anymore - whether people will be granted access to personal data will now depend on if they have a lawful basis for this, and in these cases their processing of the personal data will be limited to those purposes. Being nosey doesn't count! "When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of the contract." -- GDPR, Article 7 (4) - Conditions for consent. What this means essentially, is that if the consent is conditional for the contract it will not be treated as freely given, and therefore not valid - it will no longer be acceptable to contractually bind the provision of a product or service with consent to publish personal data or any other form of processing such as marketing mailing lists. Looking now at the specific points you have raised: "GDPR article 6 allows for processing of personal data on a contractual basis (section 1b)" Whilst this is true, this is only part of it - it doesn't allow for unlimited processing for any purpose and sharing it with any people, if you look at Article 5(b) it states that the information is collected for specific explicit legitimate purposes. Each purpose requires its own legal basis and needs to be compatible with the principles of GDPR. Without consent, ICANN currently does not have a legal basis to make the WHOIS records public for EU citizens and should have adopted some technical controls to require them to opt-in if they wish to be included in the public register. They're coming under fire for non-compliance having been given 2 years to prepare and change their systems/processes. "processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;" Again whilst this is true, not all processing is necessary for the performance of a contract. In the same way people must give consent to receive marketing communications, they must freely give consent for their information to be shared/published (separate to the contract for provision of service) in the absence of other lawful basis for this processing. "Also section 1c, processing is necessary for compliance with a legal obligation to which the controller is subject;" There is no legislation which requires them to publish the personal data of domain name registrants. In this paragraph 'legal obligations' refers to those required by legislation (i.e. statutory obligations), not contracts (or non-statutory obligations) which are covered under Article 6(1b). "And finally section 1e, processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" ICANN has no official government-assigned authority, and publishing the personal data globally is not in the interests of the data subject's or others' welfare or well-being - this is what is meant by 'public interest'. As far as I can see what ICANN are actually doing to comply seems to be accepted by the European Data Protection Board, they are only 'under fire' as you say because they are late in doing so. The deadline was 25th May 2018 and they had 2 years to prepare like all other organisations. | The law in every country where your service is available prevails. That means that if your servers are in Estonia, your file storage is in Lithuania, your company is in Switzerland, you are in France, you hold Thai citizenship, your users are in the USA and the signal transits through the U.K., Belgium, Germany, Canada and Poland then you are subject to the laws of each and every one of them. In addition, if China has reason to believe that the stored files contain matters relating to their citizens then they can take an interest. And so on and so forth ... A country has jurisdiction wherever it wants to have jurisdiction subject to the limits of and its ability to actually enforce its laws. What you are proposing is certainly illegal in many countries and you need to seek professional legal advice - not rely on strangers on the internet. | As is often the case with the recording statutes, the meaning of the law is refined by case law. Specifically, the consent requirement holds when the parties have a reasonable expectation of privacy. The statutory language limits the restriction to "private communication": therefore, a person does not gain veto power over a public recording session simply by walking into the arena. Consent is implied when the fact of recording is self evident (you can see the operating recording device): by continuing to speak knowing that your speech is being recorded is implicit consent. Also, consent is only required for participants in the communication, and a person who happens to wander into the scene is not a participant in that communication. You may not want to test the edges of the law, in case a person wanders into the scene oblivious to their surroundings and talking on their cell phone. There might be a scenario where you're recording yourself but they are unaware of that fact, and they are having another private communication. The law does not prohibit accidentally overhearing someone else's private communication, it prohibits recording it. An unavoidable sign may aid you in your quest to not get sued. | The prohibition applies to any "private communication". That term is defined here, as any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it Additionally, "intercept" is defined: includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof If you talk loudly, it is not reasonable to expect that other people will not hear you, nor is it reasonable to expect people to not listen to things that they can hear. | To answer the question in your title: Yes, software licenses are copyrighted. They are written works that involve (significant, expert) creative effort to create. The best solution would be for Grammarly to hire a lawyer and say "we want a new EULA. We think this one covers a number of points our current one doesn't". Most legal documents will be copyright for the same reason (there may be a few that are so stereotypical that there is essentially no creative effort in putting them together). | Keeping logs of chats would not necessarily be against the GDPR as you have suggested. For the IRC service provider/operator: these chats/logs would be within scope if EU-based users are involved and this means the data controller/processors would have legal obligations to comply with GDPR. The IRC service provider/operator would be the data controller and would be held ultimately responsible for the data stored/processed through the IRC service, including backups and logs kept etc, and this would mean any sub-processors they select (such as hosting provider) would also have to be GDPR compliant. Due to the nature of IRC chats being entirely public in the same way forum board posts and comments are public, the contract terms between the IRC service provider and the IRC users would need to be very clear that this is the case, and the IRC users would need to give consent for this processing (this is more complicated for children, see Article 8 regarding consent from the holder of parental responsibility). For IRC users (personal use): If you wish to keep the chat records for personal use only (i.e. not in connection with a business or your employment at a business), then an exemption applies: This Regulation does not apply to the processing of personal data: ... (c) by a natural person in the course of a purely personal or household activity; ... (GDPR, Article 2: Material Scope, Paragraph 2(c), p.32) For IRC users (commercial/business use): In this case I don't think you would have any legal basis to store/process these chats/logs if they contain personal data without a legal agreement with the data controller which would require you to put in place the same protections they have to under GDPR but then allow your business to access the data for specific purposes. While the information may be published or considered to be in the 'public domain', for you to take a copy of it without permission and use it for a purpose they haven't consented to would not be allowed under GDPR. Additionally, to go through the process of removing personal data from the chats/logs would in itself be considered 'processing' under GDPR and therefore would be unauthorised without a legal agreement with the data controller. Practically therefore, your best options under this circumstance would be if: The IRC service provider implemented a 'favourites' feature to save within their own system the chat conversations you wish to retain and refer back to in future. Since they hold the data and you already have a user agreement with them there is no further complications (this is probably the best option); The IRC service provider implemented a feature to download an anonymized copy of a chat conversation (not ideal as there are no guaruntees a user will not include personal data in their messages, though the user agreement could state that message content will be considered to exclude personal data, in a similar way to how StackExchange do for this website, see the paragraph titled "Information You Choose to Display Publicly on the Network" on the StackExchange Privacy Policy). Your business considered an alternative communications solution, such as hosting its own real-time chat system or forum boards system, in which case your business would be the data controller, and while subject to GDPR you could then define the purposes for which the data will be used in your own user agreement. | You give SE 2 licences The CC-BY-SA one and the one that goes “the perpetual and irrevocable right and license to access, use, process, copy, distribute, export, display and to commercially exploit such Subscriber Content … as reasonably necessary to, for example (without limitation):”. SE can choose which one it uses. Even though the enumerated cases are “without limitation”, they indicate the general area where the 2nd licence would be “reasonably necessary”. If SE used it outside that domain and did not comply with CC-BY-SA they would arguably be in copyright violation. |
Is Mongolia a good place to host a no-moderation social media website? Between Mongolia and Canada, can you tell which country is less censored in terms of online freedom of speech? | Mongolia apparently has a list of banned words (list is NSFW) that websites can't use. And according to this State Department report: Additionally, the regulation requires Web sites with heavy traffic to use filtering software that makes the user Internet Protocol addresses of those commenting or sharing content publicly visible. The report also says: The law places the burden of proof on the defendant in libel and slander cases, and both defamation and insult are criminal charges. NGOs reported that these laws were used more frequently than in previous years to control the press. Canada is probably a better choice, even if it isn't perfect. | Communicable diseases are endemic to the human condition Some places, times and situations are riskier than others but there is always a risk in widespread travel. Outside of disease spread, there are other risks in travel; for example, if no-one traveled at all there would be no motor vehicle deaths. On the flip-side, not traveling has its own dangers; for example, you will not die in a house fire if you are in your car. Of course, there are enormous benefits to widespread travel; economic, cultural and personal - life is to be experienced after all. If you stop the skier from skiing, then you have just damaged the livelihood of all the people who depend on tourism; the airline, the hotel, the bartender, the ski technician, the baker in the ski resort etc. Everything is allowed unless it is prohibited By and large, this is the way that the law works. It's legal to do anything you like. Unless it isn't. It isn't illegal to travel to, say, Finland. So you can. If the government (of whichever country) decides that the costs of allowing people to travel to Finland now outweigh the benefits then they can prohibit it. However, that is a political decision; not a legal one. As for your drink-driving example, I am old enough to remember when it wasn't illegal to drive drunk, although I was too young to drive. Of course, if you are in Somalia or Kenya it's still legal. Also, what counts a drunk varies by country - you can have a couple in Finland but cross over into Russia and you are breaking the law. Why does Finland allow such recklessness? Because it's a political decision and politicians in Finland and Russia have reached different conclusions about what level of risk is acceptable. Same with travel restrictions. | The International Covenant on Civil and Political Rights, in effect since 1976 and currently signed by about 179 countries, has in Article 12 Paragraph 4: No one shall be arbitrarily deprived of the right to enter his own country. It's not absolute, as it would allow for a person to be deprived of that right if it weren't "arbitrary". But it's the strongest statement I've found so far. | The Soviet Union generally had no copyright treaties with the western world before 1973. So, anything before then is public domain. The USSR had a policy of public domain and considered anything published to be the property of the "people", including anything published in the west. Even for works produced after 1973, they would have to be registered for copyright in the United States to claim a copyright here. | Any country is free to decide what actions are considered to be crimes, and what crimes are prosecuted depending on whether you perform the action in the country, outside the country, and depending on whether you are a citizen, a resident, both, or neither. They can also decide what are accepted defences in court and which are not. Any other country is free to decide under which circumstances they will ever extradite someone to that first country. Now you have to check the laws of the individual countries. | Most of the major archiving platforms are nonprofit ventures with purposes that could fall within the fair-use exception to the Copyright Act. Archive.org, for instance, is for educational and archival purposes. Perma.cc, meanwhile, is for preserving legal history. I don't know about Perma.cc, but Archive.org will take down pages just because you asked, so that also cuts in its favor. | Is blocking certain people while allowing everybody else to view some content discrimination Yes. and violate anti-discrimination laws Probably not, at least in the US. There is no federal law prohibiting "discrimination" in general. There are specific laws regarding discrimination against certain groups in certain contexts. They would probably not apply to an individual determining who is allowed to view their social media posts. That said, there are some specific contexts where this might be illegal. They would generally involve non-personal use of the account. The courts recently ruled that Donald Trump may not block people on his Twitter account, because he's using it in an official presidential capacity rather than just his individual capacity. Also, racial discrimination in housing is illegal, so if you're selling your house and you block all black people from viewing your house photos, that would probably be illegal as well. Also is not being able to consume information available on a public platform a violation against right to freedom. I'm not sure what you think a "right to freedom" would entail. But I don't think you have the right to demand that a person allow you to access their social media accounts. | Yes, barring any statutory prohibitions against such a rule. I would be very surprised if any existed. They don't exist in any jurisdiction I'm familiar with. Look up the local by-laws to be sure. |
Who can give the police consent to search my property? If the police want to obtain consent to perform a search of a property, who do they have to obtain it from? Can my friend who doesn't legally own the house, or pay rent, but is just staying with me for a few days consent to search? What if one of my guests, who doesn't live there at all, answers the door with me, and I say they may not search but the guest says they can? What if initially the guest lets them in and they start searching but when I find out I object? What if someone who doesn't live in my house and wasn't invited to my house (just wanders in while I'm having a party) allows them in? What if a cat-burglar gets surprised by them and pretends he lives there, and consents to search? I'm interested in the US generally, but if this is something that varies across states, a breakdown of what is typical, with examples from a few states, would still be a good answer. | With respect to 4th Amendment protections, which guard against unreasonable searches, Illinois v. Rodriguez, 497 U.S. 177 held that "A warrantless entry is valid when based upon the consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not". Cat burglar consent may be reasonable, depending on the circumstances, as could guest consent. The difference between the two is that with the cat burglar, you (as owner) can't overcome the reasonableness of the police assuming that the owner gives consent since you're not there, but with the party guest consenting, you can contradict the impression of control that the guest gave, and you can deny consent (if you are there and can contradict the guest). Georgia v. Randolph, 547 U.S. 103 addresses that point: "a physically present co-occupant’s stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him". As far as I can tell, there is no specific obligation for police to verify that the person ostensibly consenting is authorized. They don't have to ask, and they don't have to independently verify implications (e.g. if the third party says 'our apartment', they don't have to ask 'does that mean that you live here?'). A third party could say something that would make the "occupant" assumption unreasonable. | If the landlord gave you a key, and you can not give it back to him he has every right to charge you for correcting the oversight. I put to you that if you can't provide it back to him, he can't be certain that it has not fallen into the wrong hands, and he would be prudent to change the lock - and indeed, he may not even have another copy of the key in which case he really does not have a lot of alternatives. If you look at the section on "Claims for Damages or Loss" pdf there is a section B - Damage which confirms that Loss includes less tangible impacts including "loss of a service or facility provided under the tenancy agreement" Section C of the same document goes on to assert that "The purpose of compensation is to put the person who suffered the damage or loss in the same position as if the damage or loss had not occurred". There is arguably a question of the amount of loss suffered, and they can't sting you for punitive damages, but they can charge you a reasonable amount to get a new key cut (or possibly to replace the lock) - but that was not your question, and would probably arise if the amount he charges was unreasonable in the circumstance. Depending on if he has already taken action - and if not, how much the bill would be - promptly remedying the breach by finding and returning the key or equivalent action might save you some money. | The other answers don't quite spell it out, so I will. There is no law in the UK requiring landlords or their agents to show a property to all parties interested - refusal to show a property may however in some cases fall under discrimination laws, so that might be something you can pursue if you feel the refusal is due to your gender, race or sexual orientation. While they may have to justify their data collection under the GDPR, that is entirely separate to their refusal to show the property to you. | In addition to compelling a store to produce evidence such as video footage, via a search warrant as described by bdb484, police can request access to information in the possession of such information. The store may voluntarily comply with the request, or not. Especially in the case of online transactions, there may be a privacy guarantee that information about a customer's transaction will not be revealed to a third party unless required by law (ergo, a warrant), but security camera recordings are not protected by such guarantees. | What can we do to dismiss such report? Does she just show up at a local police department telling them that she's fine and it was her own decision? In short, yes. She shows up at a local police station, tells her side of the story including the whole bit about things getting destroyed and her getting kicked out, cites the missing persons report, and make it clear that she's not missing but an independent adult who is free and making her own decisions. Since she's over 18, she can do that. (Bringing proof of age might be helpful.) The mystery of the missing person will be considered solved from the police side. She does not have to give a specific address where she's living, just convince the officer that she's OK and making an intentional decision to create distance between herself and her mother. She could also try calling (the same local station which is convenient to her current location) before showing up to see if that satisfies the officer, and only go in if needed. Would I get in trouble for being in a relationship with her daughter since I was 20 and she was 16? We had never met in person until now, to avoid any trouble. Shouldn't be a problem, as long as it's a mutually willing (non-coercive) relationship. Her mother said the police also wanted to talk to me separately. I do not want to get involved in this at all. Can I reject it? Yes, you can reject it. You do not have to answer ANY question a police officer asks; you have the right to remain silent and/or to say only "I have the right to remain silent." To reduce the probability that they'll even ask questions, you might prefer not accompanying your girlfriend when she goes to clear the missing persons report, if she goes in-person. This adds more weight to her assertion that she's going there to clear it of her own free will, not because you're forcing her. | In the US, police do not put a person under house arrest, instead, the courts do, as an alternative to standard imprisonment (either awaiting trial, or serving their sentence). The police are not involved at all; the courts cannot be sued for lenient sentencing. If a person leaves their house (even to buy a bottle of milk), they will have violated the terms of their more lenient sentence, and will be arrested and sent to regular jail. Generally, police are not liable for damages, especially when they fail to be omnipotent in their efforts to prevent others from doing wrong. | First, no, given the wording of the question: "by demanding identity first". US courts have never held that citizens must immediately comply with non-emergency orders free of back-talk. Let's assume that the refusal is conditional: "I won't comply until you show me your ID". In most (?) jurisdictions, there is no obligation imposed on police to show ID, though I am excluding home searches. There is a policy requirement in Seattle (§7) that Employees may use a Department-issued business card that contains their name and serial number to satisfy the request for the information. Employees will also show their department identification card and badge (sworn) when specifically requested to do so. Exception: Employees are not required to immediately identify themselves if: An investigation is jeopardized A police function is hindered There is a safety consideration Massachusetts has a law saying that "Such identification card shall be carried on the officer's person and shall be exhibited upon lawful request for purposes of identification". In the domain of search and seizure law, the court reasoned in Doornbos v. Chicago, regarding a seizure by plainclothes police that Absent reasonable grounds to think that identification would present an unusual danger, it is generally not a reasonable tactic for plainclothes officers to fail to identify themselves when conducting a stop. The tactic provokes panic and hostility from confused civilians who have no way of knowing that the stranger who seeks to detain them is an officer... it is usually unreasonable for a plainclothes officer to fail to identify himself when conducting a stop or frisk As you can see, this identification requirement is tied to constitutional search and seizure limits for which there is voluminous case law regarding what is "reasonable". The scenario that you propose is fairly far from the kind of case identified in Doornbos: is the order from a uniformed officer in a police vehicle? That seems to be what you're describing. Now we must inquire as to the legality of the order. Picking on Washington state law, RCW 46.61.015 requires that No person shall willfully fail or refuse to comply with any lawful order or direction of any duly authorized flagger or any police officer or firefighter invested by law with authority to direct, control, or regulate traffic. RCW 46.61.021 requires a person driving to stop for a LEO, and to identify himself: failure to comply is a misdemeanor. There is no statutory provision that a person can refuse to obey these (or similar sections in the motor vehicle title) until the officer provides ID. A police officer (in Washington: and I suspect any other state) does not have unrestricted authority to give people orders, there are specific statutory circumstances giving police the power to order people to do things. Obstructing a police officer is a crime, but obstructing an officer is where one "willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties", and not "doesn't cooperate". There is a provision, RCW 9a.76.030 where A person is guilty of refusing to summon aid for a peace officer if, upon request by a person he or she knows to be a peace officer, he or she unreasonably refuses or fails to summon aid for such peace officer and the "knows to be a peace officer" clause implies either that the officer is uniformed, or has provided identification. Finally, we have "failure to disperse" when a person congregates with a group of three or more other persons and there are acts of conduct within that group which create a substantial risk of causing injury to any person, or substantial harm to property; and (b) He or she refuses or fails to disperse when ordered to do so by a peace officer or other public servant engaged in enforcing or executing the law. These laws are attuned to emergency needs, thus outside the penumbra of your scenario. In short, the primary question must be, when can police lawfully give you an order that you must obey, which narrows the matter down to traffic-related matters. The seizure must be reasonable: it is reasonable to require a person to stop for a uniformed officer. Reasonability does not entail that all officers must produce ID when effecting a seizure, but this may be the case with plain-clothes officers. Even when in Seattle with a departmental policy requiring officers to identify themselves, an officer's failure to identify does not render the seizure illegal. | Yes, police are allowed to touch your car or wipe snow off the windshield to view a parking permit. Indeed, if they just ticketed people because their permit could not be seen through the snow, there would be a huge public outrage. They are not allowed to search your car without permission or probable cause in an emergency, but wiping snow or touching the exterior of your car do not constitute searches. Likewise, towing companies are allowed to touch your car in order to tow it away for whatever legal reasons there are for towing a car. |
Can I use the copyright symbol and rights statement if I haven't registered the copyright? Am I legally allowed to put the (C) Copyright, all rights reserved text at the bottom of my website, if I have a logo that I own but have not registered the copyright or trademark in the logo in any way? | Copyrights You may use the circle c mark (c) normally with a year, the name of the author of the work and possibly the words "all right reserved" without any legal permission. This gives you more rights legally than you would have from the copyright rights that arise automatically upon the creation of the work. Registering the copyright with the copyright registrar simply gives you additional litigation rights and must be done before you file a lawsuit to enforce a copyright. "All rights reserved" means you aren't granting a license to people who see the website to republish it or use it themselves. "All rights received" would mean that you are using someone else's copyright with their permission, but would more commonly be expressed "used with permission of [name of copyright owner]." Trademarks A trademark arises from use in commerce that causes people to associate your mark with your goods and services. You may use the superscript letters TM to claim a common right trademark in a trademarkable item such as a logo or slogan by affixing it to the claimed mark. This is a basis to sue for trademark infringement but requires proof of many elements that can be dispensed with when the Patent and Trademark Office includes a trademark in its principal register following a formal application to them. What you can't do. You may not say "patent pending" if you have not applied for a patent, may not claim that something is "patented" when a patent has not been approved, and may not use the circle R mark (R) if your claimed trademark has not been including in the principle register of the Patent and Trademark Office. (This answer is based on U.S. law, but copyright and trademark laws are quite similar on these points internationally.) | The question mentions copyright, but corporate logos are more often protected by trademark law. There are significant differences in the protections afforded, and in where actions can be brought. Copyright Simple logos may not be subject to copyright protection at all. Individual words and short phrases, such as business names and slogans, are generally not protected. But let us assume that the logo in question is a graphic design of sufficient complexity and originality to be protected by copyright. Copyright offers essentially international protection, and the Berne Convention and the TRIPS agreement ensure that the rules are in many ways similar in almost all countries. One can sue in the copyright owner's jurisdiction, or in any jurisdiction where infringement occurred. If the defendant has a presence in the selected jurisdiction, collection of any damages will be significantly easier. Scenario from the Question If I have understood the question, the logo was originally created by P (or more likely by a designer hired or contracted by P) and P holds the copyright on the logo. But S has obtained the logo via B, presumably at a lower price than P would charge. Neither B nor S, I assume, has permission from P to use the logo. B's action in selling the logo to S would be copyright infringement (unless B independently created an identical or similar logo). S's action in using the logo without permission from P is also copyright infringement. P could sue S, or B, or both in Spain, or in its home jurisdiction (perhaps the US), or in other jurisdictions where the pirated logo had appeared. Actual damages, however, will be limited to the value of the logo (say what P would have charged) plus profits made from the use of the logo. But since S is not selling the logo, it will be hard to determine what part, if any, of its profits derived from the use of that particular logo. That is, how much smaller would its profits have been if it had used a different, non-infringing logo. In the US statutory damages are available, which can be as high as $150,000 per work infringed, if the infringement is proved to be "wilful". But that is the upper limit of statutory damages, and the judge has wide discretion to set the amount of the award between the upper and lower limits. (The lower limit is $750.) Modified Scenario Suppose that P had sold an exclusive license to U. U is a US-based firm that is actually using the logo to identify its goods, which are distributed world-wide. The actions of B and S have infringed U's licensed rights in the logo, and U could bring suit for copyright infringement, either in the US or in Spain, or perhaps in other countries. But U would have much the same problem as P, it will be hard to prove sizable damages. Which brings us to trademark issues. Trademark Claims Trademark law is usually used to protect words, symbols, and images used to identify products and services being sold or advertised for sale or rental. Unlike copyright, trademark protection does not expire if the mark remains in use. Also, unlike copyright, single words or simple images can be protected. For example, the "red dot in a circle" logo of the Target stores is too simple for copyright protection. But it has strong protection as a trademark. Trademark protection applies in any case where a reasonable person might be confused as to what the source of the goods (or services) really is. It also applies when the mark's use falsely gives an impression of approval or sponsorship by the trademark holder. Unauthorized use of a mark to benefit from the goodwill or reputation associated with the original product or its makers is infringement. Trademark protection, however, is national. A mark protected in one country may be totally free for use in another country. It is also usually limited to a particular category of use If, say "Scarlet O'Hara's" is used as a trademark for a restaurant chain, the use of "Scarlet O'Hara's" for an anti-virus program is not likely to constitute infringement. Copyright has no such limitations. In some countries there is no protection for a trademark unless it is registered. In other countries, use alone can establish a trademark. The US allows protection without registration, although registration brings stronger protection. Also, trademarks can only be protected when they are actually being used "in trade", that is, to identify or advertise goods or services, or for a limited time while a product is being developed and there is a declared intent to use the mark in the near future. Lack of use or cessation of previous use can cause a mark to lose protection. Scenario from the Question P is selling logos, not using them to identify or market products. Thus it is not using the logo in trade, and has no trademark claim. It cannot sue anyone for trademark infringement, because it has no trademark rights. Modified Scenario (see above) U is using the logo as a trademark world-wide. If it has registered the logo in Spain, or taken such other steps as Spanish law requires, it can perhaps sue S for trademark infringement. It has no trademark claim against B, because B did not use the trademark to identify any goods or services. For a successful suit agaisnt S, U would need to show that confusion between U's products and those of S had actually occurred, or was likely. It would need to show that the products where the logo was used were of a sufficiently similar nature. But if it prevailed, damages could be based on the value of the trade identified by the logo. If S did not sell or market its products outside of Spain, it could only be sued for trademark infringement in Spain. If U did not sell in the Spanish market (or perhaps the wider EU market) it would have no trademark claim. If S started importing its products using the logo into the US, U would have a claim under US trademark law. Thus the details of what logo is used, where and how, and on what products would matter to any trademark claim. | The first thing that people need to do is to quit over thinking it. That being said, I'm going to see if I can tackle your problems one by one, before summarizing and providing my own opinion: Many users don't care if their code is copied. I'm like that. I left a couple comments on Shog9's post that read this: Good point: Licensing does not prevent careless or malicious use. I'm surprised about how many people are thinking that this license will let them steal their code, because it's already happening right now. I don't want to sound pessimistic, but when thousands of people break a license/law/contract, it's a bit of a lost cause. You're not significantly damaged in a direct way, so honestly, let it go. All I want is to make sure that no one can come up to me if something of mine screwed something on there side. Aside from that, I don't care about people who don't attribute me: chances are, they have no moral sanity, and I will appreciate the people who do, and help me out. As it is, I'm 16, I share what I know with a good heart, and in a well-spirited manner, and at the end of the day, knowing that I was able to help someone out makes my day. I don't mind if my code is copied. I know that people will copy my code whether I like it or not, but I also know that there will be people in the world who will say "thanks", and will try to attribute me where possible. I feel good about that. That being said, I don't care. But the person who uses my code does. The license that affects all Stack Exchange posts are licensed under the Creative Commons Attribution Share-Alike license, or CC BY-SA. Code contributions don't fit well with this. This excellent post on Open Source explains why it's discouraged for code. What these people want is a code-friendly license, so that they can stay in the clear when it comes to copyright issues. The next thing they want, is for someone to come after them over some licensing issue. You may think that people are good, but you never know the world around you. They can be evil. For other users, they don't mind their code being copied to another post, as long as there is a link to the post and a mention of the original author. Most people post with good intention. There's not that much of an issue from a legal perspective either: The license allows people to copy and paste into answers of their own, and since the license remains the same, there's no issue to get into. The license allows it, and contributors kind of have to acknowledge it. I don't think anyone cares what happens to code that is less than 3-4 lines at least. I can probably agree. Such code probably wouldn't be eligible for copyright anyway, since it's so trivial. Many jurisdictions have a "Threshold of Originality," which means that simple things can't be under copyright. Stack Exchange does not probably want people to own the code they submit. For example, Stack Exchange has (and probably wishes to retain) the right to keep even deleted posts in the visibility of the high rep users (even if the author is against it). Wait what? You may be right that it is in Stack Exchange's interest to host content. After all, they get hits, which helps them as a business. It is illegal for companies to host illegal content. If somebody sees objectionable, copyrighted content hosted on Stack Exchange that they would like removed, then they need to file a DMCA Takedown Request. This is also why moderators, like myself, cannot process legal requests. The reason why Stack Exchange doesn't act themselves, even if they see something that is copyrighted and objectionable, is because it's a form of liability. When YouTube began removing copyrighted content themselves, they received a wave of lawsuits (If you remove some, you need to remove all. Why didn't you remove mine? being the argument). The plaintiff's won those, and when YouTube did nothing, they weren't liable at all. If a user wants to have their content taken down, it's tricky. You need to look at the Terms of Service for Stack Exchange: (quoting Section 3) You agree that all Subscriber Content that You contribute to the Network is perpetually and irrevocably licensed to Stack Exchange When Stack Exchanges gets your content, you grant them an irrevocable license to your contribution. This is pretty standard across a lot of sites: it's just a way to secure data and stay in the clear of licensing issues. At the same time, it doesn't seem fair for SE to acquire complete ownership of the content. The user must still have the final say, if the content is to be used for purposes not already agreed upon in the licence. They don't. What users have done is that they have provided a license of their content to Stack Exchange. This is done, again, through their Terms of Service: You grant Stack Exchange the perpetual and irrevocable right and license to use, copy, cache, publish, display, distribute, modify, create derivative works and store such Subscriber Content and to allow others to do so in any medium now known or hereinafter developed (“Content License”) in order to provide the Services, even if such Subscriber Content has been contributed and subsequently removed by You. The user grants a license to their content to Stack Exchange, but they do not assign or relinquish copyright. The code still belongs to them. It's important not to conflate the user contribution policy, with copyright assignment. You are still free to add an additional license to your content (known as dual or multi-licensing), and have a copy for your own use. Stack Exchange will always host a copy licensed under the CC BY-SA license. Stack Exchange can expect a high level of decorum and respect for laws from its users. At the same time, it cannot expect redundant attributions anywhere and everywhere, because one of its main aims is to not waste the users' time. Not only Stack Exchange expects it, but many copyright laws in various jurisdictions require it too. There's a concept known in many jurisdictions known as moral rights. These are rights that are irrevocable, whether you like it or not. Generally, these include attributions, disclaimer of liability, and other rights as well. Even if your work is in the public domain, you still retain these moral rights. If memory serves me right, the right to be attributed is revokable under United States copyright law. Therefore, attribution becomes more a courtesy, when the right is revoked. Licenses such as CC BY, and CC BY-SA still require attribution as a part of their licensing terms. What defines attribution is generally up to the person who uses the content. If memory serves right again, one can not demand how to attribute. There should be a clear-cut way to determine what is code and what isn't. The code formatting indicators on SE may not be adequate because some users simply use backticks, or 4-space indented text for other not-so-codey text. Personally, I feel like making the entirety of a post under both the Creative Commons license and whatever proposed code license they use is the best option, and allow people to use moral judgement to determine the most appropriate license. The concern comes about people who lack such judgment. I bet these same people don't follow the existing license anyway - and are a lost cause. We made it through! There will always be debate on the license of choice. Some people want the GPL, a license that's apparently closer to the status quo of Creative Commons license (I disagree that it's a good match), while other's want permissive licenses, such as the MIT or the Apache licenses. I'd prefer the permissive type, since it allows use in closed-source applications, and grant more rights (i.e. less restrictions) to the people that use them. I'm not going to right much because my hands are tired, but I'm sure if you've got more questions about the open source licenses themselves, you can probably ask on Open Source Stack Exchange. | Do you have an explicit permission by the artist? Does the artist give a blanket permission to anyone which covers this kind of use of their work (a license)? If no, then you commit a copyright violation when you use their work for your blog. This applies to practically any country which signed the Berne convention which is almost everywhere in the world. Having no commercial interest is usually not an excuse to violate copyright. Regarding which jurisdiction applies when you, your website and the copyright holder are in different countries: I opened a new question about this. | No. Copyright protects expressions of ideas, not ideas themselves and not historical facts either. Conceivably, the persons written about might have a commercial right to use of their person or image, but the doctrine there is not copyright and the analysis is different. | It Depends If the person reusing the image (lets call that person R for reuser) is not complying with the terms of the Creative commons license, which include a requirement to provide attribution of the source work, then R cannot rely on the license, and the granting of the license ad the presence of a license declaration is legally irrelevant. R must have some other basis to reuse the image. This could be an exception to copyright, such as fair use or fair dealing. Or possibly the image is not protected by copyright, for example because its copyright has expired, or because it is a work of the US Federal Government being used in the US. In the absence of such a basis, R is infringing copyright. In much of the world copyright now lasts for 70 years after the death of the author (or of all co-authors). In some different terms apply, ranging from life+50 to life+100. Sound recordings and photos get shorter terms in some countries. In the US the term is life+70 for recent works, but for work created and published before 1978 more complex rules apply, depending on the date of publication, and whether laws on notice and renewal were complied with. See the well-known chart Copyright Term and the Public Domain for the various cases and when copyright expires in each case. The question asks about fair use. This is a US-specific legal concept. It is designed to be flexible, an is highly fact-dependent. As a result it is rarely possible to say if a use will qualify as a fair use with certainty until a court passes on it. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more on fair use. Not providing attribution is itself often considered to weigh against fair use. The question does not give enough detail to make even a good guess as to whether such a use is likely to be held to be fair use. Identifying the kind of eagle has some educational value, which might favor fair use to some extent, but must be considered in light of the overall purpose of the use, which is not described. There is no indication as to whether the original work is creative or factual, or whether the reuse would be likely to harm the market for the original. Much use of images on social media does not stand up under a fair use analysis. Providing proper attribution might well help any fair use claim. See also Do you have to give attribution if an image falls under Creative Commons? | Your issue is trademark, not copyright. If these other guys use their mark (product name) in commerce but did not register it, they have an unregistered trademark which you could be infringing. Between two users of the same trademark, the first to use in commerce wins. (There is a territorial component but with the Internet, meh.) If the trademark is registered that gives them a presumption of validity. Trademark infringement is concerned with consumer confusion. If someone uses someone else's trademark in a way that confuses consumers as to the origin of the goods, that's a problem. What this means is that if I make tires with the name Sportie and someone else makes soap also with that name Sportie there is not a high likelihood of confusion. Likewise a hotel in Washington called Runner's Cove probably doesn't infringe a shoe store in Florida with the same name. Fantasy games and fantasy books sold over the Internet? Sounds like a potential problem that you might want to clear up before the second book. | The text and content (including all diagrams and illustrations) of the 1847 work (and of any other work published in 1847) are in the public domain in the US and everywhere in the world. You may freely use them verbatim or in any modified form that you wish. You are not even legally required to credit your source, although not to do so would be unethical, in my view. The version by Nicholas Rougeux that is linked to in the question has the licensing statement: Posters and website design are copyright Nicholas Rougeux. All other content and diagrams are under the Creative Commons Attribution-ShareAlike 4.0 International license (CC BY-SA 4.0). This will not apply to any content copied from the 1847 version, of course. You may use any of the new content and diagrams so released, or make and use derivative works based on those elements, provided that you comply with the CC BY-SA 4.0 license. This has a number of provisions, but the major ones are that you must release your work under the same license, must acknowledge your source work, and must not impose any additional conditions or restrictions on users of your derived work. These are spelled out in sections 3.a and 3.b of the license (linked above). Please read the full terms if you intend to use this license. If this procedure will satisfy your purpose, you do not need any further permission from Nicholas Rougeux, nor to pay any fees or royalties to him. If you do not choose to place your work under a CC BY-SA 4.0 license, then you must not use the diagrams from Rougeux's version, nor modified versions directly based on them, nor an overall design clearly and directly based on the original design of that version, unless you secure permission from Rougeux (or the current copyright holder of Rougeux's version, whoever that may be). Given that Rougeux chose to release under a CC BY-SA 4.0 license, he may well be unwilling to grant permission under a different license, but that is his choice to make. Exception: in the US, you may use content from the Rougeux version to the limited extent permitted by fair use. This is not likely to cover the use of all or a large number of diagrams, particularly for a competing version of the same base work. Without specific information on how much content you would be using from that version, and how similar it would be to the original, no one can reliably determine if fair use would apply or not, but fair use is most likely to apply when a strictly limited amount of content is reused, and particularly when it is used for a different purpose than the original. Also, fair use is a strictly US legal content, and a work that might be held to be fair use by a US court might be considered an infringement by the courts of some other counties. Other countries have their own exceptions to copyright which are different in scope and terms from fair use. Many of them are significantly narrower. Note that a work posted to the internet is in effect published in all countries, and a copyright holder might choose to sue in any country s/he pleases. US courts might well enforce such a judgement even if it would not have been the judgement of a US court. Rogeux (or any other creator of a new edition) can have no copyright in elements already present in Byrne's 1847 work. Any similarity to Rogeux's work that is because of a similarity to Byrne's 1847 work is not copyright infringement. But any new elements introduced by Rogeux (or anyone else), including the manner of adding interactivity to a diagram, may well be protected by copyright (although the idea of having an interactive version of the diagram will not be). Any new or significantly modified text or diagrams introduced in a later version will be protected. As to any other versions of the 1847 "Byrne's Euclid" that may have been published, the publishers gain no copyright over the original 1847 work or any of its elements, including text, diagrams, or color scheme. Provided you do not use any original content newly introduced in such editions, you do not need to secure any permission from, or pay any fee to, the copyright holders of such editions. However, you may not use any such original content, or modified versions clearly based on such original content, without permission, unless an exception to copyright, such as fair use, applies. All that I said above about fair use would then apply. A copyright holder may grant or refuse permission to use a protected work or create a derivative work on any terms that s/he chooses, and charge any fee or royalty rate s/he thinks proper. Lack of response to a request for permission must be treated as if the response was "No". |
Michigan Renting - Can I Refuse Entry for Showing? My lease is up on the 31st of July and my landlord wants to sell the home. They told me yesterday the listing will go up on July 5th and that the listing agent will be in touch to schedule showing times. I know that Michigan State law allows entry with notice by management for maintenance and repairs, as well as for emergencies. My lease agreement additionally allows the landlord entry with 24-hour notice for any reason. However, I don't see any legal statute regarding entry with or without notice for showing, nor does my lease agreement say anything about entry for showing. Can I legally refuse to allow a listing agent entry to the property for showing? Obviously I've allowed the landlord entry for any reason, so if they were accompany the agent, I don't think I can do anything about it. If I am within my rights to refuse entry, and a listing agent ignores the refusal and enters anyway (I will be at work when he wants to show), do I have any recourse? For clarification, there are two parties involved here. The property owner employs a property management company. The lease is with the company, not the owner directly, so the "landlord" is the management company. I don't know if this makes a difference, but thought I would elaborate given the current answer makes reference to the landlord's right to access their own property. | Michigan law say nothing about landlord entry, so whatever it says in the lease is what is allowed. Various sources like this comment on the lack of such statutory regulations. There does not appear to be any relevant case law for Michigan which impose restrictions on a landlord's right to access a rental. Since there is no statutory or case law restriction on landlord's right to access his property, landlord's agent would have the same right to access. That would mean that if the listing agent were authorized by the landlord to enter, then the agent could enter, and it would not be necessary for the landlord to accompany this agent whenever entry was needed. That does not mean that a "listing agent" that happens to work with a landlord has an independent right to enter the landlord's property. The same would go for repairmen. It is actually not clear to me whether there could be blanket permission for any and all with access to the lock box to enter, since pretty much any realtor can enter a house for sale, subject to whatever the stated limitations are, and they don't call the owner for each entry. I suspect that one would not have legal grounds for imposing a particular additional restriction on a landlord's right to access and permit access to the property, since there's no overriding statute, and restrictions on landlord access mainly derive from statutes. | Usual disclaimer: I'm not a lawyer. If you are serious about proceeding with this, talk to a lawyer who specialises in this kind of thing. I imagine that you will need to provide proof of the above incidents in order for any legal action to succeed. Accessing a tenant's room without notice or permission, and without a very good reason (e.g. a gas leak) is likely to be classed as harassment; specifically, "acts calculated to interfere with the peace or comfort of the residential occupier". Renting out your room and removing your belongings before the end of a tenancy is likely to be illegal eviction. Both of these are criminal offences under the Protection from Eviction Act 1977. Shelter mentions that it's normally local authorities, rather than the police or individuals, who carry out prosecutions under this act (see also: Shelter articles, Landlord Law Blog articles), so you might want to start there. There is also the matter of civil action, including for breach of contract. For that, consider speaking to a lawyer. | Has this contract been translated (badly) from another language because the construction of the clause is cumbersome and confusing? Does the contract say that I can have guests over 1 night without charge? Without charge, yes. However "Without Landlord's prior written consent, Tenant has no excuse to accommodate ..." so you need the landlord's permission for overnight guests. If so does it only start charging on nights after the first? No, if a person stays more than 1 night (with the landlords permission) then this triggers the landlord's right to charge. See below for how much they can charge. Is it supposed to be 10% of monthly rent $137 per guest per night? "With temporary commendation, day-based, and additional 10% of rent each person is applied." The term is ambiguous, I can see three ways that this would be interpreted: If you have a guest who stays more than 1 night in a month they can charge 10% for that guest for that month (i.e. 2 to 31 days all for the same price). For 2 people for 2 days this would be $1,400 x 10% x 2 = $280. They can charge 10% of the monthly rent per night that the guest stays. $1,400 x 10% x 2 x 2 = $560 As, 1 except the rent would be pro-rata. $1,400 x 10% x 2 x 2/31 = $18.06 Assuming that the landlord put forward this contract the interpretation adopted in the absence of other evidence would be the one least advantageous to the landlord i.e. 3. However, there is other evidence - the landlord accepts that the rate is pro-rata - he has just failed to account for the 10%, so 3. again. How is overnight defined? Well, is it defined in the contract or by the law where you are? If not, it would take its normal English usage - "for the duration of the night". If they arrive before sunset and leave after sunrise the next day then they have stayed overnight. What if they came over at 9am and slept in the day? It says nothing about requiring your guests to sleep. If they party overnight then they are overnight guests. If they sleep all day but don't stay overnight they are not overnight guests. What about 2 am? If sunrise is after 2am then this is not overnight. | Contracts are illegal if they require a signatory to break the law, so the contract here is detailing that this specific clause does not apply if following it would contradict the law. It's basically saying that no signatory may hold the other for breaking contract terms if the reason for breaking the contract terms is because the law specifically says these things are required. For example, if the contract reads "The hotel does not allow guests to have animals in the room", this creates an illegal situation if said animal is a guide dog assisting a blind person, which must be allowed under laws for Americans with Disabilities Act (ADA). By changing this clause to "The hotel does not allow guests to have animals in the room, except as required by federal, state or local law." Then it is now acceptable. A able bodied guest will still be in breach of contract if a cat is brought into the room, but a blind person would not be in breach because the law says you cannot use this to bar a blind person with a guide dog, and the contract must comply with the law. The Cat Person can be thrown out for breech of contract, but the blind person cannot because this exception allows the blind person to bring the dog into the rented room. | Assuming you have a six-month Assured Shorthold Tenancy, you don't have to give any notice at all. As long as you are not in occupation after the end of the tenancy (which means moving out before it ends), that's it. For example, this page from Shelter says: The general rule is that the tenant can leave on the last day of a fixed-term tenancy without giving notice, and this will end the tenancy.[2] If the tenant remains even a day longer than the last day of a fixed-term tenancy, a statutory periodic assured shorthold tenancy will arise, which the tenant can end by serving a valid notice to quit. [2] Right d. Flower v. Darby (1786) 1 T.R. 159; Cobb v Stokes (1807) 8 East 358. This is extremely bad news for landlords, who don't (necessarily) get any notice that they have a void. In general, I would say you ought to give a month's notice (full disclosure, I am a landlord), on the other hand, if they haven't fulfilled their responsibilities perhaps not (but you may have an exaggerated idea of their responsibilities). If you do this, don't expect to get a good reference from your landlord! (Which is going to make it harder to find somewhere else to live). You should also anticipate difficulties in recovering your deposit (you are legally entitled to it back, but that doesn't mean your landlord can't be difficult about it - possibly even requiring you to sue for it). I have just noticed the second part of your question. If you do nothing (in other words, stay in residence), at the end of your Assured Shorthold Tenancy you will switch to a periodic tenancy. The landlord can't force you to switch to another six-month contract, but on the other hand, if you don't, they are perfectly entitled to give you two months notice. If they are smart, they will give you this notice now, so that you can only stay for two months on the periodic tenancy. Note that the letting agent has an incentive to get you and the landlord to sign another contract (they can charge the landlord a fee for it), so they may not be being entirely honest about whether a periodic tenancy is an option. (On the other hand, a poor landlord may be more interested in locking a tenant in for six months.) | If it were me, I would leave. Who wants to rent a room in a home where you are not wanted? However, there should be concessions. I would ask for 1.5 months rent refunded, but would happily settle for one month. I am sure there are many nice rooms, close by, where you are welcomed. Given additional information commented by the OP, the landlord is looking to increase his rents. Evidentially this municipality has strict rent controls. In this case, I would enter negotiations with the landlord. I would offer him a percentage of his anticipated rent increase and probably start at 50%. If the OP has been a good tenant (always paid on time, and low maintenance) the landlord might see this as a bargain. No need to find a new tenant and no need to vet one that might pay poorly. The better the tenant has been, and the more strict the renter protection laws the more appeal this offer will have to the landlord. The benefit for the OP is they don't have to move, or find a new place with its associated costs and inconvenience. If the landlord is just a mindless corporate drone with no decision making power, this will not work. | You would report unpermitted lock replacement to the home owner. The building code regulates new construction and renovations, and is not a requirement of any and all residences. This seems to correspond to a "secondary suite", which is supposed to be registered with the city (if it is allowed in your city). Here is a link for Vancouver, for instance. Such suites are supposed to be registered and inspected, the inspection being carried out by Development, Building and Licencing: By-Law Compliance & Administration (a division of the city government). This article discusses some of the legal problems that can arise from an illegal secondary suite, however the penalties would land on the property owner, and he may not have approved of this subletting or the basement suite. A less-nuclear first step would therefore be reporting it to the property owner. | To begin, it is always legal to request the signing of a contractual arrangement in this type of circumstance; however, it is not your duty to assent to this so long as the original tenant had the right to sublet or take on roommates. Without having signed the new lease, you (all the new tenants not on the lease) would just be tenants-at-will. This occurs when an occupant has rented a premises without a lease but pays rent at a set interval (typically monthly). The agreement for a Tenancy-at-Will may be either written or verbal. Just because a rental agreement is in writing does not make it a lease. Either the landlord or tenant may terminate this arrangement by giving written notice 30 days or one full rental period in advance, whichever is longer. In a situation where you rented from a renter, I would want to have the assent of the landlord, as no reason is required to terminate by either party. This should be done in writing either by certified mail or have the landlord sign it, if you are presenting it in person. If rent is paid the first of each month, notice should be given prior to the first day of the month. Many landlords are fond of tenancies-at-will because they maintain the ability to terminate a rental at any time with only a month's notice, without needing a reason. This is their prerogative for even petty reasons (e.g., they don't like your friends, or the hours you keep). This is especially true with a roommate situation, where the original lessee has a lease and is subletting rooms, because the lessor has someone on the hook for a time certain (the original lessee), but if the roommates get annoying for whatever reason to either the landlord or the lessee, you can be given a 30 day notice for a great many reasons that a lease cannot control and are not viable reasons to evict. A lease is for a duration certain, after which, the renter would either move, sign another lease, or in the case where they stayed on past the end date and continued to pay (and landlord continued to accept) rent, it would just become a tenancy-at-will. In many ways a lease protects the renter just as much as it does the landlord, because moving is expensive and (except in very limited circumstances) the renter is guaranteed being able to keep the rental until the lease ends, so long as they pay rent and do not violate the lease or local statute(s), which would subject them to eviction. This would be beneficial in a roommate situation as it takes the power to give notice or evict away from the original lessee who sublet the rooms. It is important to understand that just because there is a writing does not necessarily mean it is a lease. Many landlords who don't want the time constraint of a lease still like to affirm in writing basic issues like date of rent due, pets, etc. It is just cleaner than a verbal agreement. So, in your hypothetical, the landlord could ask the new renters to (co)sign a new lease, join the existing lease, or just sign a rental agreement as a Tenant-at-Will, even though the tenancy has already begun. The renter is not obligated to sign any writing at this point. However, if the renter refuses and if the landlord insists, the landlord would likely exercise their right to terminate by serving a 30 day notice to quit. Having already taken possession, you would also be in a good position to negotiate the terms, which could be to your benefit, so it is not necessarily a bad thing. Regarding eviction, that would only be an option to the landlord if you failed to vacate if a 30 day notice to quit was issued and you didn't move (or of course, as with any renter, if actions that would always allow the landlord the right to seek eviction occur, like failure to pay rent). I would not be concerned about showing you have a right to be there as you likely had to pay rent to move in and your check is proof that the tenancy began, and other things like having a key, etc., support your position if it ever came to that and you had paid cash. If you do ever pay cash, get a receipt. If, hypothetically, the new renters sign a lease, I would want to make sure it is for the room and not the whole so that liability (at least for rent) is limited if others default. |
Can I pay someone outside the US to reverse engineer software against the license? I would like to reverse engineer a piece of software. Assuming the license doesn't approve of it, can I simply pay someone outside the United States to do this? This article alludes to countries that don't follow such laws. | Sure, you can. But if you, from the US, contract with and pay someone outside the US and then use the results of that effort - the reverse-engineered code, either directly in violation of copyright or to find workarounds - within the US, you may not be culpable in a criminal sense (depending on different jurisdictions and trade/IP agreements), but you certainly would be liable in a civil sense. If the US based software developer (I assume a US-based software company, as you said "outside the US") tracks you down, they can open a civil action against you for any damages they want to claim, including theft of IP, loss of profits, EULA violations, and on and on, because you posses and are using reverse engineered code. How much money do you have to lose? | Import laws apply to the one who imports. In your scenario that is the person in country A only. The server owner does not cause the digital content to be transmitted to A. The one who downloads does. | You should probably get a lawyer, but my reading is this: The company whose SDK you use owns their SDK, owns their code, and is free to take any of your ideas how to improve their code without paying you. But they say that ideas are ten a penny, so this is mostly there to prevent pointless lawsuits. On the other hand, it says that everything you do with your product is yours. I might be completely wrong, that's why you should get a lawyer. | To use an API over a network connection (as opposed to, e.g., the Windows API), a user communicates a request to the API host, or server, and awaits a response. The host of the remote API can refuse to serve requests from users for probably any reason. Such services often require users to accept a license as a condition of using the service, and they may charge a fee as a condition of the license. A license to use a service is obviously not necessarily bound to a license for the use of its source code, just as the ability to reach the service is not dependent on the ability to see (let alone use) the code in any format, whether it be the source code or some compiled form of the code. In essence, source licenses and service licenses have different primary goals, at least inasmuch as the source license seeks to restrict someone who has actual physical access to compiled code, and possibly source code. Service licenses do not have that concern, though I have seen service licenses that also prohibit decompiling. This is probably the result of a CYA attitude among lawyers: the language is already in the standard software license text, and it doesn't hurt anything to leave it in, and it could help if a service user somehow managed to download the program code. | If it is open source code, then usually the requirement is that you produce the source code for the software that you release. Exactly for the software that you release. For example if you took open source software X, and added feature Y, and distributed the combined software outside your company, anyone can request the source code for X including Y. Handing them the source code for X only wouldn't meet the open source requirements. Now all this is not illegal, but it means the copyright holder of X could sue you for copyright infringement. They will do that if they have enough reasons to do so. So let's say you are continuously developing your software and occasional hand out your compiled software. Say you built versions 100, 101, 102, 103, 104 of the software, you gave versions 100 and 103 to customers, and anyone asking for the source code is given the source code for the latest, slightly improved version 104. The copyright holder of X might sue you but: 1. They wouldn't know you are doing this. 2. A judge might side with you and decide that newer, improved source code is good enough (I don't know this, but it seems not unreasonable). 3. The copyright holder might decide that they don't want to sue you for this because you are close enough to meeting the requirements. | What are our possibilities here? You could be sued for damages in Mexico, the country of origin of the copyright or any of the other signatories of the Berne Convention. You could also be charged with a criminal offence but that is less likely. how much can we get away with? Not a legal question. What you are proposing is illegal - how likely your getaway plan is to work is not for me to say. Is there any advantage on us being on México? No Is there any advantage on picking any either Dragon Ball or League of legends because of the country they are in? No Can they stop us from doing it? Yes | The tricky bit from a GDPR standpoint is that the US has a law that says a US-based company must hand over data to US government agencies even if the data is stored outside the US. This is US specific and a case where the US government gives itself jurisdiction outside the US but the EU can't directly do anything against it (outside of international negotiations). As you noticed this means if you store data at a US data processor there is no real difference whether the data is physically stored in the US or the EU. So to avoid transferring EU consumer data to the US several steps are needed. First the servers have to be physically located in the EU and second the company needs to be non-US based, EU based seems the obvious choice. AFAIK constructions of a US-based company creating a fully owned EU-based subsidary are currently used to achieve the second part. Whether this is sufficient may have to be decided in court. | As long as you own the copyright to the works, you can even publish the source code itself under two different licenses, which can be radically different. For example, MySQL is licensed under both a commercial and an open-source license. Given that you can publish a single piece of work as multiple licenses, it is your choice which one you wish to grant to the book or the code, as long as you own the copyright. |
In the US, who decides whether an offense is criminal or civil? Evidently protection against sexual harassment dates to Article 7 of the Civil Rights Act, which makes it "unlawful" for employers to discriminate on the basis of sex. Is there something in the language of the act that makes sexual harassment a civil rather than a criminal offense? Was that up to the lawmakers to decide, or is that just something that evolved out of the ways the courts and prosecutors responded to sexual harassment claims? And who decides such things in general? | Is there something in the language of the act that makes sexual harassment a civil rather than a criminal offence? Yes. Laws that create criminal offenses have to have language to the effect of "violation of this law is punishable by up to X years of imprisonment or a fine of up to $Y", or "violation of this law is a Class Z felony." Sometimes it is not entirely clear if violation of a law can form a basis of a private civil lawsuit, or if it can only be enforced by government officials, from the language of the statute alone. When it is unclear the courts have to resolve that ambiguity. In rare instances, it may be clear that some parts of a statute have criminal penalties, but due to unclear wording and punctuation in the statute, it is hard to tell precisely which parts of the statute these criminal penalties apply to, and in those cases, courts also have to resolve that ambiguity. There is also some conduct that it is constitutional to punish with a civil penalty, but not as a crime that can result in incarceration. For example, it is unconstitutional in most states to incarcerate someone for failing to pay a debt, but there can be a civil penalty for failing to pay a debt. Courts decide if these constitutional limitations are violated. Similarly, while Congress can enact both crimes and civil penalties, there are some governmental bodies, like school districts or water boards, that have the power to enact certain civil penalties, but do not have the authority to create new crimes. Was that up to the lawmakers to decide, or is that just something that evolved out of the ways the courts and prosecutors responded to sexual harassment claims? And who decides such things in general? Generally, this is decided by lawmakers. Obviously, however, anyone can lobby legislators to take one position or another. Also, the fact that something has a civil penalty does not necessarily mean that prosecutors aren't the people who enforce the law. Sometimes violations of the law prosecuted by prosecutors have civil rather than criminal penalties. For example, many tax law violations are prosecuted by government lawyers with civil penalties, but only a small minority of tax law violations are prosecuted criminally. Further, it isn't uncommon for a type of offense, like securities fraud, to have both civil penalties and criminal charges available as remedies that can be enforced by prosecutors. And, when that happens, prosecutors get to decide which tool to use. For example, even if exactly the same conduct could be prosecuted with either a civil penalty or a criminal charge, prosecutors might prefer a civil penalty because the burden of proof is much lower, the 5th Amendment protection against self-incrimination does not apply (you can refuse to testify but that fact can be used against you in a civil penalty case), and a defendant in a civil penalty case doesn't have a right to a lawyer at government expense. Also, enforcing a civil penalty generates net revenue for the government most of the time, while criminal punishments normally cost the government more money to carry out than any revenue the government may receive from the person found guilty for fines and court costs. On the other hand, trying to enforce a significant enough civil penalty to discourage misconduct against someone who has no money or property may be a futile effort, while criminal sanctions could discourage misconduct from other similarly situated people in the future. | As a adult of sound mind, you are responsible for your actions. Background checks for job applications are common place to determine suitability. The employers have the right (and responsibility) to choose what is in their best interest. If through your previous and present actions, they come to the conclusion that you will become a liability to their interests, they will determine that you are not suitable for the position. Not being suitable for a position is not a discrimination, but a determination of fact. Rights and responsibilities go hand in hand. The same is true for the employers. They too have the obligation to act in their own that of their other employees that of their clients interests. In cases where a judge comes to a conclusion that the rights of others are being impeaded, they will most likely decide for that party. It is unlikely that a judge will assume that an individual is the center of the universe and that everyone else must revolve around that individual. | There are a lot more differences than this, but if your teacher sums up what he/she means by that sentence. Here, specifically, in Civil Law, the decision of the courts must comply with the laws as enacted, which means there are specific statutes required to make something illegal. Common Law features Stare Decisis which basically means that if Case A is decided in one way, and Case B is a similar Case to Case B, Case B must yield the same decision for all cases in that jurisdiction and lower courts below that court. This means that while statutes (laws) can be made by a legislature, the courts can "make law" by deciding cases. For example, some States in the United States and England and Wales only recently (within the past 30 years) adopted an actual law that made murder illegal? Prior to that murder was illegal under Common Law Murder that had been based on precedence from bazillion cases before that said it's illegal. Nobody bothered to write it down in an actual law. There are several other big differences such as Inquisitorial vs. Adversarial nature of courts, how and when punishments are decided (The famous "Just following Orders" Defense was given in part because of this difference and a lack of understanding over it.), who is the trier of fact vs. who is the trier of law, but as far as what is "Law" this is a good single summation of the difference in a single sentence. But it really shouldn't be condensed to a single sentence. | england-and-wales Q: Is it an offence if the target of racism only appears to be of/from a different race, colour or national or ethnic origin? Yes Q: If someone carries out an alleged act of racial discrimination / intimidation / abuse (verbal or physical) against someone they believe to be a target person, would it be a defence (or would it not be an offence), if it turns out that the other party was not actually a target person, but just gave the appearance of being a target person? No Short answer: The victim's actual, or perceived, race is not important in this context - it's the actions and intent of the offender that creates the various offences which carry a higher sentence due to the racist element being an "Aggravating Factor" Long answer: (Just in the context of race-related "hate crimes") DISCRIMINATION falls within the Equality Act 2010 which primarily relates to unlawful discrimination within employment, or the provision of goods or services on the grounds of a person's protected characteristics defined by s.4: The following characteristics are protected characteristics — ... race ... s.13 creates the offence: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. ... (5) If the protected characteristic is race, less favourable treatment includes segregating B from others ... s.26 of the 2010 Act also creates an offence of harrassment (although it is primarily concerned with unwanted and unwarranted sexual advances it is not exclusively so): (1) A person (A) harasses another (B) if — (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. ... (5) The relevant protected characteristics are — ... race RACIALLY AGGRAVATED OFFENCES are created by s.28 of the Crime and Disorder Act 1998 and carry are greater maximum sentence than the equivalent non-aggravated offences: An offence is racially ... aggravated for the purposes of sections 29 to 32 below if — (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial ... group ... s.29 relates to certain assaults under the Offences Against the Person Act 1861 s.30 relates to certain offences under the Criminal Damage Act 1971 s.31 relates certain to offences under the Public Order Act 1986 s.32 relates to certain offences under the Protection from Harassment Act 1997 OTHER OFFENCES fall within s.145 of the Criminal Justice Act 2003 which captures those not dealt with by the 1998 Act and requires the court to, for example, impose a sentence greater than it would for a comparable offence that lacks a racist element: (1) This section applies where a court is considering the seriousness of an offence other than one under sections 29 to 32 of the Crime and Disorder Act 1998 ... (2) If the offence was racially or religiously aggravated, the court— (a) must treat that fact as an aggravating factor ... | A lawsuit would be unsuccessful. Prosecutors have discretion to prioritize whichever offenses they think are most important, and they are generally immune from civil liability. This is a political grievance, and it comes with a political remedy; voters can recall the DA or vote for a new one when his term ends. | It may be discrimination; not all discrimination is illegal. Details vary by jurisdiction, for example discrimination on the following bases is illegal in Australia: race colour sex sexual preference age physical or mental disability marital status family or carer’s responsibilities pregnancy religion political opinion national extraction social origin Tobacco use or non-use doesn't make the list. That's the legal position; if you want advice on how to handle the workplace stuff post your question on the Workplace Stack Exchange. | When a criminal act takes place, the state in which the act took place has jurisdiction. State of residence of perpetrator or victim is not at all relevant. It also would not matter where the minor was "staying", all that matters is where the act took place. If that was California, California Penal Code 261.5(c) says Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170. Additionally, (261.5(e)(1) states Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:... (C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000) | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. |
Can private companies deny buying firearms for persons under 21? Several companies have changed policies requiring you be 21 years old to buy firearms. I am wondering if refusal of service of persons under 21 s similar to a baker/florist refusing service based on religious beliefs? Question: Can private companies deny buying firearms for persons under 21? | As the comments suggest, "too young" is not a protected class. As another example of this principle, most car rental companies (if not all) will not rent to anyone under 25 years of age (regardless of their driving record or insurance status). This is not a legal restriction, but a standard industry practice. Companies can legally claim that they believe any kind of fiction about their customers if it's not explicitly illegal to do so. If they think that being below a certain age makes a person too young to have a good judgement, they don't need to be correct about it. They can act on that opinion (and lose business) as they please. | None because the principle is Freedom to contract There is a general right of any being (natural like a person or even a company) to contract with anyone. Buying someone's service is a contract. A contract forms when: They offer something You offer something Both sides agree on it. (meeting of the minds) It is totally legal for a company to make wears a mask in our place of business a part of either being admitted onto the property or agreeing to contract with you. Noncompliance means as a result that they don't agree to serve you and don't offer to you. In fact, they explicitly reject to contract with you unless you wear a mask, which is their right unless there is a law that would specifically make that reason illegal. There are laws that reduce the freedom of contract, such as the civil right act (protected classes, such as religion, race, sex and more), the Americans with disabilities act (demanding reasonable accommodation), and labor laws (outlawing labor practices or limiting the amount of work or minimum payment) as well as anti-discrimination laws (establishing further classes). However note, that laws need to be written in such a way that they don't discriminate against the company either! One case where freedom to contract was attacked using an anti-discrimination law was Masterpiece Cakeshop - which was decided on first amendment grounds based on the rights of the owner: the law can't force someone to make a product he would not support the message of. Currently, there might only be some ordinance that bans mask policies in Texas, but it is dubious if that might be even an enforceable order from the Texas governor - Especially since OSHA just made adjustments to standards and mandates on the federal level - which include adjustments to respiratory protection fields. | Aiden4's answer about Winconsin's statute 948.60 is correct, but incomplete and the complete reason is interesting/funny, so I'll expand on it: The statute reads: 948.60 Possession of a dangerous weapon by a person under 18. (1) In this section, “dangerous weapon" means any firearm, loaded or unloaded; any electric weapon, as defined in s. 941.295 (1c) (a); metallic knuckles or knuckles of any substance which could be put to the same use with the same or similar effect as metallic knuckles; a nunchaku or any similar weapon consisting of 2 sticks of wood, plastic or metal connected at one end by a length of rope, chain, wire or leather; a cestus or similar material weighted with metal or other substance and worn on the hand; a shuriken or any similar pointed star-like object intended to injure a person when thrown; or a manrikigusari or similar length of chain having weighted ends. (2) (a) Any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor. (b) Except as provided in par. (c), any person who intentionally sells, loans or gives a dangerous weapon to a person under 18 years of age is guilty of a Class I felony. (c) Whoever violates par. (b) is guilty of a Class H felony if the person under 18 years of age under par. (b) discharges the firearm and the discharge causes death to himself, herself or another. (d) A person under 17 years of age who has violated this subsection is subject to the provisions of ch. 938 unless jurisdiction is waived under s. 938.18 or the person is subject to the jurisdiction of a court of criminal jurisdiction under s. 938.183. (3) (a) This section does not apply to a person under 18 years of age who possesses or is armed with a dangerous weapon when the dangerous weapon is being used in target practice under the supervision of an adult or in a course of instruction in the traditional and proper use of the dangerous weapon under the supervision of an adult. This section does not apply to an adult who transfers a dangerous weapon to a person under 18 years of age for use only in target practice under the adult's supervision or in a course of instruction in the traditional and proper use of the dangerous weapon under the adult's supervision. (b) This section does not apply to a person under 18 years of age who is a member of the armed forces or national guard and who possesses or is armed with a dangerous weapon in the line of duty. This section does not apply to an adult who is a member of the armed forces or national guard and who transfers a dangerous weapon to a person under 18 years of age in the line of duty. (c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593. This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28. 2 things to note: (1) takes care to include, in the list of dangerous weapons: nunchaku, shuriken and manrikigusari. While the first 2 are more or less familiar to everyone knows anything about Japanese martial arts, the last one had to be looked up by everyone following the case to discover that it's the "secret weapon of the Ninja"(even more than the shuriken). (3.c) says that the whole of this entire section applies[adding the brackets to make following the formal logic easier] only if (the person under 18 is in violation of 941.28[barrel length under 16 inches]) or (is not in compliance with ss. 29.304[Restrictions on hunting and use of firearms by persons under 16 years of age] and 29.593[Requirement for certificate of accomplishment to obtain hunting approval]). In programming terms(for those so inclined), 3.C could be written as: IF ((barrelLengthInches < 16) OR (huntingUnder16Applies AND huntingCertificateApplies)) THEN statute948.60Applies ELSE statute948.60DoesNotApply Since the barrel length is over 16'' and Rittenhouse is over 16 and no hunting permit was required for his activities, the whole section of the law did not apply. Assistant District Attorney James Kraus argued that the exception renders the state’s prohibition on minors possessing dangerous weapons meaningless. In essence, that the legislators drafting that law spent too much time watching cheesy early 90's action movies and thinking of how to save Wisconsinites from the Ninja threat, to draft the law properly, so it should be read according to its intent from the title of the section. However, there is a binding Common Law precedent, dating back from the 16th century called the "Rule of Lenity", also called "Strict Constructionism" in the US, whereby if the legislature screws up, it's the legislature's problem. In the original case, the law in England forbade "felonious stealing of Horses, Geldings or Mares". A thief was caught, but argued that since he only stole one horse and the law specified horses, the law didn't apply to him. He was let off and the law hastily rectified. Pre-revolutionary Common Law precedent is binding in the US and it was re-affirmed multiple times, e.g. United States v. Wiltberger, where a US sailor got off with killing another US sailor in a Chinese estuary, because the law only applied on the "high seas". So, the charge was tossed and the defense didn't press the issue further. However, the really interesting bit is that even though it didn't get to be argued since Rittenhouse was 17, the way the law is actually written, this section only applies if (huntingUnder16Applies AND huntingCertificateApplies). That means that there is literally nothing in Wisconsin barring a 12 year old(under 12 is separately forbidden in the 29.304/huntingUnder16Applies section) from possessing and using an AR-15(or AK-47), as long as the barrel is >16'' and a hunting license isn't required for the activity. I think that the legislature will amend the law with haste, before it can be tested on 12 year olds. P.S. the other guy who gave him the gun will get off with this precedent too, since the statute for his charge is: This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28. i.e. the same 3 sub-sections as for Rittenhouse. | The felon-possession law is Utah Code Ann. §76-10-503, which distinguishes Category I restricted person and Category II restricted person, a complex definitions that distinguish felons in general and violent felons, as defined at Utah Code Ann. § 76-3-203.5. In the case stricter case, the law says: (2) A Category I restricted person who intentionally or knowingly agrees, consents, offers, or arranges to purchase, transfer, possess, use, or have under the person's custody or control, or who intentionally or knowingly purchases, transfers, possesses, uses, or has under the person's custody or control: (a) any firearm is guilty of a second degree felony; or (b) any dangerous weapon other than a firearm is guilty of a third degree felony. and in the less strict case: (3) A Category II restricted person who intentionally or knowingly purchases, transfers, possesses, uses, or has under the person's custody or control: (a) any firearm is guilty of a third degree felony; or (b) any dangerous weapon other than a firearm is guilty of a class A misdemeanor. The law does not impose any restrictions unrestricted people. A "dangerous weapon" is defined in 76-10-501(6)(a) as "a firearm; or an object that in the manner of its use or intended use is capable of causing death or serious bodily injury". They add a bit of subjectivity to their definition of "dangerous weapon" (i.e. "we'll decide after the fact if the thing is a dangerous weapon"), because: (b) The following factors are used in determining whether any object, other than a firearm, is a dangerous weapon: (i) the location and circumstances in which the object was used or possessed; (ii) the primary purpose for which the object was made; (iii) the character of the wound, if any, produced by the object's unlawful use; (iv) the manner in which the object was unlawfully used; (v) whether the manner in which the object is used or possessed constitutes a potential imminent threat to public safety; and (vi) the lawful purposes for which the object may be used. The felon could not have a stun gun with the intent to use it as a dangerous weapon, but it is not prohibited for a felon to have one to use on for legal purposes. There are contexts where stun guns are held to be dangerous weapons (United States v. Wallace, 800 F.2d 1509. Some states define stun guns as dangerous weapons, but that is not the case in Utah. It is also illegal for an unrestricted person to "sell, transfer, or otherwise dispose of any firearm or dangerous weapon to any person, knowing that the recipient is" a restricted person, and in cases of flagrant negligence the court might find that allowing such a person access to a dangerous weapon constituted "transferring" the weapon. | I doubt that they are legally required to get your VAT as a condition of registration. However, they are a private company, and they are allowed to attach almost any restriction they want to registration. It is more likely that they require your VAT for some of the business interactions that they expect will happen after you register for the site and have decided to make it a condition of registration. | You are allowed to ask the police whatever questions you like. There is an upper limit that you can't refuse to obey a lawful order on the premise that you want to ask a bunch of questions, but they don't seem to have ordered you to do anything, so you can ask away. They have no obligation to tell you anything or to be truthful, except for certain questions like "am I free to go" when you want to leave and are testing whether you are under arrest. Even then they don't have to answer your questions right away. The police can therefore ignore you, especially if you are asking curiosity questions. It might be that they are restricted from giving information in certain circumstances (pertaining to the privacy of others). If there is an issue of legitimate concern (e.g. Little Billy has been beating up on cats again) and you feel that you need to know this, then you can request the police record on the matter. Certain information will probably be redacted under state law, but you could get a report that states that some [redacted] juvenile was beating up on animals. The Florida records law is one of the first in he nation, dating back to 1909. You can read this, to see if you think the circumstances match one of the exemptions, though all you have to do is make the request and be told that the record is exempt, then you will have some idea what was going on. | The pawn shop has the "use of property" of their own premises. The pawn shop has obviously the right to examine the gun to determine its value, for example, or to clean it if it needs cleaning to avoid damage, or to show it to a potential customer. And the pawn shop is allowed to let the police onto their own premises, even without a search warrant. | health care checks. Hotel check in. Employment? maybe. Background Checks? doesn't matter. It actually does matter, because there is sometimes a law governing the documents that may be shown for a given purpose. For example, the I-9 form, for verifying someone's eligibility to accept employment in the US, has a well defined lists of documents that an employer must accept, and the passport card is one of those documents. A similar situation exists for Transportation Security Administration screening of air passengers. On the other hand, laws concerning proof of age for buying various products will vary from state to state, and retailers may or may not be required to accept any particular document. In the case of alcohol sales in North Carolina, for example, there is a brochure that lists "acceptable forms of identification" on page 17 and explicitly says that "passports may be in the booklet or card form." But that does not seem to create a legal requirement for the retailer to accept passport cards, because page 19 outlines the retailer's right to refuse, saying among other things that "there is no legal recourse by a customer who you have refused a sale." US passport law (22 USC Chapter 4 and 22 CFR parts 51 and 53) doesn't have anything to say about the passport's or passport card's role as an identification document; it speaks only of the more specific role as a travel document. So the general answer to your question, appears to be no. There is no law generally requiring people to accept a passport card if they also accept passports or driver's licenses. But in most specific instances, there may be a general requirement such as "government-issued identification" that includes passport cards in addition to passports and driver's licenses, or there may be a list that explicitly includes passport cards along with driver's licenses and passports. |
Can a jury always convict on a lesser included charge? There is a question on movie stack exchange regarding the Few good men movie (spoilers) regarding why some people were not found guilty of first degree murder but only of a factually fully different crime. The currently accepted answer points out that in the case in question the defendants didn't commit first degree murder due to there not being premeditation nor was the death even intentional. Thus they could not be convicted of murder one and the jury acquitted. I've already heard this kind of argument before regarding for example the Zimmerman case. But looking at lesser included offenses it would seem the jury is allowed to convict on those rather than just the offense charged. Actually in the case of murder it seems that the court must instruct juries that they can find for a lesser included offense. So the question is sort of two fold: If the jury is not instructed that they can find for a lesser included offense can they do it anyway if they understand it on their own? How can there be issues with overcharging in murder trials if the jury must be instructed about the lesser included offenses? EDIT With regards to jurisdiction multiple US would be great (federal, couple state) but for choice lets say Florida. | What the jury must do A jury must follow the law it is given by a judge. A jury cannot "go rogue" and bring back a verdict on something that has not been charged and/or that the jury has not been told to consider. So, whether a jury has the option of convicting a defendant of a lesser included offense - a crime contained within a more serious crime - depends on the instructions the judge gives. Is it up to the judge and the judge alone? Not necessarily. Typically, judges must issue the lesser included offense instructions to the jury if the lesser included offense is part of the charged offense if there exists significant evidence the defendant only committed that lesser crime. So, only if the evidence supports such instructions. Further, at least in some jurisdictions, a trial judge may not instruct jurors on a lesser included offense if there has been no request to do so by the defendant. There appears to be a disagreement over what, if any, power a prosecutor should have in making such a request. One side would argue that a prosecutor would want to ask for it so that a defendant who is getting off on the larger crime doesn't skate completely free on, for example, a technicality. Another side would argue that prosecutors should not have a say because they are in fact who control which charges are submitted to the grand jury for indictment. | The plea is entered before the trial. The concession of guilt happens during trial: the lawyer acknowledges that the defendant did the crime, but argues that it should be overlooked in some way. For example, Nixon dealt with a death-penalty case where the lawyer's strategy was to admit during the trial that the defendant had killed the victim, but to use the trial to persuade them that the circumstances did not call for the death penalty. You don't get to make those arguments if you enter a guilty plea, which would then strip you of your right to a jury. | Yes Now, murder needs a definition because they are all subtly different. Let’s use the one in the new-south-wales Crimes Act 1900: Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. The only real difficulty is in the phrase “causing the death charged”. So a sensible prosecutor would charge both defendants with both deaths. A jury would find them guilty beyond reasonable doubt of one of the “death[s] charged”. The case is similar to Rogerson and McNamara who took a live Jamie Gao into a storeroom and came out with a body. Each accused the other of the murder - the jury didn’t believe either of them. | Yes The normal remedy for not receiving a fair trial or due process is the declaration of a mistrial. A mistrial legally never happened so it is up to the prosecution to decide if they want a retrial. Unless the appellant can demonstrate that no reasonable jury would have convicted on the evidence (which seems unlikely verging on impossible), the appeal will not acquit the accused. | "Precedent" refers to a finding of what the law is. A jury only finds facts, and operates (supposedly) within the meaning of the law as already established. All the jury reports is "yes" and "no" to questions of fact (with some reference to existing law): they do not report, at least in any official way "we interpret the law as saying X". So it would be impossible for a jury to "set precedent" in the case law sense. In a notorious case, they might "set precedent" in inspiring other jurors to act similarly, but this is not enforceable precedent in the way that case law precedent is. In the US, if the jury acquits the defendant, that is the end of the matter and there is no re-trial. As for the UK, I am not sure but I think that the prosecution being unhappy with the jury's decision does not create an exception to the double jeopardy rule. | One does not introduce statutes in a trial, criminal of civil. Rather, one introduces facts. The judge will present "the law", and will present it in a digested form in the form of interpreted instructions to the jury about what the law says. Jurors are not required to interpret the meaning of statutes, because jurors are also not expected to know the relevant case law surrounding a statute. A party might make a motion to the judge where the argument depends in part on the wording of a statute. Then there is a standard but jurisdiction-dependent way of referring to s statute, e.g. ORS 164.015, RCW 9A.56.010. For Minnesota there are three interchangeable forms: "Minnesota Statutes 2008, section 123.45, subdivision 6" which is the same as "MINN. STAT. 123.45 (2008)" or "MINN. STAT. ANN. 123.45 (2008)", which is for statutes. You have to look it up on a jurisdiction by jurisdiction basis – here is the answer that Minnesota gives (all legal citations). | He was indicted on many charges including 1st degree rape. So your question is why the jury returned the specific verdict, and did not convict on all charges. There is no record of the jury deliberations, so the best we can conjecture is that they didn't find the other charges to have been proven, and in lieu of a tell-tale juror, we can't know what evidence persuaded the jury. He was convicted on counts of criminal sexual assault in the first degree and rape in the third degree, but acquitted of two counts of predatory sexual assault, and it is suggested by media who make suggestions that this is because the jury did not believe the testimony of Annabella Sciorra. The crime of third degree rape (the charge involving Jessica Mann) is when a person engages in nonconsensual sex with another person. The crime of first degree rape, a charge that he was acquitted on, is when a person subjects a victim to nonconsensual intercourse through forcible compulsion, or when they are incapable of consent by reason of being physically helpless. A person is guilty of a criminal sexual act in the first degree if they engage in oral or anal sex with someone who is incapable of consent, or if they use forcible compulsion. The statutes are here, §130.00 ff. | Your question is the subject of longstanding and ongoing debate that has generated countless articles and books and dissertations, so you're probably not going to get a fully satisfactory answer here. But here's the short version: Different systems operate on different assumptions. Your question suggests you are not a retributivist, i.e., someone who views sentencing as a means for taking retribution for the criminal's offenses. Some systems (most, I imagine) are built around that idea, but some view criminal sentencing primarily as a means of preventing recidivism, or as a means for achieving rehabilitation, the interests you indicated you see as more important. And even within those systems, there are still different ideas about what you're actually trying to do. Again, you've indicated that you subscribe to an intent-based system (a punishment keyed to what the criminal intended to do), but that approach competes with harm-based sentencing (punishment for the harm the criminal actually caused). While equal punishments make sense from an intent-based approach, they are less justifiable from a harm-based approach. Few would say that attempted murder inflicts the same amount of harm as completed murder, and so that system does not call for the same amount of punishment. Because there are different approaches, sentencing guidelines vary from jurisdiction to jurisdiction. The U.S. Federal Sentencing Guidelines, which I would classify as adopting a harm-based retributivism, treat attempts less severely than completed offenses, but other systems treat them equally. |
Can unwritten administrative policies at a public college be enforced? I am currently attending a two year college to get basic credits and then transfer to a university. I am going to be a computer science major, and am naturally a math enthusiast, but I already finished all my math credits and am taking no math classes at the two year college. This morning I went into the math lab to work and program on my computer, but was kicked out because I am not currently taking any math courses and the guy told me, "It was school policy that I needed a math course to be in the lab". I left, and looked for the rules online, and I can't find them. I also went to another lab and asked where the tutoring lab rules and policies could be found, but they did not know. Question: Can you enforce policies if you cannot provide where to find said policies? Here is the school's related websites that I could find: Math department website Website for the lab I tried to use Student Responsibilities & Regulations | There are two scenarios to consider. One is that there is such a policy written down and duly communicated in some fashion. In that case, it is obviously "okay" in all senses to enforce that policy. (That does not preclude the possibility of suing the institution because they are abridging some right of yours in having this policy, but that's a separate matter). The alternative is that there is no such policy, and someone spoke incorrectly. If that is the case, then they "can't" enforce a non-existent policy. Actually, they can prevent you from using the facility, the question is, how could you correct their misunderstanding of their policy? The most protracted way to resolve this is to file a lawsuit against the university, for denying some right (constitutional or property). A more efficient way to do that is to bring the matter to the attention of a reasonably high-ranked official within the institution, perhaps the department chair, who may not be aware that subordinates are making up or misinterpreting rules. The fact that you were unable to locate a written statement of policy online really doesn't count for much. It is entirely reasonable to believe that the chair may have instituted such a policy, under his authority as chair, and communicated it verbally to subordinates: or, the subordinates simply do not know where to find the policies. An alternative approach is to raise the question with the Student Advocate's office, if discussion with the chair is unsatisfactory. | As a private university, they have much broader discretion to require things of you. Questions of 4th amendment rights are beside the point, what would matter is whether it is already covered by some part of your contract with the university. As a starting point, they have the property right to control access to their property, and they grant you the right to use their property in certain ways, in exchange for things that you have to do. The contract does not have to say "We can require you to get covid tests". It is extremely unlikely that any clause says "You can do anything you want except for the following actions". Typically, your contract includes a generic agreement to "follow the rules". There are safety-related standards somewhere in the code of conduct. The requirement to be tested, or to not spread bubonic plague etc. will be subsumed under one of these rules. I understand that you don't want to name the institution. | You would start by seeking permission from your academic institution. If they approve it then they should employ their legal counsel to create a safe harbor for your work. | I'll start with a list of issues presented and also note at the outset that the question correctly notes that both the school district (which is an entity distinct from the county), and the superintendent of schools, are protected from civil liability to a significant extent by the doctrine of sovereign immunity which is outlined here. Two specific provisions bear particular note: an exclusion of liability for someone who has reported a suspected child abuse case, and immunity for a school teacher who acts in good faith with regard to supervision, care and discipline of students. 1. What duty does a public school board in the U.S., or do specific employees of that school board, have to prevent a violent crime from being committed by one student against another student, when that student has no prior history of serious misconduct? Short of malice directed at a victimized student there is no liability under state law. There is also no well established constitutional right violated that could give rise to civil rights liability. Students commit crimes against each other all of the time and school officials are almost never responsible for those crimes. 2. What duty does a public school board in the U.S., or do specific employees of that school board, have to prevent a violent crime from being committed by one student against another student, when that student has a history of prior serious misconduct? The legal standard is the same but the practical analysis might be more fact intensive. Still, outright malice directed towards a victim would pretty much be the applicable legal standard and is unlikely to be present in this case, absent awareness, for example, of conditions of probation or pre-trial release after the first case that weren't enforced. 3. Is a public school in the U.S. permitted or required by law to advise parents of students at the school that student transferring into the new school has a history of violent criminal conduct? Juvenile justice law and educational privacy laws profoundly limit the extent to which a public school, or its officials are allowed to disclose that a student transferring into a school has a history of violent criminal conduct. There is no clear duty of the public school in the U.S. to disclose this fact broadly. 4. Is a statement by a superintendent to parents in a public school district that transgender girl does not pose a threat to cis-gender girls in restrooms an actionable fraud (and does it matter if there is a history of prior misconduct by a particular student in this case of which the superintendent was aware)? The statement is not, in general, false. If it was made after knowledge of this particular student, that might be a different matter, but as noted above, there are severe legal limitations on what the board is allowed to say. It isn't inconceivable that the school board or superintendent could have said more than it did to at least some people. But there isn't a clear legal duty to do so. It also isn't clear what the superintendent actually knew when he made a report to the school board even tough the information should have been shared with him. It is possible that only a lower level official in the school system had actual knowledge at that time. 5. What crime, if any, did the father of the first rape victim commit for trying to warn the parents about someone who attacked his daughter? This is partially speculation, but the father appears to have been arrested for the manner in which he acted disturbing the peace, speaking out of turn, and refusing the leave a meeting when requested, rather than sharing the information per se. 6. Did the school superintendent commit a crime somehow connected to the second rape by concealing the risk posed by the student in question? The school superintendent has a duty to report child abuse to authorities and failure to do so (if it was not done) would be minor crime. My impression of the fact is that the first rape was reported to juvenile justice system officials and resulted in action being taken. So, it does not appear that this duty was breached. According to the article: The boy was arrested and charged for the first assault in July but released from juvenile detention while prosecutors waited for DNA rape kit evidence to come back. Loudoun County Commonwealth's Attorney Buta Biberaj says at the time they had no reason to believe the boy should have stayed in juvenile detention. “If that case had gone forward and we were not able to substantiate beyond a reasonable doubt the allegations that were made by the victim, he would've been out anyway,” she said. “The best decision was made with the facts that were known." This does not, however, give him criminal liability for a subsequent rape of one student by another in which he had not involvement sufficient to constitute criminal conspiracy to commit sexual assault which was the case here. 7. Does the school board have defamation liability for calling the father of the victim of the first rape a transphobe? No. The school board has sovereign immunity from suits for money damages seeking to establish liability in relation to statements made in their official capacity, apparently in good faith. It also isn't clear that the statements made were actionable in the first place, or that such statements were even made by them. The school board also does not appear to have had actual knowledge of what happened until a decisive school board meeting after the second assault. 8. Does the public have any power to remove an appointed official such as the superintendent in this context? No. The political remedy is to elect a new school board that would select a different superintendent. | The answer is a clear maybe. The school has a set of rules and by not attending you have broken those rules. The rules may (probably do) allow for consideration of extenuating circumstances but, in general, it doesn't have to. There is probably an appeals process, you need to investigate this. That said, if there are no provisions for extenuating circumstances and/or no appeals process then this may make the contract "unconscionable"; in many jurisdictions this makes the contract void. That doesn't mean you get the marks; it means you get your money back. The circumstances of your court appearance matter: the school may grant special consideration if you are called as a juror or witness; they might not if you are a defendant. Ultimately you had a choice, to follow the rules of the court or the school; there are consequences either way. | Others have mentioned Title IX, the federal law that generally prohibits sex discrimination at federally funded educational institutions, 20 US 1681 et seq. However, there is specific permission for single-sex housing in 20 USC 1686: Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes. As to your "in this day and age", this particular section of the law has not been amended since it was first passed in 1972. If you think it should be, you can certainly write to your members of Congress and tell them so. However, you say you attend a "Christian" college. Religious schools get an even broader exemption from Title IX, as Michael Seifert also mentioned. 20 USC 1681 (a) (3): This section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization; So even if 20 USC 1686 were repealed, if your college determined that mixed-gender housing was "inconsistent with its religious tenets", they would probably be allowed to continue having single-gender housing anyway. | I am wondering if anyone here could say if it is worth going into law, particularly when coming from a good law school (and assuming I have a real interest in the subject and enjoy research, etc.). Is it true that the profession is contracting, and that it could be hard to find a decent job? Is there decent upward mobility in the profession, or should one expect a sub-60-70k salary for many many years after school? Is there anyone here that thinks not going into law (ie pursing a Ph.D. instead) is a better choice? I went into a top law school (the University of Michigan, ranked #8 when I matriculated, graduated in the top 25%, cum laude, with an editorship of a law journal under my belt) with almost the same academic background (undergraduate math major) and a similar LSAT score to you. It was a somewhat easier choice for me. I was a solid A- math student, but didn't have the chops and talent to pursue a PhD in math and make an academic career out of it, even though I was something of a math prodigy. I also didn't have the passion for it. I saw that I was spending my free time focused on the humanities, social sciences and campus politics and journalism, rather than on math (although tutoring and grading paid my way for all of my personal and living expenses). A legal job definitely provides a secure lifetime of decent employment, can be intellectually challenging in some subfields (other kinds of practices not so much), and provides a certain amount of interpersonal interaction and immediate, easily understood relevance that you can't secure as an academic mathematician. It isn't that hard to find a decent job for a graduate of a top law school, and the profession is not meaningfully contracting. Indeed, almost no occupation has been less impacted economically by the pandemic. Post-law school compensation is bimodal. A minority (maybe 30-40%) start at large law firms (sometimes after a judicial clerkship) and make very good money (low 100s) right off the bat. The rest get decent middle class jobs at first. Most, from both routes, end up eventually self-employed in small and medium sized law firms, although a lucky few (maybe 5%-10%) end up as partners in big law firms and a similar share end up as senior civil servants. The problem is that the instincts you learn getting as far into math as you have are not very advantageous to a Big Law career, which places a huge premium on social skills, upper middle class to upper class social capital, and hard work as what amounts to being a super-bureaucrat at relatively menial details for long uncreative hours that are only dimly connected to results. A lawyer needs to be smart, but being a "genius" intellectually doesn't provide much marginal benefit. Most economically successful lawyers have quite narrow and specialized practices that present fewer intellectual challenges as you mass produce the same kind of work over and over, and lawyers derive a lot of their income from their capacity to market their services effectively to the affluent and the powerful. Also, a lot of your compensation in law is basically for your marketing, for taking on highly stressful responsibility, and for dealing with very unpleasant situations. It often isn't the most enjoyable life style unless you have a very particular type A, competitive, extraverted personality who understands people extremely well but isn't academically oriented. Corporate law, in particular, values your interpersonal skills very highly and doesn't place much of a premium on your intellectual legal knowledge and research ability. Those things are factors of production in corporate law but they aren't what leads to success there and are often pawned off on junior associates who never have a shot at making partner. I could have done better economically (I basically took what amounted to a mommy track for various reasons), but didn't understand the profession, or what the work involved, or what was critical to get ahead at the time and in my early career and had other priorities and a set of values and world views ill suited to the work. If I was doing it all over again, I would have chosen a quantitative heavy but non-math PhD path (maybe Economics or physics or operations research or statistics) or would have become an actuary, rather than becoming a lawyer. I love knowing the things that I know because I went to law school (which I loved) and because I've have an incredibly diverse (although not terribly well paying) legal practice for 25 years. I was a professor (in a gradate estate planning program for financial planners) for a while, and it was the best job I've ever had and I still enjoy teaching a lot. I also spend lots of time in math related hobbies to exercise and enjoy math related talent that I have but can't use very often at work. If I were in your shoes, with publications already and an acceptance in a top graduate math PhD program, I would definitely take that path. It is a field within academia with a healthy trend line of stability or growth within academia, and being a professor (which you have a viable shot at doing) is a wonderful way to live. There are fewer job seekers per open position for PhDs in math than in most academic disciplines. I've never met a math prof whose regretted his choice (and I know many, having grown up all my life as a child of a professor and a college administrator in a small college down and having been a math major). | There is little prospect for suing over this measure. The university has a legitimate interest in verifying that access to online systems is only granted to authorized users, and simple passwords are considered to be insufficient. (I don't intend to argue about password technology, I'm just making the observation that two-factor authentication is better than single-factor authentication). I have not encountered this requirements in US banks yet, but I have encountered it in Norway where an online transaction always requires with a password and a code generated by a gadget of the type you alluded to. I surmise that your university mandates that all payments be done online, which means that you must have access to a computer in order to pay a bill. It is not reasonable to expect people to have a computer that is connected to the internet at all times, but it is reasonable (and often done, by universities) to expect people to be able to so connect some of the time. So likewise, it is not reasonable to expect that people will have their authentication gadget available at all times, but it will be available some of the time, and thus there is no insurmountable impediment to paying the bill (or accessing the library, or reading email...). These gadgets do, however, potentially run afoul of ADA, but presumably they know that and can make accommodations. |
Do shareholder agreements have to be identical within the same company? I am being told that the various potential shareholders must sign an identical shareholder agreement. I have a problem with a clause relating to confidential information and have been told it cannot be changed specifically for me and that it must be identical for all. Is that true? | Generally, a shareholder agreement that applies to all shareholders ought to have the same terms for everyone. The shareholder agreement signed by everyone could single you out for special treatment, but an agreement of everyone should be the same. | When does a CEO (or the investor or the board) have to notify employees they will be unable to pay them for work already done? Directors and officers (which includes executive officers like the CEO) but not investors have a duty to ensure that the corporation does not trade while insolvent. In this context, "trading" means incurring new debts and "insolvent" means being unable to pay their debts as and when they fall due. Unfortunately, it is a judgment call by those directors and officers and the exact point where it occurred is generally only clear with hindsight, if then. For example, you describe a "tumultuous week"; quite likely the company was urgently seeking additional sources of funds and until it was clear they had no prospect of getting those, they weren't insolvent. The director's duty is to act reasonably (a broad range of activities) and not be overly pessimistic nor optimistic about the company's prospects. As far as I know, they don't have a positive duty to inform their creditors that they can't pay. If that happens their obligation is to file for bankruptcy and their obligations cease - the bankruptcy trustee then invites creditors to prove their debts. Does an investor have a responsibility to ensure all employees are paid? No. That is pretty much the purpose of limited liability corporations: to shield the investor from the debts of the company. Do the employees have any recourse? Yes. Employees are typically priority creditors in Colorado and rank ahead of many other creditors. However, if the company is not based in Colorado different laws will apply. Of course, you must be an employee of the company - this priority doesn't apply to true independent contractors. Also, the liquidator's fees rank ahead of anyone and unless the bankrupt company has adequate realizable assets, even employees are unlikely to get a dividend. You also need to be clear who you work for as you say "that last Friday was paid for/fronted by the HR company". Do you work for the bankrupt company or this (non-bankrupt) HR company? If the latter then they owe you your wages and the bankruptcy of their principal is their problem, not yours. Is "secured debt" real? And does that reduce the likelihood of receiving a paycheck in a bankruptcy settlement? Yes. There is a priority in the payment of creditors in liquidations and it varies by jurisdiction but a typical arrangement might go like: Liquidator's Fees Employee wages and entitlement accrued within the last 6 months Certain taxes Secured creditors (who may have a ranking among themselves) Unsecured creditors (including employee entitlements more than 12 months old, other taxes, trade creditors etc.) Shareholders (who may have a ranking among themselves) Basically, the lower you rank, the less likely you are to see a dividend. Does any of this change if the company doesn't file for bankruptcy? Sure. Until the company does this it is still a going concern and it has to pay its debts. If it doesn't it's creditors can sue and recover their monies as best they can which may include forcing the company into bankruptcy. | Tell whatever lawyer is drafting the "official paperwork" about the problem and ask if it is covered or if you need to change the text or add a rider. If neither company competes, a mutual release/license of existing shared code should be perfectly manageable for an experienced attorney. | The law on the web page is not current: as of the beginning of the year, RCW 23.86.030(1) reads (you'll find this under Sec. 9103) "The name of any association subject to this chapter must comply with part I, Article 3 of this act" and is otherwise unchanged. In Article 3, sec. 1301 governs names, giving the sec'y some discretion to deem a name to not be distinguishable from another, saying in (3) "A name may not be considered distinguishable on the records of the secretary of state from the name of another entity by virtue of...variation in the words, phrases, or abbreviations indicating the type of entity, such as "corporation," "corp.," "incorporated," "Inc.,". It does not list "co-op", but there is no legal requirement that the list be exhaustive. This discretion is, however, related to distinguishability. However, (4) then says An entity name may not contain language stating or implying that the entity is organized for a purpose other than those permitted by the entity's public organic record. and I think that means "no". Note that LLCs, LPs, LLPs, business corporations, nonprofit corporations and cooperative associations all have name requirements of the type "must contain" and "may not contain" (a cooperative association, oddly, has no "must contain" requirements). I would say that we have to conclude that "legislative intent" was to more closely align names and legal status, and the new "purpose-implication" language isn't brilliantly clear, but that is what the intent of the law is. This is one of those issues that could easily work its way to the Supreme Court, if someone wanted to make a state case of it. | If a business literally has an "exact change only" policy, that can't be enforced in post-pay situations. But if they have a "you are free to overpay, but we won't give you change back", that's different, especially if it's communicated from the beginning. If they tell you they don't give change, then you're taking their goods/services implicitly agreeing to their terms. | This is very likely to be legal. The devil is in the details (there are lots of forms that are expensive to have lawyers prepare that you have to file with the Securities and Exchange Commission to carry out this plan and the transaction may need to pass anti-trust review and media ownership consolidation requirements to pass muster, for example). But this is pretty much the standard arrangement in a hostile takeover of a publicly held company (except that usually the offer is limited to a majority of the shares outstanding, or whatever percentage is necessary to secure control, rather than all of the outstanding shares of the company, and usually the control premium is a little larger than 26%). In practical reality, the Board will often have put in place a variety of legal measures, sometimes called "poison pills" to allow it to discourage tender offers (which is what these are called) when faced with bidders that management doesn't like, which can be waived for bidders that management does like, and this frequently results in litigation under an expansive and involved body of state corporate like in the Delaware Chancery Court in most cases. But those steps are more often speed bumps than deal killers in these kinds of transactions. The way this plays out in a privately held company, where there is frequently a shareholder's agreement restricting transfers, would be quite different. But the question appears to contemplate a publicly held company scenario/. Also, in practice, even an extremely wealthy investor couldn't afford to make a purchase like that without financial institution support (often in the form of corporate bonds in what is called a "leverage buy out"), or a "committee" of wealthy investors working together. But again, the source of financing doesn't seem to be the main point of this question. | Disclaimer: I'm from the US and don't claim to know German or Turkish law. So let me discuss some general principles here, but details may well be different in Germany and Turkey. You're mixing together three very different things: trademark, copyright, and patent. Copyright protects the expression of an idea, in this case, the exact computer code, images, etc. If you didn't copy his code, the chance that you would coincidentally write identical code is remote. The fact that you both have a line of code that says x=x+1 wouldn't give him any grounds for a lawsuit. He'd have to show substantial portions of the code were identical. If you didn't deliberately copy his code, this isn't going to happen. Barring some extraordinary and unbelievable coincidence, you can't violate copyright accidentally. Trademark protects names and symbols used to identify a company or a product. If you decided to call your software company "Microsoft", then that other Microsoft could sue you for trademark infringement. Likewise if you copied somebody else's logo or other distinctive graphics. This is very different from copyright. It is quite possible to violate someone's trademark accidentally. Especially if he gave his company or product a rather generic name. Like if someone called his product, say, "Password Manager", someone else might make a product with the same name without ever having heard of the original. Ditto if he has some simple logo or other graphics. If you did accidentally duplicate a name or graphic elements, well, in the US a court would likely order you to change your name or graphics and that would be the end of it, unless you refused, in which case you'd end up in court. US Courts have ruled that very generic names have limited trademark protection. An example I saw recently was "Main Street Auto Repair". A court said that the owner of that name could prevent someone else from opening a shop in the same town with the same name, but he couldn't sue someone in another town who happened to use the same name. This is why, by the way, companies often use made-up words for their product names. In your case, this should be a trivial issue. If he is claiming trademark to the look of the main menu screen, just change the colors or move some buttons around. If it actually went to court, you should be able to argue that the similarity was accidental and when you were informed you promptly changed it, and that should be the end of it. Depending, I guess, on how hard-nosed the judge is, etc. Patents are different still. A patent gives the owner the exclusive right to use an invention or process for a specified period of time. It doesn't matter if you invented the same thing entirely independently. Whoever filed the patent first has exclusive rights. There have been cases where an inventor lost out to someone with a similar invention because he submitted his patent application one day later. If this other person has patents that you are infringing, you are pretty much out of luck. | Contractual terms must always be read in context. Given the context, it is unlikely that the term could support the definition that you are worried about. It is clear that the purpose of you appointing the company as your attorney is to allow them to perfect the IP rights you have given them by the other parts of the clause; not to allow them to sell your house or make end-of-life decisions. If you are worried about it, ask them what they mean and ask for the clause to be clarified to your satisfaction. |
Can a parent kick an adult child out of a house that the parents do not own or rent? I live in Spain. My parents and I live in a house which my grandfather legally owns. I'm 22 years old, and in Spain someone is considered an adult when they turn 18 years old. Could my father kick me out in these circumstances? Edit: My grandfather doesn't rent the house to my parents, he allows us to live there. But the bills (water, light, etc...) are sent to my parents. I don't know if this could be relevant. | Note: All links in Spanish (sorry). Regardless or your father being or not the legal owner of the home, the issue at play is that of alimentos1. This is an obligation between some family relationships to help each other so if family member (the alimentista) is in dire need of help (i.e., needs the help to survive) the others have the obligation to provide the help. The relatives of the alimentista affected are, in order: The couple, always when married and only when expressly agreed upon for non-married couples. Descendants: sons/daughters and grandsons/granddaughters. Ascendants: parents and grandparents. Brothers: Only when indispensable and the minimum amount. The order determines who of all the family members is under obligation to provide the help; in case of multiple people in the same category the amount is to be divided between them in function of their income. The amount of the help is not fixed and will depend of the circunstances of the situation2; and it is possible to provide by providing the needs(shelter, food) directly. Now, until when does a father/grandfather need to provide alimentos to a son or daughter? Certainly until s/he is 183, as this is the date of full age in Spain, but it is usual to consider that the obligation exists while the alimentista is studying and lacks of his/her own means of subsistence. That is not a "free rider" situation, as alimentos may be denied by several reasons: Obviously, because the person that should provide the help does not have the means to do so without endangering his own subsistence. The alimentista gets his/her own means of subsistence. Any of the causes that would make the alimentista unable to inherit from the person providing the help4: attempted murder, coercion to change their will, and other grave crimes. The alimentista does not do enough to get his/her own means of subsistence. If a judge decides that the alimentista son/daughter is neither studying nor seriously trying to get a job, the help can be revoked. Judges seem to be progressively taking a harsher stance against descendants who refuse to do their part. The article quotes the case of a 19 years old guy whose claim to the pension was denied. As a side note, rejecting to pay alimentos is another of the causes that would cause the person doing it to lose any right to inheritance from the alimentista. If for whatever the reason you do not qualify for alimentos, the details of the agreement between your father and your grandfather for the home become relevant5: If your father has formally rented the house then your grandfather position is not relevant, as your father has all of the rights6. If your grandfather allows your father to live in the house without paying rent, then it is your grandfather rights as owner against your father rights as an occupant. No idea about the outcome of that situation. UPDATE: You still do not tell about your grandfather stance about the issue, which is important. If your grandfather agrees with your father7 then the only way to stay at home is that of alimentos. What you describe is a situation of either precario or comodato, where your grandfather allows the use of the home without compensation. The differences are: precario is for an undefined time. comodato is for a defined time/use (e.g. for X years). Now, I have to suppose that you are not part of the agreement so it is just between your father and grandfather. That makes it your father's dwelling, and beyond alimentos he cannot be forced to share his dwelling with you. But if this is a situation of precario (which is what most often happens) your grandfather has the "nuclear option"8 of threatening to evict your father, as it is a relatively easy (in the legal sense, not the personal one) procedure. In a situation of comodato your grandfather could not evict your father until the conditions of the cession expire, making threats somewhat weaker. As a final note, and given how specific this answer has become: I am not a lawyer, you have not provided enough specific info, and this is not legal advice. Talk to a lawyer. Maybe a lawyer will check the agreement and it will turn out that your father is paying rent by performing some service, voiding the precario aspect. Maybe with the details provided the lawyer can find a way to an agreement that is more amenable to all. Talk to a lawyer. Shut up. The issue at hand may be stressful, and sometimes it might be tempting to boast to your father about the issues of alimentos or precario. Don't. If there is something to be said about that, let your lawyer do the talking. Try to stay calm. Consider the effect of your actions before taking them. While there is nothing wrong with talking to a lawyer, going beyond that and beginning a legal battle with members of your own family is most of the times an ugly affair. It could easily have an effect for a very long time in your relationship with most of your family, even with those who are not directly implied. Try to stay calm. 1 Literally, "foodstuffs", but when used as a legal term it includes other basic needs. 2 There are some official guidelines but judges seem to have freedom to follow them or not. 3 I believe that there are some exceptional reasons to lose such right before becoming 18 (e.g., sons condemned of attacking their fathers and the like) but I have no specific data about those. 4 As a side note, in Spain last wills do not allow the "donor" to distribute the goods freely, as some porcentajes of the inheritance must obligatory be provided to descendants and widowers. 5 Of course, in the case that your grandfather wanted to oppose your father's decision. 6 Since one of the legal reasons to end a rent agreement is to provide a home for a first degree relative, your grandfather could expel you from your rented home to give it to your father, but not the other way around. 7 And "agree" does not mean "Is happy with the decision" but "Will not go to the court to challenge your father decision". 8 Which is a very relevant analogy, because it could be almost as damaging to your family as a literal nuclear bomb. | There's a lot of variables here, as many leases are built in different ways within the leeway allowed by law. You will want to contact a local lawyer to see how you can mitigate the damage to yourself, and contact your landlord and see if you can re-negotiate the lease. If the landlord doesn't want to re-negotiate, you're probably facing eviction if you can't come up with the full rent by yourself; many leases don't allow non-related adults to live on the premises if they're not on the lease (this can also result in eviction). However, your roommate will also get an eviction record and be responsible for any damages if the lease survives long enough to cause an eviction. Actually having a random person move in from Craigslist might also cause your roommate to suffer additional liability if they're not allowed to sublet their lease agreement, which many leases do not allow (landlords like knowing who's living on their properties). Having them move in might cause both you and your roommate to be evicted. You probably don't have any rights to sue your roommate until actual damages occur (in other words, after you've already been evicted). You should speak with your landlord as soon as possible to get a new lease. An eviction record will cause problems for your roommate as well, so you might urge them to consider staying long enough to get things sorted out legally. When you ask your landlord, simply ask something like, "My roommate wants to move out. What are my options?" They will tell you what they are willing to accept. | I don't think that un-revoking your grandfather's German citizenship would help you, since your father naturalized to obtain British citizenship before your birth, and German citizenship is automatically lost upon voluntary acquisition of a foreign nationality, so even if your grandfather's German citizenship had not been revoked, the German citizenship your grandfather passed onto your father would have been lost before your birth. There might be another route to get German citizenship through your mother, if she was a German citizen at the time of your birth. Since you were born before 1975, and thus could not get German citizenship from your mother at birth, you qualify for a special naturalization process if your mother was a German citizen at the time of your birth, and you are fluent in German and have other ties to Germany; you do not need to renounce your existing nationalities to get German citizenship through this process. See this and this (both in German). However, there are complications with that since I believe German women generally automatically lost German citizenship if they married a foreigner before 1953, so she may not have had German citizenship when you were born since she married your father before your birth. | No, the minor cannot be in violation either being on the property of residence or the sidewalk in front of that property. Montgomery County Curfew Law: Section 1-2 (Offenses): (a) A minor commits an offense if he remains in any public place or on the premises of any establishment within the unincorporated areas of the county during curfew hours. Section 1-3 (Defenses): (a) It is a defense to prosecution under Section 1-2 that the minor was: (1) Accompanied by the minor’s parent or guardian; (2) On an errand at the direction of the minor’s parent or guardian, without any detour or stop; (3) In a motor vehicle involved in interstate travel; (4) Engaged in an employment activity, or going to or returning home from an employment >activity, without any detour or stop; (5) Involved in an emergency; (6) On the sidewalk abutting the minor’s residence or abutting the residence of a next-door neighbor if the neighbor did not complain to the police department about the minor’s presence; (7) Attending an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor, or going to or returning home from, without any detour or stop, an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor; (8) Exercising First Amendment rights protected by the United States Constitution, such >as the free exercise of religion, freedom of speech, and the right of assembly; and (9) Married, had been married, or had disabilities of minority removed in accordance with Chapter 31 of the Texas Family Code. (b) It is a defense to prosecution under Section 1-2 (c) that the owner, operator, or employee of an establishment promptly notified the Montgomery County Sheriff’s Department, or the appropriate Constable’s office, that a minor was present on the premises of the establishment during curfew hours and refused to leave. Your property is not public, so you cannot be in offense of this ordinance being on your private property. You also cannot be in violation being on your sidewalk (or a neighbors sidewalk if that neighbor has not called police on the offender). | Minor children can, in theory, sue their parents, in many countries, as long as they can prove a cognizable harm. The simplest case is where a parent commits a crime against the child, such as rape; this would also include embezzlement. "Abuse" is a term used in laws, for example RCW 26.44.020 (Washington state), but that sense of "abuse" doesn't include e.g. "overbearing behavior" or "obnoxious politics". If a child is disabled and the parents taunt the child for that disability, it is possible that the child could sue to terminate parental rights. The case is even clearer if the parent fails in their parental obligations to the child. Lgbtqia child rights are less well-defined. The background assumption is that the parent has the exclusive right to determine the child's upbringing, which includes things such as political beliefs, religion, and matters touching no family and sex. Norway is one of those countries with relatively few restrictions on "how you live your life", and they are considering a law against "conversion therapy", but there is presently no law prohibiting a parent from denouncing their child's lifestyle. It is possible that Barnevernet (child protective services) could intervene in a particular case, but they would not sue a parent on behalf of the child unless the parents actually violated the law. | Note that I am not a lawyer. All law code here is from the official Georgia Law at LexisNexis. In the case of Georgia, the law regarding a child’s election changed in 2008. Prior to 2008, a 14 year old child could choose with which parent to live, unless the judge determined that the chosen parent is unfit. As proving that a parent is unfit was not always easy, the Georgia General Assembly in 2008 replaced the unfit parent standard with a Best Interests of the Child Standard. This new standard provides more flexibility to the judge in determining custody. Some basic facts about how the law in relation to the child's selection of parent: A parent that wishes to modify an existing custody arrangement must show that a material change in circumstances has occurred that warrants a new decision by the court. If the child is 14 then the child's desire to select the parent may be considered as the "material change in circumstances". However the court will only consider the child's choice if at least two years have passed since the last custody determination. These aspects of the law can be seen in Georgia statute 19-9-3, article 5, which states: (5) In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply. Note that the expression "The child's selection for purposes of custody shall be presumptive unless..." is the same as saying that "the child's selection shall be controlling (the decision) unless...". As to children that are between 11 and 14 the law states as follows (Georgia statute 19-9-3, article 6) (6) In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child's desires shall not be controlling. The judge shall further have broad discretion as to how the child's desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling. The parental selection of a child who has reached the age of 11 but not 14 years shall not, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child. The judge may issue an order granting temporary custody to the selected parent for a trial period not to exceed six months regarding the custody of a child who has reached the age of 11 but not 14 years where the judge hearing the case determines such a temporary order is appropriate. (Note that a "guardian ad litem" is the same as a "legal guardian".) If the child is younger than 11, there is no expectation for the judge to consider the child’s preference when awarding custody. Besides the desire of the child, the judge may consider following factors listed under Georgia statute 19-9-3, article 3: (3) In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to: (A) The love, affection, bonding, and emotional ties existing between each parent and the child; (B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children; (C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child; (D) Each parent's knowledge and familiarity of the child and the child's needs; (E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent; (F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors; (G) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; (H) The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child; (I) The mental and physical health of each parent; (J) Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities; (K) Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child; (L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child; (M) Each parent's past performance and relative abilities for future performance of parenting responsibilities; (N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child; (O) Any recommendation by a court appointed custody evaluator or guardian ad litem; (P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and (Q) Any evidence of substance abuse by either parent. | There are several questions in the OP. The answers to all of them depend on the lease terms. If Person A wants out of the lease, is the only option to just try to negotiate a way out of their portion of the lease with the landlord, presumably by payment or other means? Yes, usually. Regardless of who is on the lease, Person A is on the lease. In order to terminate or break the lease, Person A will have to negotiate termination. Most residential leases provide for joint and several liability for lease obligations. That means the co-signed lease is like three non-exclusive leases, one each between landlord and Persons A, B, and C. So Person A has to find a way to break the Person A lease. Other than a breach by either party, that likely can only be done by negotiation with landlord. What rights do Person B and C have if Person A does stop paying? Absent some other relationship or understanding between them (that is, other than the lease,) likely none. Persons B and C are each fully responsible to pay all of the rent. In other words, as far as the landlord is concerned it does not matter who pays the rent as long as it gets paid. If it doesn't get paid, the landlord can evict and sue all 3 for non-payment of rent. But the lease likely does not discuss the relationships between A, B, and C - whether they pay pro rata by time in the unit, by space used, per capita, or whatever. Landlord doesn't care, and is not the counterparty to those decisions. That said, if there is a relationship between A, B, & C (for instance, if A & B had a contract describing who would pay what, and B entered into another contract with C,) that will determine their relative obligations. The landlord agrees to allow the lease to be amended for another person, person C to be on the lease. Person B negotiated this with the landlord without consent of person A. This may create liability between B to A, C to A, or B & C to A. It is even conceivable that it creates a liability from landlord to A, if A had a reasonable expectation that the lease would not be amended absent A's consent. And the amendment may not be enforceable against A. So, for instance, A may be able to kick C out of the unit and bar C from reentry. It will not effect A's liability to pay rent. | Either party can petition the appropriate court for an adjudication of paternity (if this has not already been established in connection with the issuance of the birth certificate), and for a parental responsibility and child support order, at any time, if no such order is in place (assuming that Pennsylvania is the "home state" of the child and venue is proper). Child custody and visitation rights are determined based upon the "best interests of the child" with very little other formal guidance from the statute or even case law which also affords a judge very broad, although not unlimited discretion in resolving the issue if the parents don't reach an agreement. Any parent who is not adjudicated to be "unfit" (whose parental rights would then be terminated), is entitled to some reasonable visitation under the circumstances at a minimum. In practice, courts tend to prefer to enter an order that preserves the pre-litigation status quo is one was established for any reasonable length of time. Once a custody and visitation schedule are established (logically, this is actually done contemporaneously), a child support award is also entered based upon the number of nights per year that the child spends with each parent, the income of each parent, and the extraordinary expenses, if any of the child, pursuant to guidelines that exist under state law but are federally mandated. Generally speaking, child support payments are quite small relative to the incomes of the parties. If a parent is willfully refusing to work or underemployed so as to reduce child support, in some circumstances, income that could have been earned is imputed to that parent for purposes of determining the appropriate amount of child support. There is a small body of civil procedure that goes to the nitty gritty of how this is handled after a petition is filed, but that really goes beyond the scope of the question. In the simplest case, only the two parents are involved in the litigation. But, there are circumstances in which there can be other parties. For example, if the child has been supported by welfare, a representative of the state is a party to make sure that child support is paid reducing the need for welfare payments or repaying welfare payments already made by the state. Guardians of an un-empancipated minor or disabled parent might participate. Grandparents can sometimes have standing to participate. A non-parent who has physical custody of the child would usually have standing to participate. This all gets a little technical, and since the question doesn't suggest any facts that would call for additional parties, I will leave it at that. In the event of a substantial change of circumstances after a statutory period after the last order was entered, a court may start over, more or less from scratch, and establish a modified child custody, visitation and child support order that reflects the changed circumstances. As a practical matter, for parents who are separated from shortly after the birth of a child and can't work things out between themselves, there will probably be several to half a dozen modification proceedings until the child is an adult. |
Can we copyright a product without revealing our identity? What I want to ask is if we can have product copyrighted without the public knowing our identity (only the government would know) or we can be traced back by our copyrighted product? Example like does GPL can be traced back to my identity? P/s:Sorry, guy with copyright condition like something like you can do anything to my work but leave the sentence on that when you done :'If you like it please support me to donate to me at xxx.xxx.xxx(many way to donate without identity (sorry because I'm wasting your time). Anyone ro im going to accept One of the answe | Anonymous/pseudonymous works are still copyrighted. See, for example, 17 U.S. Code § 302(c), which provides for the length of copyright for an anonymous or pseudonymous work - obviously, they wouldn't have such a clause if these works did not have copyright. And you don't need to register a copyright to have copyright. The copyright office has instructions on how to register an anonymous work. I'm not quite sure how that works; presumably you could keep the author secret, but I'm not sure if you can keep your registration secret. But even if you can somehow register while remaining anonymous, what if someone infringes your copyright? What are you going to do - sue them? You'll be listed as the plaintiff. Courts usually won't allow anonymous plaintiffs in lawsuits unless there is a very good reason. One thing you might try is creating a corporation to own the copyright. If you could somehow arrange the work to be a work-for-hire for the corporation, then only the corporation would appear in the copyright records. Then it's just a matter of making sure you aren't publicly linked with the corporation. You could probably get an attorney to help you with that. | Well, actually, fair use is maximally relevant. Copyright means, put simply, DO NOT COPY. Citing or not is irrelevant (plagiarism is a whole other non-legal kettle of fish). Technically, what you describe is violation of copyright. However, under section 107 of Title 17 (the copyright law), you could attempt to defend yourself against an infringement suit on the basis that your action was "fair use". See this LSE q&a for the essentials of fair use. | This is relatively uncharted legal territory, so until multiple cases establish some sort of precedent, we can only guess. I know of no legal requirement that a Browser or User has to submit cookies or referrer data or other meta-information accurately. In that regard, a user is unlikely to be prosecuted just for submitting HTTP headers. It is likely closely related to Free Speech issues. The DMCA spells out that it is illegal to circumvent copyright protection measures. While this law is typically used to make it illegal to copy DVDs, video-games or streaming movies, it is possible that the "3-free articles" policy could be interpreted as a copyright protection mechanism, and defeating it by changing HTTP headers is a circumvention. A good summary is here. A specific site's TOS (Terms of Service) probably contains language that spells out it is a violation to use the site in a manner other than as it is intended. This is a typical anti-hacking, anti-screen-scraping provision. Altering a browser session to circumvent their services is probably a violation of the license to access the site, and may open a user to a civil lawsuit for damages or even criminal hacking charges (the details of which are different state-to-state) | Admission of copying proves one of the elements that the plaintiffs would normally need to prove in an infringement suit, making a law suit less risky from their perspective. This may very well invite lawsuits that would otherwise not be filed. But, this is pure speculation. Your legal rights are the same, independent of how much you choose to reveal in advance of a lawsuit. If your copying doesn't amount to a substantial taking, then it isn't infringement, whether you admit to copying or not. | Yes, you do. But you should not base your claim primarily on copyright, but just on the license contract you agreed to. It's typically much easier to prove that a party did not fulfill its part of a sales contract (here: Pay the agreed amount) than to prove violation of a copyright you own. Also, you then only need to sue one guy, and not care about every platform your game might be hosted on. This is particularly difficult here, since they have not done anything wrong. It's not their fault that the publisher didn't properly pay the programmer. They (very likely) got their copy of the game legally. For details, you should consult a lawyer. We can't give you detailed legal advice. | If I make a working prototype and upload it on youtube will it prevent others from getting a patent on the idea? Generally yes. If the core information is accessible to the public, it becomes "prior art" and cannot be patented anymore by someone else. That includes you. Depending on local legislation, you have a small time window to apply for a patent (after disclosure) but if you don't, it's public domain and everybody is free to use it. If it's mainly code, you may be able to upload to Github and attach a license to it but that offers only limited protection. Globally? That depends on local legislation which there are too many of, to answer this here. | You have a false premise: "it offers the same conditions", and "MIT license is functionally equivalent to CC-BY". These premises are not true. CC-BY: applies to more than just software; it applies to artistic or literary work, databases, other material disclaims endorsement explicitly withholds moral rights explicitly does not license patent rights (MIT license gives anyone who obtains a copy of the software the right to use it, a patent right) prescribes the acceptable forms of attribution Those are just some of the differences. | Provided you are in one of the 170+ countries signatory to the Berne Convention (the current 10 non-signatories are, exhaustively: Eritrea, Marshall Islands, Nauru, Palau, San Marino, Iran, Iraq, Ethiopia, Somalia, and South Sudan), then copyright comes into existence at the moment a work is fixed in a tangible medium, not when it is published. The initial copyright owner is the author of the work. In cases of employment, the "author" might be the natural person who authored the work, or the corporate person who employed the natural author. To clarify your thinking about registration: copyright registration is a public record of authorship (or copyright ownership). Registration does not create a copyright, but is merely a recording of the copyright that was automatically created at the moment of original authorship. Depending on circumstances and jurisdiction, Alan might have a legitimate claim to copyright on his own work. However, he will be quite hard-pressed to find a convincing theory of law that allows him to publish the unpublished copyrighted work of other people without their permission. This leaves him either to admit defeat -- he cannot possibly own the copyright of his coworkers' code, so he cannot have legally reproduced it -- or else make the baldfaced lie that the code has no other authors other than Alan himself. For your company to disprove such a claim, you may employ sworn testimony of your coworkers, you may employ code analysis to show differing coding styles (suggestive of multiple authors), or you may show code backups or version control history showing the progressive authorship of the work over time by many people. (Sure, a Git history is possible to fake, but a realistic history with feature branches, "whoops, undid the typo in the last commit" messages, etc. would lend significant weight to your company being the original authors.) |
Is it a Copyright Infringement to commercially use a CC0 photo of a cosplay of a movie character? I want to use a photo of a cosplayer in my game. According to the Unsplash license, the photo is free to use commercially. But the character cosplayed is a property of Marvel. I will edit this photo (add brush strokes to simulate watercolor) and I won’t use the character from it anywhere besides the only screen with this edited photo. Is this a fair use or there are going to be issues with it? | A CC0 license granted by party A only waives their rights, and not those of unrelated party B (i.e. Marvel). And while Marvel might have granted the cosplayer a limited right to depict their persona's, that almost certainly does not constitute a sublicensable right. This is especially the case if the rights are implicitly granted (by Marvel not acting). | It's Problematic The castle is both copyright and trade mark of Disney. As a trade mark, you are not permitted to use it in a way that indicates that yours is a Disney product or affiliated with Disney - you are probably OK here. As a copyright, Disney has the exclusive right to make derivative works which is what your mosaic is. So, you either need Disney's permission or the work needs to fall under the fair use exemption. As a single domestic work which substantially changes the original it probably does but the only way to know for sure is get sued and win. If you go ahead I would ask your client to indemnify you, however, this is only effective to the extent that your client has the financial resources to defend the lawsuit or pay the damages. However, there is an alternative. The Cinderella Castle was inspired by real architecture, all of which is public domain. If you copy one of these castles (e.g. Neuschwanstein Castle) you have no issues with Disney and only a true fanatic would notice the difference. | Let’s work it through Is the work copyright? Yes. Are you making a copy or a derivative work? Yes. Do you have permission? No. At this point, it is prima facie copyright violation. However, various copyright laws have defences for breach. You don’t say where you are but as the USA is the most permissive in this regard we’ll use the USA. If it’s not legal there, it’s not legal anywhere. If it is legal there, it’s still likely to be not legal everywhere else. is it fair use? Almost certainly not. Wizards of the Coast (the copyright owner) already do this. While this service is free for creatures from the Monster Manual, it does drive traffic to their web site where they sell stuff. They also licence (presumably for money) others to do the same. Your usage would negatively affect the copyright owners market. This counts against fair use. Because it’s already being done, your work has virtually nil transformative value. This counts against fair use. You are copying a substantial part of the work. This counts against fair use. You are not using it commercially but neither is it for educational use. This is unlikely to matter. On balance: not fair use. TL;DR This is copyright violation. | I would argue that no, there is no copyright for the restored work. Independent copyright is only possible for any original material added, as previously discussed on this site. In this case, the added work was a technical process rather than a creative process, and technical processes cannot be protected by copyright. Copyright licenses would therefore be ineffective. However, I believe one could still impose a license based on owning the copy as opposed to the copyright (contract might be a better term in this case). However, if a third party managed to obtain a copy through some other avenue, any such contract would not be binding on them and nothing could be enforced against them unlike with copyright laws. Another way a license might be imposed is through patent protections, as technical processes can be protected via patents. However, I'm not as familiar with patent law, and this doesn't appear to be the claim being made. | It doesn't make a difference if the product is free or commercial use, if it's initiated by a company or an individual. What you are considering would be a "derivative work" and without explicit permission from the copyright holder, it is considered a violation. | You can do whatever you like with posts made after you change the rules - you have to leave the previous stuff alone. The contributors' have accepted the terms of the licence: They own the copyright or have permission from the copyright holder to post it (the promise) They agree that it can be edited altered or removed CC-BY-SA allows people to copy the stuff off the website and republish it - this is way outside what the contributors agreed to. These people have given permission for their work to be altered but not copied. | The Copyright Act provides the freedom of panorama for certain works displayed in public in Canada but limits it to buildings, sculptures or "work of artistic craftsmanship" and do not apply to paintings and generally other two-dimensional works. 32.2 (1) It is not an infringement of copyright ... (b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work (i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or (ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building However, taking a photo or even posting it may not be illegal if it is for private non-commercial purposes. Taking a photo of a painting in a public space for private purposes without dissemination is not an infringement in Canada, even if the painting is the main subject. The Act (section 29.22) explicitly allows reproduction of works for private non-commercial purposes as long as the reproduction is based on an legal copy, the reproduction is not given away to others and no DRM measures were circumvented. If a new work of creative nature is created by your photograph (i.e. the photo is not simply a substantial copy of the painting), another non-commercial exception may be applicable. Section 29.21 allows an individual to use an existing work [...], which has been [..] made available to the public, in the creation of a new work [...] in which copyright subsists and for the individual [...] to authorize an intermediary to disseminate it [...]" provided certain conditions are fulfilled (non-commercial purpose, legal copy, source is acknowledged, no substantial adverse impact on artist's ability to gain benefits from their works). This section is explicitly created to allow individuals to post user-generated contents on social media that incorporates parts of protected works (e.g. incidental background music or many memes in general). | If the image is protected by copyright (as most modern images are), the uploading it as a profile picture or using it on a web site is copyright infringement unless one has permission from the copyright owner, or an exception to copyright applies. If copyright infringement occurs, the owner can sue for damages, or issue a takedown notice, or both, but does not have to do either. In the vast majority of cases, no one will do anything about such infringements if the owner (or the owner's authorized agent) does not. All the above is true in all of Europe and North America, ad in most other countries as well. Permission can be granted directly by the copyright owner to a user, or granted by the owner releasing the image (or other wrk) under a license. Google's general developer TOS Document](https://policies.google.com/terms#toc-content) reads (in relevant part): Google content Some of our services include content that belongs to Google — for example, many of the visual illustrations you see in Google Maps. You may use Google’s content as allowed by these terms and any service-specific additional terms, but we retain any intellectual property rights that we have in our content. Don’t remove, obscure, or alter any of our branding, logos, or legal notices. If you want to use our branding or logos, please see the Google Brand Permissions page. Other content Finally, some of our services give you access to content that belongs to other people or organizations — for example, a store owner’s description of their own business, or a newspaper article displayed in Google News. You may not use this content without that person or organization’s permission, or as otherwise allowed by law. The views expressed in other people or organizations’ content are theirs, and don’t necessarily reflect Google’s views. It would seem that each Google service has its own terms which indicate in what ways one may use Google content. It would further seem that content originally obtained from others and distributed by Google will have some set of permissions granted by the uploader. These must be checked for each image, I would think. There is no single one-rule-fits-all answer. I gather that the APIs will have methods for determining which images are from Google itself, and which from others, and some method for indicating the permissions that accompany an image. A user of these APIs must learn how to extract ownership and permissions metadata for an image obtained via the API, and how to use it (or not use it) in accordance with the available permissions. Now let us look at exceptions to copyright. These vary by country. Several European countries have an exception for "personal use" which might cover the profile pictures, but probably will not cover general use on a web site. There are exceptions for "news reporting" which might cover images illustrating recent news events. Some have exceptions for educational or instructional use. The UK (and several othe countries) have the concept of fair dealing which bundles several exceptions together. This might cover an image used in a personal profile, use of images in news reports, and limited educational use, but will probably not cover general use on a website. The US has the concept of fair use which is rather complex, but does not specifically include a "personal use" exception. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? and other threads here tagged with fair-use for more on this. It is somewhat unlikely that any of these exceptions will cover general use on a web site of images obtained via Google APIs and used beyond the permissions listed in the metadata accompanying the image. But it will very much depend on the specifics of the case. If the image fetching is doe not by you in building a site or an app, but by your app's users who may then use them improperly, strictly speaking that is each user's own responsibility, you cannot effectively police what your users do, and have no duty to try. It will be a good practice if you include text explaining to your users that not all images are free for general use. You might want to link to the Google TOS. If the API returns metadata indicating the permissions status of each image fetched, yo0u might well want to provide this metadata in a useful form to your users. You might even want to allow a user to filter images obtained by permission status. But whether this is practical or useful to users will depend on the purpose and design of an app. |
Are so-called "BDSM Contracts" legally enforceable? What specific laws would forbid this? This is a serious question, and I'm hoping and thinking the answer is no, but I was hoping to get perspective. I heard from someone online claiming to be a law student that they might be, and I was disturbed at the thought that a court could potentially enforce physical contact. For a specific example, let's say there's a contract that allows one party to spank the other at their discretion. Let's also say that the victim in this contract also receives some monthly stipend (just to take care of the "consideration" rules, maybe $200). Let's also say there's some sort of outrageous, one-sided termination clause--like $100,000 for the victim to terminate the contract. I'm thinking this wouldn't be enforceable for the following reasons: Spanking an adult constitutes battery/assault, which is a criminal offense, and a contract cannot have terms that are illegal or criminal. If there was a prior romantic relationship between the two parties, the contract might have been made under coercion (I'm not sure of the exact terms, obviously IANAL) The outrageous, one-sided termination clause might be used as evidence the contract was signed under duress, or it might violate some other principle that would void the contract I'm mostly interested in what specific laws/legal principles would prevent this from being enforced, or if I'm wrong and the law student was actually right. Thanks! | Sexual contact that is not consented to is a crime. Physical contact where the receiver is under the apprehension of imminent risk is the crime of battery. However, spanking in the context of a consensual sexual encounter does not have that apprehension and is therefore not battery. It is akin to the consent given by people who take part in a contact sport. Contracts cannot permit criminal actions. The permission given by the submissive in this agreement would be valid only at that point in time that the contract was made and could be revoked at any time: such revocation could be explicit or implicit. As continuous consent is required for a sexual act and revocation of permission would introduce the apprehension of harm. Whenever the permission was revoked the agreement would be unenforceable. At best, you have a agreement that is enforceable when the permissive wants it to be and not otherwise: more likely, you have a totally unenforceable agreement. More generally, contracts that involve sex acts as consideration are enforceable to the extent that prostitution is legal in the jurisdiction. However, an order for specific performance would not be granted where either of the parties was no longer consenting to the sex act because that would be a court order to commit a crime. Other remedies for breach like damages would be available. For example, if you contracted with a prostitute and refused to pay for services delivered, you could be successfully sued for the fee, any damages, costs and interest. | Since this apparently amends the law giving colleges and universities the power to adopt and enforced various regulations, what it really means is that if such an institution adopts a rule in violation of this law, it may not legally enforce that law. It might also give an affected student a right to sue if such a rule is adopted and enforced. As a comment by ohwilleke mentions, such a law might well authorize a court to issue an injunction forbidding the institution from enforcing the kind of rule prohibited by the law. Note that it is not at all uncommon to have "or else" provisions in different sections of the law. For example Section 123 of the (hypothetical) New France state code might prohibit having a faked driver's license, section 124 prohibit obtaining a license through false or misleading statements on nthe application, and section 458 say "anyone who violates sections 123, 124, 125, or 126 shall be fined up to $2,000, or imprisoned for up to 1 year, or both, as a court may think just". Thus it is not always easy to find what penalties, if any, apply to a code section. | I gather that the numerous ramifications you outline are merely contexts and that your main concern is about the application of contract law (contract law in the U.S. does not really vary among states). Thus, I will not really delve in the intricacies of --for instance-- privacy or copyright issues arising from the commercial use of a person's likeness that you mention in one of the scenarios. As a starting point, one needs to bear in mind that: a contract is an exchange of considerations under terms and conditions entered knowingly and willfully by the parties, which can be evidenced by the parties' subsequent conduct (that is, not just by signing a document); and a contract is unenforceable if it contravenes public policy and/or the covenant of good faith and fair dealing. Accordingly, the questions are (1) whether a person knew or reasonably should have known about the terms & conditions at or by the time of those events which trigger obligations pursuant to the contract; and (2) whether the provisions therein are unreasonable, illegal, or tantamount to a penalty, especially in the event that the party breaches or repudiates the alleged contract (see the Restatement (Second) of Contracts at § 356(2)). The scenario of house for sale entails various difficulties as per contract law and otherwise. Here are some of those issues: Are visitors properly (including "beforehand") notified about the "walkway clause"? If not, the contract is void because it cannot be said that visitors knew about & accepted that condition. Does the house provide alternatives for lawful & informed visitors to safely avoid the walkway? If not, then the seller/owner might end up incurring premises liability with respect to those visitors who get injured in making their reasonable effort not to trigger the "walkway clause". Is the house owner realistically able to prove that use of the walkway by lawful & informed visitors is sufficiently "inconsistent with the offeror's ownership of offered property" so that triggering a house sale is a reasonable consequence (see Restatement at §69(2))? Is the owner-imposed mortgage rate compliant with state law pertaining to granting of credit & loans? These exemplify only some of the burdensome complications when trying to enforce "contracts" which are extravagant or quite one-sided. Lastly, as a side note, the presumption that a person reading the poster and walking in the intended area does not thereby receive consideration is not necessarily accurate. As an example, the "intended area" could have been devised by an entity in the business of enjoyment and recreation, such as a private park. The person who deliberately walks in (regardless of whether he read the poster) certainly receives a consideration, which is the amusement or recreation for which the park was designed. | The basic option that one has when a contract has been breached is that the harmed party sues the damaging party, seeking compensation. Sometimes, contracts contain arbitration clauses which limits how disputes can be resolved – for example "disputes shall be subject to binding arbitration by Jones Arbicorp". Whether or not such a clause is legal would depend on the jurisdiction. A clause which states that there can be no legal remediation of breach means that the contract would be unenforceable, and is not in fact a contract. Courts generally strive to construe anything that looks like a contract as being a contract, and they can set aside a particular aspect of a contract. If the other party attempted to have the suit thrown out because of a "there is no remedy" clause, the court would most likely find that to not be a valid term in the contract. It does depends on what exactly the clause says. Your attorney would need to look at the language of the contract to advise you as to the best course of action (asking us for legal advice makes the question off-topic). | Severability My understand [sic] of contract law in general, is that an illegal or unenforceable clause does not render the whole contract void, but rather that specific clause is essentially stricken out, as if it did not exist. This is not true. Or, at least, not necessarily true. The courts, when interpreting a contract, try to give effect to the parties intentions. Or, more precisely, what an impartial, reasonable person would conclude their intentions at the time were based on the evidence. A contract is a set of mutual promises - if one of those promises is unenforceable, was it the parties intention that: the remainder be enforced, or absent that promise, they would not have made a deal, or they would have made a different deal, say, at a different price? It’s hard to make general statements about severability because they turn on the particular facts of each case. However, the common law doctrine is that severance means severance - you can take words out, but you can’t add words in or change the meaning of words you left behind. If doing that leaves nonsense, then the clause can’t be severed, and the whole contract is void. Further, what’s left must still be a contract. If the severed portion leaves a remainder that does not meet the requirements of a contract (e.g. because the severance totally removed one party’s consideration), then the whole contract is void. Similarly, if the severed item is central to the purpose of the contract, then the whole contract is void. Finally, at least in Common Law countries, there is a difference between provisions that are unenforcable (e.g. unfair restraint of trade clauses) and those that are illegal (e.g. your murder before resignation clause). In most jurisdictions, if a provision is unenforcable at common law or through statute, severability is an option. However, if the provision is illegal, then responses differ. In England and Wales, a provision that requires criminality or the commission of a tort cannot be severed - the illegality 'infects' the entire contract and makes the whole thing void. However, in Australia, the degree of illegality matters - heinous illegality infects the entire contract, but incidental illegality may not. For example, see REW08 Projects Pty Ltd v PNC Lifestyle Investments PTY LTD [2017] NSWCA 269 [23 October 2017] - the NSW Court of Appeal ruled that a property sale that contained clauses designed (by both parties) to defraud the state of Stamp Duty was nevertheless enforceable against the vendor - this would likely have been decided the other way in England and Wales. Of course, many contracts make express provision for unenforcable terms in what are known as severability clauses. These can go further than mere severance and allow the court to add words or even redraft entire sections to preserve the contract. However, this is not a panacea because what you agreed to in your severability clause may not be what you thought you agreed to when the rubber hits the road. For example, when you are forced to sell your Picasso for the 1,000USD deposit only, and you can't get the 100,000,000,000 Iranian Rial balance due to US sanctions. Therefore, deliberately leaving unenforcable provisions in a contract is dangerous because you don't know what you are going to get. However, is it unlawful? Well, that depends. There is nothing wrong with making legally unenforceable agreements. You and I can agree to go to the movies this Thursday. That's an unenforcable social arrangement, not a contract. If you stand me up, I can't sue you even if I bought popcorn for you. Similarly, there is no prohibition on having unenforcable terms in an otherwise legally binding contract, particularly if everyone knows they are unenforcable. Indeed, many large contracts are accompanied by Memorandums of Understanding that are unenforcable statements about how various organisations intend to work together to give effect to the contract. However, if the term is included to be deceptive or misleading by one party against the other (intentionally or otherwise), there may be legal consequences. A person who was misled into entering a contract may be able to have that contract declared void. Also, many jurisdictions make misleading and deceptive conduct in trade or commerce an offence. | Yes There is no general legal prohibition on perpetual contracts. What you describe is not a perpetual contract A perpetual contract is one where at least one parties obligations are indefinitely ongoing and there is no mechanism in the contract (outside breach or repudiation) for terminating it. The contract you describe has a mechanism for termination albeit only available to one party. Perpetual contracts can be entered into knowingly and willingly - most perpetuities, where a person leaves the income on an investment to a university or charity forever subject to conditions, are of this type. Or they can be entered into accidentally, for example, a fixed term contract with an automatic renewal where the renewal term is not specified is a perpetual contract. The important point is there must be no explicit mechanism in the contract for bringing the contract to an end for it to be a perpetual contract. In commercial arrangements, courts may imply a term that the parties can terminate on reasonable notice but this is subject to all the normal limitations. Your example As described, because there is an explicit term allowing termination, this is not a perpetual contract. Such a contract would be subject to the normal common law doctrine of unconscionably (which it almost certainly is) and, in some jurisdictions, consumer protection laws against unfair contract terms. | On what grounds would you sue? Contract Well, I think that you would struggle to find the necessary elements (see What is a contract and what is required for them to be valid?) In particular, you would struggle to prove that there was intention to create legal relations on their part and possibly on yours. Are you able to identify in your "back & forth" a clear, unequivocal offer and acceptance? Without knowing the details of the "back & forth": I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works appears on the face of it to be a request for a gift; not an offer to treat. Promissory Estoppel If you don't have a contract then it is possible (IMO unlikely) that they induced you by your actions to commit resources (your time in writing) in anticipation of a reward (them publishing what you wrote). To be estopped they would have to have known that you were writing the article in the expectation that it would have your organisation's name in it, that they did not intend for that to happen and that they allowed you to invest those resources notwithstanding. If you can prove all of that then you can require them to do what they promised. The big difficulty I see in this is did you tell them that a) you were writing the article, b) it would have your name in it and c) you expected it to be published in that form. Copyright If they publish the work or a derivative work without your permission you can sue for breach of copyright. As it stands, they probably have an implied licence to publish and you would need to explicitly revoke that. Options There are two reasons to go to court: Money Principle If you are going to court for money then this is at best a risky investment and at worst a gamble: balance your risk and reward carefully. If you are going to court for a principle then I simultaneously admire your principles and think you're an idiot. Make a deal Explain that the reason that you wrote the article was a) to support their fine publication and the fantastic work it does (even if you don't) and b) to garner good publicity for your organisation. You understand and admire their strong editorial stance (especially if you don't) but the article involved a considerable amount of work and could they see their way clear to give you a significant discount (~80%) on a full page ad facing the article. | Does an agreement in a chat count as a valid contract? In most jurisdictions (and for most transactions): yes. Usually the only thing that matters for a valid contract is that there is a mutual agreement – whether that is in writing, orally, via chat or via sign language does not matter. Of course, having things in writing makes it easier to prove in court if there is a problem, so it's still advisable. What steps could I take if they don't send the money? You can: remind them to pay if they still don't pay, you can sue them. Some juridictions have accelerated court proceedings for simple cases like this (e.g. Gerichtliches Mahnverfahren in Germany), otherwise you will have to sue in a regular court that deals with contract disputes. But I have no names and I am unsure what they can or have to do after they received the package. This is going to be the main problem. It's no good to enter into a contract if you do not know who the other party is :-). You definitely need to find out who exactly entered into an agreement with you. If the sale is to a private person, find out their name and address. If the sale is to a business (seems to be the case here), find the official name and legal type of the business, and make sure whoever you deal with is authorized to enter into contracts. Otherwise the contract will be hard to enforce in court if things go wrong. |
Is it legal for civilians to pull (point) guns on each other? This answer from a guy who often has to visit private properties in the rural US has made me wonder what, if any, offence a regular civilian (not a policeman etc.) commits by pulling (that is pointing) a gun on someone they see for the first time and who does not appear to have any weapons and does not appear threatening to a reasonable person. To begin with, let's assume that the gun holder: Stands on his own backyard or driveway (i.e. not inside his house); the target stands there too; and Does not say anything when pulling the gun, or simply demands the target person to leave. Variations: The gun holder verbally threatens to injure or kill; Target is on a public road; Both the gun holder and target are on a public road. If the answer varies from state to state please focus on Tennessee and North Carolina, but it would be also interesting to hear of any edge cases. | Depending on the state, menacing may be a separate offense from assault. For example, here is New York State's law on menacing (New York Consolidated Laws, Penal Law - PEN §120.13–16): §120.13: A person is guilty of menacing in the first degree when he or she commits the crime of menacing in the second degree and has been previously convicted of the crime of menacing in the second degree or the crime of menacing a police officer or peace officer within the preceding ten years. Menacing in the first degree is a class E felony. §120.14: A person is guilty of menacing in the second degree when: 1. He or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or 2. He or she repeatedly follows a person or engages in a course of conduct or repeatedly commits acts over a period of time intentionally placing or attempting to place another person in reasonable fear of physical injury, serious physical injury or death; or 3. He or she commits the crime of menacing in the third degree in violation of that part of a duly served order of protection, or such order which the defendant has actual knowledge of because he or she was present in court when such order was issued, pursuant to article eight of the family court act, section 530.12 of the criminal procedure law , or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, which directed the respondent or defendant to stay away from the person or persons on whose behalf the order was issued. Menacing in the second degree is a class A misdemeanor. §120.15: A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury. Menacing in the third degree is a class B misdemeanor. However, not all states define menacing separately from assault, and the exact definition varies by state. | It looks like this is covered by article 34 of the criminal code you linked: ARTICULO 34. - No son punibles: [...] El que obrare en defensa propia o de sus derechos, siempre que concurrieren las siguientes circunstancias: a) Agresión ilegítima; b) Necesidad racional del medio empleado para impedirla o repelerla; c) Falta de provocación suficiente por parte del que se defiende. Se entenderá que concurren estas circunstancias respecto de aquel que durante la noche rechazare el escalamiento o fractura de los cercados, paredes o entradas de su casa, o departamento habitado o de sus dependencias, cualquiera que sea el daño ocasionado al agresor. Igualmente respecto de aquel que encontrare a un extraño dentro de su hogar, siempre que haya resistencia; English (my translation, no guarantees): ARTICLE 34 - Not punished are: [...] Someone who acts in self-defense or in defense of their rights, as long as the following circumstances apply: a) illegitimate aggression b) a rational need for the means used for preventing or repelling the aggression c) a lack of sufficient provocation on the part of the defender It is understood that these circumstances apply with respect to someone who during the night defends from a housebreaking or a breach of the enclosure, the walls or entrances to their home, or the home of their dependents, no matter what damage is caused to the attacker. Reading these rules, which look quite similar to the law in most other countries, I'd say shooting an armed intruder would be covered. It would probably already be covered under the general rules ( a) to c) ): There is an illegitimate aggression, and shooting is necessary for stopping the agressor, because no milder means is practical in the situation. Additionally, the last paragraph would apply, which provides additional protection to someone defending their home, so even if a judge decided that normally shooting someone attacking with a knife is not necessary for protection, it would still be ok for home defence. | Are minors allowed to possess handguns in Oregon? Yes, with exceptions, although they may not purchase or own handguns, and are not permitted to conceal carry handguns. Oregon Revised Statutes § 166.470 prohibits any person from intentionally selling, delivering, or otherwise transferring a handgun to anyone under 21 years of age, ORS § 166.470(1)(a), except the temporary transfer of any firearm to a minor for hunting, target practice, or any other lawful purpose. ORS § 166.470(3)(b). The other primary statute that is relevant is Oregon Revised Statutes § 166.250 which also provides that minors may possess any firearm temporarily for hunting, target practice, or any other lawful purpose. ORS § 166.250(2)(a)(B). But, despite this general rule, a minor may not possess a firearm if they are under 18 years of age, and while a minor, committed the equivalent of an adult felony or a misdemeanor involving violence, within four years of being charged with possession. ORS § 166.250(1)(c). (Source). | Is it illegal to open carry Hinged Handcuffs? england-and-wales No, but there use may constitute an assault or false imprisonment if one cannot justify their application was reasonable, proportionate and necessary in the circumstances. A civilian can lawfully use reasonable force if the conditions of s.3 of the Criminal Law Act 1977 are met: (1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. | Knife laws in the United States are notoriously ambiguous, often vary at the municipality level, and enforcement can best be described as capricious. I can't put it better than this eye-opening answer I found on Quora: Don't ask anybody what the law is about knives. Not even the police. There's so much misinformation floating around out there. ... Check the law yourself. Not just state law, but local law for any county or city you stop in or pass through. I was tasked with writing a weapons policy for my security department, my former employer. I checked the Code of Maryland Regulations and found a mess. Knives are considered tools, not weapons, unless and until one uses or intends to use a knife as a weapon; knives are legal regardless of blade length; folding knives may be carried concealed, but fixed knives must be carried open; switchblades and balisongs are not OK, but no mention of gravity knives, locking mechanisms, or assisted-open mechanisms. I carried my S&W assisted-open knife everywhere, including into Baltimore City several times. Then Freddie Gray was arrested for carrying one and died in custody. A whole lot of people thought the arresting officer had made an unlawful arrest, based on the state law, including the Baltimore City prosecutor … until someone bothered to check the city law and found that assisted-open knives are illegal in Baltimore City. The arrest was a good one. And I left my knife in my car from then on whenever I went into that town. (I have on occasion asked police about knife laws. In every case the officer has declined to answer whether a particular knife or carry practice was legal.) | Is it true that a teacher can't engage/attack a shooter from behind during a school shooting that is in progress? No. Any use of force of any kind that only harms or kills the shooter who is actively engaged in a school shooting (and indeed, even if it caused bodily injury that isn't grave or deadly to someone else who is innocent) is always justified. You can't shoot someone who is not an ongoing threat to others if they flee, in order to arrest or punish them (e.g. an unarmed shoplifter), but under the leading constitutional case, Tennessee v. Garner, this limitation doesn't apply to murderers and mass shooters anyway, at least if they continue to pose a future threat. | In South Carolina for example the law says A permit holder must have his permit identification card in his possession whenever he carries a concealable weapon. When carrying a concealable weapon pursuant to Article 4, Chapter 31, Title 23, a permit holder must inform a law enforcement officer of the fact that he is a permit holder and present the permit identification card when an officer: (1) identifies himself as a law enforcement officer; and (2) requests identification or a driver’s license from a permit holder. In Washington, on the other hand, the law simply requires a permit (or the gun must be locked in the trunk), and you have no obilgation to volunteer such information. Some states allow local options, e.g. NY generally has no duty to inform law but apparently Buffalo, Rochester and NYC do. It's pretty complex, because there is variation in exactly what laws say depending on whether the gun is loaded, or whether it is concealed, or in the trunk. | I feel that a person, not the subject of arrest, should be protected by the 4th amendment if they choose to remain in their vehicle, even if “ordered” to exit the vehicle by an officer. The intuition is fine, but is basically incorrect. I’m most interested to know: How would a driver (1) Politely (2) determine if a given instruction to exit the vehicle must be complied with, and (3) decline the instruction without giving the officer “cause” or otherwise damaging a potential case? From a practical perspective the only workable response is to comply. There are times when this is done without a reasonable suspicion (or in some cases probable cause) or other legal basis, but it is pretty much impossible for you to dispute this one the spot. Most of the time, the officer will have the legal authority to order you to leave the vehicle. If they order you to exit the vehicle despite not having the legal authority to do so, the right course of action is to comply and then to file a complaint with the agency employing the officer or to bring a civil lawsuit against the officer. There are good answers to a basically duplicate question at How can you tell if you have to follow a police officer's instructions? |
Can a Chrismas gift be taken back several years later? My now ex-girlfriend who does not live with me, yet who has stayed here for several weeks at a time as she resides in another state, gave me a TV for Christmas and, now that the relationship has ended, wants to take it back. Also she took it upon herself to redecorate a bathroom, shower curtain, several towels, a sign and several knick-knacks which she also wants. Does she have a legal claim to these things? | A gift creates a permanent transfer of title from the giver to the receiver. That is, a gift cannot be taken back. To be a gift there must be: Intention of donor to give the gift to the donee (donative intent) Delivery of gift to donee. Acceptance of gift by donee. If, at the time of the gift(s) you and your ex were not living together then there should be no doubt that everything you mention would be a gift. However, if you were living together then it is not clear that they are. If the TV were wrapped and given on Christmas with a card saying “To you, Love me” then it’s a gift. If it was bought for “our place” then it probably belongs to both of you. Similarly for the bathroom fittings. | There is something wrong-sounding about that claim. Owning a thing (such as a book) means that you can dispose of it however you want. If it is a physical book, then unless this is a book of top secret classified information, the US government has no control over the item, nor does the copyright holder have any right to prevent you from giving away your copy. Electronic books, however, are another matter, since often you don't buy such books, you buy a license to use the book (like a software license). The license terms of an electronic book could be subject to various controls, and the license might be non-transferable. The underlying logic of this is that under the doctrine of first sale, you are allowed to do whatever you want with intellectual property that you buy, and therefore to restrict re-distribution of electronic IP, software especially is typically not itself sold, and just the permission to use it is. If this is an electronic book, the copyright holder would be able (though not necessarily willing) to permit you to transfer your copy to someone else. Of course you can't give a copy to two people unless you have two licenses. | Not returning a payment made in error may amount to theft. s.5(4) of the Theft Act 1968 covers this scenario: Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. And the leading case law is A-G Ref (No 1 of 1983) [1985] QB 182 where, in similar circumstances: The defendant, a police woman, received an overpayment in her wages by mistake. She had noticed that she had received more than she was entitled to but did not say anything to her employer. She did not withdraw any of the money from her bank account. The trial judge directed the jury to acquit. The Attorney General referred a question to the Court of Appeal. Held [on appeal]: It was possible for a theft conviction to arise where the defendant had not withdrawn the money. There was a legal obligation to return the money received by mistake. | It isn't necessarily "illegal" (in the sense you are committing a crime) but you may be in violation of a verbal contract (which would fall under tort law). Let's take this a bit further. Perhaps Joe Schmoe gave you his debit card information so that you could make deposits for him and he said you could take $5 out for yourself for the trouble. This is a contract between you and Joe for a service. You can't extend Joe's offer to Jane Doe by saying "here is some debit card information, take $2.50 out for yourself". You have no right to extend your contract with Joe to somebody else. Now specifically for passwords it basically boils down to the same thing. Unless Joe gives you explicit permission to give that to somebody else, you can't just decide to unilaterally give what Joe gave you to somebody else. This may be different if Joe said "here, I'm buying you a subscription to service XYZ because you are a nice guy", this may be construed as a gift which transfers ownership. At that point you have control over what is or isn't done with the account. As another example let's say Joe let you borrow his car. You can't turn around and say to Jane, "here's a car you can use", Joe did not extend the offer to Jane, nor did Joe give you the right to extend the offer to another person. It's a moot point though, in the original context of this question, Netflix does restrict you from sharing your passwords "outside your household". Almost every paid service has some restriction against sharing with others. In the end Netflix may shut off Joe's account and Joe may sue you for damages, but you aren't going to be thrown in jail for this. This would be a civil case (tort) which you may be liable for monetary damages. | Canadian law defines "theft" thus: Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (to deprive the owner, pledge as security, mess it up) In this case, you accepted what seemed to be an offer of a free pizza, so if you took and consumed the pizza you did so with a colorable claim of right and without fraud. Perhaps you misunderstood, but it is not a crime to misunderstand another person's intent. They could sue you for the cost of the pizza (assuming that you took it and did not pay), in which case the question would be whether whatever they said to you could reasonably be interpreted as an offer of a free pizza (if not, pay for the pizza). As an advertising stunt, this would not be unusual. However, if they fix the pizza but then demand money before handing over the pizza, you now know that you have no right to the pizza (if you abscond with the pizza in that circumstance, it would be theft). You may of course pay for the pizza, but you can also not pay and not take the pizza. Again, they could sue you, and in this case your defense would be that there was no contract (no agreement). An important question would be how reasonable it is to believe that you were offered a free pizza. People are offered "free" steak dinners all the time (at the cost of sitting through a sales pitch), so that is a reasonable belief. If a Lexus yacht salesman appears to be offering you a free $5M yacht, it is not reasonable to think that this is an ordinary advertising stunt, if you're not a celebrity. | is this even legal? It is legal, but at the same time the contract is voidable by you. This means that if the buyer rejects the EULA, he is entitled to return the unused product and be reimbursed. Obviously once the buyer has used the product, the conclusion will be that he accepted the EULA and therefore no longer can void the contract. The buyer's entitlement to rescind the contract compensates for the fact that he was not duly informed about the conditions prior to making the purchase. | Yes That would be a gift from you to them which may have tax implications of its own. They can theoretically refuse to accept the gift but the IRS is not going to give the money back. | Two people exchanging goods or services on a commercial basis and then pretending it was two gifts is tax evasion. It's not a gift. It's a commercial sale that you lie about by 'putting' a different 'label' on it. Sometimes two people will give mutual gifts, e.g. if you come to my wedding: I give you dinner, you give me some kitchenware. Yet there's nothing commercial about it. So that's not income for either party. However, if you're talking about two businesses making sales to each other, that is very much income, regardless of what you badge it. |
Legal to "drive" without a license Simeone v. Lindsay, 65 Atl. 778, 779; Hannigan v. Wright, 63 Atl. 234, 236: The RIGHT of the citizen to DRIVE on the public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality is a FUNDAMENTAL CONSTITUTIONAL RIGHT which must be protected by the courts. People v. Horton 14 Cal. App. 3rd 667 (1971): The right to make use of an automobile as a vehicle of travel long the highways of the state, is no longer an open question. The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling in some other vehicle. No where does it specify you can only travel as a passenger, where is the confusion coming from that you can ONLY travel freely by public conveyance or as a passenger? | Apparently, people are citing these cases for the proposition that there is a right to drive a car without a license (several facebook accounts making this claim have been shut down and a document making this argument is signed with the Biblical name of God). This is frivolous poppycock reserved for conspiracy theory crackpots that also never works. A lawyer who tried to make an argument like this in court would probably be sanctioned by the trial court judge for making a frivolous argument, and might even risk suspension of his license to practice law, unless he made clear that he was arguing for a change in the law that is not supported by any current law. Like all rights, the right to travel, including the right to travel by motor vehicle, is subject to reasonable restrictions which include the requirement that one have a driver's license that is currently valid. No court has ever held that having a traffic code regulating the use of motor vehicles on public roads is unconstitutional, nor has any court every held that the government may not obstruct public roads in a reasonable manner for purposes such as maintenance, parades, and the like. The question in People v. Horton (the correct citation to which is 14 Cal.App.3d 930, 92 Cal.Rptr. 666 and not the one cited that conflates two separate citations in different reporters to the same case), entered by an intermediate appellate court in California on January 29, 1971, is whether a search of an occupant of a motor vehicle requires probable cause under the 4th Amendment as incorporated by the 14th Amendment to apply to the states, and under parallel California constitutional provisions, and it hold that even occupants of motor vehicles have a 4th Amendment expectation of privacy despite the exigent circumstances associated with a motor vehicle. A more complete quotation from the case states: Applying these principles to the instant case, we are impelled to conclude that Officer Winfrey did not have legal cause to stop appellant's automobile. Appellant was driving within the legal speed limits, not erratically, and there were no visible operational defects on the vehicle. Furthermore, although the officer observed two young passengers in the vehicle, he saw no furtive or suspicious movements and he had no information that the youths were being kidnaped, detained or molested in any manner. In fact, the only reason given by Winfrey for stopping appellant was that appellant was driving a vehicle along the streets of Modesto at 1:15 in the morning with two young passengers and that he did not look old enough to be their parent or guardian. Clearly, even if we should assume that what the officer observed constituted unusual activity, and it is difficult to make such an assumption in this modern age, the activity alone did not suggest that it was related to criminality. The Attorney General argues that Officer Winfrey had reasonable cause to stop appellant's vehicle on suspicion that appellant was aiding and abetting his two young passengers to loiter in violation of the municipal ordinance of the City of Modesto. However, driving along city streets, even at 1:15 in the morning, is not “loitering.” (In re Cregler, 56 Cal.2d 308, 312 [14 Cal.Rptr. 289, 363 P.2d 305]; In re Hoffman, 67 Cal.2d 845, 853 [64 Cal.Rptr. 97, 434 P.2d 353].) For all that Officer Winfrey knew, appellant could have been driving his two young passengers home from a theater or other authorized place of amusement. We are not insensitive to the numerous problems which face police officers on patrol in a mechanized nation. As we stated in Bramlette v. Superior Court, 273 Cal.App.2d 799, 804 [78 Cal.Rptr. 532], “[t]he use *934 of the automobile in criminal activity has vastly increased the possibility of unlawful conduct, and the likelihood of escape by criminals from the scene of their crimes.” Moreover, we are cognizant of the fact that the great majority of police officers assume the grave responsibility which our society has foisted upon them in a courageous and conscientious manner. Nonetheless, the right of the citizen to drive on a public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality, is a fundamental constitutional right which must be protected by the courts. Consequently, while we do not censure Officer Winfrey or question his motives, the fact remains that he stopped appellant's vehicle solely because it was occupied by young people. Were we to condone the stopping of vehicles for this reason alone, no matter how altruistic the officer's motive might be, we would lend our approval to the creation of a second class citizenry; we would also contribute to an already deteriorating relationship between the youth of America and law enforcement officials; in a free nation this relationship must be based on mutual confidence and respect. Having decided that Officer Winfrey did not have probable cause to stop appellant's vehicle in the first instance, it follows that the subsequent search was unlawful, even though consented to by appellant, and that all evidence adduced therefrom was the product of an unlawful search. As our Supreme Court said in People v. Haven, 59 Cal.2d 713, 718, 719 [31 Cal.Rptr. 47, 381, P.2d 927]: “A search or seizure made pursuant to a valid consent before any illegal police conduct occurs is obviously not a product of illegal conduct. A search and seizure made pursuant to consent secured immediately following an illegal entry or arrest, however, is inextricably bound up with the illegal conduct and cannot be segregated therefrom.” The case of People v. Franklin, 261 Cal.App.2d 703 [68 Cal.Rptr. 231], is squarely in point. There, as here, the officer stopped the defendant's vehicle without probable cause, and afterward defendant consented to the search which ultimately uncovered marijuana. The court in reversing the conviction, at page 707 of the opinion, had this to say: “The stop having been illegal, the search, though by consent of the vehicle owner, does not breathe legality into the resultant find by the officers.” A later California case before the same intermediate appellate court a few years later, also distinguished People v. Horton, holding that while driving in a car as a juvenile as 1:15 a.m. was not "loitering" that similar conduct did violate a municipal curfew ordinance for minors which was validly enacted and not unconstitutional. In re Francis W., 117 Cal. Rptr. 277 (Cal. App. 5th Dist. 1974). The claim that People v. Horton recognizes a constitutional right to drive without a license was analyzed and rejected in the case of Newman v. Garcia, 2016 WL 8939133, Case No. 3:16-cv-137-J-PDB (M.D. Fl. September 26, 2016) in which a federal trial court ruled on a motion to dismiss a civil rights claim brought by a man alleging that his constitutional rights were violated because he was arrested for driving with a suspended driver's license in which he sought $28 million of damages. The judge in that case held in pages 3-5 of the Slip Opinion that dismissed this claim that: Right to Travel Newman primarily argues Officer Garcia violated his constitutional right to travel by issuing him a citation for driving with a suspended license and stopping him from driving his car. See generally Doc. 2, Doc. 12. He contends he has a protected liberty interest in driving on public highways, he does not need a license to drive, and a driver's license is a contract between the state and a person that is cancelled when the state suspends a license. Doc. 12 at 3–4, 7. In Kent v. Dulles, the United States Supreme Court explained the right to travel—the freedom to move “across frontiers in either direction, and inside frontiers as well”—is “part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law.” Kent v. Dulles, 357 U.S. 116, 125 (1958). It has long been recognized as a basic constitutional right. Att'y Gen. of New York v. Soto-Lopez, 476 U.S. 898, 901 (1986). “A state law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right.” Id. at 903 (internal citations and quotation marks omitted). A restriction on one method of travel does not violate a person's constitutional rights. Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999). There is no constitutional right to the “most convenient form of travel.” City of Houston v. FAA, 679 F.2d 1184, 1198 (5th Cir. 1982). *4 The constitutional right to travel does not include a fundamental right to drive a motor vehicle. Duncan v. Cone, 2000 WL 1828089, at *2 (6th Cir. 2000) (unpublished); Miller, 176 F.3d at 1206 (9th Cir. 1999). The Supreme Court has recognized a state's power to “prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles.” Hendrick v. Maryland, 235 U.S. 610, 622 (1915). That includes passing legislation requiring drivers to have licenses. Id. Such a regulation is “but an exercise of the police power uniformly recognized as belonging to the states and essential to the preservation of the health, safety, and comfort of their citizens.” Id. Newman cites many state-court cases he contends support his argument he has a right to drive without a license. See Doc. 12 at 3–4. They do not. See People v. Horton, 92 Cal. Rptr. 666, 668 (Cal. Ct. App. 1971) (addressing legality of traffic stop and search; observing, “The right of the citizen to drive on a public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality, is a fundamental constitutional right which must be protected by the courts” (emphasis added)); Schecter v. Killingsworth, 380 P.2d 136, 137–38 (Ariz. 1963) (addressing state law suspending license of uninsured motorist involved in an accident who does not post sufficient security); Berberian v. Lussier, 139 A.2d 869, 871, 872 (R.I. 1958) (addressing state law suspending license for failure to deposit security with the registrar; observing, “[T]he right to use the public highways for travel by motor vehicles is one which properly can be regulated by the legislature in the valid exercise of the police power of the state”); Payne v. Massey, 196 S.W.2d 493, 495–96 (Tex. 1946) (addressing ordinance regulating operation of taxicabs); Teche Lines, Inc., v. Danforth, 12 So. 2d 784, 785, 787 (Miss. 1943) (addressing state law regulating stopping on certain portion of highway; observing right to travel “may be reasonably regulated by legislative act in pursuance of the police power of the State”); Thompson v. Smith, 154 S.E. 579, 583 (Va. 1930) (addressing contention city could not change ordinance to permit revocation of license; observing, “regulation of the exercise of the right to drive a private automobile on the streets of the city may be accomplished in part ... by granting, refusing, and revoking ... permits to drive an automobile on its streets”); Swift v. City of Topeka, 23 P. 1075 (Kan. 1890) (addressing ordinance restricting use of bicycles on sidewalks and a bridge).4 Newman does not cite authority to support his contention a driver's license is a contract with the state that is cancelled when the license is suspended, and he does not explain how the existence of a cancelled contract would support his argument that Officer Garcia violated his constitutional rights. See generally Doc. 12. Other courts have rejected similar arguments as meritless or frivolous. See Oliver v. Long, No. CV-06-2429-PCT-LOA, 2007 WL 1098527, at *5 (D. Ariz. Apr. 12, 2007) (unpublished) (argument that by cancelling all contracts with California Department of Motor Vehicles plaintiff could violate traffic laws with impunity “frivolous,” “specious,” and “nonsensical”); North Carolina v. Ellison, 471 S.E. 2d 130, 131 (N.C. Ct. App. 1996) (argument that by cutting up license and returning it to Division of Motor Vehicles plaintiff had rescinded contract with state and could drive without complying with statutory requirements “without merit”). Absent authority to support the argument that a suspended driver's license is a cancelled contract with the state, and in light of states' authority to regulate the operation of motor vehicles on their roads, the argument is meritless. *5 Though Newman enjoys a constitutional right to travel, he has no fundamental right to drive. A state may regulate the operation of vehicles on its roads, including requiring a license. Officer Garcia informed him of the suspension and informed him of the consequences of driving with a suspended license but did not restrict his right to travel by other means of transportation. The complaint does not plausibly allege Officer Garcia violated Newman's right to travel The other two cases cited, in addition to the flaws noted below, also predate the U.S. Supreme Court's conclusion that a state has the power to “prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles.” Hendrick v. Maryland, 235 U.S. 610, 622 (1915), including passing legislation requiring drivers to have licenses. Id. Simeone v. Lindsay, 65 Atl. 778, 779 is an opinion from a Delaware state trial court entered on February 27, 1907 (111 years ago as I write this). It held that at the time, in Delaware, on the public highway in question, both cars and pedestrians had an equal right to use the road and both had a duty of care in the contexts of a lawsuit against the car owner for causing an accident through negligence. It did not reference any fundamental or constitutional right and has no precedential value and has in any case been superseded by statute. Hannigan v. Wright, 63 Atl. 234, 236 is an opinion from a Delaware state trial court entered on December 13, 1905 also involving liability for an automobile accident. It says in the pertinent part: A traveler on foot has the same right to the use of the public streets of a city as a vehicle of any kind. In using any parts of the streets all persons are bound to the exercise of, reasonable care to prevent collisions and accidents. Such care must be in proportion to the danger or the peculiar risks in each case. It is the duty of a person operating an automobile, or any other vehicle, upon the public streets of a city, to use ordinary care in its operation, to move it at a reasonable rate of speed, and cause it to slow up or stop if need be, where danger is imminent, and could, by the exercise of reasonable care, be seen or known in time to avoid accident. Greater caution is required at street crossings and in the more thronged streets of a city than in the less obstructed streets in the open or suburban parts. Like Simeone, it predates the adoption of a statutory traffic code in the state of Delaware, has no precedential effect, is no longer good law, and does not purport to establish any fundamental or constitutional right. It merely enunciates the default rules governing the use of public highways by cars and pedestrians in the absence of other laws or regulations. | Sending a letter to the red light camera company or police department may or may not get the charge dropped before trial. But whether the charge gets dropped before trial isn't the important question -- after all, people sometimes do get charged wrongly -- rather, the question is, if it goes to trial, whether you will win. Since this question is about California, all traffic tickets in California, including red light camera tickets, are criminal cases (that's why the case will be named "People of the State of California v. [your name]" in court documents). The burden of proof is on the prosecution, and the standard of evidence is "beyond a reasonable doubt". There is no provision in California law to fine or otherwise punish the owner of a vehicle for a moving violation, except through a conviction as the driver who committed the violation. If you plead not guilty and it goes to trial, the burden will be on the prosecution to prove beyond a reasonable doubt that the driver was you. If the driver in the picture does not look like you, there is no way they can meet that burden, and the court must find you not guilty. (In most cases the prosecution will immediately drop the case when they discover that the picture does not look like you.) Note that you have an absolute right to not testify in your own criminal trial where you are the defendant, so there is no way they can force you to testify at the trial about who the driver was if it was not you (which would be irrelevant to the case against you anyhow). If you do not say who the driver was, and the police department fail to guess who it was (e.g. by searching for drivers whose licenses share the same address as you for someone who looks like the one in the picture), then nobody gets fined or punished for the violation. This is true even if you know full well who the driver was, or even if you were pictured sitting right next to them. You don't need to claim not to know who the driver was, because whether you know or not doesn't matter -- you have no legal obligation to tell the identity of the driver even if you know, and you cannot be fined or otherwise punished for the violation if you intentionally refuse to tell. | I've contested many of my own traffic tickets in a state where traffic tickets are also considered misdemeanor criminal violations. I would appear in court before the time limit on your ticket. I'd plead not guilty, and I would not waive any rights- which means I would request a trial by jury. Under Georgia law you do have the right to a jury trial IF your ticket is not considered a petty offense. Otherwise you can have a bench trial. If your case starts in a Municipal Court and you request a jury trial, the case will be sent to the State or Superior Court of that county. Jury trials on traffic citations are rare, but it is probably a good tactic because you might be able to work out a better solution than you can in Municipal court. Once the court accepts your plea, then I would make sure the court set a pre-trial hearing. At this hearing make a motion to the judge that you would like the dash-cam video of the officer and the vehicle he stopped you in. If the prosecutor argues that it's not relevant (and they might) explain to the judge why they are relevant (the officer didn't realize exactly what intersection you were at). IMPORTANT: Introduction of your own evidence requires that you 'lay the foundation' of the evidence. This usually means that you must declare officially in court, in front of the prosecution, that your evidence (pictures you take, etc.) are taken by you, and that they are 'true and correct' representations of the location where the alleged offense took place, and that the date and time was (whatever it was). You usually must state this while under oath. OTHERWISE, the prosecution will object to your evidence most likely on the grounds of no foundation. Please read up on how to lay the foundation in either a trial or in a pre-trial setting. For something like this you might need to just present the evidence and lay your foundation at trial. So you'll need to read up on how to lay foundation and present your evidence at trial. You could get lucky and the officer won't show up at trial. So in that case I would make a motion to dismiss for lack of prosecution (you can't cross examine a witness that didn't show up) You'll get to choose jurors, etc. in a process called Voire Dire. So read up on that too. You will not be forced to testify if you don't want to (because of the constitutional right to not incriminate yourself) but if you do choose to testify, the prosecution can ask you questions). | While it is not illegal to own, it may still be illegal to ride on public property. Private property owners can ban them even if they were legal and need to be consulted individually. I have been unable to find out if new laws spoken about have been passed in New York since the beginning of the year. Based on what I have found (as of the end of 2015), it would be best to consider that they are illegal to use on public areas just as any other unlicensed motor vehicle. As of November 2015 Some property owners have banned them for liability reasons, as it is easy to see how a rider could trip on a bump or unexpected curb. And although they have taken the Upper East Side and other parts of New York City by storm, the state classifies them as motorized vehicles that cannot be registered, so riding them in public can incur a steep fine. Earlier this week, the NYPD's 26th Precinct tweeted: "Be advised that the electric hoverboard is illegal as per NYC Admin. Code 19-176.2*." and December 2015 some lawmakers were talking about making them legal. Truth or Fiction Collected on: 12/28/2015 gives the following summary A spokesperson for the New York City Department of Transportation has explained that the law’s definition of “electronic personal assist mobility device” was broad enough to include hoverboards, and that they would be regulated as such. In NYC, because the population is above 1 million people, electronic personal assist device riders must be licensed, and the devices must be registered with the New York State Department of Motor Vehicles. Hoverboards are illegal, the spokesperson said, because the NYSDMV would refuse to register them for legal use: NYSDMV’s position is that these vehicles are likely “Electric personal assist mobility devices.” NYS Vehicle and Traffic Law 114-d defines “Electric personal assist mobility device” as “Every self-balancing, two non-tandem wheeled device designed to transport one person by means of an electric propulsion system with an average output of not more than seven hundred fifty watts (one horsepower), and the maximum speed of which on a paved level surface, when propelled solely by its electric propulsion system while ridden by an operator weighing one hundred seventy pounds, is less than twelve and one-half miles per hour.” NYS VTL 125 generally defines “motor vehicles” as “Every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power.” However, VTL 125 specifically excludes some classes of vehicles from the definition of “motor vehicles.” Under VTL 126(a-1), “electrical personal assistive mobility devices operated outside a city with a population of one million or more” are not considered motor vehicles. However, in NYC, because the city population is greater than one million, NYSDMV considers “hoverboards” that meet the definition of “electric personal assist mobility devices” the same as motor vehicles. Based on that interpretation, it would be illegal to operate a hoverboard in NYC without a valid license to drive a motor vehicle. Beyond that, the motor vehicle would need to be registered by NYSDMV (which NYSDMV will not do), inspected, insured, and otherwise treated as, and subject to regulation like, any other motor vehicle. A person who operates a hoverboard in NYC (or any other NYS city with a population greater than a million) would be subject to arrest and prosecution for myriad NYS VTL violations, including, but not limited to, driving a motor vehicle without valid registration or insurance. | It is probably illegal in all of the jurisdictions in the US where a fetus is legally declared to be a person and where the murder statutes are written to not explicitly exclude abortion: that is, in no jurisdictions. No law existing or proposed for Georgia specifically addresses "travel for the purpose of getting an abortion". The underlying theory behind the claim (advocated by some Georgia attorneys) is that a person may be open to a conspiracy charge for taking a woman to another state to get an abortion, which would be a crime if committed in Georgia. If a conspiracy exists in Georgia to do something illegal (in Georgia), that is a violation of OCGA 16-4-8 ("when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy"). The substantially same law exists in Washington, and most if not all other states. The theory is apparently that "conspire to commit a crime" means something like "conspire to perform an act which would be a crime if performed in in this jurisdiction", e.g. "purchase marijuana, or take a job at certain payday loan companies". No state has successfully claimed extraterritorial jurisdiction, where a Georgia resident can be prosecuted in Georgia for a legal act carried out in another state, so this theory is a bit of a stretch. | Let's be quite brutal here. Inexperienced driver doesn't mean the driver made a mistake. Lots of friends in the car doesn't mean they interferred with his driving. Loud music in the car is totally legal. "Perhaps was distracted" - "perhaps" you were distracted by looking at the passengers of this car instead of yielding? It seems that you drove without due attention. You noticed at the last moment that you had to yield. "Yielding" isn't just stopping right at the last second, you have to drive in a way that it is visible for others that you are going to yield, and you didn't. The other driver was 100% correct to assume that you wouldn't yield. Then you come up with an accusation that a police officer was biased. That's a very, very strong accusation. It's impossible for you to prove. It's the kind of accusation that will cause the judge to believe that you can't accept your own faults, and that you need the maximum possible fine to make you realise your mistakes. That's why you need a lawyer. A lawyer will either make sure that you only say things in court that actually help your case. Or will advise you not to fight this in court at all, if that is better for you. If you go to court on your own, you'll only get yourself into trouble. And if there was bias by a police officer, and a witness lying, and a driver driving without attention, then a lawyer with experience in these things might be able to prove that it court, although that would be a very tough call, but you on your own don't have a chance in hell. You say "the shop owner lied". The shop owner says "no, I didn't". So what's your next step? You don't know. Your lawyer knows. That's why you need a lawyer. | You are not obliged to say anything to a police officer during a traffic stop, in fact you are generally better off staying silent. This is your Fifth Amendment right to silence. The only exception to this is that the officer could ask for your name and you are obliged to give it under Arizona Laws 13-2412, but the answer to that is language-independent and is usually already answered with your driver's license in a traffic stop. If you did choose to communicate only in German, this may have the effect of frustrating the officer's investigation but if you only make truthful statements in German it is unlikely to be obstruction of their investigation. Arizona Laws 13-2409 is I believe the relevant section (emphasis mine): A person who knowingly attempts by means of bribery, misrepresentation, intimidation or force or threats of force to obstruct, delay or prevent the communication of information or testimony relating to a violation of any criminal statute to a peace officer, magistrate, prosecutor or grand jury or who knowingly injures another in his person or property on account of the giving by the latter or by any other person of any such information or testimony to a peace officer, magistrate, prosecutor or grand jury is guilty of a class 5 felony, except that it is a class 3 felony if the person commits the offense with the intent to promote, further or assist a criminal street gang. In general, a law that required you to give answers to a police officer during an investigation in English if you understand English and have waived your right to silence would violate your First Amendment right to free speech (as it is in effect "forced speech"). However, you would need to be careful not to tell the police officer that you do not understand English if that is not true, as it could be misrepresentation. Police officer training likely includes instructions for detaining someone that cannot understand them and the police can detain you and wait for an interpreter to continue their investigation if they determine that is necessary. You may actually be shooting yourself in the foot by doing this, because the time it takes for them to get an interpreter likely extends the amount of time the detainment can last while remaining "reasonable," so you may be waiting by the side of the road longer than you would have if you had simply told the officer that you were invoking your right to silence and followed the officer's instructions without speaking. As an aside, as more people are educated on their rights via the Internet and understand why they should always invoke their right to silence when detained, police officers will get more used to people they pull over immediately and politely telling them that they are going to invoke their right to silence. I doubt most police officers will hold it against you as long as you are otherwise cooperative and don't yell at them or berate them. | Taking the stated facts at face value (i.e. you can prove them in court). Md. TRANSPORTATION Code Ann. § 20-102 § 20-102. Driver to remain at scene -- Accidents resulting in bodily injury or death (a) Bodily injury. -- (1) The driver of each vehicle involved in an accident that results in bodily injury to another person immediately shall stop the vehicle as close as possible to the scene of the accident, without obstructing traffic more than necessary. (2) The driver of each vehicle involved in an accident that results in bodily injury to another person immediately shall return to and remain at the scene of the accident until the driver has complied with § 20-104 of this title. So, you must stay there until you have complied with § 20-104. Md. TRANSPORTATION Code Ann. § 20-104 § 20-104. Duty to give information and render aid (a) Rendering assistance. -- The driver of each vehicle involved in an accident that results in bodily injury to or death of any person or in damage to an attended vehicle or other attended property shall render reasonable assistance to any person injured in the accident and, if the person requests medical treatment or it is apparent that medical treatment is necessary, arrange for the transportation of the person to a physician, surgeon, or hospital for medical treatment. (b) Duty to give certain information. -- The driver of each vehicle involved in an accident that results in bodily injury to or death of any person or in damage to an attended vehicle or other attended property shall give his name, his address, and the registration number of the vehicle he is driving and, on request, exhibit his license to drive, if it is available, to: (1) Any person injured in the accident; and (2) The driver, occupant of, or person attending any vehicle or other property damaged in the accident. (c) Exhibiting license. -- The driver of each vehicle involved in an accident that results in bodily injury to or death of any person or in damage to an attended vehicle or other attended property shall give the same information described in subsection (b) of this section and, on request, exhibit his license to drive, if it is available, to any police officer who is at the scene of or otherwise is investigating the accident. (d) If no one able to receive information. -- If a police officer is not present and none of the specified persons is in condition to receive the information to which the person otherwise would be entitled under this section, the driver, after fulfilling to the extent possible every other requirement of § 20-102 of this title and subsection (a) of this section, immediately shall report the accident to the nearest office of an authorized police authority and give the information specified in subsection (b) of this section. So, not only is it legal to leave to seek aid, its required. |
Can companies add their own age restrictions to sales? In recent days, two very large companies have decided to require that gun buyers be at least 21 years of age [Reuters]. I understand that the government can add age restrictions to sale of certain items. However, can an individual company elect to do so if it is not legally required? Doesn't that amount to age discrimination? | Discrimination is legal, so long as there is not based on a protected category or class(e.g. race, sex, religion). Age is generally not a protected category. Some states do treat age as a protected category, but: 1) It is generally only in employment, so, for example charging someone differing amounts based on their age is legal (e.g. senior discounts, kids under X are free, etc.). 2) It is generally only protecting higher ages (i.e. discriminating against someone in employment because their age is higher than what you'd like would be illegal, but discriminating against someone because their age is lower than you'd like is not; and in some cases the later is mandatory). | The German law mandates minimum notice periods for work contracts. But there is no restriction on maximum notice periods, as long as the employee does not have a longer notice period than the employer (§622 BGB de|en). So yes, in theory you could negotiate that the company is not allowed to fire you in the first 4 years. But I would find it unlikely that they would agree to that. When the stock options are really your only reason why you want to avoid getting terminated in the first 4 years, then they are more likely to be open to negotiations about the stock option clause than about the termination clause. | The UK has particularly strong (indirect) restrictions on self defense. Askthe.police.uk appears to be an official police agency. As a police agency, they can only give their version of what the law is, but they could be mistaken. They say "The only fully legal self defence product at the moment is a rape alarm". This by itself does not mean that pepper spray and the like are definitively illegal: There are other self defence products which claim to be legal (e.g. non toxic sprays), however, until a test case is brought before the court, we cannot confirm their legality or endorse them. If you purchase one you must be aware that if you are stopped by the police and have it in your possession there is always a possibility that you will be arrested and detained until the product, it's contents and legality can be verified. One can infer that they somewhat disapprove of pepper spray: There are products which squirt a relatively safe, brightly coloured dye (as opposed to a pepper spray). A properly designed product of this nature, used in the way it is intended, should not be able to cause an injury. The underlying theory seems to be that the dye will frighten the assailant so it might be useful. Nevertheless, they do not fully endorse spray dye: However, be aware that even a seemingly safe product, deliberately aimed and sprayed in someone's eyes, would become an offensive weapon because it would be used in a way that was intended to cause injury. This underscores the point that "intent" determines the criminal nature of the act. If you accidentally spray a dye into someone's eyes, that probably would not make the thing an offensive weapon. Moreover, if at the moment of defending yourself with dye you intentionally spray it into someone eyes, that does not make it an offensive weapon (see below on per se offensive weapons). The difference between pepper spray and dye lies in the outcome that you expect, that pepper spray will cause actual and non-trivial physical discomfort, and it's foreseeability (the point of having pepper spray is to injure). The police are not making any definitive "rulings" (only a court can make a ruling), and they warn The above advice is given in good faith, you must make your own decision and this website cannot be held responsible for the consequences of the possession, use or misuse of any self defence product. Possession of other weapons (mostly knives, also weapons for beating people) is more clearly illegal, due to numerous acts enacted by Parliament over the years. The gov't. prosecutor offers useful details on their (current) policies and the underlying laws. The underlying authority for these restrictions seems to be the Prevention of Crime Act, 1953, which outlaws having an offensive weapon in a public place, and an offense weapon is simply defined as any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him A brick or an egg could be an "offensive weapon", if a person intends to use it to cause injury. It is more difficult to see how an egg could cause injury, but actual injury is not required under the law, only intent to injure. It is thus a bit surprising that the police would be so bold as to say that a "rape alarm" is fully legal, but this may refer to a specific thing, the "Personal Guardian", which silently notifies the police, and is not a loud whistle (which could injure a person). Intent being crucial to the determination of "offensive weapon" status, CPS points out that where a person uses an article offensively in a public place, the offensive use of the article is not conclusive of the question whether he had it with him as an offensive weapon within section 1(1) of the Prevention of Crime Act 1953. If you use a chain or stick offensively, that does not establish that you had it with you as an offensive weapon. You crucially had to previously intend to use it as an offensive weapon: as they say: Having an article innocently will be converted into having the article guiltily if an intent to use the article offensively is formed before the actual occasion to use violence has arisen. There are a number of per se offensive weapons: those made for causing injury to the person i.e. offensive per se. For examples of weapons that are offensive per se, see Criminal Justice Act 1988 (Offensive Weapons) Order 1988, (Stones 8-22745) and case law decisions. (Archbold 24-116). The Criminal Justice Act (1988) (Offensive Weapons) (Amendment) Order 2008 came into force on 6th April 2008 with the effect that a sword with a curved blade of 50cm or more (samurai sword), has been added to the schedule to the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 but sticks and chains would not be included. Spices are not likely to be shown to have a per se purpose of causing injury to others; but carrying pepper powder with the intent of throwing it in someone's eyes (for whatever reason) and thus injuring them fits the definition of "offensive weapon". Pepper spray even more clearly fits that definition (you don't use pepper spray in curry), and has resulted in arrests. In fact, the Firearms Act 1968 (S5) (b) specifically makes it illegal to possess any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing | Iowa law that is relevant to custody is here. At no point is a child prohibited from expressing his wishes to a judge. §598.41 prescribes how the court determine custody. Para 3(f) specifically includes Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity. This would have been the case at the initial custody hearing, and any petition to modify custody. There is no rule setting a lowest age for considering a child's wishes, but there may be a tendency to consider "teenager" as potentially old enough. A custody arrangement can be modified, but the petitioning parent has to show that there has been a “substantial and material change in circumstances” since the initial decree. But let's assume that the parents have joint custody, then none of that applies and you live where your parents agree you should live. You don;t have legal standing to petition for a change of custody, but you might (if there is a good enough reason) succeed on a petition for emancipation when you are 16. | Disney's help page on this says I don’t want to provide my birthdate or gender. What can I do? Providing a birthdate is required for all Disney+ accounts/profiles while a gender is required for all accounts/profiles over the age of 13. Note that for gender submission, you may elect “Prefer not to say.” If you do not wish to provide your birthdate or gender, you may cancel your account by visiting your Account page or by contacting Disney+ Support. It's reasonable to provide proof of age: COPPA in the US requires it to protect those under 13. And you don't have to give them your gender. | No As a 16 year old you do not need a Child Work Permit - these are required for "[a] minor under 16 years of age". Notwithstanding, minor's contracts can be classified as valid, voidable or void. There are two types of valid contracts: Contracts for "necessaries", and Employment, apprenticeship and training contracts. Your employment contract is binding and any IP you produced in the course of it belongs to your employer. | Findlaw has an article headlined Strip Club Laws and the Regulation of Sexually Oriented Business. Among othe things, it says Below are some of the more common types of adult entertainment and strip club laws affecting the "manner" in which sexually-oriented establishments may operate (in addition to alcohol, which is discussed above): Age Requirements - Most ordinances require patrons and employees to be 18 and older; 21 if alcohol is served ... I'm not going to look for the exceptions implied by the word "most," but I doubt any of them allow patrons under the age of 18. Regardless, if the child has reached the prescribed minimum age then it is permissible under the laws regulating sexually oriented businesses for a parent to take the child to such a business. If the child is still a minor, child protection laws may also have something to say on the matter. | In Illinois, there were previously no restrictions for those 13 and older. However: NOTE: Beginning on January 1, 2016, no person born on or after January 1, 1998, unless exempted by subsection (i), shall operate a motorboat with over 10 horse power unless that person has a valid Boating Safety Certificate issued by the Department of Natural Resources or an entity or organization recognized and approved by the Department. Please check back at a later date for more details. Persons at least 12 years of age and less than 18 years of age may only operate a motorboat if: They have in possession a valid Boating Education Certificate of Competency issued by the Illinois Department of Natural Resources, Safety Education Division, or They are accompanied on the motorboat and under direct control of a parent of guardian, or a person at least 18 years of age designated by a parent or guardian. Emphasis in original. Source: https://www.dnr.illinois.gov/safety/Pages/BoatingSafety.aspx In Wisconsin, Who May Operate/Age Restrictions It is illegal for a parent or guardian to allow a child to operate a vessel in violation of the requirements below. Motorboats (Other Than a Personal Watercraft) A person under the age of 10 may not operate a motorboat. A person 10 or 11 years old may operate a motorboat only if accompanied by a parent, a guardian, or a person at least 18 years old who is designated by the parent or guardian. A person 12-15 years old may operate a motorboat only if: He or she is accompanied by a parent, a guardian, or a person at least 18 years old who is designated by the parent or guardian or … He or she has completed a boating safety course that is accepted by the Wisconsin DNR. A person at least 16 years old may operate a motorboat only if he or she has completed a boating safety course that is accepted by the Wisconsin DNR. A person born before January 1, 1989, is exempt from the safety course requirement. Personal Watercraft (PWC) A person under the age of 12 may not operate a PWC. A person 12-15 years old may operate a PWC only if he or she has completed a boating safety course that is accepted by the Wisconsin DNR. (Parental supervision is not a substitute for a boating safety course certificate as with other motorboats.) A person at least 16 years old may operate a PWC only if he or she has completed a boating safety course that is accepted by the Wisconsin DNR. A person born before January 1, 1989, is exempt from the safety course requirement. A person under the age of 16 may not rent or lease a PWC. Emphasis removed. Source: https://www.boat-ed.com/wisconsin/handbook/page/6/Who-May-Operate%7CAge-Restrictions/ |
Is there a time limit on manslaughter charges? Summary: Is there any automatic liability for death by health complications caused by someone already charged for causing the complication? I'm aware charges can be revisited but does it have to be brought up again? What is the time limit on that? Case that made me think: A few years ago a little girl died after ten years struggling with health problems caused when her parent's car was hit by a speeding car the other driver was, at the time, charged with dangerous driving. After his daughter's death the father then wanted to press charges for death by dangerous driving. This made me wonder where the law stood on this, a verdict of dangerous driving was given - does that mean the case is considered closed the minute that verdict is passed and if the victim were to die the day after it would need to be reopened? Or would it be automatically reopened with a charge of manslaughter? | You have asked about "United Kingdom", but I can only answer about England and Wales; the law in Scotland is very different (rather more different in some respects than the difference between E&W and the State of New York). There is no time limit per se on manslaughter charges; if the police find evidence for a manslaughter charge after 80 years, there is no difficulty (in principle) in bringing a charge against the now-centenarian (provided they are competent to stand trial, and they can get a fair trial, and so on). However, in the case you mentioned I would have thought the major problem would be a defence of autrefois convict - in other words, the defendant can (usually) only be charged once with charges arising from a particular set of facts. It is just possible that the subsequent death constitutes a new fact which allows a new prosecution. On the other hand, the rule for murder used to be that if the victim survived a year and a day then it wasn't murder (even if they then died of their injuries). Finally, the case certainly would not be reopened with a charge of manslaughter. It would be "causing death by dangerous driving", which is a very different offence. Edit My thanks to ohwilleke whose comment about the "year and a day" rule prompted me to do a little research, and discover the Law Reform (Year and a Day Rule) Act 1996. Section 2(2) clearly covers the present case (in both legs), and says that the perpetrator can be re-prosecuted, but only with the permission of the Attorney General. The act is very brief, and I encourage you to read it all. (And incidentally, does not apply to Scotland.) | In Wisconsin, right after the perjury law, they have a law prohibiting "false swearing". It applies if a person: Makes or subscribes 2 inconsistent statements under oath or affirmation or upon signing a statement pursuant to s. 887.015 in regard to any matter respecting which an oath, affirmation, or statement is, in each case, authorized or required by law or required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action, under circumstances which demonstrate that the witness or subscriber knew at least one of the statements to be false when made. The period of limitations within which prosecution may be commenced runs from the time of the first statement. So even if they couldn't actually get you for perjury, they could get you for violating this law. Perjury and false swearing are both class H felonies, so you can expect the same punishment. I am going to guess that the existence of this law suggests that it was needed to cover what would otherwise be a loophole in the perjury law, but I can't say for sure. | england-and-wales The timing of charges being laid is a factor to take in to account, as is whether a charge is appropriate after taking in to account the suspect's circumstances described in the OP, but setting those aside - more often than not it's a negotiation between the various prosecuting agencies and the investigation teams' supervisors resulting with the more serious offences taking precedence. The lesser offences are either dealt with at a later trial or left to "lie on file", meaning there is enough evidence for a case to be made, but that it is not in the public interest for prosecution to proceed, usually because the defendant has acknowledged other, often more serious, charges. No admission to the charge is made by the defendant, and no verdict is recorded against them. Wikipedia | You have no reponsibility to save someone (unless you put them in that position / were responsible for his safety, this is called owing a "duty of care", e.g doctor to patient, road user to road user etc) Legally you are not a murderer. But morally, your actions are reprehensible. | Rule 286 states: If you are involved in a collision which causes damage or injury to any other person, vehicle, animal or property, you MUST stop. If possible, stop in a place of relative safety (see Rule 275) give your own and the vehicle owner’s name and address, and the registration number of the vehicle, to anyone having reasonable grounds for requiring them if you do not give your name and address at the time of the collision, report it to the police as soon as reasonably practicable, and in any case within 24 hours. This mirrors the underlying legislation at section 170 of the Road Traffic Act 1988: (2) The driver of the mechanically propelled vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle. (3) If for any reason the driver of the mechanically propelled vehicle does not give his name and address under subsection (2) above, he must report the accident. (4) A person who fails to comply with subsection (2) or (3) above is guilty of an offence. The penalty for this offence depends on the particular circumstances, and, as per the Sentencing Council' guidelines, it is: Triable only summarily: Maximum: Unlimited fine and/or 6 months Offence range: Band A fine – 26 weeks’ custody A Band A fine is: 25 – 75% of relevant weekly income The Offence Range has three Categories to determine the appropriate sentence depending on the: Level of seriousness | What happens to someone who’s committed a murder in the UK? Considering the person will be caught. This is a basic and somewhat vague question so I will provide a basic and very general answer. The name of the court with proper jurisdiction, the relevant criminal procedural rules, and the substantive law that applies varies within the U.K. In particular in Scotland and the various dependencies of the U.K. differ significantly from England-Wales. There are some minor differences in Northern Ireland. England-and-Wales are treated as one for most purposes, but there are some slight differences at the very lowest levels but none materially impact a murder case. If they are caught in England and Wales they are arrested, interviewed, charged then brought before the next available Magistrates' Court who send the defendant to the Crown Court for trial. As a Magistrate has no power to grant bail for murder the defendant must be remanded in custody until he can make an application for bail before the Crown Court, but the default position is that bail should not be granted for murder unless in very exceptional circumstances. In other U.K. jurisdictions, the names of the courts will differ and there may be some other fine details that aren't the same in the pre-trial process but the same general outline applies. If they are outside of the U.K. they will be subject to either an International or European Arrest Warrant and extradited to the UK at the request of the U.K. Government under the terms of the relevant extradition treaties. On arrival in the UK they are arrested for murder and the process proceeds in the same manner. (If they are someplace that does not have an extradition treaty with the U.K., the trial may be deferred until U.K. officials have an opportunity to arrest him and are often dogged in attempting to accomplish, perhaps, for example, while the suspect is on holiday somewhere that there is an extradition treaty.) Prior to the trial, the Crown Prosecution Service (CPS) and the defence will prepare their cases and return to court at various times to settle any issues etc before going to the expense of a full trial. Also, at any time the CPS determine the case to be too weak for a realistic prospect of conviction or the suspect is innocent, they are supposed to dismiss or amend the indictment. The defendant is then tried for murder before a jury (almost always, but not in every single case, e.g., if the defendant admits guilt and the plea is accepted in appropriate proceedings before a judge). The CPS instruct a barrister to present their case with another barrister acting on behalf of the defendant. The process is for juvenile defendants is pretty much the same as for adults, apart from added safeguards to ensure the juvenile understands the proceedings and is not put at any disadvantage due to their age. All of the jurisdictions within the U.K., however, will have a trial that involves presentation of sworn evidence and exhibits and opening and closing arguments from both prosecution and defence counsels to a jury, procedural objections, cross-examination, and sometimes offering of additional evidence under the supervision of a single judge; normally with the defendant present. There will be some means of court reporting, and unless the judge orders otherwise (which is only done in relatively exceptional circumstances), the trial will be open to the public and the press to observe. If the defendant dies before the legal process to secure a conviction is not completed, the case is dismissed as moot. If the defendant is convicted of a homicide offense the trial/sentencing judge will impose a prison sentences, which is "fixed by law", with a life sentence in the case of the most serious homicide offense, murder (there are multiple homicide offenses that hinge largely on the intent of the defendant, often a murder prosecution will include less included homicide offenses as options for convictions). Only in exceptional cases this will be a whole-life term, in all others the judge will prescribe a minimum sentence according to the judicial sentencing guidelines after which the defendant may be released on licence, which is what an American would call parole. Any offences committed on licence will normally result in a recall to prison. The U.K. does not have a death penalty and does not authorise corporal punishment. The vast majority of people who are arrested and tried for murder are convicted, although there are sometimes acquittals or hung juries. This conviction may be appealed by the defendant to the Court of Appeal (and again up to the Supreme Court) (the intermediate appellate court may not be the same in all U.K. jurisdictions) which reviews the proceedings to determine if the law was applied correctly and if there was sufficient evidence to support the verdict. If the court finds that this was not the case, it can vacate the conviction and orders an appropriate revised disposition of the case depending upon the circumstances justifying the reversal of the trial court. If the appeal court affirm the trial verdict then the sentence continues to be carried out. Usually, but not always, the defendant will be in prison pursuant to the sentence imposed pending an outcome of any appeal. Eventually, if the sentence imposed upon a conviction is affirmed (and not a whole life term) the prisoner may be released on licence (which includes some post-release supervision) and is free and to about living their life again, subject to some collateral consequences based upon their criminal record (e.g. inability to work in certain occupations). If the defendant is acquitted, then they go free and cannot be tried again for the same offence, unless the exceptions under the double jeopardy provisions that apply in that jurisdiction apply. The main exception of double jeopardy is for newly discovered evidence of guilt in a case where there was an acquittal. If the person convicted is not a British citizen, they will usually be deported at the conclusion of their sentence if international law allows for it. There are a few exceptions to these rules that come up in a tiny percentage of all U.K. murders that apply (1) in the case of people subject to courts-martial such as active duty military service members, (2) in the case of foreign diplomats with diplomatic immunity, (3) when the murder is classified as an act of terrorism, and (4) in the case that the defendant has a title of nobility that calls for special treatment such as, e.g., Prince Charles (the current heir to the throne) or the Queen. These special cases are really too esoteric for the plain vanilla facts stated in the question and involve unique processes that are very different from the usual one described above. The fourth case is one that does not exist in my country (the U.S.) and in other countries that are republics rather than constitutional monarchies like the U.K., although most countries have some special rules for criminal trials of their very highest officials (like Presidents and Prime Ministers). | It depends on the particular law in the particular jurisdiction in which you are charged. Most statute laws enumerate the defences that are available. In common law countries there is a general defence that (except in strict liability offences) the perpetrator must well ... perpetrate the criminal act; what you describe does not appear to meet that requirement. Other jurisdictions would not be so forgiving. | Are you at fault for the fact that Car C read ended you? Close call. A jury could go either way. Can this accident which is now appearing on your insurance be disputed as Car A did not report anything? Essentially I'm just wondering what the odds are that this can removed from Car A's record. I think that it is unlikely that the situation you suggest would happen, even though anything is possible. Usually there needs to be a claim of actual damage for an insurance company to treat it as an accident. The usual rule is "no harm, no foul" (unless someone is cited for a traffic violation). Insurance company accident records are not regulated to the same extent as say, credit reports. You could threaten to sue the company for negligent misrepresentation, or the driver of Car C for defamation, in order to try to get this statement removed, but those would be hard cases to win since you are at least arguably at fault and fault is to some extent a matter of opinion. It would be much easier to win a suit like that if the accident didn't happen at all. Here, it would be undisputed that an accident happened at a particular time and place involving certain cars and drivers, and the dispute is only over who was at fault. |
Do we have to wait for legislators to ban bump stocks? Do legislators actually have to take the step of banning bump stocks, or could the ATF (or other government agency) unilaterally state that the addition of one to a weapon means that it now has all of the attributes of a Machine Gun as defined in the National Firearms Act of 1934? "Machine gun." (b) The term "machine gun " means any weapon which shoots, or is designed to shoot, automatically or semiautomatically, more than one shot, without manual reloading, by a single function of the trigger. My intuition is that if the answer is "yes," then owners of bump stocks could still own them without breaking the law, they just won't ever be able to apply that accessory to their weapons without running afoul of the National Firearms Act and risking a $2,000 fine and 5 years in jail. Is this understanding of how the law works correct? | Under current federal law, we would have to wait for some legislative body to change the law. If ATF changes the federal regulations, they might be classed as "machine guns" (under the "frame designed for converting" clause), which are banned. As the above Docket No. 2017R–22 (from December 26, 2017) says, DoJ expects to plan to discuss changing the rules. They might then be outlawed by executive action (though a court test could be necessary, since executive wish is not the final word on interpreting statutes). The relevant part of the definition of machine gun, which could apply to bump stocks, is: The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. But "such" weapon is one that shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger The definition does not say anything about a single finger action, so there is a reasonable probability that including bump stocks within the scope of existing legislation would be held to exceed congressional authority. | Sure: No Constitutional rights are totally unencumbered. Even natural rights like the "right to life" are legally "infringed" through various theories (e.g., self-defense, capital punishment, warfare). The Second Amendment has been interpreted as a right to keep and bear weapons that would reasonably be used in self-defense or in military service. You don't have to go to strategic weapons like nukes to find "reasonable infringement" of that right. For example, even though the military and even police routinely use explosives, individuals are absolutely subject to the whims of a federal regulatory agency (the BATFE) as well as state restrictions if they want to keep and bear detonators. Also, I'm not aware of an absolute prohibition on the possession of nuclear devices by non-government entities. E.g., various government regulators oversee private entities that operate commercial and research nuclear reactors and other activities that put them all-but in possession of nuclear arms. If an individual really wanted to legally keep and bear a nuclear weapon it could probably be done with enough money and oversight. (Amendment: Except, as cpast points out in the comments, that there is a law against private possession of nuclear weapons in the U.S. Which just goes back to the broad answer to your general question: In practice there are no unencumbered rights. Constitutional "rights" might better be called things that require "strict scrutiny" and "narrow tailoring" of government infringement.) | So first things first, whether or not Stand Your Ground is in play, the burden of proof is always on the State to prove any crime did happen and any defense does not. Another thing that I think you confused in your question is it seems apparent that you think Stand Your Ground is Self Defense. This is not true. In the United States, self-defense is always a legal right for a victim of a potential crime, regardless of if your state has Stand Your Ground or Duty to Flee laws. Self-Defense typically can include justifiable homicide as you are not privy to the intent of the bad actor. Under Duty To Flee laws, you cannot claim self defense if you could reasonably get away from a criminal action safely... if given the choice between fight or flight, you must flee the scene. Stand Your Ground contradicts this and says that if you are in a public place and a criminal is trying to make you a victim, you have every right to defend yourself without any duty to remove yourself from the situation first... basically at this point, you can make either choice and not worry about losing justifiable Homicide. Making a criminal arrest of a Stand Your Ground claimant at the seen is not necessarily required. While the claim may be disputed, in the case of firearms, using an illegally owned weapon is typically ground for arrest regardless... (probably not in cases where the illegal gun was introduced to the scene by the dead criminal... and the victim picked it up in a scuffle... though this requires some measure of sorting out). Legal Fire Arms are very well documented and the fire arm in question will be confiscated as evidence. If it is found that it was not a justifiable homicide, the person in question is probably at the address tied to the gun. Now, again, Stand Your Ground only applies to steps needed for Self-Defense, it is not self-defense itself. Self-Defense authorizes only the amount of force needed to safely resolve the situation, up to and including leathal force, but it does not require you to kill the perpetrator in every instance it is invoked. For example, if merely pointing a gun at a perpetrator is enough to stop the crime, you do not get to pull the trigger. That flips it back into homicide. Similarly, if I pull my gun and the guy advances anyway, I may fire and if the guy is on the ground and out cold (thus, no longer a threat), I don't get to walk up, and put a second bullet between his eyes, execution style. This too is murder. As a bit of anecdotal evidence, when I was living in Florida, I worked for a man who just recently purchased a firearm for self-defense (in the home only) and he said that when he was filling out paperwork with the police, the cop looking over his paperwork said, "Now remember, if you have to use that, shoot to kill. It's less paperwork for us." Now, I wasn't there when to cop said it, I don't know what his tone was. I took it as the cop being a little funny, but maybe a little inappropriate. I cannot speak to how much that is indicitive of FL Police culture. It was hearsay on my part... I just thouht it was funny and... demonstrates the attitude towards self-defense. Essentially, by the time cops arrive at the scene, they HARD PART is over... they merely have to collect evidence and take witness statements. If the shooter is cooperating and his story checks out, it will look very bad if they detain a crime victim who defended himself. It's just bad PR. Ultimately, his job is to collect all evidence, not determine if the case should go to trial. As I mentioned, the gun was legally owned in the specific case, and more than likely the CCTV tape is collected, but not yet viewed. Hindsight may be 20/20 but at the time, I do not think it's fair to say that the cop knew this might not be such a clear cut case. In such cases, the cop may not make an arrest because there is not any crime that he can charge the man with and he is cooperating. And keep in mind that in the heat of the moment for the shooter, he may not even realize he did something that might break his self-defense case. Cops can detain a person claiming Stand Your Ground for just about any legitimate reason, even suspicion of homicide that the detainee will claim is self-defense. | Conventional guns are not generally "registered" in America. (Only a few jurisdictions like NYC, DC, and maybe still Chicago, have laws requiring licensing of gun owners and registration of firearms.) The interstate transfer of guns between individuals/owners is regulated by federal law and must be conducted by Federal Firearm Licensees (FFLs). Many states also regulate certain intrastate transfer of guns (e.g., handguns, or transfers to individuals who are not immediate family members). For a fee any FFL local to you can ensure that any transfer is compliant with local, state, and federal law. In general inheritance and transfer between family members is not restricted, so long as the receiver is not a "prohibited person" ineligible to possess firearms. 18 USC §922(a)(3)(A) explicitly allows for the interstate transportation of firearms acquired "by bequest or intestate succession." In the situation described, if you are not a prohibited person, you could "inherit" the gun in Florida without any paperwork and simply mail it to yourself in Virginia (ref ATF FAQ #6). If you are uncertain or want to ensure that no laws are broken in that process, have the gun mailed to an FFL local to where you live, and pay the FFL to "transfer" it to you. | Generally, it is forbidden on Santa Clara County property. Santa Clara County Ordinances section B19-10 (a): It shall be unlawful for any person to bring onto or possess a Firearm, loaded or unloaded, or Ammunition, or both, on County Property. This subsection shall not apply where the possession of Firearms or Ammunition is prohibited by State law. There is, however, an exception at B19-11 (n) that may be relevant: Subsection B19-10(a) does not apply to the following: [...] (n) A person lawfully possessing an unloaded Firearm or Ammunition, or both, in the locked trunk of, or inside a Locked Container in, a motor vehicle; So the prohibition would not apply if you keep the firearm unloaded and locked in your trunk the entire time you are on county property. It isn't clear whether that is what you had in mind. As for parks specifically, there is B14-31.1 (a): No person shall set, leave or deposit, or have in his or her possession, any weapon, spear, missile, sling shot, trap or hunting device, air or gas weapon, throwing knife or axe, or any other weapon or device capable of injuring or killing any person or animal, damaging any property or natural resource, except in areas established for such use or while in direct transit to or from such areas and available parking. It's not clear to me whether this would prohibit a weapon in the trunk. You'd be well advised to ask the park officials for their interpretation; they might also be able to tell you if there are other relevant regulations. | How come this is viable? Because it’s legal. What if people use their service to commit crimes? What if people use a Ford in a bank holdup? Or a Glock in a murder? Or the US Postal Service in a Nigerian letter scam? If the goods or services are legal and not provided for an obviously illegal purpose, nothing happens. | What a statute means can be difficult to determine. There are several approaches to statutory interpretation that could be helpful: Textual: The plain meaning doesn't confine "use" to a few particular types of uses. The plain text provides an expansive prohibition on any use of an electronic communication device. Legislative history/legislative intent: The previous version of the subsection did limit prohibited uses to only composing, sending, or reading electronic messages. Given the amendment, it seems that the legislature no longer desired that limitation. When the bill was introduced, Rep. D'Amico stated the purpose of the bill was to "[expand] the prohibition on driving while using an electronic communication device to include uses beyond composing, sending, or reading an electronic message." During debate, when asked what a person should do that doesn't have Bluetooth, Rep. D'Amico suggested "You put it on speaker phone". When asked, "Where would you place the phone?", Rep D'Amico replied, "Wherever you feel like; just not next to your ear." During the same debate, D'Amico described the bill: "What House Bill 1247 does is ban handheld cell phones while driving a vehicle." In my opinion, the declaration of the bill's sponsor, and the debate surrounding the bill treated it as expanding the prohibition from including only texting and email to also include voice conversations. As far as I can tell, the full scope of "using" under this statute hasn't been tested in court, but I could see this going either way. The plain text provides an expansive prohibition on any use of an electronic communication device. However, a court might also be convinced by the legislative intent that only aims to add handheld voice communications to the previous list of prohibited activities (or it least it could be argued that this is the case). Further, under a purposive construction, a court could even look beyond the explicit legislative intent and find that the core purpose was to prevent distraction, in which case "using" could include any activity on your electronic device that distracts you as if you were texting, or making a phone call (eg. selecting the next song to play in your music app). | Yes, such as this limitation on free speech. Initially, the limitation was "Clear and Present Danger" test (Schenk v. United States, 1919) which held that speech inciting lawless action was not protected speech and thus could be crimilized speech (i.e. Schenk publishing anti-draft fliers during World War I, which advocated draft dodging which at the time was a crime under the Espionage act of 1917). This was later over ruled to the "Bad Tendency" test which allowed for advocacy of criminal actions to be criminilized (Whitney v. United States, 1927. Whitney was accused of helping establish the American Communist Labor Party (ACLP), which held as a party platform the violent overthrow of the U.S. Government in favor of one advocated by the ACLP. This is standard to most Communist Parties at the time around the world. The difference between Schenk and Whitney was that Schenk actively called for a criminal action, where as Schenk was speaking of a future action following other party successes). This was overturned again by Brandenberg v. Ohio (1969) which introduced the "Imminent Lawless Action" test. This explicitly overturned Whitney in addition to other cases not mentioned such as Abrams v. United States (1915), Giltrow v. New York (1925), and Dennis v. United States (1951). It does not overrule Schenk, but it did cast doubt upon the decision made. In the case, KKK leader Brandenburg made a speech advocating for revenge against African Americans and Jews as well as expressing the belief that the United States government actively surpressed White Americans and needed to be opposed. He was charged as advocating the violent overthrow of the government. Imminent Lawless Action added the important componant that the violation must be advocacy of lawless action (revenge against racial minorities) must have a definite future date (like "tonight", "tomorrow", or specific time and date) and a vague future time will not count. And must show intent to break the law (Brandenburg did not specifically intend to break the law... he wanted it changed so it would not be legal before he took action). Additionaly, they found that the mere advocacy of resisting the government did not have any language componant that suggested violent resistance. Brandenburg, as discussed, overturned the reaffirmed B and put Schenk on some shaky ground as parts of Shenk were still relevant (Schenk first introduced that Free Speech was not without restrictions, but some of the case law was not relevent anymore, as Whitney used it as a basis in that decision, as did to a limited extent Dennis, which didn't work well with Whitney for other reasons. It should be pointed out that the Supreme Court does not typically take cases that wholly reaffirm past cases. Typically, their rulings are to clarify situations in a previous case that are not stated by the current extant rulings. For example, if the Supreme Court took a case that called Roe v. Wade into question, the case would more likely test whether Roe allows for a particular practice that isn't all that clear in Roe. It may affirm that Roe is still law, but the new case is not consistent with Roe, which will place a restriction on Roe, but not, figuratively, (pardon the pun) throw the baby out with the bath water. |
What exactly does "Copyright © [year] [company]" on a website entail? Almost every website has some variation of "Copyright © [year] [company]" at the bottom. Sometimes they also add "All rights reserved". What exactly do those terms entail? My biggest concern is this: by writing that, is the company claiming to own everything on the website, even potentially copyrighted user-submitted material? | The notice has a lot to do with legacy requirements in the United States to claim the copyright to a work. Up until 1989, the copyright notice was required. Today, the statements are mainly maintained to protect against "innocent infringement" which might reduce what a content owner can get in court. What exactly do those terms entail? That the owner stated owns all rights and you may do nothing with the content. My biggest concern is this: by writing that, is the company claiming to own everything on the website, even potentially copyrighted user-submitted material? That's exactly what they are doing. Depending on the terms of the specific site, content contributors generally either assign copyright to the site owner or license the content in a way that allows the site owner to do exactly what they want with it. Site creators with the smarts or money to do it right/get someone to do it right usually state something like: Copyright [Site Owner] and contributors. Other sites (like this one) state specifically what they hold the copyright to: site design / logo © 2015 Stack Exchange Inc THIS IS NOT LEGAL ADVICE. CONSULT AN ATTORNEY REGARDING YOUR SPECIFIC SITUATION. | Think of a website that has gives no option for the users to delete what they have posted -but still the users can delete their account completely. That's easy - this is exactly how all StackExchange sites (including this one) work :-). See for example: How does deleting work? on meta.SE. Is it against the right to erasure mentioned here as a part of GDPR? No, it is not (otherwise StackExchange would be in rather big trouble). The "right to be forgotten" is subject to limitations. Most importantly, it only applies to personal data. Personal data is defined as (GDPR, art.4): any information relating to an identified or identifiable natural person (‘data subject’) If what you posted contains no personal information about you, it is not "relating to" you. The details are complicated (as usual, see e.g. The GDPR: What exactly is personal data?), but "personal data" is things about you (your name, your address, your sexual history, maybe even your IP address). On the other hand, if someone asks how to solve a programming problem, and you write an answer explaining what API to call, that answer is not personal data. In addition to that, even personal data may be retained if the data controller has a need to retain that information. This is also covered in article 4. For example, the controller may retain information "for the establishment, exercise or defence of legal claims" - otherwise you could buy something online without paying, and then ask the seller to forget about your purchases so they cannot collect the outstanding payment. So, in summary: A website will need to allow users to delete or hide personal data that they posted - such as their user profile information, or personal information in their posts. That does not mean they are allowed to delete entire posts - it is enough if personal information is redacted or anonymized. The website may be allowed to retain that information (hidden) if they can show legitimate interest - for example billing information, or posts that are the subject of a lawsuit. The StackExchange network, for example, covers this by allowing users to: disassociate posts from their account delete their account entirely (thus effectively disassociating all posts from personal information) asking a moderator for redaction of personal data | You probably own the copyright, since this wasn't an explicit part of your job. However, there may be other legal reasons which preclude you from using them anyway; copyright isn't all there is. Since you are in the middle of an active dispute, you should consult an actual lawyer (which I am certainly not) for legal advice. | I'm not a lawyer, but under the law as it's written, I see two problems: 17 USC 121 allows "authorized entities" to make and publish accessible copies of works. An "authorized entity" is defined as a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities. So if you, as a private citizen, decide to do this, it could conceivably be copyright infringement. You might have to set up some kind of non-profit organization to make it legal. It's also OK (I think) if you make such copies for your own personal use, so long as you don't redistribute them. So far as I can tell, nothing under 17 USC 121 requires the original publisher to provide an "authorized entity" with a copy in any particular format (PDF, paper, or otherwise) for making accessible copies. Basically, the law seems to have envisioned organizations of sighted people purchasing paper copies, transcribing them, and republishing them; not blind individuals doing electronic transcription for themselves. It might still be worth contacting Hal Leonard and asking what they can do for you, but unfortunately it doesn't look like the law requires them to do anything for you. As Nij points out in the comments, this really seems to be a question about the company's policy, rather than the law. | The reason is 17 USC 106: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following... (2) to prepare derivative works based upon the copyrighted work The original picture is the underlying protected work. The ASCII reproduction is a derivative work. If you get permission to make the derivative work, it is okay. Otherwise, it is copyright infringement. There is an escape clause, "fair use", which amounts to taking a chance that you won't be sued and then arguing that you didn't do them any prohibited harm. If you make any money off of the game, you have a major strike against you. I suggest reading the fair use FAQ; basically, it is really hard to know how a fair use defense will fare, but based on prior cases, I'd say it's infringement, not fair use. | All computer programs are not just copyrightable, they are protected by copyright as soon as they are put into fixed form (for example, as soon as I type it on my computer which will save it as a file on a disk). The copyright owner doesn't have to take any actions whatsoever to have a computer program protected by copyright. It’s not just computer programs, even many fonts are copyrighted because they are essentially computer programs. BTW. What I just wrote is also protected by copyright. There are some licenses involved that I agreed to when I submitted it to this website, and which allow the website to publish and you to read this text, but I'm the copyright holder. PS. There is a comment saying “computer programs are not literary works and therefore not copyrightable”. That may have been true or arguable in the 1980’s. It’s not true now. PS. No, stack exchange doesn’t own the copyright to my post, I do. Unless I was an employee of the company and posted on their behalf. Stack exchange needs and has a license to publish this post. | You are clearly seeking legal advice. Answers on this site come from anonymous people on the internet and are not legal advice. You should not act based on information from this site. I am unaware of any lawsuit where one would be sued for merely storing and reading HTML for personal use. Downloading a webpage is probably not a copyright violation. Most things you create, including HTML source code, are protected by copyright and copyright includes the exclusive right to choose who can read what you created. I couldn't find any actual reference to this but I would hazard a guess that displaying an HTML webpage online is implicitly allowing others to read that code. I believe this guess is correct because all modern web browsers have the capability to view source that nobody considers illegal and browsers also include the capability to save webpages to disk. These browsers are made by companies with large legal departments, I doubt Internet Explorer would include this function if using it was a copyright violation. Here begins speculation: However, your expanded question says that not only you wish to read the HTML code but you also wish to process it, extract information from it and use what you learn this way. This could, I think, be prevented by the copyright holder. Still, what you are describing is commonly done in the world. Services such as Google, Bing or the Wayback Machine go far beyond what you are doing. In theory, I can see this as being a copyright violation but again, the fact that these big companies - without any kind of contract with the website owners - keep doing it is big evidence in favor of legality of storing webpages. You should be careful about how you use the stored data, though. For example, computer programs often have a stipulation in EULA that prevents you from reverse engineering the code. I could see that the use of some websites could be protected in such manner. Further (not authoritative) internet pages on this topic: https://stackoverflow.com/q/22819287/1580088 https://answers.yahoo.com/question/index?qid=20120621055815AAvJPvN | I'm curious to know, because Google allowed their ownership of the domain to expire, why do they still have the rights to it even when it was bought by another individual. You're making an incorrect assumption here. The domain was never allowed to expire. An error in Google's domain registration interface allowed him to make an order for the domain. The domain was never actually purchased, but the act of ordering the domain gave Mr. Ved access to the domain in Google's Webmaster Tools. As the domain was never actually available for purchase, Mr. Ved had no rights to it. (The domain is not even registered through Google's domain registration interface; it's under a completely separate company, MarkMonitor, that specializes in high-value domains.) |
What are the legal implications of providing software only with a copyright notice? What does it mean when software is only provided with the following legend: "Copyright (C) 2016 John Doe Inc. All rights reserved." What are exactly the legal consequences of "All rights reserved"? Let's say I want to provide my SW to a customer w/o granting him any rights? No source code sharing (only object code - SW is a JAR file). Do I still need an additional SW License Agreement or is the Copyright notice above + a Disclaimer of liability sufficient? | What are exactly the legal consequences of "All rights reserved"? Almost none. You have to explicitly grant copyright rights. You don't even need the Copyright notice for them to apply. My "almost" is because the notice makes it harder for somebody to argue "they didn't realize". Do I still need an additional SW License Agreement or is the Copyright notice above + a Disclaimer of liability sufficient? If this is free software (I know you said it isn't), do yourself (and everyone else) a favour by picking a license you like. Preferably either GPL or MIT (depending on your taste). There are far too many free licenses already. Please don't add another. (It also makes it much easier for any user of your software: "Oh yeah, GPL v2. We understand that. We can use it." as opposed to "What are the implications of using this one??" As this is not free software, I think you need a paid-for lawyer (who understands IPR in your juridiction.) Edit: In principle, I believe you don't need anything. The code is copyright, so the customer can't do anything with it (without explicit permissions that you haven't granted). However if the customer doesn't realize that or thinks you won't mind, you then have to go to court to enforce your rights (and probably end up with a disgruntled customer). A short, clear, license will make it clear to the customer what they are allowed to do, and save all that aggravation. | The Organization Does Not Own the Copyright As you were clearly not an employee of the organization, and did not have a specific contract with them, this was not a "work-made-for-hire" (WFH). Therefore, the copyright initially belonged to the author, in this case the programmer, that is you. That being so, it would require a written document to transfer the copyright to another during your lifetime. In future there should be a written agreement in such a case, spelling out just what rights are to be retained by whom. It can save lots of trouble. The organization would have an implied license to use the software. The terms of this would be defined by the conduct of the parties, and might be a matter of dispute. Probably there would be a non-exclusive license without any fee or ending date. Probably there would be no license to distribute to others unless you explicitly grant one. Specific US Laws 17 USC 101 defines a WFH: A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. (emphasis added) 17 USC 201 provides that: (a) Initial Ownership. — Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work. (b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. ... (d) Transfer of Ownership.— (d) (1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. (d) (2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title. 17 USC 204 provides that: (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. | You have misunderstood the MIT license. The MIT license requires you to include a copy of "the above copyright notice and this permission notice" in "all copies or substantial portions of the Software." However, this is not the same as requiring you to offer the Software under those terms, and in fact the MIT license explicitly permits you to sublicense the Software under different terms ("including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software"). If you had to offer the Software under the same terms, then the sublicense right would be extinguished, so that cannot be the correct reading of the license. Therefore, you can do exactly what you describe, releasing the software under the GPL. In other words, you have to include the permission notice, but you are expressly permitted to wrap it in terms that state "these permissions don't apply to you, dear end user, but only to people who go and download the original from the upstream source." That's what "sublicense" means. The Free Software Foundation, which publishes the GPL, agrees with this analysis (although they recommend avoiding the phrase "MIT License" because MIT has offered software under other licenses). | It's possible that CAD has a separate licence from the authors of ABC that allows them to produce a closed source copy. If not, they have no right to distribute CAD. However two wrongs don't make a right, and so you don't get to violate the copyright of CAD.* Unfortunately, unless you are one of the authors of ABC, you have no standing to sue the authors of CAD. You can only notify the authors of ABC and hope they do. If the authors of ABC don't have the resources to pursue the matter, you may be out of luck. That's one of the reasons the FSF gets copyright assignments for their projects. * It turns out that this is a much more debateable issue than I first thought. Some courts have held that an unauthorized derivative work is not copyrightable. | The reason is 17 USC 106: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following... (2) to prepare derivative works based upon the copyrighted work The original picture is the underlying protected work. The ASCII reproduction is a derivative work. If you get permission to make the derivative work, it is okay. Otherwise, it is copyright infringement. There is an escape clause, "fair use", which amounts to taking a chance that you won't be sued and then arguing that you didn't do them any prohibited harm. If you make any money off of the game, you have a major strike against you. I suggest reading the fair use FAQ; basically, it is really hard to know how a fair use defense will fare, but based on prior cases, I'd say it's infringement, not fair use. | The answer by Dale M. is correct, but a bit brief. "Selling" is not an exact phrase. What you do not want to do is to transfer ("sell") the copyright to the source code. If you did that, you would put yourself in legal danger because they now own the copyright to code that you use in other products, and can sue you for copyright infringement. However, you selling a copy of source code does not imply transfer of copyright in any shape of form. When you buy a copy of a book in a book store, the author's copyright is not transferred to you. Accepting this deal would put the other party in legal danger. Even if they have bought the source code, they still don't have a license to make further copies of it and sell those. This is why you need to license the software to them. In brief: Copyright grants the copyright owner a lot of rights. These rights are always licensed, not sold. The right that is relevant here is the right to create derivative works. A license is simply a contract between the two parties, describing a particular business arrangement in legally binding terms. If I were in your position, I would hire an IP lawyer to help drafting the license. But, basically, the license should say that you, as owner of the copyright to ABC software, grants XYZ company access to its source in its present form, and also grants XYZ company the right to create derivative works, but only for hardware platform DEF, and to create and distribute copies of their derivative work. | Of course you have to follow the license. You seem to have a license that doesn't allow distribution and want to know if giving copies to the Dutch or Chinese branch of your company is distribution. First, you should not make that decision. Your company's lawyers should do that. Second, such distribution is with some licenses perfectly legal if you distribute the software with source code. That's a business decision which you or your manager or his/her manager... can make. Such questions (whether giving a copy to your Dutch branch is distribution) often don't have an answer that is yes or no but maybe - if you went to court, would a judge say that it is distribution? The answer is quite clearly "maybe". So unless you can find a safe way, there is a risk. Again, your lawyers will assess the risk. | would it be interpreted in favor of the person who did not draft the terms? Yes, provided that the interpretation is reasonable. That is known as the doctrine of contra proferentem. Here, the term "deliverables and associated documents" might entail a contradiction if that term [allegedly or literally] encompasses "source code or content". That depends on what definition(s) of "deliverables and associated documents" can be adduced from the contract. The term could refer to items that are not "source code or content", such as the binary files (i.e., executables and DLLs), instructions & documentation on how to operate and troubleshoot the application, and so forth. In that case, there would be no contradiction because there is no overlap between these items and the source code. if term A) is written on line 10 and term B) is written on line 11, is it resonable to assume term B) takes precedence or modifies term A? No. The sequence of clauses/terms itself does not determine which one outweighs or qualifies the other. Instead, the language used in the contract is indicative of the parties' intent and therefore how the terms of that contract relate to each other. |
Resolving issues with overdue payments for freelance work A freelance client of mine is months behind in their payments and is requiring digital account access prior to paying. What are my rights? The client doesn't read or respond to emails or phone calls. The client recently appointed a point person for me to discuss these past due payments with. The point person requested more work prior to payment. I declined and offered a payment schedule. The point person responded harshly, dissolving the business relationship and demanding digital web/email account access immediately prior to any payment. | Law SE is not for direct legal advice. You're in the middle of a contract dispute that has turned acrimonious and need to find legal help. Google for free or low cost legal aid in your area. If this "point person" has mentioned a lawyer or made legal threats, you do need legal help. | It is legal for a company to ask for any information they want as a condition of doing business with you, so long as their request isn't proscribed by law. I don't know of any jurisdiction where a request for banking or credit information is illegal. (In this case, however, it does seem like you are being phished. You could report the matter to your country's consumer protection agency.) | You entered into two contracts, one with a Canadian travel agency and on with an airline (maybe multiple airlines). The travel agency acted as your agent, in securing the booking with the airline. In each case, the contract reduces to the promise "I will give you this in exchange for that". The other parties did what they were supposed to do, now you are legally required to pay up. It is highly unlikely that your agreements included a clause to the effect that if they don't get the money from you within a particular short time-frame, the ticket is free. There can be a statutory limit on how long a civil claim (unpaid debt) is valid, but that is measured in years, not months. You can certainly negotiate with the party seeking payment (I assume it is the travel agency). If the agency clearly, unambiguously and explicitly states that they will accept half payment to settle the debt, then if they try to sue you in court, you can produce that email plus proof of payment as evidence that there is no debt. Thanking you for an offer is not clear, unambiguous and explicit acceptance of half payment. | Whether or not this would be allowed would generally call for a more fact rich situation than the one presented in the original question, that would cast light upon why a retailer might be inclined to refuse to accept payment. Hypothetical legal questions that presume that people are acting irrationally for no good reason are generally ill posed and don't have meaningful answers. Sometimes, there might be a legitimate privacy interest implicated if the invoicing party acknowledged a payment from a third party. For example, suppose that the invoice was for a paternity test and payment would confirm that the incapacitated person actually obtained a paternity test. Sometimes, there are legal rights beyond payment that are implicated and the reasonableness of a refusal might hinge on those rights. For example, suppose that the invoice was for an option to keep using an oil well. Payment of the invoice by the deadline would keep the oil well operating and the land owner sending the invoice might prefer that it not be paid so that the oil well would be shut down. Quite a few contracts are structured in this way. Maybe the invoice was for the right to purchase a first edition of a book when it was finally released, for example, and not paying it would free up a copy for someone else at a price that had increased in the meantime. Or, suppose that the invoice were for unpaid taxes and payment of the taxes would prevent property from being seized for sale by tax authorities, and the taxing authority would prefer that the invoice was not paid so that the valuable property could be liquidated. But, it is hard to imagine that there would be any reason that an ordinary retailer with an ordinary bill would ever refuse payment, although I suppose that this might trigger an interest or penalty amount owed under the contract for late payment. If that were the case, the principal of mitigation of damages, which says that a party to a contract must take all reasonable steps to mitigate their damages, might obligate the retailers to accept the payment or forfeit the penalty amounts that the retailer could have avoided as damages by accepting payment. I doubt that an undelivered tender of payment from a third party would eliminate the obligation, but, it might limit the damages that could be claimed as in the scenario above. | Is It Legally Binding? While their customer service sucks, your oral authorization of the charge is legally binding (I take payments that way almost every day in my own business, it isn't an unusual business practice in small professional businesses). You authorize oral authorization of payments over the phone in the credit card agreement that your credit card company sends you every year that you don't read and throw away. The provider has to collect more information for a credit card payment over the phone than they do for an in person swipe in a credit card machine (e.g. your credit card billing address) and they are fully responsible for wrongful charges if they deal with an imposter. By regularly checking your credit card statements, you can confirm that no incorrect charges are present. Tax Issues If you want to take a tax deduction for non-reimbursed medical expenses, you simply need to tote up the amounts your are entitled to from your own records, and put it in the appropriate box on your tax forms. You don't have to attach documentation to your return. If the IRS disputes your payment, you can offer up your credit card statements and your photograph of the receipts, and if necessary, medical records to show that you received the services, to show that the payment really happened and are deductible. Your credit card company's records, reflected in your monthly credit card statements, are considered very reliable for tax purposes. You have the burden of proving that the expense was incurred and is of a type that qualifies for a deduction by a preponderance of the evidence in the event that there is a dispute that is litigated, which means that you must show that it is more likely than not that you incurred a deductible expense of that kind in that amount in that tax year. Privacy Issues While there are financial information privacy issues associated with this transaction, HIPAA, which covers medical records, normally wouldn't apply to a credit card payment that indicates the person paid, the person paying, the account, the amount and the date, but not a description of the medical services provided or to whom they were provided, which is what is normally on a credit card receipt. The financial privacy issues are also partially addressed by the provider's merchant agreement with the credit card company which contains terms requiring them to maintain certain kinds of security with respect to your financial information (which is not to say that the provider actually follows all of the requirements of their merchant agreement scrupulously, which is why data breaches happen all the time in businesses both large and small). | If you don't respond to the letter, you will be penalized. So why would they send you a pre-stamped envelope? Paying for communications is just part of your everyday life and shouldn't come out of tax payers' money. | My lawyer answers my question, thinking he is giving legal advice to a non-client when he is actually answering a client's question. But if you read the FAQ, posts at law.stachexchange are not legal advice. In fact, questions that are so specific as to risk becoming a request for legal advice are routinely closed. But let's go further: The issue at hand is not the one your lawyer is hired to help you with. He is not your lawyer for that issue. Even if we considered the relationship through law.stackexchange legal representation, the conversation would not be privileged. You are posting in a public forum, and expecting reply in the same way. You are free to waive the privilege of communication with your lawyer, and you are doing that by using this way of communicating with him. At this point, the only thing your lawyer would have done would be voluntarily giving for free some info that he could have billed you for. What exactly would be the issue here? It is exactly what pro bono is for. The only way to breach confidentiality would be if your lawyer were to convey things that you said to him confidentially to the public, but here it would not be relevant if the OPs author were already his customer or not. | This has very little legal effect. It means that someone forgot to update their annual registration and pay the fee and could be resolved in half an hour with a small late fee payment. It is a sign of slight sloppiness, but is only sometimes evidence of something more serious. For example, if a company moves to a new location without remembering to inform the Secretary of State, it might not get the annual report notice and thus fail to file. And, a company rarely has an occasion to double check that it is in good standing. Usually, the only legal consequence is that the company can't commence a lawsuit without bringing itself into good standing and that another company can steal its business name (if it can do so without violating a common law trademark arising from use of the name). It does not significantly change the rights of parties dealing with the company in terms of property ownership, contract rights, etc. This said, closer scrutiny than a company without that issue might be in order and the fact that you are checking at all means that there might have been other reasons apart from this fact to be concerned. |
UK: Can I give money to my brother instead of him paying income tax on a share of my rental income? Let's say my brother acts as guarantor for my mortgage, so that I can buy a bigger house than before. He does not put his name on the house deeds, and he does not contribute to mortgage payments, I can still afford these on my own. I then make ~£9000 a year profit in renting out 3 of the rooms, and in 5 years, the house increases in value by £30,000. My brother then wants to buy a house. As a thank you for putting his name on my mortgage and helping me, I want to give him £30,000, to help him with his deposit. Would the law see this as a gift (tax free), or would they see it as us trying to avoid income tax that we would have to pay, if for example, we decided to pay my brother in rental income from my house instead? | It is certainly possible to give gifts to your relatives (or to anyone really). But, the harder question is whether or not it is really a gift. A characterization of a transaction as a gift is less likely to be questioned if it is between related parties, and it is less likely to be questioned if it isn't obviously a quid pro quo. If you told your brother that you would make a gift to him of all of the appreciation in the house, if he made the guarantee in advance, it would be a guarantee fee (or an equitable or nominee ownership) rather than a gift. But, with the timing and motives described in this post, it is certainly a closer call. The fact that the "gift" amount exactly matches the appreciation casts doubt on the theory that this is really a gift, but doesn't absolutely clearly require the conclusion that it is not. This could end up being resolved either way, and ultimately, could be very dependent upon the detailed facts and how they are presented to the person determining if tax is owed. | If your friend thinks he can live there for free due to his unique interpretation of contract law, he is mistaken. He'll get evicted if he doesn't pay rent, and likely end up with a judgement against him for unpaid rent. At its core, a rental agreement ensures that in exchange for paying rent, he may occupy the property. You can argue up and down about payment methods, but the fact remains he must pay rent in order to live there. Your friend MAY have an argument that he could move out and not be subject to penalty for breaking the lease because the payment terms changed. He'd have to give notice and would still owe for the time he occupied the property. There's just no way he can live there for free. He may find this out the hard way. | Close family members can stay as long as the tenant wants The tenant is entitled to "quiet enjoyment" of the property which includes living with their close relatives - spouse, de facto and children would all qualify; parents and siblings might as well. It doesn't matter if these people are children or adults. You cannot contract out of this as you are not allowed to discriminate in housing based on family situation. The tenant is also entitled to have non-relative house guests stay for as long as is reasonable. A month or so would be reasonable; longer than that and it starts to look like a sub-lease for which they would need your permission. There is generally a limit under texas law of 3 adults per bedroom but that doesn't seem to be an issue here. I also can't see where having a non-resident's mail delivered to the property is something you have a say about. I'd be very careful if I were you because it seems like you are on the wrong side of the law here. | This is a civil case, taking away your freedom is only for criminal offenses. Not paying your bills is not a criminal offense. It is up to the creditor to look for your assets, etc. A court can make you show up and answer questions about your assets and income. While you are in court the judge can make you give your gold watch to your creditor. Outside the parameters of the question there are circumstances like failure to pay child support when you do have the funds that can lead to incarceration. In some places you can be jailed for contempt of court if the court requires your presence to let the creditor have the ability to try to get access to your assets and you do not show up. | It is almost certainly legal for the sitter to keep the money. She was ready to provide the service, and it is not her fault she couldn't (and she may have turned down other opportunities because she had this one). I think your fiance's claim would be against the firm providing the security service (they are the ones that frustrated the contract). I foresee the following problems: What are her losses? She was prepared to pay $315 (which she has paid), and the dog has been looked after. Where is the loss? (She may be able to argue that it was worth $315 to her, not to have to owe her mother a favour. I don't know if that will fly.) The contract with the security firm almost certainly waives liability for this sort of thing. She would have to convince the court that the contract terms were unreasonable/unconscionable (or whatever the term is in the local jurisdiction). There are two obvious options here: a) see if there is legal cover on her household insurance (or her pet insurance); b) forget it (it's only $175 all told). | No, for two reasons. First, your question seems to assume that the current level of (1) vacancy, and (2) rent, will continue unchanged for the indefinite future. A lot of people thought that in 1989, and 2000, and 2007, just before the last three Bay Area housing crashes. The purpose of a long-term lease is to create certainty for the lessor. As the lessee, you are on the hook for whatever damages you cause by breaking the lease. As you say, right now, the complex will probably be able to mitigate fairly easily. That will change next time the market crashes. If you break the lease, you're gambling that it's still 1987...but there's a chance it's 1989 instead. If it is, you are on the hook, because the landlord exchanged a lower rent for certainty. Second, you're thinking about what the landlord will be able to prove in court. This is almost never the most helpful thing to be thinking in a situation like this. If you get to the point where your lawyer is having to stand up in court and argue about the reasonableness of the landlord's efforts, you've already spent more than two weeks' rent (even at Bay Area prices) paying the lawyer. Realistically, if the landlord says it took six weeks to rent, and sends you a bill for six weeks, the cheapest thing for you to do will, probably, be to pay it. | I can't help with the relationship issues: here are the legal issues. She legally owns 5% of the house and you own 95% I presume that the loan agreement is a contract between you, her and the lender so removing her name from the loan is at the discretion of the lender, not you or her. I would be very surprised if the lender would allow this without totally refinancing the loan. Whatever arrangements you had with your sister are probably not enforceable because the presumption is that arrangements between family members are not legally enforceable contracts. Unless you can provide evidence that both of you intended to create legally binding obligations for what you assert (like a signed document) then what you say is just hot air. Legally, neither of you have the power to get her name off the loan. As a co-owner she is entitled to live in the property rent free. Each of you is jointly (i.e. together) and severally (i.e. individually) liable for making the loan repayments - in what proportion that should be done is a matter for you two to sort out - the lender doesn't care who pays so long as they get paid. https://www.law.cornell.edu/wex/tenancy_in_common | You understand the business of landlording before you get started. You don't landlord for the purpose of evicting someone. You landlord for the purpose of exchanging keys for a duration for money, specifically by creating a leasehold estate that you sell to your tenant. Your tenant has the leasehold, you don't have the money, in part because it sounds like you didn't collect any before you handed over the keys or confirm your tenants' ability and history of paying. You now want to nullify the leasehold. In general this is the eviction you ask about. You are now reliant on a court in your jurisdiction to enforce the contract law with respect to the lease language and prevailing local ordinances. I cannot speak specifically to NY courts but they have a reputation as tenant friendly so you need to demonstrate your professional approach and locally required paperwork such as a certificate of occupancy, business license, etc. All lined up to make it easy for a judge to agree with you. You have an uphill battle. Turning off utilities (as mentioned in another post of yours) is not a professional move and will bias many judges against you. No certificate of occupancy may mean your original lease contract created a leasehold contrary to a public policy of NY which could put a judge in a bind if they found your case compelling. If a competent lawyer would cost $15k then it sounds like it might be cheapest to offer the tenant a couple thousand for the keys and a signed release to walk away–spend a couple hundred on the lawyer for this. Do not give them the money until they are out and give you the keys. This is called cash for keys. |
Brother and Sister both own house. Sister moved out, should brother buy her half? This is in Georgia, USA So a father bought a house, all paid for, then transferred it to his son and daughter, taking his name off completely. They all three lived in house. The sister gets married and moves out of state. Few years later, the father dies. The brother is still living there. The question is, since she is still technically half owner, and the brother has no intentions of moving out, shouldn't he pay the sister something? Can he be sued if he refuses? | The brother is under no obligation to buy, the sister is under no obligation to sell. As co-owners they each enjoy the right to use the property; that the sister chooses not to does not change the brother's right. If the property is owned as tenants in common (the most likely arrangement), the sister can sell or lease her share to whoever she likes without the brother's consent. She could even extend an invitation to an outlaw motor cycle gang to be house guests. If it is a joint tenancy, there is no sister's "share"; the siblings own the whole property as an indivisible whole. In that case both must agree to any dealings. | That is the case in the state of Washington, for example. All property acquired during a marriage is considered community property. This can make things complicated since there are state-specific rules that can arise in case of a divorce (Enovsys LLC v. Nextel Communications, Inc: the couple declared no community property at the time of the divorce, meaning the wife who was not a party in in infringement case, had no standing – and therefore the infringement suit could procede). This page goes into details. There are 9 US states with community property regimes: it is also the law for Sweden, Germany, France and Italy. In the US, permission from one author is sufficient to constitute "having permission" w.r.t. copyright: an owner of the copyright can license the work, and you do not have to get permission from all owners. This does not invalidate an open source license: spouse 1 can grant such a license even if spouse 2 refuses to grant such a license. Rodrigue v. Rodrigue, 218 F.3d 432 partially answers the question in Louisiana specifically w.r.t. copyright. A lower court held that the state-specific quirk of giving a non-author an equal interest in copyrighted IP must be swept away in the interest of uniformity of federal law. The lower court indeed rejected an argument based on 17 USC 301 which declares federal law to be superior to legal or equitable rights that are equivalent to that set out in Title 17: but community property law is not equivalent to Title 17, it's much broader. The higher courts reasoning is a tall wall of words which boils down the their conclusion that "we disagree with the district court only to the extent that it held the conflict between Louisiana community property law and federal copyright law irreconcilable absent congressional intercession", and having found a way that didn't involve Congress, they declared the work-creator to be the sole owner of the IP created during the marriage. See also the myriad citations contained therein. What this case in particular shows is that the specifics of the states community property laws will have an effect on how a courts would rule on such an IP question. | In the US it's very simple: How does the party that makes the lawsuit get the money in this scenario? They don't. Winning a lawsuit against a person is a legal confirmation that they really do owe you the money. It also gives you the ability to do certain things to try to collect: you could seize their assets or garnish their wages. If they don't have any assets or any income then you are out of luck. You can't take what doesn't exist. As the saying goes, "you can't squeeze blood from a turnip". A bit of legal jargon sometimes used here is to say that such a defendant is judgment proof. Even if you win a lawsuit against them, it won't do you any good, because they just don't have any money. If the person cannot pay it off, does it transfer over to their relatives? No. People are not responsible for the debts of their relatives. | He gets exactly what you give him. If you think the home is worth $225,000 then you should offer him to buy the house for $225,000, and that's it. There is no reason why would accept a lower purchase price of $150,000, there is absolutely no reason to deduct $50,000 rent from the purchase price, because that $50,000 is rent for living there, and there is no reason for anyone other than him to pay the $10,000 for changes that he wanted. Alternatively, you can put the house on the market for $225,000, and if it is sold, your daughter and boyfriend can find somewhere else to live. On further thought, and reading the comment: This boyfriend seems to be quite the sleaze bag. So if you gave in to his demand, and sold him the house for less than half what it's worth, you shouldn't be surprised if he sold it for $225,000, moved away with his new girlfriend who is not your daughter, and left your daughter homeless. | Two people can have an equal interest in real property without being married, and being incarcerated doesn't affect a person's property rights. What matters is that now your ex-wife has a legal interest in the property. As a separate issue, she presumably also has a legal obligation w.r.t. the mortgage (otherwise the quitclaim deed makes no sense). The easiest solution is for the other party to voluntarily transfer their interest in the property to you via a quitclaim deed. A difficult solution is to use the judicial process to remove a person from the title. This could be done if there was fraud involved in the property transfer process, for example if the quitclaim deed was forged (presumably not the case here). You might sue to correct an error which doesn't reflect the terms of the transaction, via a reformation action, but that doesn't seem to be the case (a party not understanding the consequences of transferring an interest isn't an error in the relevant sense). You need to hire an attorney to solve the problem (he will look at all of the documentation relevant for your case for a possible solution). | If you buy a house, you can generally rent out a room in the house, unless in that jurisdiction there is some law against renting rooms in houses (that's actually a condition in my neighborhood, one widely ignored). If it's legal to rent (lease) a room, it is generally legal to sub-lease that room – as long as that's allowed under the original lease contract. I have never heard of a jurisdiction that has a blanket prohibition against subleases. So as far as the actual question goes, the answer is, "yes". The links are about something a different, namely rent control law in San Francisco, and the question of whether a tenant can be evicted from a rent-controlled unit because the owner wants to move in to the unit. Owner move-in eviction requires a specific procedure for giving notice, and the links are about these requirements. Conceivably, though, the question could be whether a person can buy a house that is being rented out, do a proper owner move-in eviction, and then lease a spare room. The SF rent laws require a good faith intent to move in and use as the primary residence for 3 years, and nothing prohibit subsequently leasing a room. Those laws pertain to evictions, not re-rentals. (It should be noted that once eviction under section 37.9(a)(8) has been carried out on a unit in a building, no other unit in the building can ever be so recovered. That could mean that the room in the house could never again be recovered, if it is considered to be a separate "unit" from the "unit" that is the whole house). | Close family members can stay as long as the tenant wants The tenant is entitled to "quiet enjoyment" of the property which includes living with their close relatives - spouse, de facto and children would all qualify; parents and siblings might as well. It doesn't matter if these people are children or adults. You cannot contract out of this as you are not allowed to discriminate in housing based on family situation. The tenant is also entitled to have non-relative house guests stay for as long as is reasonable. A month or so would be reasonable; longer than that and it starts to look like a sub-lease for which they would need your permission. There is generally a limit under texas law of 3 adults per bedroom but that doesn't seem to be an issue here. I also can't see where having a non-resident's mail delivered to the property is something you have a say about. I'd be very careful if I were you because it seems like you are on the wrong side of the law here. | My friend should have taken his property with him, but presumably the host can't just keep it, especially after reaching out to them? Correct. However, the host does not have to do anything to facilitate its return i.e. they don’t have to post it to you. So long as they keep it for your friend to collect and don’t appropriate it for their own use, they are not breaking the law. If they do appropriate it, that is called theft or its tort equivalent, conversion. As my contract was with Airbnb and the host works from them, is there any responsibility on their part, e.g. Could I hypothetically open a small claims case against them? Or would any small claims case be directly against the host themselves? This is not true. You and the host each have a contract with Airbnb for the use of the platform. The contract for the accommodation is between you two and doesn’t involve Airbnb at all. In any event, there is no contractural issue here. |
What can I do about an employer witholding my final paycheck for "damages"? So I accepted a 2nd job about 8 months ago as an elderly care taker for my landlord's parents. After a year their mental condition had deteriorated enough that I informed by landlord/employer that they needed more professional live-in care and would be resigning from the job in 30 days. Instead of a last paycheck I got a long letter detailing how I was financially responsible for several appliances her senile father had taken apart trying to "fix" them, and that my final paycheck was being retained as payment. Is this legal? I never signed anything accepting responsibility for stuff her senile father broke. Now instead of just quitting a job I have a letter here claiming I owe her several thousand dollars and claiming that my final check is forfeit. She is a powerful attorney in California and I'm a regular working stiff. This is a bit out of my league and intimidating. | No employer has ever the right to withhold your pay check for work you have done. It is strictly illegal. Even if they had 100% evidence that you caused damage and were responsible for that damage, they still can't withhold your pay. They have to pay you, and then they can try to take you to court. The reason for this law is exactly cases like yours, where people try to avoid payment. If the "powerful attorney" tells you that you are not getting paid, then that "powerful attorney" is making a big mistake, because any lawyer would love to take your case to court and see the judge cutting the "powerful attorney" down to size. If you don't want a lawyer now, then you can write a letter by registered mail telling them that you worked for them, how much the payment due is, that they are legally required to make that payment, and that you will take them to court if they are not paying. If there is a conflict between law and a "powerful attorney", the law wins, and the law is on your side. | If the landlord gave you a key, and you can not give it back to him he has every right to charge you for correcting the oversight. I put to you that if you can't provide it back to him, he can't be certain that it has not fallen into the wrong hands, and he would be prudent to change the lock - and indeed, he may not even have another copy of the key in which case he really does not have a lot of alternatives. If you look at the section on "Claims for Damages or Loss" pdf there is a section B - Damage which confirms that Loss includes less tangible impacts including "loss of a service or facility provided under the tenancy agreement" Section C of the same document goes on to assert that "The purpose of compensation is to put the person who suffered the damage or loss in the same position as if the damage or loss had not occurred". There is arguably a question of the amount of loss suffered, and they can't sting you for punitive damages, but they can charge you a reasonable amount to get a new key cut (or possibly to replace the lock) - but that was not your question, and would probably arise if the amount he charges was unreasonable in the circumstance. Depending on if he has already taken action - and if not, how much the bill would be - promptly remedying the breach by finding and returning the key or equivalent action might save you some money. | It is the tenant's responsibility to understand the written contract. Oral statements about the contract do have to be consistent with the written contract (that is, in the context where you ask the landlord what a particular clause means before signing -- not in the case where you are modifying an existing contract). If I were renting a room and the contract says "Du må betale $1000 hver dag", which I don't understand because my Norwegian is terrible, I would ask about this, and the landlord might say that it means "You must pay $1000 every month", which could be a decent deal. Actually, the clause says "You must pay $1000 every day". When the reality of the situation becomes clear, then it is obvious that we didn't have an agreement in the first place. Perhaps he mis-spoke, or his English is as bad as my Norwegian, but I would not be held to rate in the written contract, assuming that I could back up my claim that he gave me that interpretation: the lease would probably be voided, as not an actual agreement. The underlying principle is that there has to be a "meeting of the minds" where the parties understand what they will get and what they must give, and there was a demonstrable failure of understanding. On the other hand, if I sign a contract without really reading it carefully, and there is a clause in English (which I speak) saying that I have to pay $1000 a day, but I didn't really think about the clause so that in a sense I didn't understand what I had agreed to, well, I may still be on the hook. (On the third hand, a court would probably say that's a ridiculous rent and void the contract on policy grounds). In general, "not my first language" is not a get-out-of-contract card, though attempts to trick people into signing documents in languages that they really have no understanding of won't be successful. Virtually nobody but a lawyer actually understands contractual language, yet contracts are enforced all the time. A contract can be explicitly modified by verbal agreement, or can be entirely verbal, but oral agreements face evidence problems, namely, what exactly did A and B say? It's scientifically well established that parties can be morally certain that the conversation went "A" (for one person) and "Not A" (for the other person). Using "could" rather than "would" in speech makes a huge difference in interpretation. There is a rule, the parol evidence rule, which essentially says that unless there is a good reason to not do so, the contract as written is what is enforced. Even if the conversation had been written into the contract, there's no basis in the contract for objectively determining whether a thing is old and "just broke". So even as an additional clause in the contract, it doesn't afford you a clear escape hatch. You might be able to prove with expert testimony that indeed the pipes had been corroding for a hundred years, and you could not have caused the pipes to burst. | Your employer is most likely bluffing. It is better to be fired than to quit voluntarily. The problem with quitting voluntarily is that you won't get unemployment benefits (Arbeitslosengeld I) for a while. So don't quit voluntarily if you aren't keen on living from savings for three months. If you want to quit, get another job first. (You should get another job anyway instead of working for a toxic employer.) Your employer can only terminate your employment under certain circumstances, and with certain notice periods. Germany is very employee-friendly. Your company's establishment is currently large enough that the Kündigungsschutzgesetz (KSchG) applies. To be clear, it doesn't matter how large the company is overall, only how many employees there are in the office, shop, or other place of business. Part-time employees are counted partially. Contractors are counted as well. The KSchG fully applies if there are typically more than 10 (11 or more) employees. The KSchG does not apply to company leadership, e.g. C-level executives. Under the KSchG, the employer can terminate employment for one of three reasons: reasons in your person, reasons in your behavior, and operational reasons Personenbedingte Kündigung: Your employment can be terminated for reasons in your person if you are unable to carry out work in the future, for example if you need sick days so frequently that this puts an unreasonable burden on the employer. It is generally impossible to use this reason without the normal notice periods. Verhaltensbedingte Kündigung: You can be fired for reasons in your behavior if you committed some gross misconduct. Typically this requires an Abmahnung (written warning) so that you have opportunity to cease the problematic behavior. For example, you might get an Abmahnung the first time you skip a shift, and get fired the second time. In especially severe cases of misconduct, it is possible to skip the Abmahnung and/or the notice period and to fire an employee on the spot. For example, this might happen if you embezzled funds or stole your employer's property, even if the monetary damage was very small. As such dismissal with cause stems from your behavior, you would not get unemployment benefits for three months. Betriebsbedingte Kündigung: If the company has to downsize for economic reasons, it can lay off workers. However, the employer must apply social criteria for selecting the employees to lay off. Factors are: the length of employment, age, support obligations for children or other dependents, and disability status. That is, a young, new, childless and able-bodied employee is more likely to get axed. If you have a union (Betriebsrat) they can veto a termination in certain cases. These criteria can be clarified via collective bargaining agreements, but cannot be circumvented in an individual contract. So your employer will not be able to find any error in the contract that will allow them to fire you. The best they could do is to go really carefully over your application and paperwork to find any misrepresentation, and use that as the basis for a Verhaltensbedingte Kündigung. However, it is quite unlikely that they will find a misrepresentation so severe that it could serve as grounds for firing you without notice. Minimum notice periods are given in law. The minimum is one month notice. Your contract cannot have a shorter notice period in your context. In case of a dismissal for exceptional reasons (e.g. theft), no notice period is necessary. If you are terminated, go to a lawyer. You only have three weeks to file a lawsuit. Contacting the lawyer should be the second thing you do after getting fired, with the first thing being the registration with the Arbeitsagentur to start the clock for unemployment benefits. If your employer is making unprofessional threats like claiming that there could be a “critical error” in your contract, it is quite possible that the termination notice could be deficient in some way. If the dismissal was improper, a court can award compensation (lost wages) and reinstate the employment, though this is unlikely to be desired. Your wage from subsequent jobs (or wages you could have earned if you had looked for a job) will be subtracted from the lost wages. To summarize this large text dump, firing an employee is difficult unless the employee does something very stupid like stealing from the employer. Therefore: reasonable employers that want to get rid of an employee don't look for errors in the contract. Instead: They watch you very closely to find any behavior that merits a written warning (Abmahnung). This builds a case for a termination with cause. They offer an agreement to terminate the contract (Aufhebungsvertrag). With such an agreement you mutually terminate the employment. You won't get unemployment benefits for three months since this was your decision, so typically these agreements provide for generous compensation. A reasonable employer knows that paying for the notice period + additional compensation is cheaper than dealing with an unhappy employee + a potentially invalid termination + a prolonged legal battle. Of course, less reasonable employers resort to bullying to get you to quit yourself. This is cheaper than paying compensation with an Aufhebungsvertrag. | You can always complain to the county. It is not obvious from your description that you have a legal case. One reading of the circumstances is that you did not have a job offer, you went there on the assumption that you might get an official offer after being "oriented" and interviewed. The interview did not go well, so they did not give you the job. Time and travel expenses are often borne by the job candidate. The alternative interpretation is that you had an actual job offer, and you traveled to the site as part of your employment (involving some training). In that first session, things went bad, and you got fired. If that is the case, then (a) you would be owed wages for that day and (b) there is a slim chance that the firing was not legal (there could be restrictions on firing employees in government jobs, in whatever jurisdiction this is). Your attorney will guide you (after you giving a more detailed explanation of the circumstances) in understanding whether you were fired, or not hired. | I assume that you arranged a contract with some company which paid the contractor the full amount, and not you have to pay that company. If you stop paying the finance company, they will initiate legal proceedings against you to make good on your obligation, and that won't affect what the contractor does. It might not hurt you to write a formal letter (no phone calls) to the contractor stating that you require them to complete the job by some date certain, and hope that you won't have to take the matter to court. If you decide to write the letter yourself, you want to avoid saying anything that could be held against your interest, for example "I don't care how crappy a job you do, I just want this job done!": you need to be sure that what you say in a letter does not put you at a legal disadvantage. The best way to guarantee that is to hire an attorney to write the letter. If you want your money back (plus interest), you will almost certainly need to hire an attorney to write the letter. It is possible that there is an arbitration clause in your contract, requiring you to settle disputes with the firm Dewey, Cheatham & Howe. In that case, your attorney might not be able to do much for you. There cannot be a clause in a contract that penalizes you simply for hiring an attorney. | Yes, they seem to have broken the law. In California, notice must be given for an eviction. This can be a 30/60/90 day notice with no reason needed (typically because the landlord wants the property for something else) or a 3 day notice with cause- the most typical being not paying the rent. Note that COVID exceptions exist, though I don't believe they apply to you. Even after that time, a landlord cannot physically remove a tenant or attempt to drive them out through the destruction/removal of property, locking them out, or cutting off utilities. They are liable for damages suffered as well as penalties. There are lawful procedures in place for this. The removal and destruction of your belongings could constitute either larceny or vandalism. Either way, by unlawfully removing your possessions, they are liable for the damages caused. | Generally speaking, you have to disclose that the defendant is a minor in the complaint and their deadline to respond is tolled until the court has appointed a guardian ad litem for them. So, while it is possible, it is arduous. Also, since someone below the age of eighteen can claim minority as a defense to an executory contract (as opposed to a contemporaneous exchange of goods or services for cash), and in some cases, to other contracts, you have a better shot at suing for malperformance and nonperformance of work. Finally, even if you can sue, collecting a judgment from a minor, who is likely to lack both employment and any significant assets, is very challenging. A minor's legal guardians or parents would not be responsible for a judgment entered against a minor in these circumstances. there was no written contract for the job and the only information I have of them is their phone numbers. The lack of a written contract isn't a serious problem in a short job that was performed by both sides. You will need to be able to locate them to physically serve them with process to sue them. If you have their names, approximate ages, and the general vicinity of where they live or work, this isn't an insurmountable burden, but it is a bit of extra work that could turn out to be easy or could turn out to be a major obstacle. |
Is a vehicle solely for personal use required to be licensed? Please explain "The term “motor vehicle” means every description of carriage or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, passengers and property, or property or cargo. 18 U.S. Code § 31 - Definitions | US Law | LII / Legal Information Institute" | You are required by state law to register and license a personal (or commercial) vehicle because state laws govern vehicle licensing, not the federal government as you cite. See Motor vehicle registration - Wikipedia. States have the right, well established in case law, to require registration, taxation and insurance for all vehicles on all public roads. The various websites and "sovereign citizen" arguments on the web that say you don't need to register or license a vehicle are wrong. In some special cases, states issue waivers for what are known as farm or ranch vehicles driven solely on private property, and those cases may or may not pay taxes or require insurance. | S88 Closing roads and public places: ...totally or partially prohibit or restrict public access, with or without vehicles, to any road or public place... S91(1)(a) Power to give directions: direct any person to stop any activity that may cause or substantially contribute to an emergency That is what "this Act otherwise provides"; S6 that you cited only works "unless": Unless this Act otherwise provides, this Act does not limit, is not in substitution for, and does not affect the functions, duties, or powers of any person under the provisions of any enactment or any rule of law. Also, from another angle, "functions, duties, or powers" are not the same thing as "rights": the Act does not limit the former (unless provides otherwise), but nowhere does it say it does not limit the latter. | Assuming you mean methamphetamine, then the answer is no. It is illegal to drive with any amount of methamphetamine in one's body. The main Minnesota law on driving while impaired (DWI) is Section 169A.20 subdivision 1: It is a crime for any person to drive, operate, or be in physical control of any motor vehicle, as defined in section 169A.03, subdivision 15, except for motorboats in operation and off-road recreational vehicles, within this state or on any boundary water of this state when: [...] (7) the person's body contains any amount of a controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols. The schedules of controlled substances are at Section 152.02. Methamphetamine is listed in Schedule II (subd. 3 (d) (3)). However, there is an exception if you were taking the substance as a prescription. Section 169A.49 subd. 2: If proven by a preponderance of the evidence, it is an affirmative defense to a violation of section 169A.20, subdivision 1, clause (7) (presence of Schedule I or II controlled substance), that the defendant used the controlled substance according to the terms of a prescription issued for the defendant in accordance with sections 152.11 and 152.12. Note that since this is an affirmative defense, the burden of proof falls on you to prove that you had a prescription, and that you were using the substance according to its terms (e.g. taking only the prescribed dose). In particular, if your doctor or pharmacist told you not to drive while taking it, then that would seem to say that you were not using the substance as prescribed. | Alabama has published an administrative interpretation of §32-6-7, §32-6-7.1, Code of Ala. 1975 regarding medical standards for driver licensing. This allows them to take medical conditions into consideration in denying, not renewing, or restricting a license. This includes, for example, the ability to consider the fact that a person has high blood pressure. The review standard basically says that if they review a person and determine that there is a significant medical impairment, they can restrict driving privileges. 760-X-20-.10 addresses MS and related conditions, which basically restates that. There is nothing in the statutes that requires a person to report a specific medical condition of theirs. A doctor could, however, report that a patient is not fit to drive, which could trigger a DMV evaluation. P. 13 of the state Driver License Manual sums it up saying When it appears that you have some physical or mental impairment which might affect your driving ability, you may be required to furnish a statement from a doctor showing your medical history and present condition as it pertains to your driving ability. This does not translate into a requirement to self-report medical conditions that potentially affect ability to drive. It is highly unlikely that any state singles out MS, but every state has the potential to restrict driving if a person is medically unsafe to drive. | The Highway Code said: Vehicles. Any vehicle driven by a learner MUST display red L plates. In Wales, either red D plates, red L plates, or both, can be used. Plates MUST conform to legal specifications and MUST be clearly visible to others from in front of the vehicle and from behind. Plates should be removed or covered when not being driven by a learner (except on driving school vehicles). [Law MV(DL)R reg 16 & sched 4] The good old Highway Code "Must" vs "Should". "Must" means that it is a legal issue, anything that is "Should" is only advisory | Working a mobile car cleaner now, my manager asked me to take some pictures before cleaning and after clearing, privacy issue of the car owner California law creates an expectation of consent for taking photographs of people for purposes of commercial distribution of the image to the public. California Civil Code § 3344. But, absent copyright or design patent issues (which would only very rarely come up since most people don't own the copyrights or patents to the designs of their cars, and the owner of the copyrights generally grants an implied license for the owners of the cars to display the copyrighted or patented designs), there is no parallel requirement of consent for taking photographs of things. Furthermore there is no common law expectation of privacy in anything that someone you do business with must necessarily see with their own eyes. So, if you must see the car to clean it, then taking photographs before and after the work is done does not violate any expectation of privacy to which the customer has not implicitly consented and does not violate any California or federal statute. Better practice would be for the business to explicitly have the customers consent in writing to the photographs, to remove all doubt. But the implied consent to having someone see your car when they are cleaning it would be unreasonable to deny in almost all circumstances. A company might voluntarily have an agreement to keep any photographs taken confidential and to have its employees sign non-disclosure agreements not to reveal what they see while working. If it did, this would create a legally enforceable expectation of privacy for the customer. For some VIP clients, this contractually enforceable discretion might be something that would induce them to pay a higher price for the same services. But those kind of protections are not the default standards of law that apply in the absence of an agreement. And, even then, taking photographs for purposes of internal use only would probably not violate an agreement of this kind. The work still requires that people inside the business, including remote supervisors, be able to see the cars to do their work. | In Spain, most traffic offenses are usually considered administrative sanctions and involve just a relatively small fine, and perhaps losing some points in your licence. In those cases, if the driver if the vehicle cannot be established (your example, or a far regular one of a parking violation in which the officer did not see who did park it and will not wait by the side of the parker until the driver appears), the fine just goes to the registered owner. When the fine is reported to the registered owner of the vehicle, he can report who was the actual driver who broke the law at the time of the offense. I do not know what would happen if the person named does not recognize his responsability, but my guess is that the owner has to pay the fine (HINT: do not lend your car to someone who cannot be trusted). If the infraction is so excessive that it becomes a matter of penal law then there must be a trial and then the accused must be established without reasonable doubt, so in that case such a stunt maybe could work. | Let's say one of us borrows the other one's car (with permission) and has an accident. Whose coverage is responsible at that point to satisfy the legally mandated insurance coverage? I assume that's only coverage against damage to others (which should go under liability insurance?) but if I'm wrong please correct me. There are different types of insurance that may be required: liability insurance - pays damage to others (usually including your own passengers) which you are responsible for. This is legally required almost everywhere (both in the USA, where this depends on the state, and elsewhere). Rules vary on the required minimum amount, and the exact coverage (e.g. whether lost wages are covered in case of injury). uninsured motorist coverage - pays damages you or others suffered, which are the responsibility of another driver who is not insured. This is mandatory in some states of the USA. In some other countries, these damages are covered by a public insurance or trust (such as the Verkehrsopferhilfe in Germany). personal injury protection - pays your own medical costs, no matter who is at fault. Required in some states of the USA. Is the lender's insurance supposed to cover it? This depends on the insurance policy, but in almost all cases the policy is for the vehicle (and often has to be, under the laws requiring insurance). So if yes, if you lend your car to someone else, your insurance will cover them. Note, however, that some insurance policies restrict your right to lend your car - read the fine print! There is one situation where your own policy may be relevant: If the damages exceed the limit of the vehicle's insurance policy, your own policy may pay the rest - again, this will depend on the policy. If so, wouldn't this not make sense? Insurance companies look at your driving history (& risk) when they offer you a plan, and if the borrower has a poor history, you've increased the company's risk without their knowledge, right? It would seem to open insurance rates to abuse. Yes, exactly. That is why many (if not most) insurance policies place limits on lending your car. You may only be allowed to lend it to people over 21 years of age, or only to people who you have registered as car users with the insurance company. Is the borrower's insurance supposed to cover it? If so, wouldn't this not make sense? Insurance companies charge you differently based on what and how many vehicles you want covered, so wouldn't borrowing someone's Lamborghini suddenly open your insurance company to a massive risk without their knowledge again? No, the borrower's insurance does not usually apply. Making the borrower's insurance apply would be problematic because the risk is based on the vehicle (type), too. Also, the borrower may not have insurance (e.g. may not own a car). In particular, enforcing the mandatory liability insurance is easier in practice if it is per vehicle, because you can check the insurance at vehicle registration (which practically all countries already require). If the liability insurance were per driver, it would be difficult to prevent a person w/o insurance to borrow a car (as in your example). Finally, sometimes after an accident there is a dispute about who was driving the car (especially with hit-and-run accidents), but there is usually clear evidence (collision damage) what vehicle was involved. If insurance applies to the vehicle, a dispute over who was driving will not interfere with the victim's restitution.Thanks to supercat for pointing this out. |
Does quoting a line from a film infringe copyright? I want to quote a line from a film in my novel. Specifically: "Don't ever lose your sense of humour, Dan. Don't ever lose your sense of humour." From About Last Night (1986). So, it's not a long excerpt, just two sentences. I know I can't quote a single line from a song without incurring expensive permission fees. But, that's a short body of work. Does it apply to movies, too? | No. This is fair use under U.S. Copyright law, which allows you to use portions of a Copyrighted piece as long as you are able to demonstrate that you are using the quote in a transformative manor (presumably a character is a fan of the movie and is quoting it because it institutionally appropriate). Consider Arnold Schwarzenegger's catchphrase "I'll be Back" which is worked into almost every movie he's done. The original line was written by James Cameron for the 1984 Terminator Film. At the time of writing, Arnold didn't really think much of the line. Cameron said he thought that the line would be funny only upon repeated viewings and was surprised that it first time audiences laughed at it, having already anticipated the titular character's penchant for machine like understatements. Since then, the use of the phrase was used in Every Terminator Movie (including one where Arnold was not available for filming due to being governor of California during filming... it was said by John Connor (Christian Bale)) and most, if not all movies Arnold has a significant role in, as a sort of in joke for the audience with little suit from James Cameron or the Franchise owners. In addition, no Arnold Parody is complete without some use of the line, and almost everyone has an "Arnold" parody. Fair Use is an affirmative defense, meaning you must say you're going to use it as a defense (and then prove why it falls under Fair Use) rather than assume courts will enforce it for you. | I would argue that no, there is no copyright for the restored work. Independent copyright is only possible for any original material added, as previously discussed on this site. In this case, the added work was a technical process rather than a creative process, and technical processes cannot be protected by copyright. Copyright licenses would therefore be ineffective. However, I believe one could still impose a license based on owning the copy as opposed to the copyright (contract might be a better term in this case). However, if a third party managed to obtain a copy through some other avenue, any such contract would not be binding on them and nothing could be enforced against them unlike with copyright laws. Another way a license might be imposed is through patent protections, as technical processes can be protected via patents. However, I'm not as familiar with patent law, and this doesn't appear to be the claim being made. | The text in the image means, For works published after 1989, a copyright notice is not required for a work to enjoy copyright protection. If you use an unmarked work in a way that violates copyright, you cannot defend your use by claiming that the unmarked work is not under copyright. In most nations, all creative works are automatically under copyright per the Berne Convention. Prior to widespread adoption of the Berne Convention, authors needed to explicitly write a copyright notice on each work to make it covered under copyright. A notable example of such a failure to mark a work is Night of the Living Dead published in 1968, which did not include correct copyright markings and became part of the public domain immediately. Such an event can no longer happen under modern copyright laws, since copyright now applies by default, not because of a marking. The only effect copyright markings have in modern use is on innocent infringement. If you infringe a modern work the doesn't have copyright markings, you still infringe copyright, but you may be able to reduce the penalty by claiming that you didn't know copyright applied to the work. If the author includes a copyright notice, then you cannot claim ignorance of copyright. | Distribution on YouTube implicates, at least, US copyright law. Shropshire v. Canning 809 F.Supp.2d 1139 (N.D. Cal. 2011), Subafilms v. MGM 24 F.3d 1088 (9th Cir. 1994) Are you infringing? Is the original work eligible for copyright? "It is undisputed that computer programs— defined in the Copyright Act as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result, can be subject to copyright protection as literary works." 17 USC 102, Oracle Am., Inc. v. Google, Inc., 750 F.3d 1339 (Fed. Cir. 2014) (internal citations omitted). Are you making a copy or displaying the work publicly? (17 USC 106) You concede that you are doing this in the hypothetical, so we can skip this step. Do you have permission to do this? Some work is licensed to allow your proposed use. If you have permission, then this entire answer is moot. Are you taking what amounts to a substantial taking of the original? Presumably, you will not need to show the entire source file to present the naming conventions and techniques that other developers have used. But, what you do show will be an exact reproduction of the original. In the case of computer programs, all US districts use the abstraction-filtration-comparison test. Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). The abstraction stage of this test is irrelevant in this hypothetical because the reproduction is exact. Filtration excludes any uncopyrightable elements of the original from consideration (due to scènes à faire, merger, lack of originality). The comparison stage compares what remains after the filtration stage, to determine if the new work takes substantially from the original. Fair use defense If your use is found to be infringing based on the above analysis, the affirmative defense of fair use is available. I can't tell you whether a fair use defense would be applicable or successful in your particular case. However, you can search the US Copyright Office's Fair Use Index for many examples successful fair use defenses when a literary work was reproduced in part or whole for educational purposes. There are also other affirmative defenses available (implied license, for example), or defenses that directly attack the elements of copyright infringement. Some confusion exists regarding "idea/expression merger" as a defense after a prima facie case of copyright infringement has been made. This isn't completely correct. Where idea/expression merger enters the analysis differs from circuit to circuit. In the 6th circuit, merger enters in the copyrightability analysis (paragraph 1. above). But, the 2nd and 9th circuits treat merger as part of the infringement analysis (paragraph 4. above) and in the 9th circuit, merger is an affirmative defense. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000) The idea/expression merger doctrine is not implicated just because "the idea one that is expressing is 'this is the code they used.'" When you need to cite/show the original work for purposes of "criticism, comment, news reporting, teaching", that is a direct implication of fair use. Using using this justification triggers the full four-factor fair use analysis. (17 USC 107). You don't get to reproduce a work just because you want to say "this is the work they created." | As for plagiarism, that is not a legal concept, so he can define plagiarism however he wants. It certainly isn't, under any definition I have ever seen on Earth and I have seen many (it has to do with "claiming someone else's work as your own"). As for copyright, a set of questions is (potentially) protected by copyright. If they are copied from somebody else's book of questions, then the book author (or publisher) holds copyright. Let's say that QM invented the questions, such as "What is the Turkish word for Janissary?", "What is the most prominent feature of Jannissary garb?" and so on. Then that set of questions, when put down in fixed form, are protected by copyright, and cannot be copied without permission. | First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply. | Copyright is held by the person who puts the content out there in fixed form. If A reads a prepared text and B talks extemporaneously, A has copyright to his fixed text. Whoever then records the debate holds copyright to B's talk (not a typo). If that person is B, A can point out that A's copyright was infringed, presumably leading B to an equitable arrangement that would avoid copyright violation litigation. However, if the recorder is A, then B is hosed. On the other hand, if neither party has a prepared text, then the guy who does the recording has all the rights. And if both parties have prepared texts, nobody gets to record without a copyright agreement. | There is no legal difference, really. There may well be a practical difference. It is much easier to steal a wheelbarrow than it is a 20-foot section of 2-foot wide iron conduit. But doing either is theft, and the legalities are pretty much the same. It is indeed easier to copy a song lyric, or a poem, then the text of a novel, say. But if done without permission, either would be copyright infringement, unless of course an exception to copyright, such as fair use (in the US) or fair dealing (in the UK and some other countries) applies. (Or unless the text is out of copyright. One may lawfully copy Shakespeare, for example. Or Mark Twain.) |
Is it legal to walk out of school, unexcused in Colorado There are several school walkouts coming up in Colorado and nationwide that I plan to participate in, most likely without my parent's permission/knowledge. I am 16. Is this legal? | One of the relevant cases is Tinker vs. Des Moines. In it, students wore black armbands in protest, and were suspended from school unless they agreed to remove the armbands. Because their protest was non-disruptive, the school's position was found to be a violation of their civil rights. Generally, the school cannot interfere with students' rights to free speech and civil liberties. That does not mean that students are free from discipline however. If students walk out, whether in protest of a great injustice, or just to get lunch, or go to a concert, the school can discipline the student for walking out. What the school cannot do, however, is treat the reason for the walkout differently. They cannot give minor detention for one reason (say, a rock concert), and a full suspension for politically motivated walk-out. If they are dispensing harsher punishments based on the reason for the walkout, that is crossing a big line. More detailed discussion can be found at http://time.com/5171160/gun-control-student-protest-history/ | It is not prohibited in California under EDC §49011, though your local board could make it prohibited. In-person solicitation of goods or money during school hours is prohibited in NY state, under Regents Rule 19.6, but recruiting children during school hours is allowed. | Overview The cop is basically wrong. Sexual harassment is not the only kind of harassment recognized by U.S. law. The question and the cop's answer to it, assume that simply asking certain questions is illegal or not illegal, but it isn't that straight forward. Words communicated verbally are part of the analysis, but not the entire analysis. It all depends upon context and the character of the communication. None of these questions are per se (i.e. always) illegal to ask in the abstract, although a good lawyer would advise a client that it is rarely prudent to ask them because, together with other facts, they could give rise to civil or criminal liability. In this regard, he is correct that two of the three questions aren't necessarily unlawful, but he is incorrect when he assumes that the third one, which would suggest that there might be sexual harassment present, is always unlawful. But, any of these three questions could be a part of a pattern of conduct that constitutes illegal harassment, and each of these three questions suggest an intent that one would often expect to be a part of a larger pattern of harassing conduct. So, he is incorrect when he suggests that non-sexual forms of harassment are definitely legal. Also, there are really at least three kinds of illegal harassment that need to be analyzed separately, one in the context of state and federal laws prohibiting discrimination on the basis of protected classes, one in the context of the common law tort of intentional infliction of emotional distress arising under state law, and the third under a state's general criminal laws. In addition, certain kinds of harassment can provide a basis for the issuance of a restraining order or protection order under state law. A particular course of harassing conduct may be governed by only one of these kinds of laws, by some but not all of these kinds of laws, or by all of these kinds of laws, depending upon the nature of the conduct and the laws of the state that are at issue. In cases where the relevant law is state law, rather than federal law, the applicable laws may, and frequently do, differ in important details from state to state. I describe the most common provisions of state law that apply, using the state of Colorado, which is the primary place where I practice law, for some specific examples. But, while some important details (particularly with regard to criminal liability) differ from state to state, the broad outlines of the relevant state laws are usually fairly similar in the vast majority of U.S. states. Harassment That Is A Form Of Discrimination The Nature Of The Liability One kind, is a subset of discriminatory conduct in the context of a relationship such as employment, or operating a "public accommodation" (such as a restaurant open to the public), or carrying out governmental functions, in which there is a legal duty not to discriminate on a particular basis. This is implicated in the second and third questions. In both of these cases, harassment as a form of employment discrimination arises from the same statute. Neither that statute nor regulations interpreting it, at the time that sexual harassment claims were first recognized by the courts, specifically delineate an offense of sexual harassment or other kinds of harassment separate and distinct from employment discrimination generally. Subsequently, the case law, regulations interpreting the statute promulgated by the EEOC, and to a less extent some statutes (especially at the state and local level), have spelled out sexual harassment as a distinct type of discrimination on the basis of sex in employment with its own set of specific legal elements of the claim that must be established which differ somewhat from other employment discrimination claims. Why Isn't This A Free Speech Violation? One of the reasons that this can be prohibited, notwithstanding the First Amendment to the United States Constitution, is that in the employment and public accommodations cases, this involves commercial speech, the regulation of which is subject to less rigorous review than non-commercial speech, as a matter of United States constitutional law. In the case of governmental speech, this regulation is directly authorized (and arguably required) by the 14th Amendment requiring government to provide people with equal protection of the laws, which was enacted after the First Amendment. Also the First Amendment generally limits the power of government to regulate the speech of others, not its own speech. Discrimination On The Basis Of Sex In the context of an employer-employee relationship, a man (or woman) asking a woman "How big are your breasts?", could be interpreted as sexual harassment, which is a kind of employment discrimination on the prohibited basis of sex, and if violated, gives rise to the right of the EEOC or the woman to whom the question is directed, and possibly even to the all of the women in that workplace to bring a civil action for employment discrimination seeking money damages. While the expectation is that this sort of harassment happens from superior to subordinate that is not necessarily the case and it can occur between peers or from subordinate to superior. The U.S. Equal Employment Opportunity Commission (the EEOC) defines sexual harassment as follows: Sexual Harassment It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. Discrimination On The Basis Of National Origin Similarly, in the context of an employer or prospective employer asking an employee or prospective employee who is apparently a foreign-born man, "What country are you from?", this could be interpreted as evidence of employment discrimination on the prohibited basis of national origin, which, if it was occurring could give rise to the right of the EEOC or the man to whom the question is directed, and possibly even to the all of the foreign born people in that workplace to bring a civil action for employment discrimination seeking money damages. General Considerations Regarding Harassment As A Form Of Discrimination In each of these cases, the damages could be related to the direct economic harm associated with not being hired or promoted, for example, or could arise from the largely non-economic harm suffered from harassing conduct itself. Also, in each of these cases, simply asking the question is not harassment. The asking of the question must be part of a pattern of conduct that together has the effect of constituting harassment taken as a whole, and must involve some sort of improper motive on the part of the employer. An employer asking "how big are your breasts?" for purpose of ordering uniforms for a woman isn't engaged in harassment, nor is an employer asking "what country are you from?" for the purpose of determining if the employee has knowledge that would allow the employer to better serve a customer in a particular country. Harassment as a form of employment discrimination is not generally a crime, it is merely tortious conduct prohibited by law. Intentional Infliction Of Emotional Distress The Common Law Tort Courts in the United States have the power to established when conduct gives rise to a claim for money damages against another person which is developed through case law precedents extending back for centuries into the laws of England, so long as this is not in conflict with a statute. One such claim that is recognize by U.S. courts in most states is a tort (i.e. civil wrong) known as "intentional infliction of emotional distress." In the case of asking a (very short) guy "How tall are you?", except to the extent that the short statute was such that it amounted to a disability protected by the Americans With Disabilities Act (ADA) (which would be unusual but not inconceivable), this would not be a protected class and so it could not constitute harassment in the sense of a subtype of employment discrimination. But, that is not the end of the analysis in the case of the short employee. The law also recognizes a tort (i.e. a right to sue someone for a civil wrong) that is sometimes called "intentional infliction of emotional distress" and sometimes called "outrageous conduct" that is not infrequently invoked in an employer-employee context. Wikipedia at the link above summarizes this tort as follows: Intentional infliction of emotional distress (IIED; sometimes called the tort of outrage) is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted emotional distress by behaving in an "extreme and outrageous" way. Some courts and commentators have substituted mental for emotional, but the tort is the same. In the United States, the common law tort most often tracks the language of the Restatement of Torts (Second) Section 46 (1965), which states: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. This tort cannot, however, be used to shut down offensive statements and parodies. Per the same Wikipedia entry: The U.S. Supreme Court case Hustler v. Falwell involved an IIED claim brought by the evangelist Jerry Falwell against the publisher of Hustler Magazine for a parody ad that described Falwell as having lost his virginity to his mother in an outhouse. The Court ruled that the First Amendment protected such parodies of public figures from civil liability. Unlike harassment as a form of discrimination, this tort is not limited to any particular protected class of persons, or to a particular specified kind of relationship between the perpetrator and the victim. But, the threshold of conduct which qualifies as "extreme and outrageous" needs to be both much more egregious and much more directly targeted at a particular individual. Basically, the conduct complained of must amount to either effective bullying, or to a malicious prank (there is considerable overlap between these kinds of conduct). An Example Of Conduct Held To Be Actionable Outrageous Conduct An example of conduct that was held sufficiently extreme and outrageous to give rise to tort liability if established at trial was this case: In January 1978, Zalnis contracted with defendant Thoroughbred Datsun for the purchase of a 1978 Datsun automobile. She took possession of the car on that day, and paid the balance of the purchase price two days later. Zalnis dealt directly with Linnie Cade, a salesperson employed by Thoroughbred Datsun. Defendant Trosper, President of Thoroughbred Datsun, approved the transaction based on representations by Cade which were later determined to be based upon erroneous calculations. When Trosper discovered several days later that Cade had sold the car at a loss of approximately $1,000, he instructed Cade and the sales manager to make good the loss by either demanding more money from Zalnis, retrieving the car, or repaying the difference out of Cade's salary. Cade refused to follow any of Trosper's alternative instructions, but another sales employee, defendant Anthony, telephoned Zalnis and told her to return her car to the dealership because it was being recalled. When Zalnis arrived at Thoroughbred Datsun, she refused to give up possession of her car without a work order explaining the need for the recall. Nevertheless, her car was taken from her. During the next few hours, Zalnis alleges that Anthony called her a “French whore,” followed her throughout the showroom, told her they were keeping her automobile, yelled, screamed, used abusive language, grabbed her by the arm in a threatening manner, and continually threatened and intimidated her when she attempted to secure the return of her automobile by telling her to “shut up.” During this period, Zalnis telephoned her attorney, who then telephoned Trosper and eventually obtained the return of her car. During their conversation, Trosper told the attorney that Zalnis had “been sleeping with that nigger salesman and that's the only reason she got the deal she got.” Trosper had known Zalnis for many years, and had told Cade and the sales manager that she was crazy and she had watched her husband kill himself. Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292, 293 (Colo. App. 1982). The analysis that lead the Court to reach this conclusion was as follows (most citations omitted): The defendants argue that their actions here were no more than “mere insults, indignities, threats, annoyances, petty oppressions, and other trivialities.” However, the defendants did not merely threaten and insult Zalnis; they took away her car and repeatedly harassed her. Conduct, otherwise permissible, may become extreme and outrageous if it is an abuse by the actor of a position in which he has actual or apparent authority over the other, or the power to affect the other's interests. The conduct here is not a mere insistence on rights in a permissible manner. Rather, the defendants' recall of the car was to avoid a bad bargain, and accordingly, the conduct was not privileged. [S]ee Enright v. Groves, 39 Colo.App. 39, 560 P.2d 851 (1977). Defendants assert that their actions must be judged by the impact they would have on an ordinary person with ordinary sensibilities. We disagree. The outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. In Enright, supra, outrageous conduct was found where a police officer effecting an illegal arrest grabbed and twisted the plaintiff's arm even after she told him her arm was easily dislocated. In the instant case, plaintiff was peculiarly susceptible to emotional distress because she had witnessed her husband's suicide, and Trosper and Anthony knew about her susceptibility. Here, as in Enright, the defendants' knowledge exacerbated the conduct. There is outrageous conduct where the actor desires to inflict severe emotional distress or knows that such distress is certain or substantially certain. Here, Zalnis has sufficiently alleged that Trosper and Anthony acted with the intent to bully her into giving up her car. In view of their knowledge of her emotional susceptibility, they could be considered to have acted intentionally or recklessly in causing her severe emotional distress. The defendants argue that we should observe a distinction between a single outrageous occurrence and an outrageous course of conduct. While it is true that “the courts are more likely to find outrageous conduct in a series of incidents or a ‘course of conduct’ than in a single incident,” it is the totality of conduct that must be evaluated to determine whether outrageous conduct has occurred. Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292, 294 (Colo. App. 1982) Harassment That Is Criminal Conduct General Considerations Another form of harassment is harassment that constitutes criminal conduct. In these cases, the existence or absence of protected class status is irrelevant (or only goes to the sentence that is appropriate for a violation, rather than guilt or innocence), and the formal character of the relationship between the people (e.g. as employer-employee, merchant-customer, government employee-citizen) is secondary. Instead, in these cases, the existence or absence of harassment hinges on the character and subtextual message of the question in the context of the larger interaction. Exactly what is defined to be criminal harassment varies from state to state, but the key point is that the subtext of the message must either be (1) something that is outright prohibited, for example, when the superficially non-threatening question, in light of the tone used, body language, and the physical context where it takes place is an implied threat to harm someone, or (2) must be part of an overall context of conduct including the question, and a manner of communication which is calculated to distress, annoy, or disturb a person, to an extent that exceeds communication of an idea they may be inherently distressing in a civil, calm and non-combative manner, and would in fact disturb a reasonable person. In the latter case signs that it may be criminal harassment include yelling at a person, bombarding them over and over again with the statement in a way that it can't be avoided verging upon stalking, and being part of a large context of discussion showing specific animus against the individual target of the communication. The Example Of Colorado's Criminal Harassment Statute For example, Colorado's criminal harassment statute reads as follows: (1) A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she: (a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or (b) In a public place directs obscene language or makes an obscene gesture to or at another person; or (c) Follows a person in or about a public place; or (e) Directly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene; or (f) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or (g) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another's home or private residence or other private property; or (h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response. (1.5) As used in this section, unless the context otherwise requires, “obscene” means a patently offensive description of ultimate sexual acts or solicitation to commit ultimate sexual acts, whether or not said ultimate sexual acts are normal or perverted, actual or simulated, including masturbation, cunnilingus, fellatio, anilingus, or excretory functions. (2) Harassment pursuant to subsection (1) of this section is a class 3 misdemeanor; except that harassment is a class 1 misdemeanor if the offender commits harassment pursuant to subsection (1) of this section with the intent to intimidate or harass another person because of that person's actual or perceived race; color; religion; ancestry; national origin; physical or mental disability, as defined in section 18-9-121(5)(a); or sexual orientation, as defined in section 18-9-121(5)(b). (3) Any act prohibited by paragraph (e) of subsection (1) of this section may be deemed to have occurred or to have been committed at the place at which the telephone call, electronic mail, or other electronic communication was either made or received.... (7) Paragraph (e) of subsection (1) of this section shall be known and may be cited as “Kiana Arellano's Law”. (8) This section is not intended to infringe upon any right guaranteed to any person by the first amendment to the United States constitution or to prevent the expression of any religious, political, or philosophical views. Colorado Revised Statutes § 18-9-111 (emphasis added). The case of the harassment of Kiana Arellano, after whom the statute was named, is discussed in an article in the Denver Post, and sheds some light on the kind of conduct that legislators where attempting to punish when they passed the law. It was a case of severe cyber bullying that caused this person to attempt to commit suicide. Restraining Orders And Protection Orders Both tort remedies and criminal sanctions for harassment punish a perpetrator and/or compensate a victim of harassment after it has happened. In many case, the law also allows a court to enter orders known as restraining orders or protection orders directing someone who has engaged in harassing conduct to cease doing so. States differ considerably in defining exactly what kinds of harassing conduct can provide a basis for entry of a restraining order or protection order against an individual directing that person to cease having contact with or harassing the individual protected by the order. The most common fact patterns in which restraining orders or protection orders are entered for harassment (which is not the only kind of conduct that can provide basis for an order like that) involve (1) a former romantic partner harassing his or her ex, (2) a person who had engaged in elder abuse harassing the elderly person who had been abused, (3) a criminal defendant harassing potential witnesses in a case, and (4) a "fan" (often, in part, because they don't really understand the difference between entertainment performances and reality), or a "hater" (often, as part of a larger political agenda intended to bully opponents into compliance) harassing a celebrity, politician, or adult entertainer. Harassment that justifies issuance of a restraining order or protection order, like the harassment that can justify a common law intentional infliction of emotional distress claim, must typically be very extreme and pose an imminent threat to the protected person's safety, emotional well being, the judicial process, or the ability of the protected person to live an ordinary daily life. There must also generally be some reasons to think that the harassing conduct will continue if the court does not act. As in the case of other legal remedies for harassment, harassment in a restraining order or protective order context usually involves consideration of the context of a pattern of conduct over time, even though it can be based on a single very extreme incident. Every state provides that someone who violates a court order like this one may be held in contempt of court, which can result in incarceration or a fine, after a hearing is held in which someone (usually the victim's attorney) acts as prosecutor against the person who violated the order in a quasi-criminal proceeding within the main civil or criminal lawsuit in which the order was obtained. Some states make violation of a court order like this one a criminal offense as well, that can be enforced by law enforcement prior to a hearing if there is probable cause to believe that it was violated. | Why would this be a concern? The adults have some duty in an elementary school setting to monitor the children in the restroom in any case. Separate restrooms are an employee perk, not a liability driven decision. | at what point can you just leave? Is it always technically illegal in the UK to leave without paying the bill? Probably depends on what you mean with just leaving. If just leaving translates I haven't paid and I won't pay (because of the hassle with the card) then that's probably Making Off Without Payment, section 3 Theft Act 1978 (Thanks @bdsl). Could the restaurant just force you to wait until close of business if necessary? What if they still hadn't fixed the payment system by then? I don't think a restaurant can physically detain you. Not even the 45 min you have been waiting. But if you leave without paying and without an agreement with them how & when to pay they can of course call the police because again that looks very much like making off without payment. According to your post, they did provide a payment system (cash) which was working all the time and that moreover has the special status of being legal tender. if you don't physically have the cash on you, you can be sued? You can be sued if you don't pay your bill (assuming the bill itself is correct) when it's due. In order to avoid endless hassle of the "I tried to pay via x, but they wouldn't accept this." type, legal tender defines ways of payment of a debt that the creditor/seller must accept. In many legislations, cash in the local currency provides such a fallback if other payment methods fail. Note that cash payment is very robust against internet failure, broken devices and power The UK (+ US) meaning of legal tender is that the restaurant must accept this means of settling the debt (at this time, the food is already eaten but not payed) - but they don't have to accept any other means of payment. (Note that e.g. for the EUR-countries there is at least a recommendation to make acceptance of legal tender mandatory also in retail, which includes simultaneous exchange food vs. payment). The 2nd important implication of this is that any argumentation along the lines that no reasonable means of payment were available would be very weak. You are not required to have sufficient cash with you to pay your bill if you can reasonably assume that some other way of payment will be acceptable to the restaurant. I see that like a spare wheel for a car: if you have a flat tire (card doesn't work) having a spare wheel (cash) allows you to deal with the issue with less hassle than if you don't: change your wheel vs. having to get your car brought to a workshop and wait until they put on a new tire (pay cash instead of waiting for the card to work again or a tedious hunt for another payment method). I'd like to point out that card doesn't work and not sufficient cash at hand (or forgotten purse) is something that happens quite often in general (rarely for any given transaction, but we have lots of transactions). I'd expect a restaurant or a gas station to be experienced in dealing with that. In any case, there are several possibilities to resolve the issue short of "just leaving": The key to all this is communication: talk to the restaurant to find a way to resolve the issue. Reassure them that you're not trying to use the opportunity to defraud them - that's what they are afraid of in this situation. "Where can I find an ATM?" Possibly offering a deposit: "And would you mind looking after my bag [phone] until I'm back?" Possibly showing them your ID card (or similar, if you have any) so they have your address: remember that so far you are an anonymous customer for them: which means that suing you for the money would be somewhere between too expensive and impossible. If you are a group, it should be sufficient if only one of you leaves in search of cash. Credit cards can be charged in a total offline way (MOTO = mail order/telephone order) where the credit card data is entered manually by the seller: the restaurant may be able to charge your credit card if fill in a paper credit card payment form. They may accept settlement via other payment systems: paypal & Co. wire the money via your online banking account (even if that doesn't give an instantaneous transfer, ask them if that's OK with them if you show/forward them the "transfer accepted message" for now) allow them to withdraw the money from your account via direct debit or something similar I'd not expect a restaurant to accept this possibility as they're probably not familiar with it and it means a lot of hassle for them with their bank to get listed to receive money that way. if you are in a region where cheques are still in regular use, that may be a solution as well. Restaurants like any other business can write invoices. They usually don't like this because their risk of having costly trouble to get the money is high. While your printout bill is technically an invoice already, it can be turned into an invoice (+ copy for them) giving your name + address and specifying how and when you'll pay. Which would keep track of how you (pl. = you + restaurant) decided to settle the bill under the peculiar circumstances. This works even in case of e.g. a power outage that prevents you from getting cash from an ATM in the neighborhood. | Although an academy is state-funded, it is not the government, so limitations on what a government is allowed to do are not applicable, and anyway there is no First Amendment separation of church and state in the UK. I presume your school has a formal faith designation, which means that it is not subject to Section 85 of the Equality Act 2010, which might maybe be a path for escaping the requirement. The "collective worship" requirement is mandated by the government under Section 70 of the School Standards and Framework Act 1998, which is extended to academy schools by the funding agreements. The requirement is that "each pupil in attendance at a community, foundation or voluntary school shall on each school day take part in an act of collective worship". Section 71 provides an exception: If the parent of a pupil at a community, foundation or voluntary school requests that he may be wholly or partly excused from receiving religious education given in the school in accordance with the school’s basic curriculum, from attendance at religious worship in the school, or both from receiving such education and from such attendance, the pupil shall be so excused until the request is withdrawn. Since a religious academy is not subject to the national curriculum, deviation from whatever the religious requirements are stated in that curriculum is allowed. | Legally, they can kick you out for any reason that isn't illegal discrimination. They can't kick you out for being black. They also can't kick you out for being white. But they can kick you out for not liking your face. Now the question is: Who can kick you out? The store owner obviously can. Anyone who is given the authority by the store owner can. Actually, anyone with the apparent authority can kick you out. However, everyone other than the store owner has been hired to work towards making profits. If throwing you out is bad for business, then whoever did it would have to answer to the store owner. So the ex-friend can't go to court for throwing you out, but they might get into trouble with their boss about it. PS. I interpreted "kicking out" as saying "Please leave our premises. If you don't leave then you will be trespassing and I will call the police", not actually kicking the person with your foot which would be most likely assault. | The issue is not exactly with minors, it is with FERPA and COPPA. This assumes that you have some indication of what students are connected to the web page. If you have students under 13 (surely you do), you need verifiable parental consent. The FTC approves or disapproves particular methods of verification, here is their page on that. One approved and patented method is ChildGuardOnline Technology (it;s a business, not a free service). The other concern is that you have to scrupulously protect "student records". You already know that you can't disseminate "student records" without parental consent, what this adds is possibly new concerns with online security. However, many schools are exempt from the COPPA requirements. Here are some "exceptions" to the rule, and nonprofit organizations are not subject to Section 5 of the FTC Act. |
Do lawyers actually use big bookshelves filled with texts? Both on TV and in the offices of lawyers I've been in, they always have huge bookshelves with numerous volumes of law, rules of procedure, references, and I have no idea what else. Why do attorneys have these? Do they actually reference them, especially when so much information is searchable and indexed online? Are the books updated regularly? or are these the books they graduated with, and are rarely changed out? Do the books exist purely for psychological impressions, or is there a utilitarian purpose? | Why do attorneys have these? Originally to use as references, although some kinds of books (e.g. case law reporters, Shepard's citations, Martindale Hubble directories, and serial analysis of case law like Am. Jur.) are rarely used that way any more. When I started practice in the mid-1990s, it cost several hundred dollars an hour to access online legal sources (that were less comprehensive and had lower quality search functions than the service that comes free with my bar membership today), so the vast majority of legal research was done with hard copy case reporters, digests and annotated statute books. A complete set of case reporters for a single state would typically run to hundreds of volumes with new ones arriving monthly. A full set of Shepard's Citations (which told you if a case have been overturned or questioned in later cases or just where it was cited with approval) took roughly a full shelf of a full sized book case when limited to a single state. Any law firm that is at least fifteen or twenty years old needed them when they bought them and lawyers hate to throw anything away. Case law research is now predominantly online. The last time I used Shepard's citations and hard copy case reporters on a regular basis was a decade ago. Law journal research is also predominantly online now. I sent most of my uglier and numerous law books (including several dozen volumes of an outdated legal encyclopedia summarizing case law) to the recycling bin about six or seven years ago. Do they actually reference them, especially when so much information is searchable and indexed online? Lawyers still routinely use statute books in states where they practice, court rules, standard jury instructions, and to a somewhat lesser extent treatises on different areas of the law (including the Restatements of Law). Now and then, lawyers will still use a hard copy of a West Digest. And, I have yet to encounter a lawyer who doesn't have at least one or two decent sized book cases full of law books. In statutes and court rules (and regulations), typesetting details that can get mangled online are important and browsing a structured text can be easier to do on paper than online. There are some regulations available only in online versions that I print for ease of use (e.g. Colorado's marijuana regulations and its Medicaid regulations). I also print for ease of use my state's title standards (for use in determining if someone has marketable title to real estate), even though they don't have the force of law. I also keep a few hard copy model statutes with the official commentary. It can also be hard on the eyes to look at a computer screen non-stop all day, so looking at something you use regularly on paper can be a relief. Are the books updated regularly? or are these the books they graduated with, and are rarely changed out? Statutes and court rules and jury instructions are typically updated annually, following each year's legislative session. Treatises are updated with "pocket parts" every year, that are added to a hardbound edition that is updated at most, every several years. A pocket part is a softbound update with the same section organization as the underlying treatise that has a flap the fits into a pocket in the back flap of a hard cover treatise. Bigger "pocket parts" are printed as thin softcover bonus volumes to the original treatises. I also keep a current softbound "Bluebook" (the reference regarding how legal materials should be cited to in legal documents and legal scholarship) and several high end dictionaries including Black's Law Dictionary, the OED and a few others in hard copy (because browsing is easier when you don't know exactly how a word is spelled). I keep many of my law school textbooks, which some people do, and other people don't, and I buy new treatises especially when I move into a new area of law practice where background guidance is useful. Do the books exist purely for psychological impressions, or is there a utilitarian purpose? Both. Sometimes old books that don't have much ongoing practical use are kept on the shelves because they are pretty. For example, I don't really need a hard copy of my outdated New York State Statutes, but they look good (even though I practice mostly in Colorado and look up New York State statutes online when I need to actually use them). But, I use hard copy statutes and court rule books for the state where I practice on pretty much a daily basis and use hard copy treatises at least several times a week in my law practice. In that respect, I am not atypical, although I probably use hard copy books more than younger lawyers do. Of course, even among these books, some volumes are used much more often than others. I look at a volume of insurance industry regulation statutes at most, once a year, while I read the volume related to divorce and probate at least once or twice a week, for example. Hard copy books are also useful for pinning down the corners of blueprints and surveys when you are in litigation where those kinds of oversized paper documents are at issue. ;) | Law doesn't have a monopoly on bad writing. Steven Pinker, in "Sense of Style" and other articles, says that the kind of poor writing you mention is a symptom of the "curse of knowledge". Justice Kagan believes that good legal writing needs to at least be good writing, and law schools aren't doing enough to teach that. All the other Justices expressed similar opinions to that in interviews with Bryan Garner. | Bob is not authorized, but he may legally do so (in the US, you don't need specific authorization to perform a non-forbidden act). In creating the manual, Bob would need to avoid reproducing the questions (which are protected by copyright), and just give the answers. Copyright protection for the textbook includes not just the actual words, but also organizational structure, so Bob would need to avoid copying the structure of the exercises. As for "structure of the exercises", textbooks often have exercises for each chapter, with a clear logic to the order and content of chapters. Within the chapter exercises, there is often some rationale to the order of presentation of the dozen exercises, like starting for with simplest concepts presented in the text and moving up the ladder. In a given exercise, there my be subparts, where understanding part 1 leads you to understanding part 2, and so on. In a well-structure textbook, maybe 20% of the creative nature of the book is that artful ordering. Imposing an entirely different order on your solutions avoids copying the author's protected expression. | The author of the passage is telling you where the quotation comes from, using a formal case citation. Lawyers usually don't use footnotes, endnotes, or parentheses to set off these citations. Case citations are a sort of shorthand developed by lawyers and judges over the past few centuries. The goal is generally to identify the name of the case, where to locate it, when it was decided, and what court decided it. Although there are a few different styles for formal citations to cases, you don't need to learn much to cover the basics for common types of cases. How to Read It Case name Brown v. Bd. of Educ. Case names usually have a "v." in the middle. Most of the time, the plaintiff goes on the left and the defendant goes on the right. But United States Supreme Court cases are different. Almost always, the Supreme Court reviews decisions of lower courts. They do so in an unusual way: the loser in the lower court asks the Supreme Court to change the outcome. Because the loser, more formally called the "appellant," is the one initiating proceedings in the Supreme Court, they go on the left. (To learn more, look into "writ of certiorari.") Since Brown is a Supreme Court case, we can guess that Brown lost in the lower court; and indeed that's what happened in this case. There are some arcane rules about abbreviating case names. The full name of this case is "Brown et al. v. Board of Education of Topeka." If you're a law student, especially if you're on the law review, you get to learn all about these rules. If you're not, thank your lucky stars and try not to worry about it. Volume, reporter, and page number 347 U.S. 483 This is the bit you want to copy and paste to find the case. It's a lot like a URL: the idea is to clearly identify and locate a case. If you just want to find the case on the Internet, you don't need to understand how it works, and you can skip to the next section. These three parts tell you where to find the beginning of the case in a good old-fashioned printed book. You know those yellow books in the background of lawyer advertisements? That's what we're talking about. They're called "reporters," because they originally contained somebody else's reports of what judges said in court. Now, of course, the judges write down their own decisions; but the name stuck. The middle part, here "U.S.", identifies what set of books the case is in. You can learn something about the court from this: U.S. -- United States Reports -- United States Supreme Court F., F.2d, F.3d -- Federal Reporter -- Federal Courts of Appeal F. Supp -- Federal Supplement -- Federal District Courts (trial courts) The first number is what volume the case is in. This is the number printed on the spine of the book. The second number is what page the case begins on. Pinpoint citation , 495 When somebody wants to refer to a specific place in a case, they just put the page number or range right after the case page number. Remember, "483" was the page the case starts on; "495" is the page where the court actually say what we're talking about. If you flip to page 495 of volume 347 of the U.S. Reports, you'll find the quoted sentence. Remember: usually when you see two numbers separated by a comma, like "483, 495", the first one is part of the citation to the case as a whole, and the second one says what page to look at. Date and court name (1954) This part varies a lot between the different formal styles. In "Bluebook" style, which most law journals use, the year the case was decided is enclosed in parentheses, along with anything necessary to identify the court. Here, there's no court name, because we already know from the "U.S." that it's a Supreme Court case. For lower appellate cases, this might be "(9th Cir. 2005)", meaning that it's a decision of the Ninth Circuit Court of Appeals from 2005. Dealing with short citations You may also see something like "Id. at 495". This is a short citation; "Id." means "the last thing I cited." Go back to the nearest previous citation and look that up, going to the page cited. How to Use It (aka "tl;dr") The key to actually finding a case on the Internet is to copy the three numbers in the middle--the volume, reporter name, and page number. Here, "347 U.S. 483". Don't include any pincite after a comma; Google and many search engines may be clever enough to figure out what you mean, but they may not. There are a bunch of free online services providing case texts. I prefer Google Scholar; just paste the citation in, being sure to select "case law". Other people like CourtListener, FindLaw, and Justia.com. Commercial databases like Westlaw or LexisNexis have a lot more than just the case; most importantly, they list citations to the case. Your local public law library might have a terminal for one of the services that you can walk in and use. Be sure you're reading the actual case, not a summary or "annotation." This is especially true if you're writing an answer here on Law.SE. Many case summaries, especially for famous cases, are written for first-year law students; some of them are probably written by first-year law students! They're often helpful, but they focus on what the student needs to know for class, which often isn't what the case actually said. If I find you quoting a case summary as if it's "the law," I will not be very nice to you. | I'm not sure if you are asking for each of the countries listed, but I am assuming that they are there merely for example. In the US, the are a variety of different rules for its different court systems. As a rule, each State can make its own rules for its court system, and the overarching Federal system has its own rules as well, although they run off of the same principles. As such, the answer varies on which state the court is located in and possibly the type of document. In California, for example, different documents have different retention times for different documents. For example, documents for civil cases default to 10 years of retention, while adoption paperwork is retained permanently. For a criminal matter, the judgement (the final product that says if the accused is found guilty or innocent, and for what crimes) is retained permanently, while all other documents are retained for the greater of 50 years or the maximum length of sentence imposed. When the retention period for a document is over, the document is not automatically destroyed(at least in California). Instead, the appropriate official sends an official notice to all the parties in the case that the document is to be destroyed, and if no response is received to transfer the documents, the documents can be destroyed. (Source:http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=68152) Note: I have said "document" throughout, which originally meant a piece of paper. However, recently, documents have been submitted electronically, and sometimes older documents are electronically scanned. | From your question(s), as well as your various comments, I understand you to have two general inquiries: 1. Is there any infringement of copyright laws if you use things like the titles of books, games, apps, names, address (and any other number of things) which you will then put into datasets that will be licensed for proprietary commercial purposes? You may freely put titles, names of people, places or things into datasets without fear that you are infringing on copyright or any other laws. That is clear. Copyright law does not protect names, titles, short phrases or expressions. Even if a name, title, or short phrase is novel or distinctive it cannot be protected by copyright. So, there is no point in discussing the doctrine of fair use in this context, because Fair Use is a defense, or a legal safe harbor that is merely an exception to copyright infringement allowing people to use a copyrighted works under specific circumstances. As I understand your intended endeavor, you will not be infringing on any copyrights to the extent that you are merely using factual data, like names of copyrighted things for the purpose of creating a dataset or an application to help access it. This is why I say you need not concern yourself with the test for Fair Use with regard to this issue. The Copyright Office states clearly, despite what people may think, that there are no exclusive rights in brief combinations of words such as: • Names of products or services • Names of businesses, organizations, or groups (including the names of performing groups) • Pseudonyms of individuals (including pen or stage names) • Titles of works • Catchwords, catchphrases, mottoes, slogans, or short advertising expressions • Listings of ingredients, as in recipes, labels, or formulas. When a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable. Hence, these things are not registrable under a copyright. While something may be potentially attached to or included in copyrighted material, is not in and of itself subject to the protections of these laws. If it (whatever it is) cannot be registered for a copyright, it is not copyrightable. Because copyright registration/notices have been optional since 1989, when the U.S. attached itself to the Berne Convention, whereby copyright protection is automatic as soon as a work is “fixed in a tangible medium of expression” (written down, recorded, painted, etc.) it’s protected. No notice is required. Registration only becomes required for litigation or enforcement purposes. But this is really extraneous to your inquiry anyway, as far as it applies to the actual data. When you get into copying whole databases for your purpose, that analysis is different. 2. You want to "scrub" the internet for information that you intend to put into your proprietary datasets and use for commercial purposes, some or most of which is already in a database or some organized form, and you want to know if there is some sort of copyright or duty owned to the person who originally databased the materials? Since ideas, procedures, principles, discoveries, and devices are all specifically excluded from copyright protection, if you want to compile this type of information from the internet for the purpose of creating datasets, or searchable databases, this is permissible. That said, there are protections for existing databases under copyright law, provided under the concept of a "compilation copyright". A compilation copyright protects the collection and creative assembling of data or other materials. Compilation copyrights protect the collection and assembling of data or other materials, such that databases are generally protected by copyright law as compilations. Under the Copyright Act, a compilation is defined as a "collection and assembling of preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship." 17. U.S.C. § 101. The preexisting materials or data may be protected by copyright since the selections of materials and the form they take in an existing database may be original enough to be subject to a copyright. However, the data itself is merely information and is not protectable. The Copyright Act specifically states that the copyright in a compilation extends only to the compilation itself, and not to the underlying materials or data. 17 U.S.C. § 103(b). As a result, "compilation copyrights" can't be used to place protection upon those things that are otherwise not protectable. In the case of Feist Publications, Inc. v. Rural Telephone Service Company, Inc., the U.S. Supreme Court ruled that a compilation work such as a database must contain a minimum level of creativity in order to be protectable under the Copyright Act. Feist makes clear that even a copyright protected database does not hold the right to prevent an individual from extracting factual data from the database (so long as you're not copying the entire database as a whole). If you take an already compiled and copyrighted dataset in its entirety, you must obtain a license for its use. However, if you are merely amassing great amounts of data to then put into your own dataset, that you are free to do. The big issue will be (and you seem to realize this) where you will amass this data from. Some websites have specific licenses in place that say you cannot use or rework their content. However, many times these websites simply throw these license requirements out there for users to see, despite the fact that they may not be (and some would argue) are not enforceable. The courts have heard arguments that "contracts" (the end-user licenses) that protect databases and information on websites is beyond the protection available through copyright law should be "preempted" by the Copyright Act itself. The preemption argument goes like this: Federal law controlling something that is subject to interstate commerce or use, should be controlled by the federal laws. So,since the federal government has enacted the Copyright Act to govern any protections to any original works, states should be (arguably are) prohibited from having contradictory laws. Because of the ability of a federal statute to preempt state law, and the fact that the Copyright Act at 17 U.S.C. § 301 sets forth specific preemptions, no state may create rights that are equivalent to any of the exclusive rights provided under the Act. It is this concept of preemption that prevents copyright protection from varying depending upon the state where a work of authorship is created. Arguably, the same is true for the internet, and supposed contractual relationship created through licenses that dictates how non-copyrightable material may be used. In the case of ProCD, Incorporated v. Matthew Zeidenberg and Silken Mountain Web Services, Inc. the court examined whether an end-user of a CD ROM phone database was subject to the license, when they extracted a large portion of the database and made it available over the Internet. The database was almost the same as the type of data in the Feist case-The lower court rejected all copyright claims and found that the shrinkwrap license that controlled the end user's right to use the data was both unenforceable (as a shrink wrap license) and preempted by the Copyright Act. As a result, there was no relief available to the creator of the phone database and the end-user was free to extract the data and use it as he saw fit. However, on appeal this decision was reversed (7th circuit). The appellate court did acknowledge that the database (on the CD) was not original enough to be protected by copyright (finding no copyright infringement by the end-user); However, they did find the end-user was breach of contract, since the shrink-wrap license prohibited the end-user's conduct. What this tells us is that these licenses (on websites) may or may not be enforceable. While the 7th Circuit found a contract right pursuant to the license, despite the preemption argument, another appellate court that is more liberal may find otherwise. Also, this was a disk, not the internet, which is the "wild west" of information, largely unregulated and unlitigated as it pertains to the legality and enforceability of (some) regulations that do exist. License agreements for site use on the internet are everywhere. If you take a database from some site that has a license saying you cannot take their work and add to it, or whatever, and you do add it to other databases that are not licensed and then make your own dataset - chances are you are NOT going to be infringing on anyone's copyright. That said, you may be in breach of contract (the license) if they find out about it, and sue you (using it doesn't put you in breach; only getting sued and having a court determine you're in breach puts you in breach. It may be a distinction worth contemplation, but that is up to you). The safest, bet would be to get a license from them to rework the materials. If the material is generic enough, and will be changed enough, that you are creating your own new (copyrightable) work - I'm not sure how they would know you "scrubbed the data in contravention of their license agreement ( I have NO CLUE if there is coding or metadata attached to it such that it's identifiable in that way. I have not tech background and do not endorse taking what's not yours). But if they can and do know, they could cause problems for you. Lastly, I will just say that the internet is littered with sites that claim copyrights, or impose unenforceable licenses on material that is ripe for public use. Just because it says it's theirs does not make it so. The inverse is also true. Just because a site does not claim copyright to something, does not mean it is in the public domain. I would recommend either sticking to public domain/use sites for your scrubbing endeavors, or seeking permissions from the sites who impose licensing requirements. Short of that, I would recommend (as I already have) seeking an formal legal opinion to say that you are not imposing on anyone's copyrights (this could only be done once you showed an attorney every place you took material from, as well as what the material is), and that the licenses from sites with generalized information that may try to limit use, are unenforceable. I would do this before you invest a lot of time or money into something that is largely based on the accumulation of other peoples work product. I wish there was an answer certain, but there just isn't without seeing everything in the end. | The law is known to everyone in theory. But as various people are said to have said, In theory, theory and practice are the same. In practice, they are not. Starting from zero and actually finding out what law is applicable to your circumstances is not a trivial matter. To have an answer you can rely on you need to do the following: Find out what law calls it. Sometimes this is obvious, but not always. Go and find the law in question. Over the last 10 years this has got much easier. It used to mean going to your city library and looking up the relevant law. These days we have Google (other search engines are available). Find any other laws which might have bearing on the matter. This can be a long way from obvious (see below). Find any relevant appeal court cases in which something like your circumstances have arisen, and figure out how they relate to your actual situation. You may find that some of the laws which you read in Stage 3 have been ruled unconstitutional, or that the standard of evidence required to prove or disprove something about it has been set impossibly high, or that the penalties or damages have been set absurdly high or absurdly low. If you are in the US then maybe some of those precedents were set in other circuits, in which case you need to figure out what your local circuit is likely to do about it should the occasion arise. Make a calm, dispassionate decision about what to do about your situation. Many people find this extremely difficult. The answer might be life-changing. Under these circumstances making a good decision is very hard. Just to give you an idea about (3), suppose you are planning on importing something for your business. Here is a list of areas of the law you might fall foul of, off the top of my head and I've probably missed some: Tax. Trade in endangered species. Drug prohibition. Environmental protection. Biosecurity. Health and safety. Consumer protection. And that is just the criminal laws. Theories of civil liability can get really complicated. But OK, lets suppose you figure out the law, but despite your best efforts you find yourself in court (criminal or civil). Now in addition to all the law you find yourself enmeshed in a complicated bureaucratic set of rules, depending on the type of court and where you are (e.g. US rules of civil procedure). At this point you need to learn not just the rules but how to play the game they describe. Think of it like playing chess; learning how the pieces move is only the first step on the long road to becoming a competent chess player. And the legal system is like chess in another way; there are no do-overs if you make the wrong move. (Incidentally, anyone who says "Well lets just get rid of all the complicated rules and laws" is committing the fallacy of Chesterton's Fence. Just because you can't see why the rules are there doesn't mean there isn't a good reason). Or you could just hire a lawyer. | I believe the author has published it online. I agree. It is posted at his publisher's website. However, I am unsure if I'm allowed to read it. This answer assumes you are in jurisdiction whose copyright laws is based upon the Berne convention (i.e. the civilized world + USA). Assuming it was the author published it online, it is perfectly legal to read it. Technically, the author is performing his work by putting it online, and by reading it, you are just enjoying his performance. Also, if you are in a jurisdiction with an explicit exception from copyright for personal use, or where fair use allows making copies for personal use, it would also be legal to download it, or to print it on paper (but for personal use only). As for downloading and printing for non-personal use - that is not legal in Berne jurisdictions. |
Trademark infringement, cease and desist I'm currently looking to trademark a product name for my company. Through research, I've found that another company is selling a similar product under that name with no trademark whatsoever. Is it possible that I can continue to trademark my product name and have the right to send them a cease and desist; so that I may sell mine without any confusion? | No If they have prior usage then they have the trademark already and are the only ones who can register it. Trademarks arise through use - registration is not required. | Your lawyers should understand that you're dealing with a private company that can make and enforce its own policies when it comes to allowing access to the their store. If Google's policy is to require you to do research and diligence on a possible trademark infringement of your App, that's legal, as long as Google's requirements don't not violate local or national laws of the variant of their store. The idea that another company or individual can allege infringement, yet not communicate sufficiently with you or Google, may not seem fair, but as a response to that, Google can play it safe and not open themselves up to liability by removing your App or making you resubmit under a new name. That is outlined in Google's TOS, which you agreed to. Your only recourse is to keep talking to Google and keep trying to contact the complainant. | No it’s not illegal It’s called retailing: https://youtu.be/ywSkKkuGQ2A https://youtu.be/k8OreiHU91Y https://youtu.be/XpR6y1sNArU You are allowed to advertise the products you sell. Even if you don’t make them. You can even use their trademarks to identify them - that’s what trademarks are for. | The term in your question, "use an existing name", is pretty broad. Do you propose to say, "Compatible with Microsoft Lync"? Or will you actually name your product "Lync"? The first option is likely safe. The second one looks like a Trademark infringement more than a copyright issue. And "Lync" is distinctive enough, you probably won't win. However, if you propose to name your product "Messenger", you're slightly better off because "messenger" is a generic term in the English Language, even if Facebook adopted it for their product. The major criteria would be if your chosen name is likely to cause confusion with Facebook's product. | A name is not protected by copyright. It can be protected as a trademark, but it would almost certainly be allowed as nominative fair use, since the alternative of indirect descriptive reference ("the grocery store founded in 1930 by George W. Jenkins") is not only cumbersome, but it doesn't even answer the question, where only the name can be used. Trademark protection is not absolute ownership of a word, it is the right to a specific use of a word (e.g. to identify a specific brand of computer for commercial purposes). If you use a trademark symbol, you have to be careful to use the right one (it may be illegal to imply registration by using R when the trademark is not registered). As far as I can determine, there is no obligation for a third party to so mark trademark terms, though it is commonly done. | It's legal to sell your program if it doesn't infringe any law or anyone else's intellectual property. Examples of things that can get you into trouble: statutes: Some countries have export laws that forbid you to distribute certain types of encryption without proper export controls. patents: If you use a design or invention that is under patent protection you could be liable for infringing patent rights. trademark: If you improperly use a trademarked name you could be subject to damages. licensing: If you violate a license to which you have agreed you can be sued for damages. copyright: If you appear to have copied something without license you can be liable for damages. Just because: If someone wants to sue you, they can. Since there's no way to guarantee your business won't run into liability from infringement – or from some other failure – people normally conduct business through entities like LLCs that shield them from personal liability. Depending on their concerns and finances, they may also: Buy liability insurance Consult professionals like IP lawyers to: review their business and products in advance to look for and address glaring infringements, and/or correctly protect their IP using the tools mentioned above. | We can't tell you if you can do that or not, because that would be specific legal advise. You should consult an attorney who specializes in trademark law to get an estimation of how risky it would be to use that name. So I am just giving you a couple general pointers. Names are not protected by copyright, but by trademarks. The purpose of trademarks is to prevent consumer confusion. They are supposed to prevent someone from selling a product under a name which consumers might mistake for official merchandise of someone else. Media companies in particular tend to be very protective of their trademarks, because merchandising is often one of their main sources of revenue. And they don't want to share that revenue with people creating knockoff products. Also, they must fight for their trademark in court, because when they only enforce it selectively, then they risk that a court will consider the mark so widely used already that it is no longer worth protecting. But the show is from the 1950s. Is the trademark still protected after all that time? Maybe. There are registered trademarks and unregistered trademarks. Registered trademarks, which usually but not always are followed by an "®" symbol, need to be renewed in regular intervals. So if someone still pays for the renewal, it might still be a protected trademark. Unregistered trademarks, which usually but not always are followed by a "™" symbol, are protected as long as they are "used in commerce". Which means that if the IP owner of that show still sells products branded as "Winky Dink and you", they can probably still claim unregistered trademark protection. In order to find out, you would need to do your own research or pay your attorney to do a trademark research for you. Are your proposed names even a trademark violation? Perhaps, perhaps not. That's for a court to decide. Personally I think that "Winky Dink and Me" is more infringing than "My Winky Dink Syndrome", because the first is a lot closer to the original name and brand image, giving it a higher likeliness of causing consumers to mistake it for an official "Winky Dink and You" product. But that's an argument you got to make in court. Estimating the chance that the judge will side with you and how much in legal costs it will take you to get to the point where you are even going to have the opportunity to make that argument is a job for your attorney. | Bringing fair use into this sounds iffy if you are partnering -- that is a commercial relationship which should be defined. If they did send you a file with their logo for a specific purpose, you can assume that you are allowed to use it for that specific purpose. If they did not send you the file, you can assume that they did not give you permission, or they would have included the file ... |
Charged with perjury without specific action Suppose a person testifies, under oath, on two different occasions, as to certain events. The two sworn testimonies are in direct and clear contradiction to each other. For example, one time Jane Doe testifies that Joe Smith was present at a crime scene, and the next testimony is that he was not (ever) present. There is no independent way to determine which statement is true, and which is false. Nevertheless, one of the statements must be false. Can a charge of perjury be laid against Jane Doe in such a case, without specifying which actual testimony? If a charge of perjury is impossible, are there other false statement charges that could be brought? | In Wisconsin, right after the perjury law, they have a law prohibiting "false swearing". It applies if a person: Makes or subscribes 2 inconsistent statements under oath or affirmation or upon signing a statement pursuant to s. 887.015 in regard to any matter respecting which an oath, affirmation, or statement is, in each case, authorized or required by law or required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action, under circumstances which demonstrate that the witness or subscriber knew at least one of the statements to be false when made. The period of limitations within which prosecution may be commenced runs from the time of the first statement. So even if they couldn't actually get you for perjury, they could get you for violating this law. Perjury and false swearing are both class H felonies, so you can expect the same punishment. I am going to guess that the existence of this law suggests that it was needed to cover what would otherwise be a loophole in the perjury law, but I can't say for sure. | No, a later trial is not allowed A prosecutor can, and often will charge multiple related crimes, and all will be addressed at the same trial. But once a person has been acquitted on a given set of events, the same jurisdiction cannot re-try the same person on what is often called a lesser included offense. Nor on a greater offense implied by the same events. Not even if additional evidence comes to light. However, if an act (or set of acts) is a crime under both state law and Federal law, for example theft by deception (state crime) and wire fraud (federal crime) one jurisdiction may try the person even after ther has been an acquittal in the other. I think the same rule applies if an act is a crime within the jurisdiction of two different states, that both can trey the accused. In many cases prosecutors will choose not to bring the second trial, but they can if they see fit. | Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception. | What remedies are therein the United States? I would imagine that the witness could be prosecuted for perjury. My guess is that the plaintiff could prosecute the witness for the lost damages. Are there any other remedies like reopening the original trial or declaring a mistrial so that the plaintiff could sue the (deep-pocketed) defendant, or would this be double jeopardy? Perjury prosecutions are like unicorns. They are rumored to exist but are almost never seen. A prosecutor would be exceedingly unlikely to bring charges in such a case, but it might not hurt to ask. Even if the criminal prosecution prevailed, however, the defeated plaintiff would be no better off, or might get out of pocket court costs as restitution at most. You could request that the witness be sanctioned for contempt. But, this leaves the loser in the original case no better off unless the judge made the highly unusual decision to award compensatory damages as a contempt sanction. Similarly, if you have reason to believe that the attorney knew that the testimony offered was false, that would be grounds to grieve the lawyer which could result in the lawyer's suspension or disbarment, but that is very difficult to prove and again would not advance the unjustly defeated plaintiff's cause. Assuming that the time to move for a retrial (usually two weeks) expired when the new evidence was discovered, you could move to set aside the verdict (Federal Rule of Civil Procedure 60 or the equivalent state rule). The deadline for such motions based upon fraud by an adverse party is usually six months. Sometimes an independent action to set aside the verdict for fraud on the court could also be brought (sometimes within two or three years), which is an uphill battle, but probably the best option if all other deadlines have expired. The witness probably has absolute immunity from civil liability outside that court case for the testimony offered, so a civil action suing the witness for lost damages would be dismissed. The doctrine of double jeopardy does not apply, but a similar doctrine called "res judicata" (a.k.a. "claim preclusion") prohibits retrying a case that was tried on the merits between the same parties, if it has become a final order. So, filing a new case is ruled out assuming that no appeals were filed within the deadline for doing so. And, even if the deadline for filing an appeal has not lapsed, it probably wouldn't prevail because the key new evidence wouldn't be in the record. It would be better to file to set aside the judgment in a motion and to appeal if that motion was denied. | What exactly would a prosecutor charge? State? Federal? It depends on whether it is a state or federal prosecutor. It appears that the president has at least flirted with violating both federal and state law, in which case he may be charged by both the federal and state prosecutors, each one laying charges under the relevant body of law. Would Trump be vulnerable to Federal prosecution of the phone call after he leaves office? Yes, if the facts support such a prosecution. It's not clear to me that the conversation constituted an unambiguous violation of the federal statute, but I have no knowledge of any precedent that might inform such a determination. | There is no hard and fast rule to determine what constitutes proof beyond a reasonable doubt. In the first instance, the judge (or jury, when there is a jury trial) decides this on a case by case basis. If the officer testifies that the matters recorded in the ticket are true because it was the officer's practice to always record accurately what happened in a ticket, this would ordinarily not be grounds for reversal of a conviction on the ground of insufficient evidence, unless other evidence somehow put the officer's testimony in serious doubt (e.g. a social media post clearly putting the officer in another location at the time that the ticket was allegedly issued). Normally, the only kind of evidence that would not result in a ticket being upheld on appeal would be the failure of the officer to testify at all. | Assuming that the above can be established by admissible evidence, that sounds like a case for first degree murder, and probably various other crimes as well. In some jurisdictions there is a specific crime of "Murder for hire" which might also apply if available on the jurisdiction where this occurred. A comment mentions a possible insanity defense. That is going to depend on detailed facts not included in the question, but might be possible. | It is certainly possible for the same action to break multiple laws, and be chargeable as multiple crimes. For example, shooting and killing someone may be assault, assault with a deadly weapon, and murder all at the same time. For a different example a person who simply omits to file an income tax return may be guilty of both failure to file a required return, and failure to pay tax due, and in some cases failure to par required estimated tax due as well. For yet another example, driving well above the speed limit may be a violation of the speed limit law, and also careless driving, and possibly also reckless driving. In the first case the assault etc may be lesser included offenses in the charge of murder. That means that they are automatically available to a jury (or judge) trying the accused, who can convict on one of the lesser included charges if they do not convict on the primary count. For the more general case, I don't know of any special term for the situation. It is not usual to have law A which says "do not do X", and also law B which says "you must follow law A". There is no general principle against having such redundant laws, nor is there, in the US, any Constitutional rule against such laws. But legislatures do not normally bother to enact such redundant laws. Laws which will sometimes overlap in their coverage, but in some cases do not overlap are common. |
who owns and is responsible for the truck? My husband's ex girlfriend signed a loan for him to purchase a vehicle before we got married. Since then, he has continued paying on the vehicle the entire time we have been married. He is now in jail. Do I have the rights to the vehicle. Should I be making the payments? Or does she still legally own the vehicle and is held responsible? (My husband and I have been married for 4 years in which he has been the one making the payments.) Also, due to him being in jail, if we proceed with a divorce, will the truck be an asset in the divorce hearing? | Whoever signed the loan owes the money to the bank for the truck. So, in this case it is probably both your husband and his ex girlfriend. Whoever is listed on the title of the vehicle as the registered owner has the full exclusive use of the vehicle. That is probably your husband. Any person who co-signed for a loan owns nothing and has rights to nothing. Co-signing a loan just means that the signer agrees to pay off the loan. In this case the girlfriend does not, nor has ever owned the vehicle. If payments are not made on the vehicle, the owner of the loan (probably a bank) will repossess the vehicle and take ownership of it. At that point they will become the registered owner. Your main options are: Refinance the car. You take your own loan and buy out your husband and his girlfriend. Both of them and the bank would have to agree to this. You would become the registered owner of the car. Make a set-off agreement. In this case, you offer your husband a deal: you will make the payments on the car, if you get the use of the car and a percentage of the sale price in the event the car is sold. Try to get a judge to award you the car in the divorce. In this scenario, the judge would order that you become the registered owner of the car, but the girlfriend and your husband would still be responsible for paying the loan. The risk here is that both will default on the loan and the car will get repossessed. | From a legal perspective co-signing a loan isn't the same thing loaning the money to the other co-signer. When you co-sign a loan with someone else both you and the other person are equal parties in the loan, both jointly responsible in fully paying off the principle and interest. If loan is defaulted on, the bank can pursue legal remedies to try to recover its money against either or both of you. If you end up having to pay part or all of the loan, then whether or not you can recover any of that money will depend on whatever agreement you made with the other person. Given that you probably wouldn't a have a signed written agreement with the other signer in case like this, it'll probably come down to whether or not you can prove (on the balance of probabilities) that the other party promised to you to pay off the full amount of the loan. It will help if the loan is specifically tied to a car, a house or other property that the other party benefits from but you don't. Note that you'd have to give serious consideration to whether the other party can actually pay the amount owed. There's no point going to court to obtain an unenforceable judgement. I also should say that from a financial perspective it does make some sense to think of it as if you were loaning out the money yourself. While there's a big and significant difference between the two, in that your bank account isn't affected unless the other person defaults, if they do the result is going to be pretty much the same. Indeed in that case it's not much different than just giving the other person the money. When co-signing a loan you really need to trust that other person. | Yes, the police can give you a ticket for not having insurance/registration in the vehicle, even if they know it is registered/insured. The requirement is not just that you must have it, but you must carry proof of it in the vehicle. California Law (CVC §16058) requires that insurance companies electronically report insurance information to the DMV, which the officer has access to and can verify insurance. From the California DMV Page: Financial responsibility (commonly known as insurance) is required on all vehicles operated or parked on California roadways. You must carry evidence of financial responsibility in your vehicle at all times and it must be provided as specified below when: Requested by law enforcement. Renewing vehicle registration. The vehicle is involved in a traffic collision. The reason it must be in your vehicle is that when you are involved in a collision, you have to be able to provide that to the other party. And yes, you can receive the citation even if the vehicle is not yours. It is your responsibility as a driver to abide by the laws and verify that the vehicle is legal to drive. California Vehicle Code (CVC) §4000(a)(1) requires registration: A person shall not drive, move, or leave standing upon a highway, or in an offstreet public parking facility, any motor vehicle, trailer, semitrailer, pole or pipe dolly, or logging dolly, unless it is registered and the appropriate fees have been paid under this code or registered under the permanent trailer identification program, except that an off-highway motor vehicle which displays an identification plate or device issued by the department pursuant to Section 38010 may be driven, moved, or left standing in an offstreet public parking facility without being registered or paying registration fees. I'm not advocating that you should just "suck it up and pay" this ticket. I would certainly bring proof of registration/insurance at the time of the ticket to your court date and provide that you are not the registered owner of the vehicle (you don't say, but I assume you were borrowing a friends vehicle). The court should look at that evidence and issue a warning or dismiss the ticket. | I assume that the loan was legal, in light of rule changes pertaining to non-borrowing spouses. If so, there is really no recourse other than to repay the loan. This article explains the current options / restrictions in an understandable manner, but of course it is too late to do anything about it. If there was actually fraud or coercion in the loan, or if the elder party was mentally incompetent, there might be some legal recourse, but we don't have any evidence of fraud, coercion or incompetence here. | You are not legally responsible for your spouse’s acts or omissions. However, in most jurisdictions most assets of a married couple are legally jointly held which means any judgement against your spouse exposes the jointly held assets. | If the owner of the intellectual property leaves property subject to the jurisdiction of the state of Washington, and it is determined that the owner is dead and has no heirs, then per RCW 11.08.140 it is designated escheat property. Then the following sections specify that title to the property vests in the state. The Department of Revenue has jurisdiction over that property, which has the duty to protect and conserve the property for the benefit of the permanent common school fund. There is no general answer to the question of what would best benefit the school fund. Any form of giving it away would not benefit the school fund, at least if there was an viable option for sale / licensing. There are provisions that relate to the possibility that an heir is eventually uncovered, but I will assume that no heir ever appears. Ohio law is similar. The decendant's property escheats to the state in case there is no heir. Then under ORC 2105.07, the prosecuting attorney of the county in which letters of administration are granted upon such estate shall collect and pay it over to the county treasurer. Such estate shall be applied exclusively to the support of the common schools of the county in which collected. | In a typical divorce proceeding, both sides are required to provide a sworn statement of their finances, and to respond to written interrogatories, produce documents (e.g. financial statements made in loan applications, balance sheets, tax returns, bank statements, and copies of deeds and certificates of title and stock certificates) and be deposed in pre-trial discovery proceedings. Divorce lawyers have the authority to subpoena third-party records custodians and to take a small number of depositions of third-party witnesses prior to a permanent orders hearing and can usually get permission to take more if there is evidence suggesting that it would be fruitful to do so. There are a variety of sanctions that may be imposed for failure to cooperate, including adverse inferences regarding the facts that would have been disclosed if there had been disclosures in the discovery process. Still, it behooves a client to know as much as possible before commencing the process, since having lawyers gather this information during the course of divorce litigation is expensive and isn't always perfect. Where misconduct is suspected, a spouse's lawyer will typically retain forensic accountants and/or private investigators and will compare bank and accounting and tax records with other public records such as real property records, corporate records and tax filings. Unless an asset has produced no income or expenses flowing through a personal or business account, it will usually show up somewhere. Spouses will also often have familiarity with where to look based upon living with a spouse and often will have obtained copies of relevant correspondence or documents to provide a lead - perhaps a letter asking a spouse to fill out corporate paperwork or receipt from a foreign bank account. This investigation process (collectively called discovery) usually takes place between the filing for a divorce and the half year or more later when a permanent orders hearing is held. Often, in complex cases and cases where there is a likelihood that assets have been hidden, the final hearing will be set later after the original filing than it would otherwise be, and the planned hearing will be longer in light of the evidence that will need to be produced at that time. In my state, a spouse has up to five years after a divorce to reopen a proceeding is undisclosed assets are discovered. It isn't impossible to hide assets in a divorce, but it isn't easy either. | Rob is responsible. No Bull! Around the world, the law of wandering cattle depends on the details. New Zealand is no different. This case is covered by s 26 of the Impounding Act of 1955, Damages for Trespass. As you said, S 26(1)(d) says Bob is entitled to damages whenever his "land (whether fenced or unfenced) is situated in a city." This is different to the rest of the country, where animals must be fenced out. S 26(2) of the Impounding Act says the damage is owed by Rob, as the owner of the stock: (2) In any case where damages are payable under this section the amount of any damage shall be recoverable by action from the owner of the stock. It may be that Rob and Alice have some arrangement that Alice will indemnify Rob against any trespass damages. But that agreement does not change the underlying law; it only allows him to recoup his loses (by suing his mother, if necessary!). Added: Something fun to read Law professor Robert Ellickson studied how people actually resolve disputes over wandering cattle in Shasta county in northern California. There's a readable summary of what he found here. (The title of his book, "Order without law," sums up his main finding -- there are rules that are enforced, but those rules have little to do with the formal law or law enforcement.) |
Can a creditor double their money after a default by joint debtors? Can a creditor double their money after a default by joint debtors? In other words, lets say that two people jointly owe a bank $100,000 and both are fully responsible for the loan. The loan goes into default. Now, obviously the bank (or other creditor) can sue both of the debtors separately if the bank wishes. This could potentially result in two judgements, each for $100,000 against both of the debtors. Thus, it would appear that the bank has doubled its money. Is there anything that can stop this from happening? | This is called double recovery, double compensation or over-recovery, and it is usually prohibited. The rule against double recovery is also known as the one-satisfaction rule. Courts may give effect to the rule by: refusing to enforce a judgment under the relevant civil procedure rules to the extent that it has already been recovered from a co-defendant, deducting damages already recovered from the amount awarded in any subsequent lawsuit, or ordering the restitution of doubly-recovered payments under the doctrine of unjust enrichment. The rule is an ancient principle of equity which developed over many centuries. The precise way in which the rule will be applied today depends on the jurisdiction and the nature of the claim. I'll outline two 18th century cases which establish the basic principle. For further information, consult a civil procedure textbook in your jurisdiction. Two early cases establishing the unjustness of double recovery In Moses v Macferlan (1760) 2 Burrow 1005, Moses and Macferlan settled a debt of £26 by agreeing that Moses would pay Macferlan £20 and indorse over four promissory notes to the value of 30s each (£6 total). Macferlan agreed to release Moses from liability as an indorser, but when Macferlan failed to recover the value of the notes from the issuer, he sued Moses in the Court of Conscience. Because that court's jurisdiction was limited to debts of up to 40s, it could not consider the terms of the £26 settlement and held Moses liable. Moses paid the £6, but successfully recovered it in the Court of King's Bench. Lord Mansfield said (at 1009): Money may be recovered by a right and legal judgment; and yet the iniquity of keeping that money may be manifest, upon grounds which could not be used by way of defence against the judgment. In Bird v Randall (1762) 3 Burrow 1345, a journeyman (Burford) contracted to work for a silk dresser (Bird) for five years. After just over a year, Burford left. Bird sued and obtained a judgment against Burford. Bird then sued Randall for 'enticing and seducing' Burford out of his service. After the case against Randall was commenced, but before it went to trial, Burford paid the first judgment. Randall then argued that Bird's action could not be maintained. Lord Mansfield said (at 1353): [T]he plaintiff must recover upon the justice and conscience of his case, and upon that only ... the penalty recovered by him from the servant was actually received by him before the present action came on to be tried; without any sort of difficulty ... [this] is against conscience ... If he had actually recovered it, through the defendant's not knowing "that the penalty had been paid," an action would lie against him, for money had and received: like the case out of the court of conscience, not long since determined in this court [Moses v Macferlan]. The double recovery rule in the modern United States In the scenario posed in the question, any attempt at double recovery is likely to be rejected without the need for detailed legal argument. Such a straightforward case would probably be settled without litigation, on terms providing for the debt to be apportioned between the joint debtors. But assuming that this doesn't happen, in a federal case, rule 60(b)(5) of the Federal Rules of Civil Procedure would apply: On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons ... the judgment has been satisfied, released, or discharged[.] Different rules and procedures apply in the various State jurisdictions, but the underlying principles are generally similar. The theoretical and historical basis of the rule against double recovery, as an aspect of the law of restitution and unjust enrichment, continues to attract a great deal of academic and judicial attention in Commonwealth countries, although it seems to be of less interest to American lawyers: Saiman, 'Restitution in America: Why the US Refuses to Join the Global Restitution Party' (2008) 28(1) Oxford Journal of Legal Studies 99–126. | Generally (at least in the US), you cannot file criminal charges unless you are a prosecutor. Criminal charges are brought by the state on behalf of society as a whole; the goal of criminal charges is not to help or compensate the victim, it's to punish the offender and benefit society. The victim will often obtain restitution payments, but they are pretty much bolted on to a procedure not focused on compensating the victim. For instance, if the AG decides to drop charges (which they can do at any point), the charges are dropped. Instead of picking one or the other, you can do both. After the criminal case, if you want, you can file in small claims. You can't collect double, but since they have totally different purposes you don't have to do one or the other. | If by invalidated you mean you do not have to pay it back, no it is not invalidated. The way a loan is supposed to work is that you are given the money and then you could spend it or use the unused portion of the money to pay back the loan. The $400 that you did not use would technically be considered payment on the loan and you would owe $300. | The issue is not enforceability per se, it is the problem of proving what you agreed to. If the landlord adds conditions that are against your interest, he would need to show that you agreed to those conditions: if you add conditions against his interest, you'd have to likewise prove agreement. Since you both have copies of the agreement, it's a matter of comparison to see if the documents are the same. Rather than voiding the earlier agreement and rewriting everything, the change can be initialed. If you were to cross out the rent and insert a lower figure, you would need proof that he agreed to this (hence, his initials on your copy). In your case, the change is apparently in your interest rather than his, so there's no realistic way that this could become an issue (that I can think of: maybe there's a clause that has to do with the move-in date and moving in early actually works against your interest, in which case he would need to prove that you agreed. The fact of moving in early is sufficient proof of agreement). | Does the original 'No Problem' good will waiver from Party B holds in court? Generally speaking, yes. Party B cannot undo his waiver unless (1) it was induced fraudulently, or (2) the contract supports striking that kind of waivers. There might be other scenarios entitling B to undo his waiver, but all of them are exceptional and don't differ that much from these two alternative conditions. That being said, the evidence (such as the recording) should make it clear that party B waived enforcement of the timeliness of payments, not his entitlement to payments themselves. In the event that party A has already made the payments he missed and scenario (1) or (2) applies, party B's remedies are limited to the concrete losses he incurred as a result of party A's belatedness. The principle is that remedies be available to the extent necessary to avoid injustice, as is frequently contemplated in the Restatement (Second) of Contracts. | It doesn't matter if a debt arises as a result of normal commercial transactions or because of liability for a legal wrong - if you owe money you owe money. While you are alive you are responsible for settling your debts out of your assets as and when they fall due. When you die, your executor has the same responsibility. The executor's first responsibility is to settle the debts of the deceased - only after they have done this can they make distributions to the beneficiaries. One of their duties is to advertise the death of the person and invite anyone who has a claim against the estate (as a creditor or beneficiary) to come forward - the law puts time limits on how long they have to do so. If some of these liabilities are disputed then the executor must hold back enough funds to cover the disputed amount (and the costs of defending against it). Intangible assets (copyright, patents etc.) are no different from tangible assets - they can be offered to the creditor to (part) settle the debt or the can be liquidated (sold) to get cash to settle the debt if there is insufficient cash in the estate. Once all known debts have been settled or successfully denied the executor can distribute whatever assets are left in accordance with the will (or the law if there is no will). If they do all this in accordance with the law then they have no liability. The beneficiaries never have any liability. Sometimes the estate will be insolvent - its liabilities are greater than its assets. The executor's duty in that case is to follow the applicable bankruptcy law. | Short Answer Does a secured loan create obligations beyond the collateral assets? The vast majority of the time it does. Long Answer The default rule is that security interests in assets other than real property is a recourse debt under the Uniform Commercial Code (UCC) (a model statute that individual states can enact voluntarily) and the applicable common law (which is uniform almost everyplace except Louisiana and Puerto Rico). This means that deficiency judgments are allowed if the seized collateral is insufficient to pay the loan in full. It also means that the lender can sue on the debt without foreclosing the collateral at all if the lender wishes to do so. A note and security agreement can be made expressly "non-recourse" which limits recovery to seizure of the collateral and precludes a suit on the debt itself. A secured loan can also become non-recourse if the unsecured debt is discharged in bankruptcy, or if the deadline for filing a claim expires in a probate case. Neither bankruptcy nor the probate claims process extinguish the rights of a secured creditor in the collateral, even if the right to bring a suit on the debt itself is terminated. Special tax rules (that, in substance, disallow tax losses with no economic effect) apply to non-recourse debts (especially the special case of limited liability companies which are taxed as general partnerships but subject to special non-recourse debt rules). When filing a claim in bankruptcy, if the collateral is worth less than the debt, two claims must be filed. One secured claim in an amount equal to the value of the collateral and a second unsecured claim in the amount by which the debt exceeds the value of the collateral. In the case of secured debts in real property, most states mirror the personal property rule (which is very close to Uniform since every state, territory and district in the U.S. had adopted Article 9 of the Uniform Commercial Code governing security interests in property other than real estate). But in a few states (including California), security interests in owner occupied residential real estate (a.k.a. mortgages, liens, encumbrances, or deeds of trust) are truly, or in practice are, effectively non-recourse. Be aware also that there are a handful of isolated, mostly state specific but some federal exceptions. The most pertinent federal exception is for swap agreements and certain other kinds of derivatives (exceptions which are found primarily in the bankruptcy code) involving setoffs. There is a section of the Uniform Commercial Code Article 9 involving "strict settlements" that rarely applies except in pawn arrangements. There are also a number of statutory liens (mostly perfected by possession of the collateral rather than by a UCC-1 financing statement) that create a security interest in collateral by operation of law without a signed security agreement that are sometimes non-recourse (e.g. auto mechanic's liens in selected states). | Yes, the second home will be part of the New York bankruptcy estate. Congress broadly defined property within the bankruptcy estate as all property, "wherever located and by whomever held," subject to limited exemptions. Florida's homestead exemption is among the broadest in the Unite dStates; the value of the property that can be protected is unlimited. See Florida Constitution, Article X, Section 5. As such, I have broken down your question into two parts: May the debtors use the Florida homestead exemption for their Florida home even if they are domiciled in New York? If not, may the debtors use either the Federal or New York state homestead exemptions to protect their Florida home? Exemption Eligibility The debtors can choose between either the federal exemptions of section 522(d) or the exemptions available under New York state and nonbankruptcy federal law; the debtors may not choose the exemptions available under Florida state law. Section 552 of the Bankruptcy Code is the operative statute. To take advantage of a state's exemption scheme, the debtor must either: Be domiciled in the state for the 730 days immediately prior to filing its petition; or If the debtor has not been domiciled in a single state for such period, the state in which the debtor was domiciled for the 180 days immediately preceding the 730-day period (or for the longer portion of that 180 day period). 11 U.S.C. § 522(b)(1)(A): . . . any property that is exempt under Federal law . . . or State or local law that is applicable on the date of the filing of the petition to the place in which the debtor’s domicile has been located for the 730 days immediately preceding the date of the filing of the petition or if the debtor’s domicile has not been located in a single State for such 730-day period, the place in which the debtor’s domicile was located for 180 days immediately preceding the 730-day period or for a longer portion of such 180-day period than in any other place; As a result, the debtor may only utilize either the Federal or New York homestead exemptions. Federal Homestead Exemption Section 522(d)(1) provides a homestead exemption in the amount of $22,975 in value for the debtor's residence. (1) The debtor's aggregate interest, not to exceed $ 22,975 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. (The linked statute says that the federal homestead exemption is capped at $15,000. But pursuant to 11 U.S.C. § 104, the amount is adjusted every three years to account for changes in the cost of living. Effective April 1, 2013, the cap is $22,975). Essential to the right to a homestead exemption is designation and occupancy of the property as a residence. Residence and domicile are not necessarily the same thing. Courts seem to be split as to whether a debtor may hold multiple "residences" at the same time. For example, the court in In re Lawrence, 469 B.R. 140 (Bankr. D. Mass. 2012) held: By choosing not to limit the residence qualified for exemption under § 522(d) to a principal or primary residence, Congress presumably intended to encompass a broader category than principal residences, namely any residence . . . . To sum up, on the date of their bankruptcy petition the [debtors] owned two residences, one in Massachusetts and one in Maine. They used them both. They were entitled to exempt either one, but only one, under § 522(d)(1). See also In re Demeter, 478 B.R. 281 (Bankr. E.D. Mich. 2012); In re Gandy, 327 B.R. 807 (Bankr. S.D.Tex. 2005). But the New Jersey Bankruptcy Court in In re Stoner, 487 B.R. 410 (Bankr. D.N.J. 2013) read the term "residence" in a manner "requiring some measure of permanence." I couldn't find any cases from New York discussing this issue, making it difficult to determine whether a New York bankruptcy court would allow the debtors to apply the federal homestead exemption to their Florida home. But given that the exemption is capped at only $22,975, it is unlikely to have a significant impact on the bankruptcy. New York Homestead Exemption The New York homestead exemption is more generous than the federal exemption. It provides exemptions capped between $75,000 to $150,000. However, it is limited to property located within New York and used as a primary residence. As such, the Florida property is not subject to the exemption. New York Civil Practice Law and Rules § 5206: Property of one of the following types, not exceeding one hundred fifty thousand dollars for the counties of Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester and Putnam; one hundred twenty-five thousand dollars for the counties of Dutchess, Albany, Columbia, Orange, Saratoga and Ulster; and seventy-five thousand dollars for the remaining counties of the state in value above liens and encumbrances, owned and occupied as a principal residence, is exempt from application to the satisfaction of a money judgment, unless the judgment was recovered wholly for the purchase price thereof: a lot of land with a dwelling thereon, shares of stock in a cooperative apartment corporation, units of a condominium apartment, or a mobile home. |
Can I photograph strangers voting at a polling station? Can a photo of strangers voting in a polling station be taken and put on Facebook if their ballot is not showing how they voted. Specifically in Texas ? | According to Texas law, Election code 61.014(b): A person may not use any mechanical or electronic means of recording images or sound within 100 feet of a voting station. However, the punishment appears to be only this: The presiding judge may require a person who violates this section to turn off the device or to leave the polling place. | The direct answer is "no" and the indirect answer is "yes", that is, your way of putting the matter diverges significantly from how the Bill of Complain puts the matter. The claim is that the defendant states violated the Electors Clause, the Equal Protection Clause, and the Due Process Clause. Texas claims that there is an injury in fact, citing various SCOTUS rulings e.g. Wesberry v. Sanders which says that No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined See the argument in the brief for more legal rhetoric. There can be no question that one state can sue another; equally clearly, the plaintiff must show actual harm and not just annoyance. New Jersey v. New York is a case involving a question of equity, not the federal constitution, but there is no legal principle to the effect that one state cannot sue over a constitutional harm rather than an equitable harm. See the brief p. 65 ff. The court does not require that there be exact precedential analogs (otherwise, Roe v. Wade would have turned out differently), what's required is simply that there be reasonable logical steps: SCOTUS gets to decide what is reasonable (or it can decline to decide). | The situation in Texas is unclear. It is worth mentioning Texas as a state where the law may require statutory authorization in order to copyright state documents. Although the statute does not explicitly state such as a requirement, it can be inferred from an attorney general opinion. At a bare minimum, the Department of Health, the State Preservation Board, the Water Development Board, the Department of Motor Vehicles, and county governments all have statutory authority to hold copyrights. In your specific case, there's an additional complication. Something is only a work of the State of Texas if one of the following is true: 1) it was created by a government employee as part of their job duties, or 2) it was a work for hire. It's quite likely that neither of the above is true for a student newspaper, rendering the question of Texas-owned copyrights irrelevant. | I am presuming at this point that no one is "the President elect" in the eyes of the Constitution until the electoral college votes in December. In the 20th amendment, the beginning of the sentence is : If, at the time fixed for the beginning of the term of the President, the President elect shall have died... So, that means January 20th, according to section 1 of the same amendment. At that time, not only have the electors already voted since at least a month, but Congress supposedly has certified the election of the dead guy and his running mate 14 days prior. That's the time when someone is or isn't president-elect in regards to this amendment. That's for your first sentence. Now for the rest, and taking your example of the 2020 election, if Biden had died between November and December, the options available to the Electors in each state are different. Some will be able to vote for someone else than Biden for president, possibly someone named by the DCCC, but many Electors in different states will not have that option. The way I see it, there's two options. Either there are no (or almost no) faithless Electors, then the Biden/Harris ticket gets certified on January 6th (what could possibly go wrong 👀), then pursuant to the 20th amendment Harris gets sworn in as the President on January 20th. Or, a lot of the Electors who can legally be faithless, get faithless, then the democratic electoral votes are split, no ticket gets to 270, which triggers a contingent election by the House of Reps (and the Senate selects the VP). Who they elect is anyone's guess. So, if you allow me a bit of presumption as to what you meant, you seemed to imply that Electors voting for a dead guy would be absurd, but in fact it seems like it would be the safest scenario for their party. | No, the minor cannot be in violation either being on the property of residence or the sidewalk in front of that property. Montgomery County Curfew Law: Section 1-2 (Offenses): (a) A minor commits an offense if he remains in any public place or on the premises of any establishment within the unincorporated areas of the county during curfew hours. Section 1-3 (Defenses): (a) It is a defense to prosecution under Section 1-2 that the minor was: (1) Accompanied by the minor’s parent or guardian; (2) On an errand at the direction of the minor’s parent or guardian, without any detour or stop; (3) In a motor vehicle involved in interstate travel; (4) Engaged in an employment activity, or going to or returning home from an employment >activity, without any detour or stop; (5) Involved in an emergency; (6) On the sidewalk abutting the minor’s residence or abutting the residence of a next-door neighbor if the neighbor did not complain to the police department about the minor’s presence; (7) Attending an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor, or going to or returning home from, without any detour or stop, an official school, religious, or other recreational activity supervised by adults and sponsored by Montgomery County, a civic organization, or another similar entity that takes responsibility for the minor; (8) Exercising First Amendment rights protected by the United States Constitution, such >as the free exercise of religion, freedom of speech, and the right of assembly; and (9) Married, had been married, or had disabilities of minority removed in accordance with Chapter 31 of the Texas Family Code. (b) It is a defense to prosecution under Section 1-2 (c) that the owner, operator, or employee of an establishment promptly notified the Montgomery County Sheriff’s Department, or the appropriate Constable’s office, that a minor was present on the premises of the establishment during curfew hours and refused to leave. Your property is not public, so you cannot be in offense of this ordinance being on your private property. You also cannot be in violation being on your sidewalk (or a neighbors sidewalk if that neighbor has not called police on the offender). | BAD idea It is one thing to upload the phonebook and associated pictures for use of the owner of the phonebook. It isn't a fair use of the phonebook pictures - and you might not have a license anyway, as some people associate photos with numbers that they don't have a license to associate with anyway. But what if instead of a photo of the person, the first photo someone associated with the person is a photo of something like... crack cocaine, a photo of someone in a very compromising situation, just genitals, or some other thing that is just as tasteless or possibly criminal to share? In that case, your company is possibly committing defamation, and in case sharing or possessing of the image itself is illegal, your company is now the actor and liable. Depending on the content of the picture, distribution of pornographic material (possibly even underage material of that sort) could be up that alley just as much as hate speech through symbols, usage of banned symbols (such as swastikas in Gernamy) and many many others. | In the United States, it does not matter how you save any evidence; the other side will essentially always be permitted to question its authenticity. Even if they don't question it, a judge or jury would still be free to do so. That said, the standard means of saving this kind of evidence would be to make a screengrab or print it to PDF, and to attach that to an affidavit in which you swear that the image is an authentic representation of the content of the web page as of whatever date and time. If you want something that is harder to question, you could also ask some independent third party to do so. There are, for instance, archiving services like archive.org and perma.cc that will copy a page and store it indefinitely, largely removing the question of whether you might have manipulated the page in any way. | Yes, so long as you are still a US citizen, it does not matter if you no longer maintain residence in the United States. If you no longer have any sort of residence that can be claimed as a current residence, you simply register at whatever the last residence you used was when you lived in the United States (even if someone else lives there now). You would then have an absentee ballot mailed to you overseas. However, if you don't maintain any sort of residence in the United States, you will only be eligible to vote for federal offices (president, senate, house). You won't be allowed to vote in state or local elections. The keywords you'll need for voting are: UOCAVA, which is a program that allows for easier voting overseas (in some cases the ballot can actually be emailed to you and you are only responsible for printing it out, filling it out, and mailing it back). FPCA, which is the form you fill out. It actually doubles as a registration and an absentee ballot request, so you only have to fill out one form. The absentee request is good for all elections in the calendar year it is submitted, so you only have to fill it out once for both the primary and the general. |
Can someone who primarily lives abroad vote in America if they happen to be a citizen? An acquintance of mine is in an interesting situation. This person is a student in America, but their primary residence, personal upbringing, and national identity belong to another country. However, they happen to be an American citizen because they were physically born here. Assuming I have my facts straight, this means that a lot of complications that normally surround immigration to America are not relevant to this person. Does this include voting? Can this person register to vote (and then do so) with no more stringent a process than full-time Americans would go through? If this person were to leave America after they graduate (but maintain their citizenship), from which address could they maintain voter registration? | Yes, so long as you are still a US citizen, it does not matter if you no longer maintain residence in the United States. If you no longer have any sort of residence that can be claimed as a current residence, you simply register at whatever the last residence you used was when you lived in the United States (even if someone else lives there now). You would then have an absentee ballot mailed to you overseas. However, if you don't maintain any sort of residence in the United States, you will only be eligible to vote for federal offices (president, senate, house). You won't be allowed to vote in state or local elections. The keywords you'll need for voting are: UOCAVA, which is a program that allows for easier voting overseas (in some cases the ballot can actually be emailed to you and you are only responsible for printing it out, filling it out, and mailing it back). FPCA, which is the form you fill out. It actually doubles as a registration and an absentee ballot request, so you only have to fill out one form. The absentee request is good for all elections in the calendar year it is submitted, so you only have to fill it out once for both the primary and the general. | Although the constitution doesn't explicitly require your vote to be equal in strength, surely the founders intended with the word 'vote' that you at least get to choose who you vote for. Quite the contrary. The founders specifically intended that smaller states should have disproportionate strength - they knew exactly what they were doing. This was one of the major design goals of the Constitution and is reflected in several other areas (e.g. the structure of the Senate); the smaller states wouldn't have agreed to join the Union if such concessions hadn't been made. There's a general principle in law that "the specific overrides the general". You're not going to get anywhere by trying to read into the word "vote" when there is explicit text saying something different. If the founders intended the word "vote" to imply "equal power for everyone", then why would they have specified, in great detail, a system which does exactly the opposite? For that matter, the founders didn't particularly intend that the people be able to vote for president at all! Article II, Section 1 says only that "each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." There is no requirement that the state should hold an election to determine the appointment of the electors. According to Wikipedia, five states initially had the electors chosen by the state legislature, without having the people vote at all, and South Carolina continued to use this system until 1860. The 14th Amendment, section 2, appears to require that all eligible voters (male and 21 at the time, since modified by the 19th and 26th Amendments) be allowed to vote for their electors, but even there the wording is "any election" which appears to leave open the possibility of having no election at all. (It hasn't been tested as far as I know.) I think that your proposed lawsuit would be quickly dismissed, possibly as "frivolous". | If the Attorney General has officially determined that you renounced US citizenship for the purpose of avoiding taxation, you have a lifetime ban under INA 212(a)(10)(E), and there is no immigrant waiver for this ban. See 9 FAM 302.12-6. I am not sure if the Attorney General has ever made such a determination about anyone. Otherwise, I don't see anything that would prevent you from immigrating to the US like any other foreigner. | This is controlled by 8 U.S.C. § 1401 which details who qualifies for "birthright citizenship". Including of course the condition mandated by the 14th ammendment, Congress is otherwise free to bestow such citizenship essentially as it pleases by duly enacted legislation. One of the cases that receives birthright citizenship is a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States. So the presumption for young children found in the US is that they are citizens by birth. The law in particular requires positive proof that the individual in question was definitely not born in the United States. Lacking this, or it failing to be found prior to reaching the age of 21 years, they are citizens. For other cases, this will likely end up falling to the courts, who will decide the matter on the preponderance of the evidence. In this case it becomes the burden of the individual claiming citizenship to establish that they are a citizen*. Birth certificates can be filed after birth, and can be submitted as evidence. The laws controlling the validity of birth certificates is locally determined. If there are other birth certificates from other countries, or conflicting witness testimony, then it will fall to the court to decide which case is more likely based on the evidence available. *More accurately the burden generally falls on the entity making the claim about someone's citizenship (their own or someone else's). In a deportation hearing, for example, it falls to the government to establish the individual is not a US citizen. Deporation only applies to aliens, so the defendant must be established as such. | I'm not aware of any court ruling about the meaning of the "14 years" clause, but the plain reading of it would be that someone merely needs to accumulate 14 years of residency in the United States in order to be eligible to run for President. There's precedent for this, in the form of Dwight D. Eisenhower: he spent large parts of the period 1942-1946 in Europe before being elected in 1952. | I don't know about that particular case, but you are basically right: In Switzerland, if you want to apply for citizenship, you apply for it in the municipality first. Everybody having the citizenship of the municipality has the swiss citizenship as well. In theory, the canton and the state also have something to say, but that's irrelevant for most applications. This has historic reasons, but going into the details is beyond the scope of this question. Fact is, that every municipality has its own rules, about when and how applications are handled. This has been unified a bit in recent years, but some things still differ. That is for instance, how many years you need to have lived there or who decides your application. There were municipalities (actually most) where the final decision was made using a public vote. This practice was declared illegal by the federal court some years ago, because becoming a citizen is a formal governmental act, and as such a reason needs to be given for turning an application down. This is inherently impossible with a vote. Since that law decision, most municipalities have shifted the responsibility to a committee for citizenship applications. The public can still bring in arguments, but they need to be justified (ie. if somebody knows about the applicant being a wanted criminal somewhere). Consequently, you can now call for a court to check whether the given reasoning is correct and just, if you are turned down. | Only the currently unmarried may lawfully marry in the US US laws generally prohibit a marriage if either person is currently in a valid marriage to a third person, whether in the US or anywhere else. If a current marriage is valid it must be ended by divorce or in some other lawful way before a valid US marriage can occur. Marrying in the US while already married to another person is the crime of bigamy, and will also render the later marriage invalid and void. All this is true regardless of immigration status, it would be true for citizens, green-card holders, holders of any visa type, and undocumented people. No one may contract a marriage while currently married to someone else. I believe this is true in all US states and territories. Committing the crime of bigamy could possibly have negative impact on the immigration status of a non-citizen, in addition to potential criminal penalties. I am not sure why you would think it might be OK to proceed with such a marriage without first obtaining a divorce, annulment, or other lawful termination of any existing marriage, inside or outside the US, but it is not. | The constitution "does not confer the franchise [the right to vote for President] on "U.S. citizens" but on "Electors" who are to be "appoint[ed]" by each "State". (Rosa v. United States, 417 F.3d 145 (1st Cir. P.R. 2005)) Thus, since no citizen has the right to vote for President, it isn't the case that Puerto Rico's citizens are being treated differently in this regard. It is just that Puerto Rico has no representatives in the Electoral College. |
What jurisdiction is responsible for firearms regulation in United States education institutions? Which legislation level and body governs the ability of students and teachers to carry firearms on a campus? Where does this body derive said authority? Is it at the city, state, or federal level or a combination of these? | Generally, the Second Amendment, so the argument goes, guarantees American citizens the right to bear arms, aka carry firearms. State laws vary by state. California, Iowa, Maryland, Minnesota, New Jersey, and New York are the only states that do not have a provision in their state constitutions mirroring or significantly reflecting the provisions of the Second Amendment (although New York has a civil rights law containing something almost the same as the Second Amendment). Campus carry laws are also decided at the state level. There are three types: Mandatory: requires publicly funded schools to, in general, allow on-campus carrying (even though certain locations, such as a basketball game, may nonetheless bar weapons). Institutional: each school determines whether or not to allow firearms. These policies are subordinate to state law according to, for example, court holdings in Colorado and Oregon, and as stated by the University of Texas. Non-permissive: the law, with some exceptions, bans firearms on any institution's property. SCOTUS has held in McDonald v. City of Chicago that the Second Amendment applies to state and local laws and, thus, state and local laws are limited in the same way that federal laws are limited with respect to an individual's right to keep and bear arms. It had previously already held that the Second Amendment protects an individual's right to own guns in District of Columbia v. Heller. | Note, Washington State Senate Bill 5061 seeks to block certain "untracable" firearms without a serial number. This relates in part to "3D printable" guns, but the act of milling of a 80% lower (in Washington) could be a violation, if and when it passes. But it appears the bill hasn't been made a law yet... Is Washington specific news this issue what drives the question? Federally, the ATF web site says: Receiver blanks that do not meet the definition of a "firearm" are not subject to regulation under the GCA. The ATF has long held that items such as receiver blanks, "castings" or "machined bodies" in which the fire-control cavity area is completely solid and un-machined have not reached the "stage of manufacture" which would result in the classification of a firearm per the GCA. But this gets a bit technical. For further risk mitigation, the Texan could mitigate any risk related to both Federal and Washington state law by shipping it to a federal firearms licensee (FFL) in Washington as if it were a firearm, per ATM instructions which say (in part): Generally, for a person to lawfully transfer a firearm to an unlicensed person who resides out of State, the firearm must be shipped to a Federal Firearms Licensee (FFL) within the recipient’s State of residence. He or she may then receive the firearm from the FFL upon completion of an ATF Form 4473 and a NICS background check. That FFL is then responsible for ensuring the transaction properly conducted in the state of Washington, including federal and state requirements. The FFL I contacted only charged $25.00 (plus collecting the state sales tax). Form 4473 was easy enough; only about one page for me to fill out. Of course, I've got a clean record, so going through channels isn't a problem for me, it took less than an hour. The FFL confirmed for me that it wasn't necessary for something like an antique musket, which legally isn't a firearm by the federal defeinitions. In my case the sender was a nervous "trust" lawyer who wasn't sure, hired yet another lawyer to advise him. The FFL didn't charge me anything for receiving that musket. | Gun control laws The moment you enter the 12 nautical miles zone of a country, you need to abide by its weapon laws. Most functioning large-caliber and fully-automatic weapons are not allowed in civilian hands globally. The moment the ship leaves the 12 nautical miles zone, the country law of its flag applies, so unless you happen to start in the US with a duly registered curio/relic deck gun with proper stamps... you'll have a hard time being allowed to have the thing on board in the first place, and entering any other country's water is pretty much violating their gun control laws and gun import laws. Ship hulls don't support them. That deck gun there is a type of Bofors 40mm L/60 twin mounting - 40x311mmR. That means, its installation weighs upwards of half a ton, as that's the smallest carriage setup according to Wikipedia. Navweapons helpfully provides gun weights of roundabout half a ton per gun. That puts the minimum weight at about that of a PAK 40, but as Navweapons tells us, a US Mark 1 Twin clocks in at 4.4 to 5.8 tons including guns. All on the one mounting spot. With the bulk they are, no fiberglass ship hull could support that much load on the gun's small footprint. It needs a steel-hulled superyacht to even bear the deck load of such an installation. If your ship is the size of a coastguard or navy vessel, it probably is such a ship redesigned, a commercial fishing boat (similar specs), a cargo vessel, a large cruise vessel, or built to your specifications from the ground up. | With these facts, assuming Mr Y was charged with involuntary manslaughter (like in MA v. Carter) or aiding a suicide, based solely or almost solely on the messages, under which jurisdiction would he be charged? Applicable Law States have jurisdiction both over crimes that are committed in the state and over crimes that cause harm in a state. The classic law school example is a murder committed by shooting someone with a gun across a state line. Both the state where the gun is fired and the state where the person is shot have jurisdiction over the crime. Jurisdiction generally requires a purposeful act directed at someone or something in the state where the harm is suffered in most cases. But that isn't a hard and fast rule of constitutional law in other contexts, and there are few cases on point. I would consider this to be an open question. Certainly, however, the mere fact that the victim of a crime is transported to another state for medical treatment, where that victim then dies from causes relate to the crime, does not give the state where the death ultimately occurs in the hospital jurisdiction over the offense. Double Jeopardy Indeed, the constitutional protection against double jeopardy does not prohibit both states from independently convicting and punishing the same defendant for the same crime in this situation under the "dual sovereignty" doctrine. As background, the Colorado Supreme Court decided a dual sovereignty double jeopardy case today. Application To Facts (The application to the facts has been revised upon closer examination of them.) The line about "Ms X, who is, at this point, still in Nevada," is confusing because she was in California before and isn't described as ever being in Nevada. I presume that "still in California" was really meant. Mr. Y could be charged (at least) in Nevada or New Jersey from which the continuing course of communications was sent (undue emphasis on the final communication is probably inappropriate), and Wyoming, to which the bulk of the communications were directed and where the bulk of the harm was suffered. California and Nebraska do not seem to be places to which the communications were really directed or where the greatest harm was suffered. Momentary presence in Nebraska air space is probably insufficient. There are also a set of statutes that specifically address crimes committed during an airplane flight (see also here) that has been discussed in other answers at this website. To the extent that this is treated as a homicide committed while in flight, 49 USC § 46506, might also allow for a federal criminal prosecution. I'm not sure that this is really a crime committed in flight, however, as it involved a course of conduct. A single email or a single moment of death doesn't really capture it. It is more analogous to a poisoning taking place in many doses over a period of time. Is Mr Y's speech in this case protected by the First Amendment? No. First Amendment considerations do apply to crimes involving communications between people that are not false, but if there is sufficient intent to cause suicide or other harm, the First Amendment yields to other considerations. The freedom of speech is not absolute. The exact place that the line is drawn is a matter of ongoing litigation. This specific issue is explored in depth in Clay Calvert, "The First Amendment and Speech Urging Suicide: Lessons from the Case of Michelle Carter and the Need to Expand Brandenburg Application" 94 Tulane Law Review 79 (November 2019). This article is responsive to that case of Commonwealth v. Carter, 115 N.E.3d 559 (Mass. 2019). The article explains in its introduction that: In February 2019, the Massachusetts Supreme Judicial Court in Commonwealth v. Carter' affirmed Michelle Carter's conviction for involuntary manslaughter as a youthful offender based on her urging Conrad Roy to commit suicide.' In doing so, the court rejected Carter's claim that her conviction violated her First Amendment' right of free speech. Specifically, it reasoned that Carter's words with Roy immediately before and while he died were "integral to a course of criminal conduct and thus [did] not raise any constitutional problem." In brief, Massachusetts's high court concluded that Carter's speech caused Roy's death' and that the First Amendment provided her no refuge.' | The short answer: No license is required in any U.S. jurisdiction to buy a firearm magazine. There are some jurisdictions that restrict the sale of "high-capacity" magazines to civilians. That's something that is changing often enough that any answer covering the U.S. will probably quickly be obsolete. Suffice it to say: If you can find it in a store there are no legal restrictions or conditions on purchasing it. Technically an "export" license might be required under ITAR to take magazines out of the country, but in practice this has not yet applied to individuals carrying low-tech small-arms accessories (in quantities reasonable for an individual's use). | The legal definition you are probably looking for is machinegun rather than automatic weapon. It can be found in 26 U.S. Code § 5845, which in relevant part says: The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. Historical notes; TLDR The core of this definition dates back to the 1934 National Firearms Act (NFA) . The legislative history of that act includes testimony of Karl. T. Fredrick in front of the house ways and means committee. Mr. Fredrick, then president of the National Rifle Association (NRA), had devoted years to the study of earlier firearms legislation. He criticized earlier legislative attempts to define machine guns, calling them wholly inadequate. The earlier legislative definition was: "Machine gun", as used in this Act, means any firearm which shoots automatically more than twelve shots without reloading. Mr. Fredrick expressed several concerns with this definition, particularly with regard to the phrase more than twelve shots without reloading. His propoed language was substantially broader: A machine gun or submachine gun, as used in this act, means any firearm by whatever name known, loaded or unloaded, which shoots automatically more than one shot without manually reloading, by a single function of the trigger. Note that neither of the later two quotes is current. Thus the core of the definition used today, was in fact provided by an officer of the National Rifle Association, but that definition has been changed in the process of clarifying and codifying the law. | I wouldn't say that it "trumps state law". Indeed, the State of Georgia, either expressly by statute or through the common law, establishes that teachers and school administrators have the authority to create rules and regulations governing the conduct of students that are not themselves unconstitutional as applied to students, although, in general these consequences can't resort to criminal punishments. Instead, typical punishments include detention, suspension (in school or out of school), expulsion, and adjustment of grades for an assignment or a course. Marks in one's disciplinary record and public shaming, forfeiture of eligibility to participate in school sponsored extra-curricular activities or honors (including marching at graduation), refusing to release transcripts, and historically (but much less so in recent years) corporal punishments such as spanking, have been options for schools to enforce their punishments. A prohibition on recording in a syllabus certainly wouldn't result in criminal punishments, and probably wouldn't even give rise to civil liability. Depending upon the purpose for which the recording was being used, it is even conceivable that the school's right to punish someone for violating a school rule could be estopped by First Amendment and whistle blower protection law considerations (e.g. if it was used to document harassment and discriminatory conduct for use in sharing with the school board or law enforcement or publishing on radio or TV or an Internet news source). But, the mere fact that conduct is legal outside a school setting does not mean that a school cannot prohibit and punish that conduct in its own rules. The closer case, upon which there is more division of legal authority, is under what circumstances a school can legitimately punish conduct away from school, for example, uploading rap lyrics about a teacher to YouTube from home without using any school resources to do so. | In California, you may use reasonable force to protect property from imminent harm. The jury instruction on that point is here. The instruction regarding justifiable homicide and defense of property is more restricted, because it only applies to protection of property when the deceased enters a home. If a stranger attacks your dog on a walk, you can use force to defend your dog, but you cannot shoot to kill. If the attack is against a person and not property, then the attack does not have to be in a home in order to be justifiable. |
What are the differences between the terms "act", "law", and "regulation"? Is there any difference between "act", "law", and "regulation"? Are they interchangeable? Is "law draft" acceptable to use to refer to a "bill"? Is that legalese and common to use in legal documents? | In the US, Congress may pass an act, and this creates one kind of law (if it is promulgated: signed, ignored, or re-passed with a super-majority). Some of those acts direct the executive branch to do things, and pursuant to that act, a regulation is promulgated. Together with case law, the whole thing is "law". A bill (in the House, or the Senate) may result in an act being passed by both houses. It may go through a number of drafts between the point when it is first introduced and the time it becomes an act. | It stands for section. As in "section 8 article b" or whatever. | I found an example of "is illegal" in RCW 78.52.467: "If the department believes that any oil, gas, or product is illegal...". There are some examples of "shall be illegal", e.g. RCW 39.84.050 "It shall be illegal for a director, officer, agent", where "illegal" is used predicatively. I tenatively conclude than the latter kind of use is less frequent that the adjectival use. Black's Law Dictionary 2nd Pocket ed does not include "illegal" except in some "illegal"+noun constructions, but it does list "unlawful" alone. "Unlawful" has been used since 1387 (J. Trevisa translation of Ranulf Higden Polychronicon), whereas "illegal" only goes back to 1626. Legal language tends to be very conservative, so the fact that "unlawful" got there first (aided no doubt by the fact that it is an Anglo-Saxon construction, not a medieval Latin borrowing) gives the term priority in legal usage. It sounds more legal to say "(un)lawful" that "(il)legal". | Both civil law and common law have civil codes, so that isn't the difference. It is common in civil law jurisdictions for these to be called civil codes and consolidated into the great big book of law. In common law jurisdictions, the civil code is scattered through legislation, regulation, administrative and case law and often not consolidated although, each piece of legislation typically deals with only one (or a related number) of topics. Adversarial vs Inquisitorial In a common law jurisdiction, the role of the judge/jury is to decide the dispute that the parties have brought to the court based solely on the arguments and evidence that they make. A judge who seeks their own evidence or decides the case based on a law the parties have not argued is making a mistake. The judge is free to say to the parties "But what about xyz law?" and let them make an argument about that but they would be denying the parties natural justice if they decided the case on xyz law if that law was not argued. In civil law jurisdiction, the role of the judge/jury is to find out the truth. They have inquisitorial power and decide the case based on all the evidence, the law that was argued and their own knowledge of the law. Precedence In common law jurisdictions, the cases decided by the courts are just as much the law of the land as the acts passed by parliament. When a court hands down a decision on a certain fact pattern, then all courts lower in the hierarchy must make the same decision when presented by a similar fact pattern. These are binding precedents. In addition, decisions of same level or lower courts (where not actually the ones being appealed) as well as decisions in "parallel" jurisdictions are persuasive precedents. A parallel jurisdiction is anything where the law is close enough that it makes sense to use it: Australian courts will tend to look first to other Australian states, then to England & Wales, Canada, New Zealand and other Commonwealth countries then the United States of America and then to civil law jurisdictions. There is nothing nativist in this, it is just that these are the jurisdictions where the laws are "closest" to one another: partly because the courts have historically done this (which tends to lock the common law together), partly because there has been governmental will in creating harmonized laws in Australia (i.e. enacted in each state and territory but essentially the same law - often word for word) and partly because parliaments, when drafting legislation, nick ideas from other parliaments. If the Supreme Court of Western Australia has made a decision on a similar fact pattern under a similar law, a District Court judge in New South Wales had better have some damn good reasons for deciding this case differently but they wouldn't automatically be wrong if they did. However, if the precedent had been set in the Supreme Court of New South Wales than the District Court judge would be wrong to decide differently. Naturally, a lot of argument in common law courts is about why the facts of this case are sufficiently similar/distinct that the precedent should/shouldn't apply. Also, common law judgments emphasize the reasoning that led the judge from the evidence to the conclusion and include detailed analysis of the case each party presented - this is because they need to be understandable to a wide audience. Court hierarchy can be quite complex, this is the one for NSW, Australia: In a civil law jurisdiction, courts are not bound by the rules of precedence - each judgement is a first principles analysis of the facts and the law. This is not to say that civil law judges do not use other judgments in their analysis but they are not required to do so. Broadly speaking, the common law approach promotes consistency, the civil law approach promotes individualized justice. | A business must be incorporated for a legal purpose (reason), and that reason must be stated when the business is registered; but that purpose can be to be incorporated and exist as a business. It's common for businesses to be registered "for the purpose of conducting lawful business." | Newspapers often say things that are not technically true by the standards of legal usage, especially in headlines which must be brief. "Legalize" is a popular or political concept, not a legal one. Instead, the legal concept underlying such court actions is that (1) an existing prohibition is unconstitutional, and thus such a law cannot exist, and (2) anything is legal unless it is specifically made illegal. "Legalize" is a reasonable term that describes what happens in such cases: to make something be legal (per (2) that means "remove a restriction"). | Does "in the course of providing services" mean "during the same time as providing services" or "for the purpose of providing services" or something else? I ask because I am a programmer who will be working on my own project during the same period as I am providing services to this Client, but after-hours and not for the same purpose or business. I want to make sure that what I create for myself I will own. The best definitions that come to mind off the cuff are "related to" and "in connection with", and both of those phrases appear in the same sentence, so that is quite close to the mark. Black's Law Dictionary (5th edition 1979) (from my hard copy edition) defines "in the course of employment" as follows (citation omitted): The phase "in the course of" employment, as used in worker's compensation acts, related to time, place and circumstances under which accident occurred, and means injury happened while worker was at work in his or her employer's service. Dictionary.com defines "in the course of" as: during the course of. In the process or progress of The best definition I gleaned from relevant case law is as follows: [A]n invention made or conceived in performing, or as a result of performing, the work required by a contract is made or conceived "in the course of" that contract. That would be true even though the invention was not specifically sought in the terms of the contract. An invention is made or conceived "under" a contract when it is made or conceived during the life of the contract and the invention is, in whole or in part, specifically provided for by that contract. Fitch v. Atomic Energy Commn., 491 F.2d 1392, 1395 (Cust. & Pat. App. 1974). The law which forms the background against which the contract term in question is drafted is discussed in the following language from a Federal Circuit patent law case: The general rule is that an individual owns the patent rights to the subject matter of which he is an inventor, even though he conceived it or reduced it to practice in the course of his employment. There are two exceptions to this rule: first, an employer owns an employee's invention if the employee is a party to an express contract to that effect; second, where an employee is hired to invent something or solve a particular problem, the property of the invention related to this effort may belong to the employer. Both exceptions are firmly grounded in the principles of contract law that allow parties to freely structure their transactions and obtain the benefit of any bargains reached. Banks v. Unisys Corp., 228 F.3d 1357, 1359 (Fed. Cir. 2000). A similar contact is applied in the case Greene v. Ablon, 794 F.3d 133, 142 (1st Cir. 2015), but the term was not defined or disputed in that case. This case is still useful, however, for purposes of seeing the kind of issues that are typically raised in a case like this one and to assure yourself that the contract probably is enforceable. For the purposes of this question, the difference between an employee and an independent contractor is immaterial. | I did a lot of digging through case law and statutes, but I don't see a definition for "biological sex" anywhere in federal law, though after looking through those cases, it seems pretty clear that courts think of "biological sex" as a definition of "sex," and that they take it to mean the sex listed on your birth certificate. Even if we could find a straightforward statutory definition, it probably wouldn't do much to inform the interpretation of this memorandum, as it would only apply to the specific section of law in which the definition was included. |
What is the law regarding crossing the street on a red light as a pedestrian? What is the law regarding crossing the street on red (as a pedestrian) If a car takes a red, that is a driving violation and they get a ticket... I'm asking about pedestrians, specifically in NYC it is a very common thing, and just about everyone does it. I've seen people do it in front of cops, and nothing happened - it's the norm in NYC Is it legal? is it just not enforced? | According to New York state law VAT § 1111(d)(4): Unless otherwise directed by a pedestrian-control signal as provided in section eleven hundred twelve, pedestrians facing any steady red signal shall not enter the roadway. VAT § 1112 says they can't enter the intersection when a DON'T WALK (flashing or not) is showing, but can continue if they're already in the intersection. And just to be clear about the illegality, VAT § 1001 says: It is unlawful and, unless otherwise declared in this title with respect to particular offenses, it is a traffic infraction for any person to do any act forbidden or fail to perform any act required in this title. So the answer is, it's a traffic infraction, and illegal. | This varies depending on the specific law of the state or locality involved. In New York, the word "POSTED", along with the name and address of the owner is sufficient to notify people not to intrude, and anyone ignoring such a sign is technically trespassing (although, in practice, if such a person leaves the property when asked, did no damage, and appeared honestly ignorant, it is likely that no legal action would be taken). In California, as specified by penal code section 553 (quoted in the linked answer) a sign for this purpose must include: the words “trespassing-loitering forbidden by law,” or words describing the use of the property followed by the words “no trespassing.” in letters at least two inches tall, and follow other specifications in the law. The word "Posted" is neither required nor sufficient, although the law calls land with such signs "posted property". | This an instance of the general rule ignorantia legis neminem excusat: ignorance of the law is no excuse. If the municipal ordinances state that a particular place does not allow parking at certain times, then if you park there you have violated the law and will get ticketed. There is no requirement that there be signs prominently posted saying that you must obey the law in this particular location. A law might itself require there to be postings, for example speed limit law pertaining to school zones typically are stated in terms of "posted" boundaries. Assuming that the ordinance doesn't have such a "as posted" requirement, you have no legal leg to stand on, and the burden must be shifted to your political leg. If, for example, you were in Pennsylvania, 75 PaCSA 3353(d) permits local parking ordinances: The department on State-designated highways and local authorities on any highway within their boundaries may by erection of official traffic-control devices prohibit, limit or restrict stopping, standing or parking of vehicles on any highway where engineering and traffic studies indicate that stopping, standing or parking would constitute a safety hazard or where the stopping, standing or parking of vehicles would unduly interfere with the free movement of traffic. Signs are kinds of traffic control devices. Since PA does not statutorily prohibit overnight parking, any local restrictions on overnight parking would require signage. Thus restriction such as this one that "The following vehicles shall not be parked between 9:00 p.m. and 6:00 a.m. on the streets...", applying to commercial vehicles among others, would require a sign. That borough has an interesting ordinance stating that In the event of a conflict between the Codified Ordinances of the Borough of Lansdale and the provisions set forth in the Pennsylvania Motor Vehicle Code at 75 Pa.C.S.A. §§ 3351 through 3354, as amended from time to time, the provisions of the Codified Ordinances of the Borough of Lansdale shall control. Generally speaking, local ordinances are subordinate to state law, so this provision is legally questionable (although: the borough does not actually deny the signage requirement, so technically this is not a conflict, it is just ignoring state law – if there is no signage). The borough could of course argue that they were unaware of the state requirement to post no-parking signs, but ignorantia legis neminem excusat. | As has already been said, as far as the vehicle registration, the officer likely already knows who the vehicle is registered to and whether it's expired or not before he walks up to your car, or at the least, he can easily find that information out. The proof of insurance is a different matter. The officer will need to see it to know if you have insurance or not. To him, it doesn't matter what the reason is that you don't provide it to him. Left it at home, misplaced it, lost it, destroyed it, or just refuse to provide it because you feel you have the right to refuse. He can't "force" you to provide it (unless he is able to search your car and happens to find it there). He can only issue you a ticket for not providing it. But your attitude could play a part in what happens next. Being upfront and letting the officer know you have left your documents at home could help your situation. In my experience... one time that this sort of thing happened to me, the officer agreed to hold my drivers license and allowed me to bring the documents to the police station and retrieve my license. Another time, in a parking related matter, I was issued a ticket, but I was allowed to bring the required documents to the police station where they then "invalidated" (cancelled) the ticket. Of course this won't always work, and is not at all likely to work if you are far from home. Keep in mind, (as far as I know, in most states) the real infraction is that you "don't have insurance"... that you failed to provide proof when asked, is secondary. In many cases (likely nearly all cases), if you show up in court and provide documents that your insurance is current, and was current at the time the ticket was issued, the judge (or the prosecutor) will likely dismiss the case with no penalties. But, what the officer has written down on the ticket about your attitude and what you told him at the time, may have an effect on how this all plays out. | Ohio Revised Code Section 4511.25 indicates it is acceptable to drive on the left side of the road when there is an obstruction, and it is otherwise safe. Section 4511.31 indicates it is acceptable to pass in a no-passing zone if the slower vehicle is traveling less than one-half the speed limit, if it is otherwise safe. It does not contain an explicit exception for obstructions. It explicitly overrides Section 4511.30, but not 4511.25. It would take some investigation to figure out which section prevails. | California Vehicle Code chapter 11, division 7, article 1, section 22350: No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property. Section 22358.5: It is the intent of the Legislature that physical conditions such as width, curvature, grade and surface conditions, or any other condition readily apparent to a driver, in the absence of other factors, would not require special downward speed zoning, as the basic rule of section 22350 is sufficient regulation as to such conditions. Without knowing exactly what questions the officer was asked, it's impossible to know why you were ticketed and why you were found guilty, but "reasonable or prudent" and "endangers the safety of [others]" covers a great deal of ground. | Yes. There's a sentence about this in the DMV handbook: Center Left Turn Lanes A center left turn lane is located in the middle of a two-way street and is marked on both sides by two painted lines. The inner line is broken and the outer line is solid. If a street has a center left turn lane, you must use it to prepare for or make a left turn, or to prepare for or make a permitted U-turn (CVC §21460.5 (c)). You may only drive for 200 feet in the center left turn lane. This lane is not a regular traffic lane or a passing lane. To turn left from this lane, signal, look over your shoulder, and drive completely inside the center left turn lane. Do not stop with the back of your vehicle blocking traffic. Make sure the lane is clear in both directions and then turn only when it is safe. Look for vehicles coming toward you in the same lane, preparing to start their left turn. Vehicles using the center turn lane. When turning left from a side street or driveway, signal and wait until it is safe. Then you may drive into the center left turn lane. Enter traffic only when it is safe. You can stop in the center left turn lane as well while waiting to merge into the regular traffic lane. You should not stop in nor drive through a dedicated turn lane that might exist in a center left turn lane. | Knife laws in the United States are notoriously ambiguous, often vary at the municipality level, and enforcement can best be described as capricious. I can't put it better than this eye-opening answer I found on Quora: Don't ask anybody what the law is about knives. Not even the police. There's so much misinformation floating around out there. ... Check the law yourself. Not just state law, but local law for any county or city you stop in or pass through. I was tasked with writing a weapons policy for my security department, my former employer. I checked the Code of Maryland Regulations and found a mess. Knives are considered tools, not weapons, unless and until one uses or intends to use a knife as a weapon; knives are legal regardless of blade length; folding knives may be carried concealed, but fixed knives must be carried open; switchblades and balisongs are not OK, but no mention of gravity knives, locking mechanisms, or assisted-open mechanisms. I carried my S&W assisted-open knife everywhere, including into Baltimore City several times. Then Freddie Gray was arrested for carrying one and died in custody. A whole lot of people thought the arresting officer had made an unlawful arrest, based on the state law, including the Baltimore City prosecutor … until someone bothered to check the city law and found that assisted-open knives are illegal in Baltimore City. The arrest was a good one. And I left my knife in my car from then on whenever I went into that town. (I have on occasion asked police about knife laws. In every case the officer has declined to answer whether a particular knife or carry practice was legal.) |
Can you sue a DAO that offers "software as a coin"? Please help me evaluate the fictitious fact pattern below and understand whether there is a viable legal strategy for the prosecution. Note that this is somewhat futuristic and does not contemplate a current project. That said, let's please assume the technical claims are correct and only evaluate the legal issues involved. If there is a valid legal theory, who will be sued and how? Note that I am not at all a lawyer, so please excuse my poor attempts to use legal language as I would greatly appreciate your input. Suppose IncumbentCo is effectively monopoly in its industry and enjoys large profit margins due to the patent protection that exists on a piece of software it created years ago. Suppose these patents have allowed for IncumbentCo to repeatedly prevents smaller competitors from entering the industry as competition and that the patents are valid. Mr. Founder is a middle manager in the same industry as IncumbentCo and wants to compete with them. For this reason, Mr. Founder creates SoftDAO, a decentralized autonomous organization (DAO), which has a "SAAC"-model ("software-as-a-coin"). Access instances to the software for a user are apportioned by the SoftDAO with a token called "SoftCoin." This works in a similar way to how cloud-SaaS providers like Adobe offer software licenses today, but it is a bit different. Instead of a LLC corporation issuing access for 1 month periods to software, access is granted for small time slices in exchange for SoftCoin tokens. No LLC or corporate entity exists around or in relation to SoftDAO. The software is maintained open-source and contributors are incentivized to contribute to the SoftDAO ecosystem because the are issued SoftCoin tokens by SoftDAO in exchange for their participation. In this way, the tokens act like equity. Because IncumbentCo priced like a monopoly with large margins, it was easy for SoftDAO to grow quickly and take market share. This is 2025, so blockchain and Ethereum is a mature piece of technology that no longer suffers bubbles; at this time in history, the SoftCoin tokens apportions access rights to the SoftDAO software at a price near marginal cost, which was 80% below IncumbentCo's price. The lower pricing meant that though SoftDAO clearly initially offered an inferior product, it was quickly able to gain market share from IncumbentCo. IncumbentCo originally dismissed this as a fad (due to the originally inferior product), but once they reported weak earnings and the SoftDAO product got better, they decided it was the right time to sue SoftDAO. The case makes its way up to the Supreme Court and various legal theories are considered for suing SoftDAO. It was clear that the patents were violated. That said, the main question was: who exactly committed the crime and why are they actually responsible for the harm suffered by IncumbentCo? At first, the CEO of IncumbentCo says to sue SoftDAO. However, the SoftDAO owns no assets, has no employees and, moreover, cannot be compelled to do anything other than what is written in the code base. For this reason, IncumbentCo decides this is not the best legal strategy. Next, the Court considers Mr. Founder as the right defendant. After all, the initiative to make SoftDAO was his idea. Moreover, Mr. Founder has numerous public appearances promoting the SoftDAO on YouTube. He has also been put on lists for "Who's Who in Blockchain" for his contributions to the project, so the public often associates him with SoftDAO. That said, Mr. Founder's lawyers argue the following as defense: Mr. Founder has made many public statements along the lines of "I am but one bee in a hive" and "there is no leader to the project - we are a colony." Though these statements are quixotic, they appear to be made honestly and in good faith. The code for the SoftDAO is open source, with the majority of contributions being made by people other than Mr. Founder. Mr. Founder has never met the vast majority of contributors. There was no hierarchy on top of which Mr. Founder was the leader. After all, the contributors to the product were all compensated in SoftCoins (which acted like equity) and the SoftDAO issued the tokens, not Mr. Founder. None of SoftDAO is the property of Mr. Founder. The SoftDAO source code and project is maintained by a system of smart contracts on the Ethereum blockchain. Mr. Founder is not a majority or even largest owner of the SoftCoin tokens. Some anonymous identity that cannot be identified is the largest owner. He owns less than 2% of the tokens. Simultaneously, IncumbentCo is given legal authorizations to identify the largest owner of SoftCoins because, given their war chest, shareholders have encouraged them to sue as many people as possible to stop SoftDAO. Unfortunately, ownership of SoftCoins is anonymously recorded on the blockchain, were issued by a decentralized exchange, and therefore public keys on the SoftCoin blockchain cannot be readily de-anonymized even through court order. Though the largest owner of SoftCoin could not be successfully identified, the 30th largest owner, Mr. Large, identified himself as such per a Fortune Magazine article ("How Mr. Large is Livin' it Large"). On this evidence, Mr. Large is then sued by IncumbentCo. Mr. Large's defense offers the following arguments: Mr. Large did not commit a crime himself and generally is a good citizen. Suing Mr. Large is like suing an Enron shareholder for owning Enron shares. Typically we do not sue shareholders. Mr. Large is being unfairly targeted simply because he is a public figure with association with the project due to the Fortune Magazine article. It is nearly impossible to prove that Mr. Large is the 30th largest owner of SoftCoin. Court warrant allowed the Court to find some of Mr. Large's public keys on the SoftCoin blockchain, but the blockchain says he is actually only the 100th largest owner now. The Court suspects Mr. Large has failed to produce all of the private keys associated with his ownership of SoftCoin, but cannot prove this. Finally, the Court considers suing a few of the major contributors to the SoftDAO open source code base that have made themselves known to the public (note that at least half of the contributors are still anonymous). They request two forms of relief: (i) stop working on the code base and (ii) force a shutdown of the code base. With some intervening events in between, the lawyers defending the developers argue the following: The developers agree to stop working on the codebase, but their lawyers argue that shutting down the DAO is outside of their control. This is because the developers that are still anonymous can keep working on the project in silence. These other developers have strong incentives to do this given their equity ownership via tokens. Changes to the DAO codebase require votes by SoftCoin holders and any attempt they make to push code to end the project will not be approved by the majority of owners. The developers were not even the major contributors and are not software geniuses. It is not within their skill set to even do what is necessary to shut down the project -- it is something larger than themselves. At last, IncumbentCo realizes that its attempts to achieve legal retribution are in vain -- there is nothing they can do. They take on enough debt to purchase a majority stake in SoftCoin, then they use their governance rights to implode the project. This ends the story. Please help me evaluate the fact pattern above and understand whether there is a viable legal strategy for the prosecution. What rights do they have to protect their interests? If there is a valid legal theory, who will be sued and how? How compelling do you find the arguments above and where are the arguments right or wrong? Even if no legal action can prevent the demise of IncumbentCo, it is still helpful to know who in the SoftDAO ecosystem can be sued and why. | No LLC or corporate entity exists around or in relation to SoftDAO. That's a bad thing, not a good thing, to those involved. Mr. Founder is obviously liable. When he wrote the DAO, he intended that it compete with IncumbentCo, and thus almost certainly intended that the software would violate the patent. And it doesn't matter that he's not the majority owner - he's still a part owner, meaning he's profiting from the infringement. Furthermore, he promoted the scheme, and according to 35 U.S. Code § 271(b), "Whoever actively induces infringement of a patent shall be liable as an infringer." Mr. Large, and any other identifiable part owner, is liable. Mr. Large did not commit a crime himself and generally is a good citizen. Good for him. But lots of people get sued that never committed a crime. Suing Mr. Large is like suing an Enron shareholder for owning Enron shares. Typically we do not sue shareholders. But he isn't a shareholder, and that's critical. If you want the benefits of a publicly traded company, you need to actually make a publicly traded company. Mr. Large is being unfairly targeted simply because he is a public figure with association with the project due to the Fortune Magazine article. Yes, he's being sued because of the article, but so what? It's like saying the police unfairly targeted you for an underage drinking citation because you were dumb enough to post yourself on Facebook. That argument won't fly in court. IncumbentCo can pick who they want to sue. It is nearly impossible to prove that Mr. Large is the 30th largest owner of SoftCoin. Court warrant allowed the Court to find some of Mr. Large's public keys on the SoftCoin blockchain, but the blockchain says he is actually only the 100th largest owner now. It doesn't matter. He's a part owner, by his own admission and by the blockchain evidence. The developers are also liable, also potentially for the whole amount. They created software that infringed a valid patent, and profited from it. If they can't shut it down, they can't shut it down, but they're going to be paying. I'm thinking this is a case where joint and several liability applies; IncumbentCo can go after any particular one of the owners and developers for the entire amount if they feel like it, and then it would be up to that person to then sue anyone else he thinks is partially liable. If Mr. Large is a billionaire and could pay the entire judgement himself, they might just do that. They'd probably go after Mr. Founder for as much as they thought they could get out of him, though. The users are also liable, since the law provides that using a patented invention without authority is infringing. But they're only liable for their one copy, and IncumbentCo may not bother with them, at least initially. However, the SoftDAO owns no assets No, but IncumbentCo is going to seek injunctions against selling SoftCoins or running the software. Could some people slip through the cracks? Sure. People infringe copyright all the time online, and only some get caught. You could easily imagine someone selling pirated software in exchange for cryptocurrency. This would be little different. | Yes, you did something wrong; you used both the university's trade mark and copyright without their permission. I don't know the law in India, however, if it is similar to Australia it is unlikely that the police will be interested in doing anything about it. While it is technically a crime, criminal prosecution is usually reserved for egregious breaches on a for profit basis. I suggest you apologise and agree to stop distributing your app. | On what grounds would you sue? Contract Well, I think that you would struggle to find the necessary elements (see What is a contract and what is required for them to be valid?) In particular, you would struggle to prove that there was intention to create legal relations on their part and possibly on yours. Are you able to identify in your "back & forth" a clear, unequivocal offer and acceptance? Without knowing the details of the "back & forth": I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works appears on the face of it to be a request for a gift; not an offer to treat. Promissory Estoppel If you don't have a contract then it is possible (IMO unlikely) that they induced you by your actions to commit resources (your time in writing) in anticipation of a reward (them publishing what you wrote). To be estopped they would have to have known that you were writing the article in the expectation that it would have your organisation's name in it, that they did not intend for that to happen and that they allowed you to invest those resources notwithstanding. If you can prove all of that then you can require them to do what they promised. The big difficulty I see in this is did you tell them that a) you were writing the article, b) it would have your name in it and c) you expected it to be published in that form. Copyright If they publish the work or a derivative work without your permission you can sue for breach of copyright. As it stands, they probably have an implied licence to publish and you would need to explicitly revoke that. Options There are two reasons to go to court: Money Principle If you are going to court for money then this is at best a risky investment and at worst a gamble: balance your risk and reward carefully. If you are going to court for a principle then I simultaneously admire your principles and think you're an idiot. Make a deal Explain that the reason that you wrote the article was a) to support their fine publication and the fantastic work it does (even if you don't) and b) to garner good publicity for your organisation. You understand and admire their strong editorial stance (especially if you don't) but the article involved a considerable amount of work and could they see their way clear to give you a significant discount (~80%) on a full page ad facing the article. | The DMCA prohibits circumvention of technological measures that effectively control access to a copyrighted work. So you can't legally "crack" the software, period -- even if you own a disc containing the software and have a valid license to use it, a license to use the work is not authorization to circumvent access controls. So if the disc is copy-protected, by my understanding of the DMCA, you're kinda screwed. (The company might be willing to provide you a replacement copy, even if only to maintain the illusion that the software is "licensed, not sold". But you can't make one yourself.) Likewise, if you have a copy of the disc but have lost the license key, you're screwed. Even if you could prove beyond any doubt that you are the licensee, there's not any law i'm aware of that would compel the copyright owner to provide you another license key. And courts have held that distribution of license keys without authorization is a violation of the DMCA. So whoever might provide you another key, if they're not the copyright holder, has broken the law. If you managed to copy the disc from a friend (without circumventing any kind of copy protection), and had your own license key, you might be in a better position. Many EULAs allow you to make a backup copy. Even if they didn't, copyright law does, so there's a possible case for fair use. | In the case of McKee v. Isle of Capri Casinos, we can tell because that case has been legally decided. As the court says, there was a contract and "the patron was not entitled to the bonus under those rules", and plaintiff "failed to prove the necessary elements of either promissory or equitable estoppel". They did not "represent to her that a bonus would be available if she played the game", and did not "promise to pay the $41 million after the notice was displayed". The (very complex) rules of the game are easily available on the machine, and there is a prominent disclaimer that "MALFUNCTION VOIDS ALL PAYS AND PLAYS". Under the rules, the winning configuration stated that she was entitled to $1.85. The problem was that it also announced "Bonus Award - $41797550.16". This was due to an inexplicable software error which in communicating with the central computer awarded a "legacy bonus", which is no part of the game in question. The maximum legacy bonus is $99999.99; the manufacturer knows of the possibility of this kind of error and has implemented a fix that is thought to eliminate the problem. The first point then is that the casino didn't just claim there was a malfunction, they proved that there was one. Second, the terms of the contract hold: she was entitled to $1.85, and the extraneous message was not part of the contract. That is, she did not actually win the large payout, the malfunction was in saying that she received a bonus. If a patron could likewise prove that they had actually won but the machine malfunctioned to represent the situation as a loss, they would of course be entitled to the appropriate winnings. The problem simply resides in the difficulty of a patron proving that. | As I understand it, you can pretty much sue anybody for anything. The question, of course, is would you win the suit? All the lawyers here can correct me, but I believe in order to win, you would have to Show standing, that is, they're your comments and not someone else's Show that it's a deliberate act, and not just someone accidentally clicked the wrong checkbox. Show that it was an act by the agency and not by Facebook, for example. Show that you've been singled out for your viewpoint (they allow some people's comments) Show that there is no other reason to delete your comments (they're obscene, or advocate for an illegal act, for example). I'm probably missing something else. The real question is, even if you could demonstrate all these things, would it be worth it? You may spend $1,000's and you might not recover your legal fees. The case might take years. | It is not correct to say that drugs are, for example, broadly illegal in many western countries Some specific drugs, or specific categories of drugs, are illegal in certain circumstances, by specific statutes. Which ones vary by jurisdiction. So the analogy breaks down. As for the main question, if by "software cracking" is meant creating a modified version of the software that operates differently, for example by-passes authentication, or allows unlimited "lives", that would most probably be creatign a derivative work of the software. Creating a derivative work, even if it is never distributed, is copyright infringement under US law: 17 USC 106 (2) lists as one of the exclusive rights of the copyright holder the right to prepare derivative works based upon the copyrighted work; This also covers the right to authorize preparation such works. So merely creating a "cracked" version of the software is technically infringement. However, infringement (of this sort) is not a crime, and no border officer or other government official will care about it in the slightest. It is up to the copyright owner to take legal action, normally by filing suit. If the modified software is never distributed nor advertised, it seems unlikely that the owner will ever even learn of it, and less likely that the owner will sue if s/he does learn of it. Damages in such a case, if the owner brought one, would probably be small, indeed not enough to make it worth the owner's time and trouble. If the cracker starts with an instance of the unmodified original software,m and edits it in place, never making a new copy, s/he is still preparing a derivative work, and (unless permission was obtained, or the work constitutes a fair use) it is still, copyright infringement If the modified software were posted online, the owner could send a takedown notice to the hosting site. If it were being sold, then a suit would be more likely. If what the cracker creates is not a modified version of the software, but instructions for modifying it, it is less clear that that would even be infringement. If the instructions are for evading an access control mechanism, that might be unlawful under 17 USC 1201 the anti-circumvention provisions of the DMCA. But again it would be up to the owner to take legal action, the government will not care until and unless the owner takes action. (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. The above answer is specific to the united-states but on this point the laws of other North American and European countries are, i believe, similar, as is the Berne Copyright Convention, at least on the matter of derivative works. | Such clauses are called "copyright assignment", "invention assignment", and/or "works for hire" clauses, partly depending on the clause's intent and wording. They're pretty common in employment contracts for software development and some creative positions. Frankly, the clauses don't actually do much, at least in the US -- copyright law already recognizes the concept of works made for hire (which belong to the employer), and claims too far beyond that are often rejected if they aren't obviously related to company business. With that said, your hypothetical programmer's painting is safe unless it depicts, say, the contents of an email from the CEO. :) Even if the clause technically entitles the employer to claim ownership, the employer has no legitimate interest in doing so. Likewise, that app created outside work is safe as long as it is created using no company resources and is unrelated to the employer's business. If the app is obviously related, that's where things get hairy. |
Can I legally digitalise a house design? I want to use modelling software to create some buildings. I've found a building that I like on Google. Would re-creating the design of the building be illegal? | It might be a copyright violation. 17 U.S. Code § 102 - Subject matter of copyright: In general says: Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: ... (8) architectural works. So, the architectural work itself is likely copyrighted. (Unless it's not for some reason - if it's from before 1923, for example, any copyright is likely expired.) And what exactly is an architectural work? The law defines that here: An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features There's one special exception to copyright that applies to architectural works in particular: The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place. So you could legally make a drawing of the building, assuming it's visible to the public. But it seems like you're doing more than that. | Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display. | If it is open source code, then usually the requirement is that you produce the source code for the software that you release. Exactly for the software that you release. For example if you took open source software X, and added feature Y, and distributed the combined software outside your company, anyone can request the source code for X including Y. Handing them the source code for X only wouldn't meet the open source requirements. Now all this is not illegal, but it means the copyright holder of X could sue you for copyright infringement. They will do that if they have enough reasons to do so. So let's say you are continuously developing your software and occasional hand out your compiled software. Say you built versions 100, 101, 102, 103, 104 of the software, you gave versions 100 and 103 to customers, and anyone asking for the source code is given the source code for the latest, slightly improved version 104. The copyright holder of X might sue you but: 1. They wouldn't know you are doing this. 2. A judge might side with you and decide that newer, improved source code is good enough (I don't know this, but it seems not unreasonable). 3. The copyright holder might decide that they don't want to sue you for this because you are close enough to meeting the requirements. | What you are missing is that the original copyright holder can give permission to make derivative works with strings attached. There is no automatic right to derive something from a copyrighted work. Those strings could include constraints on what you create in the process of making the derivative work. Yes it is a string limiting what you can do with something you own, but you would have been warned in the license and had the choice to start from scratch. People do create work-alike software with no copyright strings using two teams and a "clean room" design process. It is a lot harder than modifying something another person has developed. Also, law and someone's understanding of morals need not be aligned at all. And, in patent law, just creating something all by yourself from scratch does not give you ownership. If someone else did it first and got a patent you can't make the item you might think you own. IP law is complex and looking for "fundamentals" may not get you anywhere. | The key to limits on protection of architectural works in the US is the definition of the term in 17 USC 101: An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features. The US Copyright office explains what this means in Circular 41, saying The authorship in an architectural work includes the overall form of the building — the exterior elevations of the building when viewed from the front, rear, and sides — as well as any arrangement and composition of walls or other permanent structures that divide the interior into separate rooms and spaces. Copyright does not protect the following elements: Individual standard features of the architectural work, such as windows, doors, or other staple building components. Standard configurations of spaces, such as a square bathroom or one-room cabin. Purely functional features of an architectural work, such as innovations in architectural engineering or construction techniques. Interior design, such as the selection and placement of furniture, lighting, paint, or similar items. This explicitly excludes paint. Chapter 300 of the Compendium of U.S. Copyright Office Practices and especially ch. 900 goes into further detail of things excluded, such as "Common architecture moldings, such as the volute used to decorate Ionic and Corinthian columns", "Common patterns, such as standard chevron, polka dot, checkerboard, or houndstooth designs". | The licence does not allow you to do this However, copyright law may. You work is (probably) an adaptation within the terms of the licence and these are not allowed. So, put the licence aside and consider if your use is fair use or fair dealing; if it is, you are allowed to do it notwithstanding the licence. | The store is, as far as i can see, not using the trademarked image to sell their cake. Your family does not intend to sell anything at all. This photo, from the description, could not reasonably be confused with an official image from the trademark holder. (all of this is based on your description, of course). Therefore, the trademark holder probably won't sue for trademark infringement, even if they somehow heard of this event, and if they did sue, they would quite likely lose. You would be making a copy of a presumably copyrighted image. You might have an active defense, but that is very hard to be sure of in advance. (Note that "fair use" is a very specifically US legal concept, and would not apply in the UK. The roughly comparable concept is "fair dealing" but that is more restrictive, and follows somewhat different rules.) In any case, it is possible that the rights holder would sue, and if the situation were a bit different (the was only one person pictured, making the shirt with the protected image very prominent, for example) there might be a larger chance of such a suit being successful. No business is going to want a bakery department manager deciding whether a particular use of a particular image does or does not infringe IP rights, and whether it does or does not expose the business to significant risk. Just to get an opinion from their lawyer on whether this image infringes would probably cost them several times the price of the cake with image printing. The store has no doubt written its guidelines to err well on the side of caution, because one suit, even if they won, would cost far more than the profits of many cakes, and if they lost, could have a very negative effect on their bottom line indeed. The store is entitled to restrict what business it does to keep itself safe from lawsuits. It is going to keep well on the cautious side, in all likelihood, and so it should. I fear you will have to find a store with a different policy, or use a different picture. | "Doing the same thing" is very common. We even have names for certain categories of websites, such as "web shop" and "blog". Such concepts are not protected in general. Obviously, you can't copy the name of existing webshop, or their logo, but things like a "rectangular layout of products for sale" aren't original. There is of course a grey area here, because there's a continuum of similarity. In general, similarities that follow from technical justifications are acceptable (having an upload button is sort of the point for your website), similarities that are cosmetic only (same color choice) might be interpreted as intentional attempts to cause confusion. |
Would it be illegal to have a fake gun turret robot on my front porch? I'm thinking something simple that can track people while they walk up that looks like it has a gun on it. I asked my city council and they said that if someone feels threatened on your property you could be charge with a crime. | I'd take the city council's advice and realize that you could be charged with a crime. Their job is to know the local laws and put them into place, as well as know how those laws relate to state law. As for state law, the Revised Statutes of Missouri, RSMo Section 574.115 Making a terrorist threat says: 574.115. Making a terrorist threat, first degree — penalty. — 1. A person commits the offense of making a terrorist threat in the first degree if such person, with the purpose of frightening ten or more people or causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation, knowingly: (1) Communicates an express or implied threat to cause an incident or condition involving danger to life; or (2) Communicates a false report of an incident or condition involving danger to life; or (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. 2. The offense of making a terrorist threat in the first degree is a class D felony. 3. No offense is committed under this section by a person acting in good faith with the purpose to prevent harm. A fake gun turret on a porch in the public view that tracks people who walk by could be interpreted as making a terrorist threat because it (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. And, it's probably safe to assume your turret has the "the purpose of frightening ten or more people." The fact that the gun turret is on private property doesn't mean much; it is in view of the public and your intent is for it to be seen by the public and you want to invoke fear in the public members who walk by. And it's not going to be seen by the council as some sort of security; threats are not security. If you did put up such a turret, and the state didn't take action under 574.115, and there is no local law on the books that applies, the council can easy put one in place at their regular council meeting with a simple motion and vote. Since you already asked the council, they may already be considering such a law. And, depending on the county, the council could invoke a law addressing threats to the public that has more severe penalties that the state law, because Missouri is a home rule (Wikipedia) state. | Would it be legal to jump into an unlocked car and start it? No. Same situation, different object. | Federal law bars possession of guns by felons and also bars the use of straw purchasers. The primary statute involved in 18 U.S.C. § 992(g). Being in a gun show would not be per se illegal, absent an atypical parole or probation condition. But, in this case it looks like the individuals held the guns which would constitute possession, and it looks like they also arranged for a straw purchase. Merely touching a gun with a single finger would probably not constitute possession of a gun for this purpose, although the incentive not to test the boundaries is great, because the sentences are so severe. (Incidentally, there are more convictions for this offense in Missouri than anyplace else in the United States). | Without a witness willing to break their silence, we will probably never be certain. It is possible that this was harassment (current ordinance, not 1999 – version in force at that time not available), defined in Arvada if one has the intent to annoy (etc.) and "Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to another in a manner likely to provoke a violent or disorderly response" (the "record" indicates that there was a pattern of such conduct). We don't actually know that he was fined (hearsay...). | While it is not illegal to own, it may still be illegal to ride on public property. Private property owners can ban them even if they were legal and need to be consulted individually. I have been unable to find out if new laws spoken about have been passed in New York since the beginning of the year. Based on what I have found (as of the end of 2015), it would be best to consider that they are illegal to use on public areas just as any other unlicensed motor vehicle. As of November 2015 Some property owners have banned them for liability reasons, as it is easy to see how a rider could trip on a bump or unexpected curb. And although they have taken the Upper East Side and other parts of New York City by storm, the state classifies them as motorized vehicles that cannot be registered, so riding them in public can incur a steep fine. Earlier this week, the NYPD's 26th Precinct tweeted: "Be advised that the electric hoverboard is illegal as per NYC Admin. Code 19-176.2*." and December 2015 some lawmakers were talking about making them legal. Truth or Fiction Collected on: 12/28/2015 gives the following summary A spokesperson for the New York City Department of Transportation has explained that the law’s definition of “electronic personal assist mobility device” was broad enough to include hoverboards, and that they would be regulated as such. In NYC, because the population is above 1 million people, electronic personal assist device riders must be licensed, and the devices must be registered with the New York State Department of Motor Vehicles. Hoverboards are illegal, the spokesperson said, because the NYSDMV would refuse to register them for legal use: NYSDMV’s position is that these vehicles are likely “Electric personal assist mobility devices.” NYS Vehicle and Traffic Law 114-d defines “Electric personal assist mobility device” as “Every self-balancing, two non-tandem wheeled device designed to transport one person by means of an electric propulsion system with an average output of not more than seven hundred fifty watts (one horsepower), and the maximum speed of which on a paved level surface, when propelled solely by its electric propulsion system while ridden by an operator weighing one hundred seventy pounds, is less than twelve and one-half miles per hour.” NYS VTL 125 generally defines “motor vehicles” as “Every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power.” However, VTL 125 specifically excludes some classes of vehicles from the definition of “motor vehicles.” Under VTL 126(a-1), “electrical personal assistive mobility devices operated outside a city with a population of one million or more” are not considered motor vehicles. However, in NYC, because the city population is greater than one million, NYSDMV considers “hoverboards” that meet the definition of “electric personal assist mobility devices” the same as motor vehicles. Based on that interpretation, it would be illegal to operate a hoverboard in NYC without a valid license to drive a motor vehicle. Beyond that, the motor vehicle would need to be registered by NYSDMV (which NYSDMV will not do), inspected, insured, and otherwise treated as, and subject to regulation like, any other motor vehicle. A person who operates a hoverboard in NYC (or any other NYS city with a population greater than a million) would be subject to arrest and prosecution for myriad NYS VTL violations, including, but not limited to, driving a motor vehicle without valid registration or insurance. | The case US v. Siesser is about such an attempt, where violation of 18 USC 229 was one of the charges (to which he pleaded guilty). It is a chemical weapon under the provisions of that chapter – it's not the chemical per se, it's the chemical when used for a purpose (like, killing people). Specifically A toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter as long as the type and quantity is consistent with such a purpose. You could buy it to calibrate NMR devices, I guess. There may be specific state regulations as well. | There are a couple of indications that a bouncer may not confiscate an ID. This policy document adopting licensing policies to Require licensees with fake ID violations to temporarily or permanently hire on-site law enforcement or certified security guards who are properly trained to check IDs during regular or peak hours to deter the use of fake IDs and give gatekeepers the opportunity to pass suspected fakes to an officer or guard for a second opinion and potential confiscation. Where appropriate, jurisdictions could empower the gatekeeper to confiscate fake IDs so they are not returned to the underage drinker and sent back into circulation. To ensure compliance with legal issues (e.g., property rights, bailment issues), arrange for the on-call or on-site presence of local law enforcement. Local bar and restaurant associations, especially those in concentrated entertainment zones, can join together to share the expense of law enforcement resources. That implies that the bouncer does not already have that authority, and also indicates that the confiscation should be performed by the police. This bouncer training manual says that Even though you may consider the ID to be fake, it is not considered the server's property. Therefore servers and sellers should not confiscate IDs they suspect to be fake. Rather... follow up with a call to the police to verify suspected false IDs. However, a jurisdiction may grant servers that power, as in the case of Colorado. Washington doesn't do that, so bouncers would need to call the police (not that they always do, since passing a fake ID is somewhere between a misdemeanor and a felony). The general principle is that you may not confiscate another person's property, but the police can seize property if it is reasonable to do so. A state may pass a law authorizing a licensee to do likewise (though it does raise questions about the bouncer's understanding of "reasonable cause to believe"). The Colorado statute is restricted to licensee and their employees, and does not apply to "anyone who suspects an ID", nor does it allow civilian confiscation of other property such as an automobile that is suspected of being stolen. | No. This would not be illegal. You are not trespassing or breaking and entering since you have permission to be on the premises, and you are the rightful owner of the guitar so you are not depriving him of property that belongs to him. If you did this with the assistance of a law enforcement officer, rather than Bob's family, without a court order describing the property to be retrieved, this would be called a "civil assist". If the guitar were collateral for a loan, it would be a self-help "repossession" (a.k.a. "repo") authorized by the Uniform Commercial Code if it could be accomplished without a breach of the peace, and it would not require a court order. If you did this pursuant to a court order the case you brought to retrieve the guitar would be called a "replevin action" and you would also need to obtain a "writ of assistance" to authorize a trespass in the presence of law enforcement to retrieve the guitar. Also, Bob would still be be guilty of the crime of theft of the guitar, even though you got it back, because he took it with an intent to permanently deprive you, its owner, of the property that belongs to you. You could also probably sue him for conversion or "civil theft" in some jurisdictions, but your damages would be nominal except for punitive or statutory damages under a civil theft statute, because you ultimately got the guitar back, and so you suffered only minimal economic harm. |
What does this final section regarding the "termination of the binding provisions" in this contract mean? A company recently offered me a great position as the head of their IT Security division. The job being offered is contingent upon my signature signing a lengthy employment, NDA, Noncompete, contract that has a few questionable lines I could really use help in understanding them as normal English. What does the following section from the employment contact mean in plain English: Termination. The binding provisions may be terminated by mutual written consent of the parties; Provided, however, that the termination of the Binding Provisions shall not affect the liability of a party for breach of any of the Binding Provisions prior to termination. Can this be explained in plain English to assist me in making my decision on whether or not to sign the contract? | Termination. The binding provisions may be terminated by mutual written consent of the parties; Provided, however, that the termination of the Binding Provisions shall not affect the liability of a party for breach of any of the Binding Provisions prior to termination. It basically says that you and the company can free each other from the contract or any part of it — by signing another agreement. This is limited though: if either of you have breached the original contract and become liable (e.g. one of you owes the other heaps of money for damages), then those liabilities will remain. ... which is nonsense of course — because you always can free each other from any liabilities to each other if you both want it. | I find that Petri Mäntysaari: The Law of Corporate Finance: General Principles and EU Law: Volume II, p. 115-140 can pretty much explain the reasoning for this. It is in chapter 5.3 on Terms non-binding as intended. The contract might not contain all legal requirements for some reason, or a clause might become invalid due to law changes. Sometimes the contract becomes unenforceable for some reason or another in part or full. The salvatorian clause is there to fix the defective clause to become the closest estimate to the written form that is legal and not deficient instead of being just dropped from the contract. This can save a contract from becoming unenforceable or making it void in whole. Especially look at Page 140: If a contract term is invalid because of a mandatory provision of law, it will be replaced by legal background rules(§306(2) BGB). One of the standard ways to address the situation is to use a so-called salvatorian clause. [...] This [reinterpretation/fixing of deficiencies] would not happen without a specific contract term. (See §139 BGB. On the other hand see also §140 BGB. Compare DCFR II.-7:302 and II.-7:303) A caveat though: if the alteration to the clause needed is too big and substantial, the contract as a whole can become void and null, no matter what the salvatorian clause said. It cannot overcome some burdens and there are regularly courts (I know this for Germany) voiding contracts due to such serious deficiencies. Notes BGB is the German "Bürgerliche Gesetzbuch", an english translation exists §139 says "If a part of a legal transaction is void, then the entire legal transaction is void, unless it is to be assumed that it would have been undertaken even without the void part." Example: a sale lacking any payment is not a sale (which starts a legally required warranty) $140 says "If a void legal transaction fulfils the requirements of another legal transaction, then the latter is deemed to have been entered into, if it may be assumed that its validity would be intended if there were knowledge of the invalidity." Example: a sale lacking any payment can be interpreted as a gift if the intent was to do so (and does not grant warranty) DCFR is the EU Draft Common Frame of Reference, so the above rules are to be found in the document as follows II.–7:302: Contracts infringing mandatory rules - p. 565. Paraphrased: "if a clause in a contract violates a law, substitute the law for it, courts shall decide if that alters or voids the contract. They may fix contracts to cure them." II.–7:303: Effects of nullity or avoidance - p. 574. Paraphrased: "void contract (parts) can constitute unjustified enrichment, transfer of items might not have happened, courts may fix contracts to cure." From the DCFR document one can read what happens in absence of a Salvatorian clause, especially for UK law. II.–7:302: I. Contracts contrary to law 1 All European systems deal with contracts which contravene some rule of law, as opposed to contracts which are contrary to fundamental principles of morality or public policy. 5 In ENGLISH, IRISH and SCOTTISH law the standard texts all include chapter headings such as “Illegality”, or “Statutory Invalidity”. See further Enonchong, McBryde, Law of Contract in Scotland1 , paras. 19.28-19.36, and, for the confused development of Scottish law, Macgregor in Reid & Zimmermann vol. II, chap. 5. II. Effects of infringement 8 The general starting point in most European legal systems is that contracts violating legal rules are void. There is often, however, considerable flexibility in the law. 14 In ENGLISH and SCOTTISH law, while an illegal contract may be void, it is more often presented as “unenforceable”, in that neither specific performance nor damages are available to the parties. Thus a party may withdraw from an illegal contract with impunity. Courts will take notice of illegality of their own motion and dismiss actions accordingly (Chitty on Contracts I27, no. 16-199; MacQueen and Thomson, Contract Law in Scotland, § 7.15; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.17-19.27).). Again, however, there is flexibility in the law on contracts infringing statutory provisions. There are several cases in which the courts have considered whether giving effect to the statute requires the nullity of the contract as a supporting sanction (see e.g. St John Shipping Corp. v. Joseph Rank Ltd. [1957] 1 QB 267; Archbolds (Freightage) Ltd. v. S Spangletts Ltd. [1961] 2 QB 374, CA). English law is currently under review by the Law Commission: see its Consultation Paper on Illegal Transactions. The Commission’s provisional proposals were to the effect that courts should have the discretion to decide whether or not illegality should act as a defence to a claim for contractual enforcement. But the discretion should be structured by requiring the court to take account of specific factors: (1) the seriousness of the illegality involved; (2) the knowledge and intention of the party seeking enforcement; (3) whether denying relief will act as a deterrent; (4) whether denial of relief will further the purpose of the rule rendering the contract illegal; and (5) whether denying relief is proportionate to the illegality involved. II.–7:303: Notes 5 In ENGLISH law the general rule is against restitution but it is possible in exceptional cases where the claimant is not in pari delicto with the recipient, or the transaction has not been completely executed, or if the claim can be formulated without reference to the prohibited contract (Treitel, The Law of Contract9 , 490-504). IRISH law is similar (Clark 314-19), and so is SCOTTISH law (Stair Memorial Encyclopaedia vol. 15, paras. 764-765), although in one Scottish case where, by statute, contracts using old Scottish measures were void, restitutionary recovery was allowed in respect of a sale of potatoes by the Scottish acre, on the ground that there was no moral turpitude in such a transaction (Cuthbertson v. Lowes (1870) 8 M 1073; see further Macgregor, (2000) 4 ELR 19-45; McBryde, Law of Contract in Scotland1 , paras. 13.31-13.34, 19.22-19.26). The English Law Commission in its Consultation Paper on Illegal Transactions suggested that a court should have discretion to decide whether or not illegality should be recognised as a defence to a claim for restitution, various factors being taken into account. In addition the court should have a discretion to allow a party to withdraw from an illegal contract and to have restitution where this will reduce the likelihood of the completion of an illegal act or purpose, although it must be satisfied that the contract could not be enforced against the claimant, that there is genuine repentance of the illegality, and that it is not too serious. | what would happen if you made the fine print of a legally binding contract too small to read? The contents of unreadable fine print would be unenforceable. That is because it does not meet the tenet that parties enter the terms knowingly. Even if the draftsman alleges the counterparty "unreasonably" declined to ask for legible print, the fact-finder be unable to ascertain the parties' legal position pursuant to unreadable print. The rest of the contract is binding and enforceable. Would the person who signed it be able to sue you? No. It would be pointless. The unreadable print is nothing but meaningless scratch/mark/sign that gives neither party a cause of action. | I see that most (all up to this point) answers and comments are made around if a verbal contract is binding enough for the employer to "pursue back" the extra payment that you received... but as far as I can see, they don't even need to consider the verbal agreement. Your employer thought (and apparently was right) that you were going to resign, so they offered you a payment raise in exchange for you to stay for two more years. You verbally agreed but this agreement was never written down nor signed by any of the parts, yet your employer respected it and for X amount of time you received more money that what your initial, written, signed contract says. Now you want to quit; as mentioned above, you only have your original contract, a contract that says two things that are key for this "dilemma": The Employee will be paid £9/hr in arrears. Salary may be increased at the direction of The Employer subject to The Employee taking on additional responsibility which is agreed upon by both parties. If the Employer makes an overpayment to the Employee to which she is not entitled, or which is more than that to which she is entitled, the Employer has the right to recover the overpayment by deductions from the Employee's salary or from other payments due to them. You received payments for £11/hr, which is more that that to which you're entitled according to this (one and only) contract; so, your employer has the right to claim back those £2/hr that, officially, you were not entitled to. IF you want to argue that, as the 1st point says, both parties agreed to increase your salary for "additional responsibilities", YOU would also have to admit that you agreed to stay for two more years, agreement that you are not complying to; so, once again, it's a point in favour for your employer. All in all, it all boils down to how your employeer "feels" when you present your resign letter; maybe they will just agree and let you go without further issues, but if they want to claim back that payment raise, IMO they have both the right AND the arguments to do so. | Washington State is an "At Will" employment state meaning that, with exception to some protected classes and bargaining, the employer may terminate the employee for any reason the employer can cite, or no reason at all. If the firm used it as a benefit of the job but it wasn't agreed upon on the contract, its not a deception as if you can hold the job to the down season, you have less work to do. If a promise was made for employment into the down season during the negotiating of the job, and this was documented, it could be. It could be that he did all the work required of him, but another higher went above and beyond and he got the ax because he was the newest and the lesser performer. Either way, the employer is well within their right to fire an employee for any reason they choose absent discrimination based on protected class status. | Because a contract is simply an agreement between two parties to exchange anything of value, there are many, many more types of contracts. If the company hires you, you would have an employment contract. If you agree to pick up a shift this week for someone who will pick up a shift for you next week, you have a contract. If the company lays you off, you may end up with a severance agreement. If you sue them for race discrimination you may enter into a contract to settle the case for a million dollars. If you want to protect that money from your fiance, you might enter into a prenuptial agreement. If you get divorced anyway, you might split up custody of your children in a shared parenting agreement. All of these agreements would constitute contracts. | Clearly in this case the writing does not reflect your actual agreement. If you were to bill for 1.5x your normal rate for hours over 40/week, relying on the writing, and it came to court, you might win, based on the general rule that matters explicitly covered in the written agreement are treated as final, and evidence of contradictory oral agreements are often not accepted to contradict the contract document. This is known as the parole evidence rule. But you don't plan to issue such a bill, so that won't come up. I don't see that you are at any legal risk. But you could send the client a letter saying that you signed the contract document so as not to hold the job up, but you think there is a mistake in it (pointing out exactly where and what the error is). This would help establish your ethics and good faith, so that if somehow there was a problem over this later (although that seems unlikely) you can't be accused of any improper actions. Keep a copy of any such letter. By the way, if you are an independent contractor, the governmental standard for overtime does not normally apply (in the US). If you are an employee of a consulting company, it may or may not, depending on your salary level and the kind of work you do. An independent contractor can contract for a higher rate for overtime hours, if the client is willing to agree. Many clients will not be willing. | A company had me sign two conflicting documents about two years apart. Which one would apply? Possibly both because actually there is no conflict. What you describe does not reflect that these documents are incompatible or inconsistent. There is no indication that the second document impliedly or explicitly replaces the first one. The second document seems just redundant so far. Employees could likewise be required to sign a third document that only says "no drugs or alcohol on the job site on Wednesdays", and that does not mean that any previous documents they signed expire. |
Why do the majority of states require you to publish your name change? I know that there are some states, like Oregon, which are easing up on this. If you are transgender, or have been the victim of abuse or crime, you should be able to change your name in private. At the same time, are they trying to make it hard for us so that if we were trying to hide our tracks from the law, people would have a chance to object? I wouldn't want the whole world to know I was transgender, no way. Why can we not do a thorough criminal and background check on every person who wants to have their name change, similar to what an employer or volunteer coordinator might do before hiring or allowing you to volunteer? | Name-changing can facilitate escaping liability, so that e.g. if you are liable to someone for $20,000 and you change your name, you may be able to evade that liability. If a name change is made public, then others who have a legal claim against you are officially put on notice that Elmore James is now known as Lee Smith, and paperwork naming the respondent can be properly filled out. A criminal background check will not catch fact such as that you earlier caused damage to another person's property. | If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment? Probably. The matter of intent, in any event, is for a court to decide (if the prosecutor determines that the question should even be presented to a court). For example, someone seeking to rob a bank in a mask would probably fall afoul of this law, and it's not likely that using a mask of a political figure would enable a successful first-amendment defense. For a political protestor, it could be easy to show that the intent was to make a political statement and not to conceal identity, in which case it would not be necessary to consider the constitutional question, for a critical element of the crime would be missing. That is, if you say "I wasn't trying to hide my identity," and the court believes you, then you haven't violated the statute. That is a separate question from whether the statute is constitutional. For the law itself to be unconstitutional, it would have to be unconstitutional in every application, generally. If some applications of the law are unconstitutional, the law could stand, but prosecutions for the unconstitutional application would not succeed. | If you are worried that some secret will become public, you should find and meet with an attorney, not a financial adviser or other nonlawyer. Your attorney is able to shield your secret information from disclosure in ways other professionals cannot. Raise any credit score issues you're concerned about. In general, the public has a right to access judicial records. See Nixon v. Warner Communications, Inc., 435 US 589, 597 (1978) (noting that the right is rarely litigated and not clearly defined). That right is not absolute; some records can be sealed, which means that the public can't read them. Local rules govern when that happens. I don't think the existence of a civil lawsuit could be made secretly except in special circumstances. Likewise, the plaintiff usually must identify herself, except in special circumstances. A plaintiff should assume that everything about the lawsuit--who filed it, against whom, what evidence arises, the trial, and who wins and loses--will be public. | Can you unambiguously, legally, and conclusively determine what is and is not a "porn site"? I'm sure many are easy... but what about that "Swimsuit modeling" site, or the "Artistic Nudes" site featuring classic French Renaissance paintings? There will always be a grey area. What makes a "site" in a legal sense? Consider all the blog sites filled with user generated content: If just a few pages out of tens-of-thousands are hardcore, indisputable porn, would you require the entire domain to be classified XXX, even if 99% of its content is completely innocent? Who would enforce this? Are you proposing an "Internet Police" force to review all new domain names and their content before they get approved? That is called "Prior Restraint on Free Speech", and is established law. Suppose a site does get approved, then immediately changes the content of their pages from Cooking Recipes to hard-core porn. Who is going to review and approve every update to every website, when sites are updated constantly?! Maybe you're proposing that any individual who finds porn on a .ORG site has the right to sue for damages? This would likely clog the courts with endless vigilante lawsuits about what content belongs on which domain. This is a flat out horrible, poorly thought out idea. | No, you are not obligated to provide the requested information. You're out of trial court and into the court of appeals, where the civil discovery rules have basically no effect. If the case gets kicked back to the trial court, you would likely be required to respond truthfully. To cover your bases and look responsible, the most proper thing to do would probably be to respond to the discovery requests, but answer with nothing but an objection to the requests on the basis that the Rules of Civil Procedure do not apply after the case has been dismissed. At that point, the burden is on the other party to make a motion to compel, which he probably won't do. And if he does, I'd expect the court to deny it summarily based on the dismissal. | "How can these things be compatible at all"? The law is that prostitution isn't illegal, which means prostitutes cannot be thrown into jail, they cannot be blackmailed by customers or police officers, for example. This protects and is intended to protect the prostitute. If a business owner tried what you suggest, that would be trouble. It's not asking the woman to do something that would be illegal for her to do, it's asking her to do something that you don't have the slightest right to ask her, which probably constitutes sexual harassment at least. I can't really get how you would think that making prostitution legal and protecting women from harassment would be incompatible. The legality actually takes a huge amount of harassment away. | Earlier this year, the Internet lawyer Arnoud Engelfriet wrote a blog post about exactly this topic. As it is written in Dutch, I will summarize it here: As you also said, deleting posts breaks the flow of the archived conversation and it makes your archive incomplete. This is a problem for the freedom of expression and information. But Art. 17(3) GDPR includes an exception to the right of erasure for this situation. So posts do not need to be deleted. However, profiles are not included in this exception. So they must be removed, but they can be pseudonymized. For example replace the username with user89432, and remove all details from the profile. If other posts contain the nick of the author of an anonymized post, that is considered an journalistic, academic artistic or literary expression, so Art. 85 GDPR would apply, so the right of erasure does not apply to that. Bottom line: you only have to pseudonymize the account, if that person wants to be removed from the forum. | In April 2017, a US District court on Colorado ruled that a law prohibiting women from exposing their breasts in public was an unconstitutional discrimination against women. The law was ordinance 134 passed by Fort Collins, Colorado in May 2016. The group opposing it was led by the activist organization "Free the Nipple." This ruling is not binding in other states, however. See this Snopes report for more details. The case is being appealed to the Tenth Circuit. A similar ordinance has been taken to state court in New Hampshire on similar grounds as described in this AP story and this US News story A similar claim in Illinois in 2017 resulted in a law against 'public indecency" being upheld (in Tagami v. City of Chicago) at the Federal Appeals Court level, according to this Reason story A similar law in Ocean City, Maryland, was challenged in federal court in the summer oif 2018 according to this news story. in 1991 in United States v. Biocic the US Court of Appeals for the Fourth Circuit upheld a similar law against a similar challenge. This Munknee article lists states where a woman going topless is legal and illegal. According to a Time Article (which gives a similar list): The vast majority of states actually have laws on the books making clear that women can’t be arrested under state law solely for being topless in settings where it’s OK for men. But many local ordinances ban the practice anyway. In short, it is not yet fully settled if there is a US constitutional right for a woman to go topless, and state and local laws vary widely. Local laws do not always conform to the laws of the state, but would probably require a court challenge to enforce the state law. Laws in other countries will vary, but many places ban such exposure. |
Is it ethical or legal for journalist to request info from school district staff against their own rules? This below screenshot is from the top of my latest article. There is a crisis at a New Jersey school and staff members have pictures that definitively prove wrongdoing. Many are afraid to come forward for fear of their job and retaliation. It is indeed against district rules to share pictures with the press. That’s why two people, one a parent (not a district employee), another the president of the teacher union (an employee), have volunteered to accept this information. I’m not “encouraging” anyone to break any rules. If they do give info, it wouldn’t be to the press (at least, it’s a distinct step removed). Also, since they will never tell me who they got the pictures from, I could never reveal my sources even if I wanted to. As a journalist, is the below information an ethical or legal risk in any way? I’m not directly asking them to break the rules, but obviously it will ultimately be given to me for this upcoming article. Given all this, Is this information safe to include? Can it be reworded or otherwise presented differently to better protect me? | In a legal sense, if you are posing as a journalist, you can ask anything of anyone, and it's up to them to answer your questions or provide you with photos or documents. If they provide you with photos or documents against the regulations of their employer (or state or federal law), that's their prerogative and their legal risk. They can be protected by whistle-blower laws, depending on jurisdictions, and/or their identities protected by the journalist, depending on jurisdictions, as well as Shield laws and the legitimacy of the journalist and publication. But you can't ethically promise them to protect them as journalistic sources when it is questionable if you can be considered a legitimate journalist, and as a result, legally protect your sources through what is called reporters' privilege (Electronic Frontier Foundation). Some bloggers can be considered journalists; that is something that a court often decides. New Jersey does have a Shield law. And read New Jersey blogger considered a journalist under state Shield Law | Reporters Committee for Freedom of the Press and N.J. Supreme Court says blogger not protected from revealing her sources | NJ.com. You ask if you can be protected and promise protection to your sources. Could you be considered a real, working journalist? Can you sincerely and legally protect your sources? Could you be a case that is tested in court? I'd ask a lawyer. | There is nothing wrong with this requirement. The teacher or professor isn't requiring you to change your opinion. Instead, the requirement is simply to marshall evidence in favor of an opinion that you may not hold. Being able to do this is a valuable rhetorical skill (and a skill which lawyers must routinely employ). For example, in competitive debate, you often do not have the freedom to decide whether you will be arguing in favor or against a resolution, and may not even know which side you will be advancing until moments before the event starts. Freedom of conscience does not extend to freedom from understanding people who disagree with your deeply held belief. UPDATE: Requiring a whole classroom of students (possibly many classrooms of students) to advocate with multiple representatives for a bill does seem problematic, in terms of election laws and probably in terms of the legal requirements that apply to the university, and also possibly in terms of "forced speech", because in requiring the advocacy to be submitted to the official and take a particular position, goes beyond the "let's pretend" veneer that applies in most debate contexts. | Yes. This is legal. The only possible liability for a truthful and accurate disclosure of fact is a defamation action (in the absence of a privacy clause in the contract) and this is truthful so it would not violate anyone's legal rights. Credit reporting agencies routinely collect such information and court actions to collect unpaid debts are also a matter of public record. Credit reporting agencies in this business also have some additional obligations (such as the obligation to remove an entry after a period of time and an obligation to present rebuttal statements from the person affected). But, you should understand that merely publicly sharing truthful information about a factual matter is not really what a "blacklist" means. Normally, a blacklist includes an implied understanding that certain actions will be taken as a result of placement on the list rather than merely sharing information for what it is worth. An example of a law prohibiting a true blacklist from Colorado is the following: § 8-2-110. Unlawful to publish blacklist No corporation, company, or individual shall blacklist, or publish, or cause to be blacklisted or published any employee, mechanic, or laborer discharged by such corporation, company, or individual, with the intent and for the purpose of preventing such employee, mechanic, or laborer from engaging in or securing similar or other employment from any other corporation, company, or individual. Incidentally, I'm not convinced that the statute would be constitutional if enforced under modern First Amendment jurisprudence, although one U.S. District court case from 1971 did uphold its validity in the face of a somewhat different kind of challenge. Resident Participation, Inc. v. Love, 322 F. Supp. 1100 (D. Colo. 1971). | You are allowed to ask the police whatever questions you like. There is an upper limit that you can't refuse to obey a lawful order on the premise that you want to ask a bunch of questions, but they don't seem to have ordered you to do anything, so you can ask away. They have no obligation to tell you anything or to be truthful, except for certain questions like "am I free to go" when you want to leave and are testing whether you are under arrest. Even then they don't have to answer your questions right away. The police can therefore ignore you, especially if you are asking curiosity questions. It might be that they are restricted from giving information in certain circumstances (pertaining to the privacy of others). If there is an issue of legitimate concern (e.g. Little Billy has been beating up on cats again) and you feel that you need to know this, then you can request the police record on the matter. Certain information will probably be redacted under state law, but you could get a report that states that some [redacted] juvenile was beating up on animals. The Florida records law is one of the first in he nation, dating back to 1909. You can read this, to see if you think the circumstances match one of the exemptions, though all you have to do is make the request and be told that the record is exempt, then you will have some idea what was going on. | Copyright The photographer, not the subject(s) own the copyright in the picture. So, unless this was a selfie, you have no rights in the picture. Privacy If the photo was taken in circumstances where a reasonable person would expect privacy, then revealing it to others might be a tort of privacy breach. In most common law jurisdictions this area of the law is undeveloped. However, if the photo was taken from a public place (even if you were in a private place), or with your permission, this doesn’t apply. Intimate images In some jurisdictions, the distribution of intimate images without the permission of the subject is a crime. Intimate does not include a photo that is merely embarrassing. Bullying This is probably bullying behaviour but bullying per se is generally not illegal. It might be illegal if the bullying is motivated by a protected characteristic (race, age, gender, sexuality etc.) but that usually requires a context - employment, public accommodation etc. it might also be illegal hate speech even outside such an institutional framework. Similarly, within an institutional context like a workplace or school there might be policies around bullying; these might have the force of law but are probably quasi-contractural matters. However, a private person doing it because they don’t like you and want to humiliate or embarrass you is probably not doing anything illegal. | There are not enough facts to draw a conclusion First, it’s not clear that the document you signed amounts to a contract. For example, what consideration did the school give you in return for the permission you gave them? Providing you with an education doesn’t count - they were legally obliged to do that already. If it is a contract then whether and how it can be revoked would depend on the terms of that contract witch I’m guessing you don’t have a copy of. Notwithstanding, as a minor, you have the right to void the contract until a reasonable time after you turn 18. Even if it is now many years since that happened, it might be reasonable since you only just discovered the website. If it isn’t a contract, then it would be revocable at any time. Practicalities Make a fuss and they may take the photos down even if they are not obliged to. They presumably have plenty of photos of kids who aren’t you and aren’t complaining and if you make it so it’s easier to change the website than to deal with you, thy’ll change the website. I suspect their inertia is because they once paid a web developer to create the site, it has never since been updated, they don’t know how to do it, and they don’t want to have to pay someone to find out. Otherwise, why would they have photos of ex-students rather than current students? If so, an offer by you to cover the costs, might solve your problem. | From my reading of the bill, and the manner in which it would amend the Family Educational Rights and Privacy Act, the changes do not prevent educational research, but rather, ensures that constraints are in place to prevent the identification of individual students as a result of that research. It also requires a student's parents to consent to such research and/or video monitoring. The data is required to be aggregated prior to any kind of public release, and this is already common practice in most research programs. | It may not be libel, but it may violate other statutes and may support a judgement against the person publishing this information as long as there is an injury-in-fact ("an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical"). A recent case, Spokeo, Inc. v. Robins 578 U.S. ___ (2016) considered the case where a company created a profile for a person. That profile stated "that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree". The plaintiff asserted that all of this was incorrect. The plaintiff made a claim under the Fair Credit Reporting Act because the information was false. However, mere violation of statute is not sufficient to meet the "injury-in-fact" requirement for standing. Congress can't create standing via statute. Injury-in-fact still requires a "concrete" injury. This does not need to be a physical, tangible injury. But, it does need to be concrete. On its own, publication of false information, even when statute prohibits it, does not create standing. There must be an injury-in-fact. |
Does a landlord have to rent to someone even if it makes the other tenants uncomfortable? Let's say I rent a 3 bedroom house in Florida to 3 women from a university in their 20's. Then one moves out and a 40 year old male applicant applies for the vacancy with great numbers on paper. I know that age the gender are not supposed to be criteria, but what is the right answer when the two existing tenants are uncomfortable? | This could be a violation of the Fair Housing Act, but Fair Housing v. Roommate.com, 521 F.3d 1157 says that we find that the FHA doesn’t apply to the sharing of living units The crux of the argument is that a room in a house is not a "dwelling", since it is not a complete living unit. Whether or not courts outside the 9th Circuit follow suit remains to be seen. Florida state law (760.29) states exceptions to its anti-discrimination laws, covering for instance Any single-family house sold or rented by its owner, provided such private individual owner does not own more than three single-family houses at any one time. If that is the case, then the exemption exists if the rental a. Without the use in any manner of the sales or rental facilities or the sales or rental services of any real estate licensee or such facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent of any such licensee or person; and b. Without the publication, posting, or mailing, after notice, of any advertisement or written notice in violation of s. 760.23(3) Another exemption exists if Rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his or her residence. Your attorney (hint) will be able to interpret that complicated section of the law. | What do you mean by "a public building"? Just because a place is owned by the public, doesn't mean anyone can go there any time they wish. Military bases, firehouses, and jails are owned by the public, but many of these have limited access to the public. It may be open to the general public, but that does not mean restrictions cannot be put into place, either on times, or activities, or individuals. For example, public parks often have time and activity restrictions; schools have the power to restrict individuals from their premises, either specifically or by general category. As a general point of law, the owner of any property, or their agent, can order anyone without the right to stay (e.g. not a co-owner or tenant), and that person must depart, otherwise that person is tresspassing. Assuming that the Senior Center is owned by the town, it is probable that the Administrator is empowered to act as the town's agent in this matter. Now, since this "No Trespass order" is specifically directed at you, there is a reason behind it. It may be something you've done. It may be that complaints have been received about your behavior. It may be an actual abuse by someone who doesn't like you. We have no way of knowing. It the order itself doesn't give you a hint as to why, you can ask the town administrator for the reason. As for being against your rights, there is nothing inherently illegal about this situation(that is, an agent of a property owner exercising the latter's right to prohibit an individual from said property), but some of the details, especially why it was specifically applied to you as an individual might be a civil rights violation. | The term "The Property" does not intrinsically include or exclude a garage in this situation, so the answer has to come from other considerations. The lease is unclear, so the courts will need to look at other factors (such as the picture) to decide which interpretation is correct. Insofar as the landlord wrote the contract and could have included a clause explicitly excluding the garage, but didn't, the courts may rule in your favor under the doctrine contra proferentem. The physical arrangement does support the conclusion that the garage is part of The Property, in particular the access to the part constituting your yard. This assumes that there actually is access to your yard from the garage. Scouring the entire contract, there may be some subtle indication of how the garage is to be treated, such as a clause presupposing that you have access to the garage ("shall clean the garage..."). Then we come to the matter of the key. You say the landlord changed the key: does that mean you used to have a key that gave you access to the garage? If you used to have access to the garage, using a key provided by the landlord, that would support the conclusion that the garage was not a separate item governed by its own contract. If you have never had and were not given access to the garage (no key), that would support the contention that the garage is separate. Similar questions would be raised about the actual use of the garage: has the landlord been using it to store equipment? That would support his contention. Had you been using the garage previously and now months later the landlord wants to charge rent for the garage? That runs counter to his claim that you didn't rent the garage. In other words, since the wording does not answer the question, the full set of circumstances would have to considered. | We don't give specific legal advice and one might VTC, but I think your phrasing is not quite right, and you are just curious about the possibility of binding the landlord to a term across leases. The first thing that a term in a contract has to so is say exactly what must be done by whom (or not done). You need to describe more precisely what it means for all future rent and rent increases to be commensurate with the current rent. You can think of conditions like "no more than 2% per annum" or "no more than 15% per annum", and then you can figure out what number is acceptable to the two of you. I would be surprised if you could come up with an agreeable number. Second, you'd have to make this limit "perpetual", which is pretty much impossible. You could negotiate the terms of the next lease today which would prevent an increase of rent by more thay you're happy with, but until governmental controls say exactly what a legal rent increase is, the property owner has the right to raise the rent by a million dollars, and you have the right to move elsewhere. It's as hard to permanently lock a landlord into an arrangement as it is to lock a tenant into renting a specific residence. Every year, you have the right to terminate the lease if the rent goes too high for you, and every year the landlord has the right to raise the rent if the current arrangement isn't sufficiently profitable. Incidentally, you might want to check with AHFC to see if you can actually do this. Your expectations don't determine what relief they provide, just make sure that you provided accurate answers to their questions and reported all income that you're required to report. | Your question is not particularly clear, but it sounds like you're describing a situation where: The tenant doesn't pay the rent The landlord files an action to evict the tenant, and The tenant files a request for a jury trial. The act of filing for a jury trial doesn't guarantee that the tenant won't be evicted, but it will likely make the eviction process more time-consuming and expensive for the landlord. I'm assuming the tenant is entitled to a jury trial--otherwise this would be useless as a stalling tactic. In that case, the question you really want answered is, can the landlord force the tenant to waive any right to a jury trial by contract, for example in the lease? In California, the answer is no. The linked document suggests that you may be able to specify some form of ADR, which would avoid the expense of a jury trial, but the California courts won't let you get away with a straight jury trial waiver. | Bizarrely, it depends on where you live in Kentucky. There is a law, the Uniform Residential Landlord and Tenant Act (KRS 383.500 to 383.705) which states limits on residential leases (otherwise, the matter would be governed by the terms of the contract and common law). The state didn't enact those laws as enforceable in the state, it "made them available" for cities, counties and urban-county governments to adopt unmodified (or not). So it depends in part on whether your locale adopted the law. Assuming it did, in the definitions, (13)"Security deposit" means an escrow payment made to the landlord under the rental agreement for the purpose of securing the landlord against financial loss due to damage to the premises occasioned by the tenant's occupancy other than ordinary wear and tear. (emphasis added) That would mean that they can't take the cost of carpet cleaning, painting etc. out of your security deposit. §383.595 (again, if applicable) states the obligations of the landlord, so he must Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by him So it depends on whether the URLTA was enacted in your jurisdiction. This page indicates where that is the law, and also urges you to read the lease. | I got and answer from lawyer in Netherlands. To rent out to the company is not without risks. You rent out to the company and the company rents out to the actual user of the apartment. That is subletting. The sub-lessee is protected by law. So when the company fails to pay, you can end the contract with the company (you have to go to court for this), but then you will become the lessor to the actual user (=sub-lessee) then. If you feel that that is against your interests, you have to start a court procedure within half a year to end the contract with the actual user. Also note: it is forbidden to rent out to people that don't have a legal status. So you make sure you trust the company very well if you are going to rent out to them. I recommend to seek help from a real estate agent that is well known and member of NVM or other trustworthy organisation. | In general, and in particular in New Jersey, a new owner takes possession subject to existing rental agreements, and in particular subject to existing leases, unless there is a provision in the lease to the contrary. This happens automatically, by law. Thus any lease is as enforceable against the new owner as it would have been against the old. But how enforceable is this arbitration agreement? How enforceable would it have been against the old owner O? The basic fact about a month-to-month tenancy is that either party may end it on one month's notice, for any reason or none. Moreover, when a new owner intds to occupy the premises personally, or use them for his or her family, the requirement to honor a previous lease is, in general, not applicable. T might be able to force N to go through arbitration, depending on the wording of the agreement, and on whether the written lease applies at all after the end of the first year (which it may well not). But on the facts as stated in the question, T would lose in arbitration as well as in court, and if there is any increased expense because of the arbitration, T would be obliged tom pay it. Let us look at the actual NJ law N.J.S.A. 2A:18-53 provides that: any lessee or tenant at will or at sufferance, or for a part of a year, or for one or more years, of any houses, buildings, lands or tenements, ... may be removed from such premises by the Superior Court, Law Division, Special Civil Part in an action in the following cases: a. Where such person holds over and continues in possession of all or any part of the demised premises after the expiration of his term, and after demand made and written notice given by the landlord or his agent, for delivery of possession thereof. The notice shall be served either personally upon the tenant or such person in possession by giving him a copy thereof or by leaving a copy of the same at his usual place of abode with a member of his family above the age of 14 years. [emphasis added] Section 2A:18-56 provides that: No judgment for possession in cases specified in paragraph "a." of section 2A:18-53 of this Title shall be ordered unless: a. The tenancy, if a tenancy at will or from year to year, has been terminated by the giving of 3 months' notice to quit, which notice shall be deemed to be sufficient; or ? b. The tenancy, if a tenancy from month to month, has been terminated by the giving of 1 month's notice to quit, which notice shall be deemed to be sufficient; [emphasis added] Section 2A:18-57 provides that: If no sufficient cause is shown to the contrary when the action comes on for trial, the court shall issue its warrant to any officer of the court, commanding him to remove all persons from the premises, and to put the claimant into full possession thereof, and to levy and make the costs out of the goods and chattels of the person in possession. No warrant of removal shall issue until the expiration of 3 days after entry of judgment for possession, except as provided for in chapter 42 of this Title. Section 2A:18-61.1 provides that: No lessee or tenant or the assigns, under-tenants or legal representatives of such lessee or tenant may be removed by the Superior Court from any house, building, mobile home or land in a mobile home park or tenement leased for residential purposes, other than (1) owner-occupied premises with not more than two rental units or a hotel, motel or other guesthouse or part thereof rented to a transient guest or seasonal tenant; ... except upon establishment of one of the following grounds as good cause ... [emphasis in original] h. The owner seeks to retire permanently the residential building or the mobile home park from residential use or use as a mobile home park But note that good cause is not required for an owner-occupied dwelling with no more than two rental units. T would be wise to consult a lawyer knowledgeable about landlord/tenant law in NJ before attempting to contest the notice or eviction. |
Am I allowed to ask a company to sign a contract? I am an undergraduate student. I recently got an internship in a company in Mauritius. I started the internship 3 weeks ago but I have a concern. The company has not created any internship contract/agreement yet. During the interview process, we just verbally informed me that they are going to pay me according to the local standards. When I asked about the contract, they told me that we will do it later. It's been 3 weeks now and the company hasn't shown any proactivity regarding creating a contract. My plan is now creating the contract myself, leaving a blank space where the company can input the amount they are going to pay me. Then, I will come to my manager and tell him to read it, escalate it to the concerned parties in HR, fill the blank and sign if the company agrees. Is it my right to create such contract? | In general, "a signed piece of paper" is not "a contract". It may be a record of a contract, but the contract itself is the meeting of minds where an agreement is reached and doesn't depend on the existence of the piece of paper. (Depending on the jurisdiction, some sorts of contract are required to be in writing, but this doesn't usually apply to employment contracts; it's usually contracts involving land.) What is far more worrying to me is that you don't know how much they are going to pay you. That suggests there hasn't been a meeting of minds, and there is no contract. (It might be that "the going rate" is good enough to form a contract - to determine that would require advice from a local lawyer.) I suggest you don't write up a formal agreement, but nag your boss to decide how much they are actually going to pay you. | Contracts do not have to be written and signed on pieces of paper, except in a few cases specified by law. Writing style (ordinary style of talking vs. high-register formulaic language) does not affect the validity or a writing in contract law. You do have something in writing. What matters most is what he actually said (exact words, not your belief of what it must have meant), and how it relates to any existing contractual obligation. For example if the message says "You're fired, turn your badge in at the desk. I'll think about giving you two weeks pay", that's not an enforceable promise. But your existing contract might say "You get 2 weeks severance pay when we fire you", and that can't be walked by by saying "I'll thinking about it". And it also depends on whether there are any laws mandating severance pay (but California does not have any mandatory severance pay law). | You say the permission was "public", therefore I am going to assume that it cannot be argued that there was no agreement. There are two possibilities: If Company B has given consideration for the promise then there is a binding contract and Company A may be able to end it but could not seek redress for when it was in place. If there is no contract then the principle of promissory estoppel should have essentially the same effect. An agreement, including an IP licence, does not have to be in writing nor does it have to have any particular form. | Can non-competes be enforced after expiration? Strictly speaking, it can no longer be enforced. Instead, company X may still obtain remedies for your breach of contract (I am definitely not "condemning" you, as I totally understand your position; I'm just explaining the vulnerability to which you are exposed). What you call expiration is more of a "freezing period" during which you were prohibited to work for company Y. But what matters is the concept of statute of limitations, which is the period during which company X may sue you for breach of the non-compete clause (and hence, breach of contract). The statute of limitations for breach of contract varies by jurisdiction. In jurisdictions of the U.S., typically it is three or six years. It was risky for you to rely on company Z's "assurance", especially if Z did not memorialize --in writing-- that it would defend you in the event that company X sues you for breach of contract (after all, Z alleged being "confident they could defeat the non-compete if necessary"). Furthermore, company Z's allegation that your promotion nullifies or supersedes the "old" non-compete seems devoid of merit, at least at first glance. One would need to know the terms of your contract with company X to ascertain whether company Z's assessment is accurate. | Because a contract is simply an agreement between two parties to exchange anything of value, there are many, many more types of contracts. If the company hires you, you would have an employment contract. If you agree to pick up a shift this week for someone who will pick up a shift for you next week, you have a contract. If the company lays you off, you may end up with a severance agreement. If you sue them for race discrimination you may enter into a contract to settle the case for a million dollars. If you want to protect that money from your fiance, you might enter into a prenuptial agreement. If you get divorced anyway, you might split up custody of your children in a shared parenting agreement. All of these agreements would constitute contracts. | If I enter into a contract that a previous contract I entered into says cannot be entered, what happens next? Your question is unclear on whether both contracts are entered by the same parties. Generally speaking, it is valid for parties A and B to enter both contracts unless the formation of the subsequent contract contravenes the rights of another entity who also is a party to the initial contract. If the initial contract only binds A and B, a subsequent contract between A and B is tantamount to mutually agreeing to modify the initial contract. If the initial contract between A and B prohibits entering a contract with C, A's formation of a contract with C constitutes A's breach of the initial contract. The specifics of both contracts and the circumstances would help determining whether the subsequent contract is void and null; whether it is valid at law or in equity for A to have indulged in forming a contract with C (for instance, if B breached the initial contract in a way that frustrates its purpose); or whether compelled performance of the [initial] contract between A and B results in A breaching his contract with C (or in the alternative, whether rescission of the subsequent contract is permissible). If both B and C an "innocent" parties, the court supposedly would look for a solution that preserved their rights to the extent possible, leaving A to carry the cost. | No enforceable contract can contain illegal clauses and work Contracts can not remove some rights and never can bypass obligations. Talking to the police at times is a requirement by law, as is taking to the labor board. Responding to a subpoena is legally forced by the court. An NDA might limit the amount what you can say, and a contract might limit who you can sue, but can not ban you from suing at all. In germany, a contract that tries to curtail such requirements would be Sittenwidrig and make all clauses that try to limit the rights fully Void and nill ab initio - in fact, it can be used as evidence against the drafting party that they tried to do so. So to stay legal and keep the clause working in the limited fashion where it is not demanded, the clause cuts the contract to explicitly exclude such situations. | Who entered the contract with the restaurant? In order for the restaurant to collect from a person, that person must have entered into a contract for the meal. That is, from the restaurant's point of view, they must have indicated that they would like some food and, since everyone knows how restaurants work, they know that the food will have to be paid for. Whether a given person entered a contract will depend on the specific facts. If they opened their mouth and said to the waiter something like “I’ll have the chicken”, they almost certainly entered a contract and they are obliged to pay. This is even if they had an expectation that someone else would pay for them - the restaurant is not involved in any other contracts or arrangements you might have with third-parties. You ordered, you’re on the hook. In a situation where you didn’t order, the answer is still probably yes, you have to pay. Again, because you know how restaurants work, by eating the meal that was placed in front of you rather than saying, “Just so you know, your contract for this meal is with that guy over there, is that okay?”, you probably entered a contract by your action of eating the meal. More broadly, when a group collectively enters a contract with the restaurant, they are probably agreeing with the restaurant that they will be jointly and severally bound. That is, each is responsible for all and the restaurant can pursue any or all of the people they have a contract with. A minor dining with their parents is probably not entering a contract with the restaurant. Not because minors can’t enter contracts (they absolutely can) but because of the normal expectation that the parent is entering the contract. This is because of a principle that contract terms may be implied by custom. That is, if there is a general understanding that this is the way things are done, then that will be something the law will enforce. This is a simple expedient adopted in order to make the world work - if every term of every contract had to be explicitly detailed in advance this would be a) unworkable and b) impossible. Even if there is no contract, the restaurant has equitable remedies like unjust enrichment. The diner has had the benefit of the meal and it would be unjust if the restaurant was left out of pocket. Equitable remedies can be even more complicated than contract law so we’ll just leave it at that. As for whether the restaurant will accept a promise from one diner that another will pay, that’s up to them. |
Why are there three truth parts to an oath? In mathematical logic we have iff: if and only if. As an example of this for my classes I realised that in sworn oaths there are three statements for telling: 1: the truth, 2: the whole truth, and 3: nothing but the truth. The first two of these I rewrite as follows: Statement 1: If I say something, then that something is true. Statement 2: If something is true, then I will say that something. Together these two statements are enough, since they imply what you say if and only if it is true. Hence the third statement is superfluous. So my questions is: why is this third phrase included in the oath? | Your translation of the first statement is not correct. Saying that one promises to tell the truth is not saying that one promises to not tell a falsehood. If telling truth and telling falsehood are items labeled T and F, then this is a logical statement ~(T > ~F) for ~ negation and > implication. The combination of the first and third statements is necessary to obtain what you have called Statement 1, while the combination of the first and second statements is necessary to obtain what you call Statement 2. It could also be argued that the first statement is not even necessary, as it is just a less strict version of the second statement (and a less desirable one at that, if one values the honest sharing of complete knowledge), but the redundancy does not harm the meaning or impact of the following statements. | This is very common in all sorts of legal documents, not just the United States Code. Another familiar example where this is seen is on checks. It serves as a sort of "redundancy check", to help catch errors where either the words or the numerals could have been incorrectly transcribed. Of course, one could ask why similar redundancy isn't used to avoid errors in other contexts; there doesn't seem to be a good answer for this besides "tradition". Some people feel the practice is obsolete and should be abandoned, e.g. https://www.butlersnow.com/2020/04/five-5-reasons-to-stop-writing-numbers-like-this/. | What does one do if, a party at trial denies having made a statement in a published article? A combination of a) and b). The plaintiff should gather other evidence with which to disprove the denials of authorship, or at least to question the reliability the publisher's testimony. The jury needs that evidence in order to discern who is credible. Whether decisive or not for credibility purposes, any material inconsistencies the plaintiff is able to point out from the witness's testimony(-ies) tend to guide the fact-finder (i.e., the jury) on matters of credibility. Whenever possible, the evidence should include admissible documents from when the events took place. For instance, records reflecting the submission & editing process of that article. Those documents typically are obtained by subpoenaing the publisher and/or relevant non-parties, accordingly. That will reduce the chances of testimony deficiencies, whether these stem from witnesses' perjury, lack of memory, inability to clearly articulate what they know, or inability to testify at all (due to witness's illness or death by the time the matter goes to trial). | No The term "sword and shield" is allegorical rather than legal and may be called up in any number of contexts. Such as ... Waiver of privilege In the particular instance, Anthem was claiming that the reports were privileged and hence protected from discovery, presumably because they were prepared in contemplation of litigation - this litigation, one supposes. However, privilege is lost or waived if the privileged information is disclosed, as it was by relying on the conclusion of the report in its defense. As such, the entire suite of reports is no longer protected. Basically, if you want to keep privilege you have to keep what is privileged secret. Note, the could have lost privilege if they had disclosed the findings of the report in any way such as by press release or by simply leaving the document in a public place. In this context, the judge is stating that they cannot use the "shield" of privilege to protect a report that they have used as a "sword" to make a attack their opponent. | The word for a false statement of fact that is used most often is a "misrepresentation" or "false representation of fact" or more generally, an inaccurate quotation. A statement is a libel only if it damages the reputation of the person about whom one makes a misrepresentation and is communicated in writing to a third-party. Making a false statement of fact about what someone said to the person who said it is frequently a form of "gaslighting." | A witness is not evidence, but what a witness says (their testimony) may be evidence. Or, the body of a person who happened to be a witness is evidence. I suspect that there is a translation problem. It is always physically possible to try pay a person to lie and AFAIK never legal: the person who lies and the person who induces the lie will be punished by law. The witness who testifies will have to swear that their testimony is the truth. | The phrase is added to ensure that a portion of the contract is construed as the parties intended. For example, say the terms of a contract already imply some particular term. To make it clear that this is what the parties intended, they may also state that term explicitly. The problem is, if you specify a term a particular way, a party could argue that interpreting another part of the contract to mean that very same thing would render that portion of the contract redundant and therefore it should be interpreted some other way. The phrase "for avoidance of doubt" indicates a part of an agreement that is intended to restate what another portion of the contract (often in conjunction with applicable law) already implies. The phrase is added to ensure that the restatement won't be pointed to as a way to argue that other parts of the contract should be interpreted differently than intended. It is often used where it's superfluous and there it should be avoided because it will actually do the opposite of what's intended -- implying that what it covers is covered elsewhere when it actually isn't, possibly leading to other portions of the contract becoming ambiguous or subject to misintepretation. | maryland I think not In Maryland (a typical state on such issues) the relevant law is Section 9-101 - Perjury, which reads in pertinent part: a) Prohibited.- A person may not willfully and falsely make an oath or affirmation as to a material fact: (1) if the false swearing is perjury at common law; (2) in an affidavit required by any state, federal, or local law; (3) in an affidavit made to induce a court or officer to pass an account or claim; (4) in an affidavit required by any state, federal, or local government or governmental official with legal authority to require the issuance of an affidavit; or (5) in an affidavit or affirmation made under the Maryland Rules. A statement of intended future conduct is probably not a "fact" as required by this section. Classic perjury, that is making a false statement during testimony in an actual court session is covered by subsection (a)(1), which makes it relevant what was considered perjury at common law. In Volume 2 of A Treatise on the Criminal Law of the United States By Francis Wharton (Kay and brother, 1874) section 2226 says: At Common law perjury cannot be committed in an official oath, as far as such oath touches future conduct. On page 321 of The Law and Higher Education: a Casebook by John Seiler Brubacher (Fairleigh Dickinson University Press, 1971) appears the phrase: ... a promise of future conduct, the breach of which would not support a conviction for perjury This was in reference to the 1931 US law mandating a loyalty oath, and why such a law violates due process. Also relevant is the article "When Is a False Statement Perjury?" by the MoloLamken law firm. This discusses the federal perjury lws: 18 U.S.C. §1621 and 18 U.S.C. §1623. There is no mention of false sttements about future conduct. |
Photographing private or special property from public places In the US, does a person photographing private property (houses, farms etc.) while standing on public ground (road, park etc.) commit any offence? If they do not, will they commit any offence by publishing the photos (think Streisand effect)? There are a couple of similar questions here (one, two) but those are for Australia. Please also consider these variations: The owner of the property (or security staff etc.) comes out and asks to stop (or even demands to delete the photos) — can the photographer legally ignore them? Telephoto lens and tripod is used — potentially capable of zooming into details of what is inside the property. To avoid digging too deep into this let's assume that if something really private is caught on the camera (e.g. couple having sex), the photographer only keeps the pictures but never publishes them; People are in the frame, e.g. a man mowing his lawn; Special property (e.g. military base, power plant, railways etc.) is in the frame. If the answer varies greatly from state to state, please focus on Tennessee, North/South Carolina, Georgia and Florida. | In the US, does a person photographing private property (houses, farms etc.) while standing on public ground (road, park etc.) commit any offence? No. In general, while standing on public land, it is legal for your eyes to glance onto everything around you. You cannot be arrested and imprisoned for allowing your gaze to pass over your neighbours lawn. It is legal for you to take out a tripod, canvas and paintbrushes and paint the general scene, even if it includes, for example, a tree standing on private land. Instead of a paintbrush, you may use a camera to create a picture of the scene. There are a few exceptions Some military installations Some installations operated by the department of energy (e.g. some nuclear power stations) You cannot photograph people where they have a "reasonable expectation of privacy" - Note that this is not dependant on how the people feel about it. You can photograph a couple kissing at a bus stop, you probably can't legally point a telephoto lens at their bedroom window through a broken privacy-fence. will they commit any offence by publishing the photos They may need copyright permission from the owners of any identifiable works of art included and may need model releases from identifiable people included. There are specific exceptions allowing the publishing of photographs of sculptures and buildings that are visible from public spaces. See The Photographer's Right | Can the council cut down a tree I plant on common land? Yes. When you plant a tree on common land, you are making a donation to the commons and the tree is no longer yours. The fact that it is common land resolves the question. This is really obvious in the fact pattern where you plant a tree in middle of Hyde Park, and is less obvious, but still true, in the fact pattern in the question. But, be aware that lots of land that is commonly believed to be common land (particularly in the fact pattern in the question), is in fact, private land subject to an easement in favor of the public. There is a fair amount of micro-variation in the common ownership v. private land with easement norm between different neighborhoods in the same municipality, that flows largely from customary practice at the time that particular neighborhoods were developed and deeded (which can span more than a thousand years in some U.K. cities), which has gone back and forth over time. Where there is private land subject to a public easement, a property owner would retain ownership of the land and the tree, subject only to limitations associated with the easement. But, those limitations might very well authorize the Council to remove or cut down the tree to further the purpose of the easement (e.g. if it was blocking a sidewalk with its growth, or threatened utilities for which the easement was created). Of course, in some circumstance, the Council can enforce general regulatory laws that authorize cutting down trees on private land (e.g. tree infected with something that could spread to all trees of that type in the area). Also, it is possible that some public land by be under the control of an entity other than a Council, like a neighborhood association, or another governmental entity (e.g. in the case of a verge along family housing on a military base, or in the case of rental properties on land derived from by a university's land, or in housing associated with a royal palace). In those cases, somebody with responsibility for the land could cut down the tree, but not the local Council. | The California Constitution gives you the right to privacy, but your neighbor also has the right to have cameras on his house. https://oag.ca.gov/privacy/privacy-laws That means that it is up to the courts to balance those rights. If you did go to court, the judge would have to look at the cameras and decide if they significantly violated your right to privacy in regard to audio and video. Just because the camera can see part or all of your yard doesn't make them illegal, because the neighbor has the right to record his property and may not be able to avoid recording your yard. If the cameras can be re-positioned to only see your neighbor's yard the judge might order that. You would have to show it would not violate his right to record while it substantially violates your right to privacy though. Audio is different because it can pick up conversations. California requires you to notify people when you record their conversations in a place where they would be expected to be private. If the camera is recording your conversations, that would be illegal. | In my opinion, you are totally free to publish the information. There are two areas of law that can be cosidered - private and public law. In the private law area, you can be liable for revealing trade secrets, but only if you agreed to keep them by a contract. Trade secrets do not exist by themselves (there are minor exceptions, eg. in competition law, but those do not concern us), they must be protected by contracts. Another private limitations, like libel laws, won't apply here. This is not uncommon, but not in cars - you can find clauses like these in software license agreements. Then there is the public area. Is there any regulation, any policy of the state, that prevents you from publishing it? I am not aware you whole legal code of your state, but I doubt there is. It would be a harsh limitation of freedom of speech. Even if the modification could lead to illegal effect (like, modifying toy weapon to kill by rising its power...) it would be only illegal under very rare circumstances. To conclude it - freedom of speech can be limited only if there is sufficient public interest to do so, and I don't see any. | This depends on the law of the specific jurisdiction, but there is non-trivial similarity in those rules across the US. The general rule is that the person who owns the property must maintain the property. There are often local ordinances that explicitly say that, for example this which is the legal mechanism behind this guidance on tree-trimming. A municipality can do the trimming, or they can send official letters to property owners telling them to trim the bushes. It does not matter whether the sign is on your property via an easement, what matters is where the tree is. You are not responsible for trimming your neighbor's tree if the stop sign is on your property. | This very much depends on where you are. Different jurisdictions have wildly different laws about this. Some places are very permissive. You can record a conversation that you aren't even a party to so long as nobody has any reasonable expectation of privacy. In others, affirmative consent is required from every party to a conversation before it's legal to record it. The laws run the entire spectrum. Some places allow you to record anything you're a party to without permission, but you can't record others' conversations. Some places require you to disclose, but not obtain explicit permission. Some allow you to record but restrict who you can disclose it to. Some allow you to record or ban recording only under certain circumstances. It's a really wide gamut of laws. Since you don't say where you are, who you're recording, or why, there's no way to really answer the question. Here's a good rundown on the United States. This Wikipedia article covers lots of different countries, but only with regard to phone calls. | It probably is infringement, assuming that this is being done by copying parts of a broadcast of the game. It is up to the holder of the copyright on the original broadcast that is being condensed to decide whether to sue or take other action, such as a takedown notice. Perhaps the holder thinks this is good advertising for its business. They have the right to make that decision. Now if a person went to the game, and used a personal camera to film it, and posted excepts of that recording, the legal issues would be very different. The ticket probably includes a provision prohibiting filming and photography, so this would be a breech of contract. But it would not be copyright infringement. (In practice if this were spotted, the person would be required to stop recording or leave, at least.) | Copyright in a photo belongs to the photographer, not to the subject. A picture of S (the subject) is not S's property in any sense, unless the photographer has given or sold it to S. If the photo was linked to information about S, it might be personal Data under the GDPR (or UK-GDPR) if so, S could request erasure, but various exceptions might apply. But even then S would not aquire the right to distribute or copy the image, or any of the other parts of copyright. |
How can one sell their shares in a business after getting sued? My mother is 51% shareholder in my father's company. She was a silent partner throughout the entire process, the only reason she was 51% shareholder was because my father wanted a certain tax exemption for minority women owning businesses. However in the midst of their divorce (which my father has made very ugly), she gave up her rights to the business. However, she recently received a notice that the company (as well as her personally) are being sued for $100,000. However she never made even one business decision in this entire business and she was a homemaker. In the divorce, she got the house however because of this business problem, they will attach the house as property. I am looking to help her and I am unsure if hiring a corporate lawyer is necessary. Is there any way to mediate this situation without hiring a lawyer. And since she is being sued while she still is 51% shareholder of the company (even though the divorce was granted last year), does it matter if she sells her shares at this point or will she still be sued? | TL;DR: It is a $100.000 lawsuit. Talk to a lawyer. If getting out of lawsuits was as easy as acting through a company and selling it afterwards, nobody would ever get paid damages. In addition to that, any answer will depend heavily on a lot of data that you do not disclose (location, kind of company, what is the basis for the lawsuit, etc.). Talk to a lawyer. But, a couple of points to help you understand the situation: the only reason she was 51% shareholder was because my father wanted a certain tax exemption for minority women owning businesses. It does not matter the reason, she was the shareholder. And in fact, I would not publicly use that reason as an excuse before checking with a lawyer, because perhaps it could be considered fraud1. she gave up her rights to the business. Exact wording of the agreement will be important for your lawyer. Did she return ownership of the stock? Or did she just agreed not to manage the business? In C corporations, stockholders are only liable for the money invested (i.e., the value of their stock may drop to zero, but no one can sue them for more). In other kind of companies (unlimited companies), owners can be forced to pay (fully or partially) for the debts of the company. does it matter if she sells her shares at this point or will she still be sued? Who exactly is going to buy the stock? It does not sound like the company is publicly traded, but just a small operation. Unless her 51% is worth more than she is being sued for -or the buyer thinks that the lawsuit will fail-, people won't be interested. Of course, it might be tempting to "forget" telling about the lawsuit to prospective buyers, but that probably will end with the buyer suing your mother when they discover that she has not fully disclosed the status of the company. Talk to a lawyer. 1But explain all of the details to your lawyer, s/he may make use of them and convince your father to take full responsability. And your lawyer will not inform the authorities. Talk to a lawyer. | You are describing a liability suit. My sense is that based on the facts you describe you will face two serious challenges to making a successful case. Damages and liability. In order to win a liability case, you must first establish that you have been damaged in some way. According to your facts, your damages are at best, the replacement value of a used controller. I'm guessing that's what, $20 or so? That doesn't cover the cost of an attorney's time to even begin to hear your version of the facts, much less give you advice or pursue a case for you. After you establish damages, you must prove the company is responsible or has some share of liability for causing your damages. Again, I think this is going to be an obstacle for you. Not placing a warning that the game will affect you by causing you to throw your controller and be mean to your mom would be unprecedented if you were to prevail. AFAIK. | Possibly Your employment contract is only one part of your deal You are also bound by the company’s constitution and any shareholder agreement that may exist. Companies often have wide ranging powers to repurchase their own shares at fair market value or following a pre-specified formula. It’s not uncommon for private companies to get an option to purchase shares automatically from ex-employees. | What would be the most reasonable thing to do? Live with it. Oh, and stop breaking the law with your automated emails. Illegality on their part does not justify illegality on your part. Also, it’s likely that this activity has caused your email address to be blocked automatically which may explain why they aren’t contacting you. From a legal point of view, that’s the only reasonable option. You do have valid grounds for a lawsuit for the value of the watermelon but the cost of filing will be a couple of orders of magnitude greater than the value of the melon so doing so isn’t “reasonable”. If you want to vent, the internet offers a wide variety of social media platforms for which that seems to be their primary focus. But that’s got nothing to do with the law. | In the US, "insider trading" includes both legal and illegal versions. When a corporate employee buys or sells shares of their company, they are insiders and they are trading (there is a requirement to report to the government). The illegal version involves breach of fiduciary duty or confidence. The relevant section of the federal regulations is 17 CFR 240.10b on "Manipulative and Deceptive Devices and Contrivances", and you will note that the section does not rely on the term "insider" in the law part, instead it directly characterizes what acts are illegal. Thus it would not matter, from a legal perspective, if someone considers you an insider. It is illegal to trade in securities using a “manipulative, deceptive, or other fraudulent device or contrivance”. This relates to what is commonly known as insider trading via rule 240.10b5-1, by defining as manipulative and deceptive trading on the basis of material nonpublic information about that security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or derivatively, to the issuer of that security or the shareholders of that issuer, or to any other person who is the source of the material nonpublic information (emphasis added to focus on the core requirements). Whether or not you have a "duty of trust or confidence" is determined by common law standards, that is, it depends on how courts have ruled on similar matters. For instance if the CEO of Apple tells you "Our computers explode and it's gonna be on the news tonight, the stock is gonna tank, but it would be illegal for you to act on that information", then it would be illegal, because you are aware that the CEO has a duty to not use that information (thus you "inherit" the duty). This also holds if he doesn't tell you that acting on the information, since it is expected that you know that the CEO of Apple could not legally act on that information (even if in fact you are unaware of the law -- ignorance of the law doesn't get you anywhere good). However, if you are unaware and could not know that the person making the factual disclosure is divulging information that he has a duty to shut up about, then you might not get prosecuted. | the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply & demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled. | Just think of the subtenant cum owner as two separate people with two separate roles. Tenant = T Subtenant = ST Old owner = OO New Owner = NO The rights of the tenant vis-avis the new owner will be informed by the lease and the local laws. Generally, if the sale happens in the middle of the existing lease, the NO is obligated by the terms, as is the T. NO cannot just kick T out, and T cannot just break the lease. The lease may say what could happen and local laws will apply. Likewise, ST has whatever contract with T that previously existed. Pretend NO and ST are different people. If T owes NO $1000 per month, and ST owes T $400 a month, that continues even though ST and NO are the same person. Depends on what kind of dispute. See above. All contracts continue, subject to whatever the lease with the original owner and the subtenancy agreement say abut modifying or breaking the lease and sublease. Local laws apply. Note, if the subtenancy was "off the books" or was done when not allowed by the original owner, and if it was not in a place that the local law says owners cannot deny subleasing, then tenant might not have any protection. ST, now that he is owner could just move out and stop paying. On the other hand, even if he is the owner, he cannot just say "I am the owner now, so I am moving back in for free" because the original lease gave the tenant use of the whole property. But ST could just drop out because T always owed OO, and now NO, the full rent. Do you mean if rather than sublease, they were both on the original lease? Interesting, but just imagine it as the obligations before the sale = the obligations after the sale. I don't know though. There are some tax implications for an owner occupied rental. | The CEO, with his lawyer have tried to convince me that this only apply to current client and any past clients that I have work on. Is this true? No. It will be true only if they make that clarification in the clause or a properly added amendment. The clause currently has no indication that it is limited to "current client and any past clients that [you] have work[ed] on". The CEO's & lawyer's refusal to amend the clause so as to make it consistent with their attempts [to persuade you] would be a red flag. Their inconsistent representations to you suggest that they are not planning to honor the covenant of good faith on which all contracts are premised. Should I expect the CEO to offer a fair contract or is this something you read and negotiate? You should require a contract that seems fair to you. And by "to you" I mean that it has to be in line with your expectations regardless of the average conditions in the labor market. Negotiations are not binding. They are merely a preamble to a contract, and that contract is binding. This is why you should reject a contract that falls short of your requirements. Some clauses are unlawful and/or void and unenforceable as unconscionable or for contravening legislation (unlawful clauses can and do arise even if drafted by attorneys). Thus, although you might not have to worry about those clauses in particular, the company's mere attempt to include them in a contract should alert you of the high risk of ending up with other abusive terms & conditions which are binding and enforceable nonetheless. |
special counsel indictments Sixteen counts of conspiracy to defraud the US Government https://www.justice.gov/usam/criminal-resource-manual-923-18-usc-371-conspiracy-defraud-us by obstructing official activities of the DOJ and the FEC were recently released by the Special Counsel Robert Mueller against Russian citizens, whom apparently used identity theft and basic impersonation and wire fraud to obtain funds and promote a particular political candidate. Are individuals who illegally enter the U.S. and obtain the most basic funding and use it to promote a political agenda able to be prosecuted under the same legal theory? Can millions of these individuals be indicted? Because they benefit from a perceived relaxation in the enforcement of immigration laws and obtain access to public benefits, can they be implicated in a conspiracy to defraud and obstruct the FEC? | Can millions of these individuals be indicted? Yes, they can indicted. Anyone (as an individual or a group who conspires) who commits a crime can be indicted. (But, it's a fantasy to think that millions would be indicted as part of a conspiracy.) The reason many people are not indicted for crimes is because they are not caught by law enforcement (LE) or because of the lack of the sheer numbers of LE required to pursue all criminals. And, if criminals are caught, the reason they may or may not be indicted is either prosecutorial discretion, i.e., a prosecutor decides not to indict because the crime isn't very serious. Or, probably much more relevant, is that there simply are not enough personnel in a county or state attorney's office to prosecute everyone who could be indicted. Prosecutors must oftentimes make decisions on who to indict and consider their available time, the seriousness of the crime, the available evidence and the possibilities of the success of their indictments. And, of course, politics sometimes comes into play; prosecutors may or may not pursue indictments because of political expediency, i.e. deporting an model citizen who also happens to be in the country illegally. But political pressure can work both ways, for and against prosecutorial discretion. Depending on your persuasion, it's either a bug or a feature in our legal system. But political influence and public opinion can also lead to changes in the legal system, as it is the representational branch of our governmental system that legislates the laws that the judicial system uses and enforces. If enough criminals are not indicted for a particular crime, and social or political pressure comes to bear, chances are good the legislative branch will take action. That's the way the system works. | The UN has a copy of the extradition treaty between the US and Brazil, the short version of it is that the treaty lays out in Article II an exhaustive list of crimes that are extraditable, skimming the list I don't see defamation (since of course in real life it's not a federal crime). As a general principle, Country A won't extradite someone to Country B if the conduct they are accused of in Country B is not a crime in Country A, if Country A does not think Country B would provide a fair trial, or if the person is convicted if the punishment likely to be imposed by Country B would be illegal under the laws of Country A (this comes up a lot with extradition from Europe to the US if a possible punishment for the crime is death). So in your hypothetical Brazil would probably be unwilling to extradite its own citizen for the crime the US accuses them of. I think another part of your question is whether the US or Brazil would have jurisdiction over this defamation. In theory, both could claim jurisdiction over it. In practice most criminal conduct is criminal relatively universally, especially among similarly geolocated countries, so the rest of this paragraph is assuming both countries did consider the defamation criminal and extraditable. As a matter of judicial effectiveness an Internet crime would probably be prosecuted in the country where the person resides. There would likely be a language barrier too, if the US court would have to employ a Portuguese translator. However, this is all largely a political question more than a legal one, if the US really wanted to make an example of this person in their own country the US could try to use political leverage to get Brazil to extradite them. The US could also wait until the person travelled abroad and petition the third country to imprison and extradite them. That's something that happens more commonly for citizens of a country that the US does not have an extradition treaty with. | There is nothing to forgive. The question presupposes that it is a crime to lay eyes on classified information. Crimes related to classified information generally have an element of intent. For example, from 18 USC 793 (emphasis added): (a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation ... (b) Whoever, for the purpose aforesaid, and with like intent or reason to believe ... The other subsections are similar, but subsection (e) is most directly applicable to the present hypothetical, so here it is in full: (e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; Seeing the files is not per se a crime. Finding the files and failing to ensure that they are returned to the government (or retuning them to the government while transmitting the information to unauthorized parties) is a crime. | if they do admit to to such fraudulent behavior, either in writing or over the phone, what legal action can I take against them? First of all, the intermediary with whom you are dealing will not admit fraud in writing or over the phone. Most likely the intermediary knows where, when, and how to give a candidate or employee directions that are sought to advance the intermediary's fraudulent purposes. The intermediary's practices sound in violation of Georgia's Fair Business Practices Act (FBPA), OCGA 10-1-390 et seq. The Attorney General is in charge of receiving and processing/channeling all complaints pursuant to the FBPA. See 10-1-395(c). Apropos of your mention of scamming and "foreign nationals", you might want to report the intermediary with the USCIS if you reasonably suspect the intermediary's fraudulent practices extend to obtaining visas for its employees. 18 USC § 1546 sanctions the act of "procur[ing] by means of any false claim or statement" any document of authorized stay or employment in the US. You will have standing to sue the intermediary only if it does something unlawful to you. Even if you end up suing the intermediary, there is a chance that your case would be presided by some corrupt judge/narcofelon whose "philosophy" in court consists of favoring "employers and [...] anybody who's powerful". In line with one of the comments, you might also want to consider denouncing the intermediary publicly. When doing so, you need to ensure that you prove or are able to prove the statements of fact you make about the intermediary. In this publication, I made statements of fact that I can readily prove by showing evidence, such as excerpt(s) of a contract with the crooked intermediary as well as excerpts of his deposition. The only reason why I refrained from disclosing other fraudulent practices this intermediary incurred is that neither these were not recorded nor did he reflect them in writing (your evidence need not be in the form of sworn/notarized documents or court filings; records such as emails would be fine). It is comforting that you are not planning on dealing further with that kind of employer. On paper the intermediary might assure you that you retain full control of your resume, yet that will not prevent him from pressing you in ways you could hardly prove later on. | To the best of my knowledge, there is no crime under US law known as "despotism". However, many of the actions that might be called "despotism" are crimes, civil violations, or possibly violations of police regulations. "use of excessive force", "false arrest", "illegal detention",. and "deprivation of civil rights" might apply, as might various other charges or causes of suit. In particular there is 42 U.S. Code § 1983. Civil action for deprivation of rights often known simply as "section 1983". This provides that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. ... This means that if a police officer or other government official takes action based on his or her authority as a police officer or government official that deprives someone of rights, the person deprived can sue the police officer or official in court, and collect damages directly and personally from the officer. This is limited by qualified immunity. That says that is a point of law has not been "clearly established" police can not be sued for violating it. The exact limits of when qualified immunity applies is a complex topic that has been the subject of many legal cases, quite a few decided by the US Supreme Court. The rules have changed over time. But what has not changed is that clear violations of constitutional and statutory rights by the police and others can give grounds for a federal lawsuit against the people who committed such violations. qualified-immunity, section-1983 | "Civic obligations" are based on one's personal moral philosophy, best discussed on Philosophy SE. On the legal front, in the US, there is no (existing) legal basis for simply declaring some random thing to be "top secret", even if it has great potential to be used for evil purposes. If this is research conducted under the umbrella of the Dept. of Defense, it might be classified, but a garage inventor is not subject to the laws regarding classified documents. Congress could pass a law prohibiting promulgating research on time travel, but even if such a law were found to be constitutional (unlikely, on First Amendment grounds, see this), one cannot be penalized for breaking the law before it becomes a law. | Yes. The absence of immunity for a U.S. President's unofficial acts was established both in the Nixon Administration and later in the Clinton Administration. In practice, a prosecutor would be loath to file such charges absent very, very solid probable cause, and a court would often be very deferential in accommodating the President's schedule and, for example, in allowing appearances by telephone when allowed by law, or by electing not to seize the President's passport as a bail condition to be free pending trial, as would be common for someone facing felony charges pending trial. But, ultimately, the President does not have the right to either defer the charges until the completion of his term, or to any immunity from charges for his or her unofficial acts. | Reading some background on Stefan Molyneux (Wikipedia) would indicate that he is a (Canadian) right-wing provocateur (Merriam-Webster) and there is no legal logic to his claim that anyone involved with the migrant caravan - either as a refugee or a person giving aid - is committing an act of treason. Provocateurs - on the political left or right - seek to incite arguments and/or movements on social or political issues with emotion and not on legal frameworks or logical discussion. Provocateurs use words and phrases that can be identified as Dog-whistles (Wikipedia). Calling out "treason" and accusing one of being a traitor are examples of dog whistles. The legal reasoning against leveling calls of treason against anyone helping the caravan members are many; the migrants are not (from the U.S. Constitution:) levying war against them (the US), or in adhering to their enemies, giving them aid and comfort.... because: • None of the countries of origin of the migrants are currently in armed conflict with the U.S. • None of the migrants - alone or as a whole - are armed to engage the U.S. or are a threat to the U.S. • The refugees are easily identified as economic migrants, political refugees or those fleeing violence (domestic, communal, sectarian). • According to Refugee law (Wikipedia) and US Federal law, migrants have a right to due process at the border. • There is no clear proof of an ulterior motive or funding for the migrants in the the caravans. There could be - now or in the future - Americans or American-based aid groups helping individuals or the group as a whole with necessities with food and safety while they travel or after they arrive at the border. But the fact remains that each migrant - when and if they reach the US border - will be legally assessed individually as a migrant or refugee. The aid they may have received is really no different than what many NGOs provide who help arrange a refugees' processing through legal immigration channels, in some instances in conjunction with a US Government agency or with an arm of the United Nations. Such aid by an American is not treasonous for the legal reasoning above. |
Can I create a mosaic for a client in the shape of the Disneyland Castle? My client would like me to create a mosaic in the shape of the Disneyland Castle. This would involve me creating an outline of the castle on my iPad (just a black line in the shape of the castle) and then filling the shape of it with the client's images. The image at a glance would resemble the castle, but close up would just be a lot of photographs taken by the client, at Disneyland. The final image wouldn't be sold en mass, and the fee would be for my photoshop work in arranging the image in the desired shape. Would this infringe Disney's intellectual property? | It's Problematic The castle is both copyright and trade mark of Disney. As a trade mark, you are not permitted to use it in a way that indicates that yours is a Disney product or affiliated with Disney - you are probably OK here. As a copyright, Disney has the exclusive right to make derivative works which is what your mosaic is. So, you either need Disney's permission or the work needs to fall under the fair use exemption. As a single domestic work which substantially changes the original it probably does but the only way to know for sure is get sued and win. If you go ahead I would ask your client to indemnify you, however, this is only effective to the extent that your client has the financial resources to defend the lawsuit or pay the damages. However, there is an alternative. The Cinderella Castle was inspired by real architecture, all of which is public domain. If you copy one of these castles (e.g. Neuschwanstein Castle) you have no issues with Disney and only a true fanatic would notice the difference. | Yes, you may The layout of the board and its appearance are not protected by copyright, because they are not expressions or any other type of copyrightable content. Even if they were (say if some protested art was displayed on the board) you are displaying this for instructional purposes, and not harming any market for the board, so fair use is likely to apply (in the U.S.). The device could be protected by patent, but you are not copying or imitating the board, nor showing anyone how to do so, so that would not apply. You are not selling or advertising the board, nor knock-offs of it, so trademark protection would not apply, even if a protected trademark is visible on th board. Just in case, be sure to make clear that your video is not authorized or endorsed by the maker of the board. | Copyright is hard. The movie has a copyright, and so has its ship model. This is the original copyright. The boardgame has a token. That thing has its own copyright, no matter if it's a parody of another thing or not. The copyright holder might not be the boardgame maker, but it is under copyright. In any way, parody is fair use, so no harm here. The model has a copyright, but also infringes on the film's copyright as it is a derivative of the film. If the film copyright holder wants, they can have it taken down and sue the maker. In any way, this model is available under a specific license. The model license is clearly Non Commercial. The CC-A-NC license can't be changed to one that is commercial. You can only add more No categories. The questions: 1 - No. Your work is a derivative work of both the model AND the boardgame. You don't parody the boardgame. 2 - You need a license from not one but at least two sources: the model author and the boardgame copyright holder. You might even need a license from the original film company. 3 - YES. He made the model, he can license it as he wants, but the license might be ineffective: He might have coverage under an explicit fan license with the movie company to make the model (allowing sharing under such other license) or not (when it might be silent acceptance of fan works, am implicit license or just plain lack of knowledge of the infringing model) - determining if the company wants to pursue is not your legal battle. Your battle is more likely with the copyright holder (of movie and boardgame) anyway because you lack a valid license from them. "I used this infringing model and breached the license I got it under" is... a very precarious point in court. 4 - No. You used the other work, you can't get out of the CC-A-NC license by altering the item. It'll always be a derivative work of the model you put in. You only get copyright in the changes. The resulting item has shared copyright with the original model maker. He gave you a license to do that, but the unbreakable condition unless you get a different license is: You can't ever sell this, you HAVE to tell them that I was part of this design. | Let’s work it through Is the work copyright? Yes. Are you making a copy or a derivative work? Yes. Do you have permission? No. At this point, it is prima facie copyright violation. However, various copyright laws have defences for breach. You don’t say where you are but as the USA is the most permissive in this regard we’ll use the USA. If it’s not legal there, it’s not legal anywhere. If it is legal there, it’s still likely to be not legal everywhere else. is it fair use? Almost certainly not. Wizards of the Coast (the copyright owner) already do this. While this service is free for creatures from the Monster Manual, it does drive traffic to their web site where they sell stuff. They also licence (presumably for money) others to do the same. Your usage would negatively affect the copyright owners market. This counts against fair use. Because it’s already being done, your work has virtually nil transformative value. This counts against fair use. You are copying a substantial part of the work. This counts against fair use. You are not using it commercially but neither is it for educational use. This is unlikely to matter. On balance: not fair use. TL;DR This is copyright violation. | This would be fine for two reasons. First, this is not what copyright is for. It's not that this exists, so nothing like it can- it's that someone worked on this, and that work shouldn't be used by someone else without their consent. Your work is not derivative of the effect from the film. Second, Marvel doesn't have a copyright or trademark or someone turning into particles. I don't think such a thing can be and even if it was, they're certainly not the ones who created it. For example, Undertale used it 3 years before and that was a reference to many classic 8-bit games. | There is no IP in ideas Any code would by subject to copyright (who owns that copyright is itself a convoluted and separate question), however, if the 4 of you abandoned any existing code, notes and images and start over you would have no legal impediment. | If you are utilizing the name of the characters just so users can rate them (by rate - I mean rank, review, critique) you should be fine. Copyrights are subject to "fair use" by the public. For purposes such as review, criticism, and comment - this is generally considered to be fair use. Is the site commercial or for-profit? That could impact the analysis, but only if you are making money flowing from the use of the actual copyrighted material(s), rather than advertising (like Adsense) or something similar (this should not suggest that those type sites cannot violate copyright, but it's part of the analysis). If it is something you are investing money into creating, you may want to get a formal legal opinion. But if the site if for fun, or hobby, you are likely fine if what's described is the only use. http://www.socialmediaexaminer.com/copyright-fair-use-and-how-it-works-for-online-images/ This link is to a great, easy to read and understand article on fair use, what it is and what it allows. Keep in mind each case is fact intensive, however, from what you are describing this seems fine. | Everything you see there is copyright and trademark the Tolkien estate or a derivative work thereof. It's all illegal. |
In the UK, can remaining silent until a lawyer is present ever adversely affect a jury's decision? In the UK, a jury is permitted to make adverse inferences if a person exercises their right to remain silent. Are they permitted to make such inferences if a person refuses to answer any questions until a lawyer is present, but once their lawyer is present they co-operate fully? | Indirectly, no the wording of the caution is "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." It is illegal to question someone if they have asked for legal advice. so if you ask for a solicitor they are not allowed to question you, and you cannot (by definition) fail to answer their questions if they're not allowed to ask them. Reference from https://www.gov.uk/arrested-your-rights/legal-advice-at-the-police-station "Once you’ve asked for legal advice, the police can’t question you until you’ve got it - with some exceptions." | Yes. There is both a duty to disclose and permit inspection of certain records (e.g. those that adversely affect either party's case or support another party's case) and a right for the court to demand access to other specific records. In england-and-wales the applicable rules are found in Part 31 of the Civil Procedure Rules. For example: Standard disclosure 31.6 Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction. Specific disclosure (1) The court may make an order for specific disclosure or specific inspection. (2) An order for specific disclosure is an order that a party must do one or more of the following things – (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search. Party's control 31.8 (1) A party’s duty to disclose documents is limited to documents which are or have been in his control. (2) For this purpose a party has or has had a document in his control if – (a) it is or was in his physical possession; (b) he has or has had a right to possession of it; or (c) he has or has had a right to inspect or take copies of it. Right of inspection 31.3 (1) A party to whom a document has been disclosed has a right to inspect that document except where – (a) the document is no longer in the control of the party who disclosed it; (b) the party disclosing the document has a right or a duty to withhold inspection of it, or (c) paragraph (2) applies. (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) – (a) he is not required to permit inspection of documents within that category or class; but (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate. Inspection and copying 31.15 Where a party has a right to inspect a document– (a) that party must give the party who disclosed the document written notice of his wish to inspect it; (b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and (c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request. And, in case there's any doubt that this applies to electronic records: Meaning of document 31.4 In this Part – ‘document’ means anything in which information of any description is recorded; | Jurors cannot directly disqualify each other. However, they can inform the trial judge if they have reason to believe that one of their peers should be discharged. The judge will then allow the lawyers for both sides to ask the juror questions before deciding to dismiss them. In some jurisdictions, the judge may be required to hold a hearing to examine the evidence. Jurors may also be charged with contempt of court for interfering with a defendant's right to a fair trial, and could be disqualified from jury service in the future. Your examples of juror misconduct point at bias or refusal to deliberate, e.g. when the juror has made up their mind ahead of time (but not because they are using faulty logic). Depending on the jurisdiction, the trial may continue with a smaller jury. In some jurisdictions, the judge will have to declare a mistrial if no replacement juror can be found. See: Juror misconduct | The jury ultimately decides if a person is guilty or not. Jury nullification is when the person is clearly guilty or innocent, but for some odd reason the jury (who knows the person is guilty/innocent) gives the "wrong verdict" An example of this in the UK was when a guy was being charged with a spy crime years after his crime happened (I cant remember the case), the jury essentially thought that so much time has passed that it was silly to convict him, so gave a non guilty verdict. There are cases for and against jury nullification. In my personal belief I think in certain cases, such as if edward snowden would be charged, I would find him non guilty as a matter of what is right to ky conscience, regardless of the fact that he clearly did something illegal | Yes. The jurisdiction I am familiar with is England and Wales. Conviction requires evidence (witness testimony is evidence) which proves the case "beyond reasonable doubt". It is open to the jury to find the witness so convincing that they find that they are sure the defendant committed the crime. In general of course, prosecutors prefer to have some supporting evidence (either additional witnesses, or circumstantial evidence - like DNA.) | In the united-states, attorneys are almost never placed under oath. Their statements -- whether they are assertions of fact or legal arguments -- are not evidence, and they are not subject to cross examination. There are limited circumstances in which an attorney would be competent to present actual evidence. In such cases, the attorney would be sworn in as a witness and subject to cross examination, but the attorney would likely also be disqualified from acting as an attorney in such a situation under Model Rule 3.7. | The holding of the Miranda decision says: (d) In the absence of other effective measures, the following procedures to safeguard the Fifth Amendment privilege must be observed: the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him The body of the opinion also says The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. although also He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law When SCOTUS says do this, that is the law. Since SCOTUS say can, will, and can and will, the only safe course of action is to say can and will. This page has some interesting discussion about the problem of the meaning of modals in a legal context. The Miranda warning does not constitute a contractual promise between the arresting officer and the arrestee, so "will" cannot be construed as a binding promise to prosecute and use the evidence in court. "Will" can only be construed as a prediction, as do "may" and "might". If the warning said "can, and mightmay be used against you", that choice or wording would suggest that the probability of statements being used against you is low – that would be totally misleading. The strongest modal should be used, because the probability is high that some statement will indeed be used against the person. Simply saying "can" suggests that it's a mere possibility, as opposed to a probability. "Can and will" is thus the appropriate construction for conveying the probability that your confession will be used against you. "Shall" shall not be used (it is confusing since it doesn't mean what the legal profession sometimes thinks it means); "must" is just plain wrong (it's legally meaningless to say "anything you say must be used against you", when many things that a person says would be inadmissible). | Generally speaking, witnesses are not legally represented at trial, unless they are also parties. While a witness may choose to seek legal advice about a request or order they have received to give evidence, they would generally be expected to take this opportunity before they actually show up at trial. A witness examination would not normally be adjourned because a witness said something damaging to their own credibility or to one party’s case, and would like to pause and obtain legal advice. One goal of cross-examination is to expose unreliable evidence by obtaining this kind of tactical advantage over a witness. It is up to the party whose case was damaged to try to fix the problem in re-examination or reply evidence. That party may not be particularly interested in protecting the witness’s personal interests. There may be exceptions in specific factual situations, when it becomes clear that a witness does not understand their right to object to giving evidence on the grounds of self-incrimination or some other privilege. A judge may choose to halt further questioning of the witness if there is a real risk of a mistrial or some other procedural unfairness, which can be addressed without unfairly depriving the cross-examiner of their opportunity to challenge the evidence. |
How do I get my misdemeanor conviction removed from public records websites? Awhile ago I was charged with a misdemeanor that ended up with me paying a fine and doing community service. I searched my name on Google the other day and so far only saw my charge on one public records website. I'm currently working on getting my record expunged. After I get it expunged will it be removed from public records websites or do I have to show them proof of the expungement so it won't affect me in the future? | Your question (when read with your follow-up comments) is somewhat complex, so I am going to make a few assumptions and break it down into several sub parts. Assumptions The conviction occurred in a state where the expungement statute allows you to tell employers that you were never arrested and convicted. When you say “public records websites” you’re asking about sites like atlaspublicrecords.com. That atlaspublicrecords.com is a US based company. They don’t list an address and the website used a private registration services, so can’t easily determine that they are US-based. Your questions and follow-up Considerations After I get it expunged, will it be removed from public records websites . . . . No. Websites like atlaspublicrecords.com do not link to actual public records. I searched a couple of common names and feel safe in assuming that it only collects and publishes the information—it does not actually link to court records. Nevertheless, it would not be available from the actual government agencies that keep those records. By getting your records expunged the convictions and arrest would no longer be available as public records that someone could request from the courthouse, police department, or whatever state agency does criminal history in your jurisdiction. do I have to show them proof of the expungement . . . . Yes, if you believe what the website claims. I can’t find a physical address for the website and don’t know if they are real or a scam, so understand that when you give them information about your expungement—or pay their silly fee, they might collect the money and do nothing. My opinion is that the company is shady and seems to operate in a gray area of the law that I will explain below. Options if they don’t remove the post: You could try to sue them for some type of secondary dignitary tort like defamation or false light. But these would have some significant legal hurdles. See G.D. v. Kenny, 15 A.3d 300 (N.J. 2011), where the New Jersey Supreme Court held that commenting on an expunged criminal records was not defamation or invasion of privacy because it was the truth. You could try to argue that they are a consumer reporting agency under the Fair Credit Reporting Act (“FCRA”). If they're governed by the FCRA, you have some additional legal remedies (like civil penalties/fines) if they don't remove/clarify an expunged record. The Fair Credit Reporting Act applies to credit reporting agencies, like Experian & Equifax but also covers companies that compile and sell information for background checks. This includes criminal records. See the Federal Trade Commission’s Advisory Opinion to LeBlanc (06-09-98). But . . . this website is operating in a gray area that appears to comply with the law. The FCRA only applies to consumer reporting agencies, which are defined as: Any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. 15 U.S.C. § 1681a(f) Because they’re not charging money or a fee to access the reports and they’re not a nonprofit cooperative, they probably do not meet the definition of a CRA. Bottom-line is that you're best option is to give them the expungement documents once you obtain them. | Police officers can lie to you He asked to search your car. He’s allowed to do this. You said no. You’re allowed to do this. He lied to you when he said he would get the K9 to search the car - this would not be legal. But he’s allowed to tell you lies. You made an admission of criminal activity. He now has probable cause to search. He legally searched, confirmed your admission and booked you. Seems legit to me. | What is one supposed to do if they want to take an extended trip somewhere? Or is one basically not allowed to take such trips if they are a US citizen eligible for Jury Duty? In the US you are not required to seek permission to travel, or prove your past whereabouts to the government if you happen to miss some civic duty. They generally call up way more people than they need for this sort of reason. The length of time you are gone or where you choose to travel is irrelevant. In my experience you are given about a month heads up. If you didn't receive the notice until you returned from out of town, and they send a follow up, simply inform them of the fact that you were gone and didn't receive the notice until you returned. Jury duty is an obligation to some extent, but it is also a right and a privilege. It isn't a criminal offence you are liable for if you didn't get the notice. If it were that important to verify your availability ahead of time the notification would be sent registered mail with a signature required. | The courts do not supersede your constitutional rights, although you may believe that you have a constitutional right that isn't actually there. This article discusses the position that "due process forbids convicting an individual of a crime unless the government proves the elements of the charged offense beyond a reasonable doubt". This standard is actually not stated anywhere in the US Constitution, but it has been assumed as an implicit meaning of "due process". It sounds like you were charged with a crime, and there is most likely an applicable statute in your state that is analogous to RCW 26.50.110 in Washington. So you have the right to a trial and the prosecution would have the obligation to prove all of the elements of the crime beyond a reasonable doubt. It also appears that you did violate the applicable law and you were willing to plead guilty, as urged by your attorney. You are correct that you don't technically have to prove your innocence, but there is a practical problem that if the prosecution provides some weak evidence that you violated the law, then the jury might decide that your failure to refute the evidence means that there is no reasonable doubt. The problem is that there is a tendency for jurors to think that the defendant has to create a doubt. States differ somewhat in how they explain the burden of proof to jurors, and you might fare better in a state where the instruction is that "you must be firmly convinced". Since the attorney seems to have said that "the constitution doesn't apply to this", this is a puzzle. I would not assume (though it is possible) that the attorney was incompetent. It is possible that he was speaking of a non-criminal matter, and it is possible that you were talking at cross purposes. There is no legal situation where "the constitution doesn't apply to this", but perhaps "that constitutional limitation doesn't apply to this specific situation". Regardless of what the attorney said, your attorney doesn't violate your rights, even if he gives you bad advice. The actual court might, and then you would have a cause for an appeal. Similarly, if the district attorney reasonably believes that you are a danger to society and is prosecuting you, that is not a violation of your constitutional rights. An improper conviction would be a violation of those rights, although it might take an appeal to get the court to recognize that fact. | I live in MD near DC, and have been ticketed by the cameras in both DC and MD. At least for speeding and red-light violations (and I think for all camera detected violations) these are just fines, not true moving violations in that no license points are assessed, and there is no impact on insurance, provided the ticket is paid, unlike what would have happened had an officer written the ticket in person. One can contest the ticket, but it is not likely to be worth the time and trouble. This policy of not assessing points is precisely because there is no assured way of determining who the driver is with current technology, although cameras that can see the driver through the windshield and match him or her against a database by facial recognition may be coming. Currently a human reviews the images in an effort to rule out false positives and certify that an actual violation is shown. The name and title of this person is shown on the notice I get, at least from MD. What one can do "proactively": do not speed or go through red lights pay all camera tickets promptly (or file the paperwork to contest them). If unpaid beyond the deadline they turn into more serious violations that do carry points, just like failing to attend a court date. | An investigation letter is not a conviction. It isn't even an arrest. There is no criminal history at this point. | Can a corrupt sheriff cause all cases from his department to be dismissed while he was in charge? There have been cases of mass dismissals when the corruption by the law enforcement officer involves a pattern and practice of falsification of evidence provided to courts in those cases. One of the most notable such cases was this one: More than 24,000 convictions in 16,449 cases tainted by former state chemist Sonja Farak have been dismissed in a court case brought by the ACLU of Massachusetts, the Committee of Public Counsel Services (CPCS), and law firm Fick & Marx LLP. The new numbers appear in a report issued by a court-designated “Special Master.” . . . For nearly nine years, former state chemist Sonja Farak used drugs that she stole from or manufactured in the Amherst Lab, causing thousands of people to be wrongfully convicted of drug crimes based on unreliable evidence. Since her arrest in 2013, Farak’s lab misconduct has been compounded by prosecutorial misconduct, including by former prosecutors with the Attorney General’s Office who – according to a judge’s findings – intentionally deceived a court and defense lawyers about the massive scope of Farak’s misconduct. In 2017, the ACLU of Massachusetts and CPCS, together with Fick & Marx LLP, called for dismissal of every case tainted by Farak and subsequent years of prosecutorial misconduct. In April 2018, the Supreme Judicial Court ordered that thousands of convictions be dismissed. But, misconduct in how detainees are treated in jail does not go to the guilt or innocence of those defendants and therefore would not usually lead to mass dismissals. A prosecutor could decide on a non-legal basis that a defendant has suffered enough from mistreatment in jail and dismiss the charges, and sometimes this is done on an isolated basis. But, mistreatment of detainees would rarely if ever be a basis for a mass dismissal of charges and would be in the sole discretion of the prosecutor as an exercise of discretion not compelled or suggested by any legal requirement. | I am not a lawyer either, though I have been through Pennsylvania a few times. The relevant law is 18 Pa.C.S. 5703, which prohibits recording without consent of all parties (Penna is a "two-party consent" state, like Florida and Washington). Unfortunately, violation of that law is a third degree felony, which has a maximum of 7 year prison. A specific instance of someone getting in trouble for recording their boss is Commonwealth v. Smith (Smith used a cell phone to record his boss, then argued that a cell phone isn't a "device"; the court determined that it is, and that was Feb 16 2016 so who knows the final outcome). An attorney in Pennsylvania might be able to tell you how often people actually serve time for violating the law. You should call one. |
Why do judges use a hammer in court? In many movies featuring a court scene, the judge is seen pounding a wood hammer on the desk to either silence the court room, or to announce a decision. Why do judges use a hammer? Is it only a Hollywood movie feature, or does it happen in real life? If it is the latter, what is the history behind this tradition? | The ceremonial hammer is called a gavel and usually looks like this: Stock image used with permission (Gavels in India and in the U.S. Senate which received its gavel as a diplomatic gift from India, don't have handles.) It is used in both courts and public meetings (most often city council meetings or legislative body committee meetings, but also, for example, in both the U.S. Senate and U.S. House) for the functional purpose of getting people's attention and telling them to shut up without having to make a shrill whistle or having to yell, both of which would be less dignified. It is a very ancient tradition in the common law tradition that dates all of the way back to when English lords presided over disputes between their subjects personally, before the specialized position of judge was invented, and has been used for pretty much the entire history of the United States, even dating back to the colonial period. I don't know if gavels are used outside of the common law legal tradition or not. It tends to be used more in public meetings than courtrooms these days because court hearings are not nearly as well attended as they used to be, so there aren't enough people making noise in the courtroom to make its use necessary. I have used one a few times to preside over political party meetings when I was political party official. These days, a typical court hearing today has only a judge, a bailiff, another court clerk, one or two lawyers for both sides, one or two parties for each side, and up to about four witnesses or spectators, plus a jury and a court reporter in a typical jury trial. Also, in court almost everyone is well behaved because the judge has direct contempt of court power (another vestige of directly imposition of justice by a lord or king that dates to the same time period as the gavel) and can throw anyone in the room in jail summarily if desired for minor misbehavior, a power that other people presiding over public meetings usually lack. But, historically (pre-television for the most part), in contrast, watching court hearings was a major form of community ritual and/or entertainment and crowds of dozens or more spectators were common. Sometimes in a court, when it is used, it is wielded by the bailiff (a court official charged with maintaining order in the court and supervising the jury) who often doubles as a law clerk or administrative assistant to the judge, rather than the judge. The bailiff is also the person who calls out "all rise" when the judge enters the room at the beginning of a hearing and when the judge leaves at the conclusion of a hearing. In rural areas, the bailiff/law clerk is usually armed. In urban areas, the sheriff for the county typically provides court security and the bailiff only ceremonially maintains courtroom order. | Judges don't have timesheet entries (and are often expressly excluded from FOIA obligations). They get paid salaries and are expected to work hard enough to clear their dockets in reasonable periods of time, however long that takes. If you wanted a more direct evidentiary estimate, you could estimate that a judge and his clerk together probably work 90-120 hours a week, figure out how many trials and hearings of what length were conducted and deduct that time spent on that from the total, and then divide the remaining hours by the number of opinions one can estimate that the judge wrote (or better yet, a reasonable estimate of the number of pages of opinions that one can estimate that the judge wrote). Typically, a lot of the legal research grunt work and more boilerplate parts of an opinion are written by the law clerk under some general instructions from the judge, with the judge writing the more substantive sections personally and heavily (or lightly, depending upon the quality of the law clerk) revising the draft opinion as a whole. The longer the opinion, the more likely it is that a substantial portion of it was written by the law clerk. For similar kinds of legal writing (e.g. appellate briefs and motions for summary judgment and proposed orders or written closing arguments) one to six hours per page from all professionals working on the document would be in the right ballpark. Judicial opinions come with some efficiencies, because once a judge decides a point of law or reaches a factual conclusion it doesn't have to be belabored in the same way that a litigant who isn't sure if their reasoning will be persuasive or not must. But, judicial opinions also typically have to spell out a greater proportion of legal and factual foundation for the end analysis that isn't hotly contested, will summarize all of the material points from the evidence presented in the case, and will frequently also recap in some detail the arguments made by the advocates for both sides of the case before actually engaging with those arguments in an analysis section. On balance, those factors probably pretty much balance out. If the judicial opinion is shorter, elegantly written, contains pithy turns of phrase, and/or contains lots of legal citations or factual analysis not raised by either party, it is probably closer to five or six hours per page or more. If the opinion is longer, has a rote and mechanical feel to it, and has very little factual analysis or references to law not mentioned by the parties, it is probably closer to one hour per page or even less. When some of these factors go one way, and other of these factors go the other way, it is probably in between in terms of hours per page. This said, sometimes it takes a judge a long time to write an opinion, but the end product is very short and elegant. In these situations, often what happened is that the judge and the judge's clerk spent lots and lots of hours writing a long and detailed first draft, then got an insight that provided a much more efficient and succinct way to reach a resolution to the case. In those circumstances, there would be dozens or scores of hours of work that went into the discarded first draft, only to be superseded by a half a dozen or dozen hours devoted to a much shorter final draft. In those cases, the final draft of the opinion might be ten or twenty hours per page or more once you include the time spent on the discarded draft. Of course, another factor is that some judges are just more efficient legal writers than others, and some judges have more familiarity with some areas of law than others. A opinion that might take one judge twenty hours to write might take another judge presiding over the very same case and producing an opinion of the same length and quality a hundred hours to write. The opinion in Meads v. Meads was 176 pages. If I had to make a best guess, I'd estimate that it probably took about 600 hours to write, probably about two-thirds of which was law clerk hours and probably about one-third of which was judge time. | Amicus briefs are never seen by juries. They only guide judges, and in the vast majority of cases, only appellate court judges. They are predominantly filed in the U.S. Supreme Court, a state supreme court, or a U.S. Court of Appeals circuit's panel. One of the most influential and most famous was the ACLU's amicus brief in the Brown v. Board of Education case, although there are hundreds of notable cases in which amicus briefs are influential, and dozens that are famous. The Anti-Defamation League (an organization devoted to fighting anti-semitism) also filed an influential amicus brief in Brown v. Board of Education. It is rarely possible to know with certainty how important a brief was (other than through echos of language or reasoning from the brief in the opinion itself), as judicial deliberations are generally strictly confidential. In a far lower profile case, for example, I once litigated a case in the Colorado Supreme Court in which an amicus brief from the Colorado Bar Association was probably very influential. | I haven't reviewed the filings, but I can tell you that it's perfectly routine for lawyers to describe the other side's position as "plainly without merit," with no regard for the actual merits. The lawyer's job is to make his client look good, in court and in public; the existence of this question shows that he's doing a good job at least on the latter half of that equation. But in truth, it's such a generic thing to say that no lawyer who hears it will actually think it means anything. In all likelihood, the filing is like most others, in that it makes a good case on some points and a bad case on others, and the opposing lawyer's job is to argue that all of them are bad. In the rarer case that a filing is actually "plainly without merit," courts can and sometimes do impose penalties under Rule 11, which allows for sanctions against parties and attorneys who make factual assertions that are not supported by reality or arguments that are not supported by the law. | The warning notice is intended for viewers and participants, not for the court to make its own official record of the proceedings. Presumably, it was this court record that the judge released for educational purposes under his own Order via Twitter. In which case, there has been no contempt of court. | Your kid is not in trouble; he's a minor. You're in trouble. A criminal case for the charges a prosecutor would bring, i.e. destruction of property (the data) or for a relevant cyber or computer crime (malware, etc.), and/or a civil case for damages due to the destruction of the data would both hinge on one point: the concept of intent. See intent - Wex Legal Information Institute and Civil Law vs. Criminal Law: The Differences | Rasmussen College. Did you knowingly intend to cause damage or data loss with the structure of the name? It's pretty clear you did. The structure of a name that can invoke an SQL command is not in any sense a standard name in spelling or format or punctuation. So how would you convince the jury or judge that you had no intent when you named your kid? The possible poor design of a data system that didn't sanitize inputs is no defense. Saying the door was unlocked so I assume the homeowners didn't care if I trashed their house will get you laughed into jail or on the hook for a stiff civil judgement. | “You put that, of course, respectfully?” You bet your ass Heydon is telling Newlands off. Knock down drag out fights in a courtroom are more subtle than in a barroom and the judge always wins. First we have the trivial issue that the barrister interrupted the commissioner while he was speaking! This is extreemly disrespectful and Heydon was pointing that out by calmly but sarcastically suggesting that the interruption should have started with “With respect ..,”. The clear implication that the interruption should not have happened at all. It doesn’t matter if you disagree with what the court is saying, you don’t interrupt, you wait for your opportunity to respond. You will be given it. That’s respect. More germanely, the barrister is in a tricky position. I don’t know what came before the video starts but it was clearly one Newlands did not expect but that Heydon thought was foreseeable. Newlands is trying to hide behind “I haven’t been instructed on that” but is having trouble because the client (or at least, the client’s representative) is in the room and can instruct him right now. Not being prepared in court is also disrespectful. At a rough guess, just the people you see in the video are costing somebody north of $10,000 per hour. You don’t show up for the big game, tell the coach you can’t play because you forgot your boots but that it’s not your fault. Particularly when the person standing behind you is holding your boots. | A settlement is fundamentally a contract where parties A and B promise to do certain things (one of them being "stop litigating"). A court order is an enforceable order to do something. A contract cannot be directly enforced (where force is used to make a person comply), it requires a court order for actual enforcement. The conditions of a contract might be enforceable, but you can't get the sheriff to come out based just on a contract. It appears that you got to the "facilitation" phase where the parties talk about the issue and the CRT case manager talks to the parties in neutral terms, aiming for an agreement. If you don't reach an agreement, the Tribunal Decision Process escalates the matter. Under the decision process, the CRT member makes a decision, and it can be enforced in court. They state that "For a $25 fee, the CRT can turn your agreement into an order, if both parties agree that an order should be issued. This is called a “consent resolution order”." I suppose that you did not go through that step, and you only have an agreement. So you would need a separate court process to get a court order. Because everything that you did in this negotiation phase is confidential, if you want CRT to give you something that is enforceable, you have to present the case from the beginning, since they don't have access to what has happened before. The problem in your account is that a settlement has to be reached by yourselves – possibly with the assistance of the CRT case manager. I assume you did actually get a settlement (agreement) with the landlord, but have not filed for a consent resolution order. It may be that the case is too old for you to just pay the $25, and it does require agreement by the other party. Read their FAQ about how cases end. |
Is Showbox legal to use in the UK? The Android app "Showbox" allows users to stream the latest movies (still in the cinema) to their device for watching (but not keeping). Is this app legal to use in the UK? EDIT: After researching this elsewhere, it seems like there's a loophole and this is actually legal. So I wanted to ask the question here, to find out for sure. EDIT 2: Of particular note, the Showbox servers are hosted in Russia, therefore there is no one to prosecute. | Showbox is legal in the UK The UK implemented the Copyright Directive in 2003 (officially the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society). On June 5, 2014, the Court of Justice of the EU (CJEU) ruled on a UK case Public Relations Consultants Association Ltd v Newspaper Licensing Agency Ltd et al finding that: ...the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders. This can, and arguably should, be read to state that streaming media content meets the Article 5(1) exception to the Article 2 reproduction right. Said differently, the Copyright Directive in Article 5(1) provides an exception to copyright protection - temporary files (the Directive calls them "acts") which are transient and essential are not given copyright protection. The court ruled that files made during streaming are these types of files. Said even more differently, streaming copyrighted content is legal. Inasmuch as Showbox is streaming media, Showbox is legal. | I know of an app that did similar. They sold membership access and linked Youtube videos. One of the Youtuber's started to take legal action against them. I don't know what happened but the app blocked their content from being shown. Updated this comment to remove incorrect information. After looking at Youtube's recent terms and conditions; you aren't allowed to link, embed or use the API if you want to put content behind a paywall, or show it alongside advertising: Under the section: Permissions and Restrictions https://www.youtube.com/static?gl=GB&template=terms So long as your app is free, and doesn't contain advertising you are probably okay. | There are several things going on with Akinator and their use of trademarked names and characters. If you look at akinator.com Legal Notices it says: 2 – Copyright – Reproduction rights All the content of this site falls under French and international legislation on copyright and intellectual property. All rights reserved. Reproduction in whole or in part of this website, in any form or by any means is strictly prohibited without prior authorisation of the publications director. All products and trademarks mentioned are property of their respective owners. (emphasis mine) The fact that they mention that all trademarks belong to their respective owners is good, but it's a formality. What it appears the site really relies on for use of trademarked characters is what's called Nominative Use, which is a type of "trademark fair use." The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute). https://en.wikipedia.org/wiki/Nominative_use Akinator has to use the names and trademarks to identify those names and trademarks. Akinator could possibly be sued to establish their type of fair use is not valid in their case, but it's probably not worth it for the companies to pursue. And, most companies would rather people use and see their trademarks in a marketing and money-making fair use sense rather than sue to stop their use. See In the US, when is fair use a defense to copyright infringement? for a full description of Fair Use. Now, when you get to the "answer" part of the game, you will see a "copyright" link. Part of that resulting page says Displayed pictures are accessible from the web. It is Elokence's policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law and make the necessary changes. In respect of Elokence's Intellectual Property Policy, Elokence operates a complaints procedure accessible via the form below. So the company has given itself a further bit of protection by only using images on the web they can link to (at least in the web browser game; I don't know about the App), so that means the image is already "out there", uploaded by someone else, and Akinator can claim they didn't upload it. And, further, there is a contact form for trademark holders to send DMCA takedown notices for their work. It's a belt and suspenders approach to the use of trademarks in their game. | The law says you need to be covered by a TV Licence to: watch or record programmes as they’re being shown on TV, on any channel watch or stream programmes live on an online TV service (such as ITV Hub, All 4, YouTube, Amazon Prime Video, Now TV, Sky Go, etc.) download or watch any BBC programmes on iPlayer. This applies to any device you use, including a TV, desktop computer, laptop, mobile phone, tablet, games console, digital box or DVD/VHS recorder. And What is live TV and when do I need a licence for it? Live TV means any programme you watch or record as it’s being shown on TV or live on any online TV service. It’s not just live events like sport, news and music. It covers all programmes on any channel, including soaps, series, documentaries and even movies. If you’re watching live TV, you need to be covered by a TV Licence: if you’re watching on TV or on an online TV service for all channels, not just the BBC if you record a programme and watch it later if you watch a programme on a delay to watch or record repeats to watch or record programmes on +1, +2 and +24 channels to watch live programmes on Red Button services even if you already pay for cable, satellite or other TV services From the TV Licensing body. Basically, if its playing solely because you hit the play button, its not “live TV” and you dont need a license to view it. If it would be playing at the same time for everyone on a schedule rather than on demand, its live TV. This includes sports on streaming services. So, a Youtube video you can view at any time is not live TV, but a Youtube video you have to see at a certain time is. A subsequent recording of a live stream that you did not make is not live TV for the purposes of licensing. A Twitch or Facebook livestream would also require a TV license to view. | Very similar to how MySpace done it all those years back.... MySpace did it differently back then because they got sued for copyright violations for the music their users were uploading and streaming. https://www.google.com/search?q=myspace+lawsuit+music These days, you can upload music to MySpace, but they have licenses and agreements with music publishers, and are clear to their users what can be legally uploaded: https://help.myspace.com/hc/en-us/articles/202591770-Music-Upload-Requirements And remember.... By uploading any content to Myspace, you hereby certify that you own the copyright in or have all the necessary rights related to such content to upload it. Don't step on someone else's hard work. And Myspace is are clear on how they handle copyright violations: https://help.myspace.com/hc/en-us/articles/202055394-Copyright-FAQs Myspace will respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act (“DMCA”). The DMCA provides a process for a copyright owner to give notification to an online service provider concerning alleged copyright infringement. Now, with your question: you are allowing users to both upload music and stream it. Streaming is legal in the UK; see an older question here on LSE Is Streaming Copyrighted Content Illegal in the UK But the hosting - storing the actual files - of copyrighted material is not legal. But my app knows no detail of the song uploaded. Could be anything.... This doesn't matter; the files are on your server. You run the risk of legal action being taken against you for the actual .mp3 file of copyrighted music on your server. You are the owner of the webserver, and thus control the files on it, along with your knowledge of building an App that allows users to upload the files. Even if you claim to know nothing about what users upload with the App you built, the music files are on your server. What happens also depends on where the server with the music files is located, i.e. in the UK (action against you legally possible), or elsewhere (legal action against depends on the country and their laws and agreements with other countries). If your server is in a third-party country and can't be taken down, but you are a UK resident, the music companies can still go after you in other respects, as the paying owner of the server, the owner of the domain registration, even possibly as the creator of the App itself. | If there is a trade mark and if Polaroid owns it and if you infringed it then yes they can force you to remove it. In addition, they could sue you for either damages (i.e. what they lost because of your infringement) or an account of profits (i.e. what you made because of your infringement). That is what trade mark law is for! If the trade mark is registered then this is trivially easy for them to demonstrate. If it is unregistered then it becomes a question of if the mark is clearly recognisable as Polaroid's; IMO they could probably show that it is - those particular border dimensions were distinctive of Polaroid instant cameras for many years. If you want to republish the app, you could probably avoid trade mark issues by allowing users to set the dimensions of the photograph and border, the colour of the border and the location of the caption. | There is probably no legal reason for this message. These aren't the only two messages that can be displayed. If you look at the source, you see this: {'ADDTO_CREATE_NEW_PLAYLIST': "Create new playlist\n",'ADDTO_CREATE_PLAYLIST_DYNAMIC_TITLE': " $dynamic_title_placeholder (create new)\n",'ADDTO_WATCH_LATER': "Watch Later",'ADDTO_WATCH_LATER_ADDED': "Added",'ADDTO_WATCH_LATER_ERROR': "Error",'ADDTO_WATCH_QUEUE': "Watch Queue",'ADDTO_WATCH_QUEUE_ADDED': "Added",'ADDTO_WATCH_QUEUE_ERROR': "Error",'ADDTO_TV_QUEUE': "Queue",'ADS_INSTREAM_FIRST_PLAY': "A video ad is playing.",'ADS_INSTREAM_SKIPPABLE': "Video ad can be skipped.",'ADS_OVERLAY_IMPRESSION': "Ad displayed." Looks to me like some messages to help with debugging. | First of all, this is probably a poor idea even if it is legal. Verse, and song lyrics, are notoriously hard to translate well, and make poor examples for language learning, They tend to employ metaphor, allusive language, and idiom heavily, and will in many cases distort the sense of the language for the sake of rhyme, meter, or other auditory effects. But suppose you still want to go ahead. The developer of such an app could use songs old enough to be in the public domain. "The Star-spangled Banner' for example is not protected by copyright. Neither is the French national anthem, the La Marseillaise. Most well-known songs published before 1900 will not be under copyright. But more recent songs will almost surely be protected. The use of a line or two from a song might well be permitted under fair use (in the US) or fair dealing (in those countries that recognize this exception to copyright). Use of the entire lyrics of any given song would be more questionable. The use for educational purposes would tend to favor the applicability of any such exception, but the availability of the whole lyric (or even a major part) might serve as a replacement for the original, and harm the market for the original. No one can ever be sure in advance if a given use will be ruled to be a fair use. That determination depends heavily on the specific facts of each case. It would avoid risk to use songs that are out of copyright, or short sections of songs, if songs are to be used at all. |
Can I grant and enforce specific conditions for the use of my copyrighted work? If someone contacts me asking for permission to share my original work on their website or Facebook page, am I within my legal rights to grant permission with specific conditions? For example, "You may post on Facebook if you include a tag link to my profile in the post caption." In the case of the example above, if they posted it without my profile in the caption (but perhaps in the comments somewhere), could I file a DCMA against them? | Yes and yes. This is what a copyright license is - the circumstances where you will give permission. | I do not have the phone number, email, or anything else associated with the account. Well, neither do I - so it must be my account. Unfortunately, the fact that you appear in most or all of the pictures on that account does not prove that you own it. It could be the photographer's account. Do I have ANY options here Can you reactivate the email account associated with the Twitter account? Or the phone number? Either would allow you to reset the password and access the account. You can go to court (in California) and seek an injunction ordering Twitter to delete the photos or give you access. Of course, you have the same issues proving ownership here as you did with Twitter but the court may have different priorities (justice) than Twitter does (corporate protection). I had an idea. If you (or your husband) own the copyright in the photos (i.e. one of you was the photographer) you could issue a DCMA take-down notice because the poster (who, according to Twitter, isn’t you) does not have permission (even if they did at the time: permission can be revoked). Twitter would be unable to contact the account holder and would be required to remove the images when they got no response.of course, if the photographer was someone else, they could do it. Or you could break the law and say it was you, although I would never recommend this even with a near zero chance of being caught. | Yes, you can do that, assuming that the pictures are really in the public domain (i.e. due to their age, and not only claimed to be). But you probably shouldn't, but you'll probably want to add a label to the images anyway (what it depicts, who the original painter is, etc). So adding a "public domain" tag to each image shouldn't be a big issue. You can do that on a separate page as well, giving the source for each. Note that while using pd images does not create a copyright violation, even if you blatantly say that you created them yourself, it could still be considered plagiarism. When writing a science book or even a thesis, this could get you into trouble. | If you do not have permission to make and distribute reproductions of the work, then it is illegal to make and distribute reproductions of the work. US copyright law Indian copyright law | The answer depends in part what venue you're talking about, e.g. Reddit, Facebook etc. The details are revealed somewhere in the Terms of Service for that venue. The general pattern is that you are allowed to use that venue, provides you grant permission for the service to do what they do with your content. You cannot legally send them a take-down notice for your stuff, because a take-down notice requires you to say that the stuff was posted without your permission (and that is false – and you can be punished for making that statement). There could be a venue where they do not hold you to an irrevocable license, in which case you could revoke that permission (but not Reddit: you granted them a "royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to reproduce, prepare derivative works, distribute copies, perform, or publicly display your user content in any medium and for any purpose, including commercial purposes, and to authorize others to do so"). I've seen a site that actually asserts ownership of user-contributed content (I don't know if their TOS ended up being litigated) – if is not at all hard to write a TOS that includes transfer of copyright, rather than granting of a license. The only hard parts are (1) figuring out what you want in terms of permission to use and (2) whether your answer to (1) means nobody will use your service. SE and Reddit TOS probably are as close as you need to get for what you describe. | This seems to be a mix of question about law and a meta-question about this site, but I'll treat it as an on-topic question about law. The author of a question, or answer, owns the copyright to their contributions, and they can re-publish to their heart's content. Any user who posts here grants a license to SE and other users to use content posted here, so I don't have to ask you permission to quote you. As part of the permission granted by SE to use this website, you have agreed to "follow the rules" set by SE. There are many rules, some spelled out more clearly that others. For example, if you post a question, you indirectly agreed that your content can be upvoted or down-voted. Certain content can be "closed" and deleted, when the content is deemed to violate the rules in particular ways (is spam, porn, abuse, or judged to be poor-quality). Judgment (on different matters) can be rendered by community managers, moderators, or other users. The agreement is here, see especially here. If we take the post that you linked to, it is quite possible that it was deleted because it is not a general legal question, in violation of the acceptable use policy. If you want a historical analysis of your particular case, it should be asked on Law Meta. | In the US, at least, facts - like the speed of light, the name of a dinosaur or the moons of Jupiter - are not copyrightable. But the words or pictures, designs and original work used to express and present those facts in books, websites and other publications by individuals and publishers are copyrightable. (Original work doesn't need to be published to be copyrighted; it is copyrighted at the moment of creation.) See How can "factual" intellectual property be protected? Plagiarism can be copyright infringement; it's copying and presenting work of someone else's as your own. But not all copyright infringement is plagiarism in the sense that someone is claiming others' work as their own: if you're selling a T-shirt with an unlicensed design, you're not really claiming the design is yours; you're just trying to make money. If you use all or part of an image or a quote or a song from a copyrighted source in your own work, you need permission and attribute the source. Or, you have to decide if the amount of the copyrighted material you are using might be Fair Use and you don't need permission. But decisions on what might constitute Fair Use are ultimately decided in court, because that's where can you end up when a person or a publisher sues you for alleged copyright infringement. | Facts are not subject to copyright. Only a specific expression of a fact. When you describe a fact in your own words, then you are the sole copyright owner of that description, no matter who taught you that fact. But keep in mind that in the world of academia it is customary to always state your sources. But that's not a legal requirement. That's a topic for Academia Stack Exchange. |
Can we have an accessory while a principal is acquitted? Can someone be convicted of being an accessory to a crime while a principal is acquitted? By definition an accessory helps conceal evidence or persons involved in a felony. If a principal is not charged as a felon, but the crime is still a felony, then doesn't that require there being another principal who is the felon, or can we have a felony without a felon? | Of course The prosecution just needs to prove that the crime happened (or the defendant believed it to have happened) and you helped (in brief, there will be specific elements of the crime that each need to be proved). This would be easier if the primary crime had a convicted perpetrator but it’s not impossible without. Allow me to illustrate with an example. I will set out facts which are somewhat contrived and would not be so clear cut in a real case but for the purposes of the example please take them as undisputed and fully supported by evidence. John and Jill are in a relationship. This relationship is well known to be argumentative with frequent shouting matches and one or the other storming out. This does not amount to domestic violence by either party. John's friend Alan believes (wrongly) that there is domestic violence. During an argument Jill drops dead of a heart attack. John rings Alan distraught and says "I've killed her." Alan assumes (wrongly) that John has murdered Jill. Alan says "i'll take care of it. You go to your dad's". Alan (alone) disposes of the body. John is not guilty of murder (or indeed, anything). Alan is guilty of accessory to murder even though the actual crime never happened. The fact that Alan believed it happened is enough. | Can be tried as first-degree murder, actually. See below. felony murder doctrine n. a rule of criminal statutes that any death which occurs during the commission of a felony is first degree murder, and all participants in that felony or attempted felony can be charged with and found guilty of murder. A typical example is a robbery involving more than one criminal, in which one of them shoots, beats to death or runs over a store clerk, killing the clerk. Even if the death were accidental, all of the participants can be found guilty of felony murder, including those who did no harm, had no gun, and/or did not intend to hurt anyone. In a bizarre situation, if one of the holdup men or women is killed, his/her fellow robbers can be charged with murder. | Yes The rule against prosecuting a sitting President is not a law, it is a Justice Department opinion and policy. The justification for it is that dealing with a criminal case would be severely distracting to the President, and thus harmful to the nation. Besides, the opinion goes on, any serious issue can be dealt with by impeachment. That reasoning obviously does not apply to a former President. Article I, section 3, paragraph 7 of the US constitution says: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (emphasis added) This clearly contemplates the criminal prosecution of a former office holder, after such a person was removed by an impeachment. There is no exception for a President. Therefor a President can be criminally charged and prosecuted for actions during the presidency, provided that the evidence to establish probable cause is there, and that a Grand Jury indicts said former President. So far as I know there has never been a case where such a thing was done. President Ford's pardon of President Nixon stopped any Federal prosecution of him. I think there have been cases were former US Judges, after impeachment, were criminally prosecuted. But that is not quite the same thing -- no one claims that sitting judges are immune to criminal charges. To be clear this would not apply just to issues that a President had been impeached for. A former President is no different from anyone else in this respect. Any such person can be prosecuted if there is probable cause, and convicted if there is proof beyond a reasonable doubt of criminal violation of some law, even if the violation occurred while the president was in office. | Theoretically you could, but that's highly unlikely if what you say is all there is to it. The prosecutor would have to have good evidence that you had a criminal intent, for example intended to make off with the goods. You could even attach a note of explanation to overcome any suspicion of criminal intent. | I'll start with a list of issues presented and also note at the outset that the question correctly notes that both the school district (which is an entity distinct from the county), and the superintendent of schools, are protected from civil liability to a significant extent by the doctrine of sovereign immunity which is outlined here. Two specific provisions bear particular note: an exclusion of liability for someone who has reported a suspected child abuse case, and immunity for a school teacher who acts in good faith with regard to supervision, care and discipline of students. 1. What duty does a public school board in the U.S., or do specific employees of that school board, have to prevent a violent crime from being committed by one student against another student, when that student has no prior history of serious misconduct? Short of malice directed at a victimized student there is no liability under state law. There is also no well established constitutional right violated that could give rise to civil rights liability. Students commit crimes against each other all of the time and school officials are almost never responsible for those crimes. 2. What duty does a public school board in the U.S., or do specific employees of that school board, have to prevent a violent crime from being committed by one student against another student, when that student has a history of prior serious misconduct? The legal standard is the same but the practical analysis might be more fact intensive. Still, outright malice directed towards a victim would pretty much be the applicable legal standard and is unlikely to be present in this case, absent awareness, for example, of conditions of probation or pre-trial release after the first case that weren't enforced. 3. Is a public school in the U.S. permitted or required by law to advise parents of students at the school that student transferring into the new school has a history of violent criminal conduct? Juvenile justice law and educational privacy laws profoundly limit the extent to which a public school, or its officials are allowed to disclose that a student transferring into a school has a history of violent criminal conduct. There is no clear duty of the public school in the U.S. to disclose this fact broadly. 4. Is a statement by a superintendent to parents in a public school district that transgender girl does not pose a threat to cis-gender girls in restrooms an actionable fraud (and does it matter if there is a history of prior misconduct by a particular student in this case of which the superintendent was aware)? The statement is not, in general, false. If it was made after knowledge of this particular student, that might be a different matter, but as noted above, there are severe legal limitations on what the board is allowed to say. It isn't inconceivable that the school board or superintendent could have said more than it did to at least some people. But there isn't a clear legal duty to do so. It also isn't clear what the superintendent actually knew when he made a report to the school board even tough the information should have been shared with him. It is possible that only a lower level official in the school system had actual knowledge at that time. 5. What crime, if any, did the father of the first rape victim commit for trying to warn the parents about someone who attacked his daughter? This is partially speculation, but the father appears to have been arrested for the manner in which he acted disturbing the peace, speaking out of turn, and refusing the leave a meeting when requested, rather than sharing the information per se. 6. Did the school superintendent commit a crime somehow connected to the second rape by concealing the risk posed by the student in question? The school superintendent has a duty to report child abuse to authorities and failure to do so (if it was not done) would be minor crime. My impression of the fact is that the first rape was reported to juvenile justice system officials and resulted in action being taken. So, it does not appear that this duty was breached. According to the article: The boy was arrested and charged for the first assault in July but released from juvenile detention while prosecutors waited for DNA rape kit evidence to come back. Loudoun County Commonwealth's Attorney Buta Biberaj says at the time they had no reason to believe the boy should have stayed in juvenile detention. “If that case had gone forward and we were not able to substantiate beyond a reasonable doubt the allegations that were made by the victim, he would've been out anyway,” she said. “The best decision was made with the facts that were known." This does not, however, give him criminal liability for a subsequent rape of one student by another in which he had not involvement sufficient to constitute criminal conspiracy to commit sexual assault which was the case here. 7. Does the school board have defamation liability for calling the father of the victim of the first rape a transphobe? No. The school board has sovereign immunity from suits for money damages seeking to establish liability in relation to statements made in their official capacity, apparently in good faith. It also isn't clear that the statements made were actionable in the first place, or that such statements were even made by them. The school board also does not appear to have had actual knowledge of what happened until a decisive school board meeting after the second assault. 8. Does the public have any power to remove an appointed official such as the superintendent in this context? No. The political remedy is to elect a new school board that would select a different superintendent. | Does double jeopardy prohibit prosecution, for the same event, in both federal and state court? No. Key precedents on the question are US v. Lanza (1922) and Abbate v. US (1959). From Lanza: The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that state is not a conviction of the different offense against the United States, and so is not double jeopardy. From Wikipedia's article on Abbate: Abbate asked that the Court overrule its prior decision, which the Court declined to do. The Court reasoned that overruling Lanza would result in serious and undesirable consequences. Particularly, the state conviction here resulted in only three months' imprisonment, while the federal conviction made up to five years of imprisonment available. The Court deemed this potential disparity to be problematic. The only way to ensure that federal law enforcement interests would be vindicated under such a regime would be to displace state power to prosecute actions that also constitute federal crimes, which would be a massive shift in the balance of criminal power as between the states and the federal government. In a comment, you raise a question about the last sentence: "The only way to ensure that federal law enforcement interests would be vindicated under such a regime would be to displace state power to prosecute actions that also constitute federal crimes," seems to state that not displacing state power to prosecute, under such circumstances, would keep the law enforcement interests un-vindicated (which would mean unjustified). So the only justified thing to do would be to try under the Federal law and to not try under the state law. "Vindicate" here does not mean justify but rather maintain or substantiate. The point is that if double jeopardy protected against prosecution by the federal government for a crime that has already been charged under state law, then states could effectively neuter federal crimes with which they disagreed by establishing a crime with identical elements and a token punishment. Another way of avoiding this outcome without permitting separate state and federal prosecutions for the same crime would be to prohibit state prosecutions altogether for acts that are also federal crimes. In other words, this says that the court found that the prohibition against double jeopardy allows these separate prosecutions because prohibiting them would require a "massive shift" in the responsibility for enforcing criminal law away from the states and toward the federal government. (Of course, this works both ways; if double jeopardy applied across sovereigns then the federal government could also neuter state laws. More generally, the current approach to double jeopardy may be seen as maintaining the balance of power between the states and the federal government, more than as protecting the interests of one side over those of the other.) | While felony murder was an offense originally invented to single out more culpable murders from less culpable murders, with only the former punishable by death, as opposed to imposing the death penalty on everyone convicted of murder, it has evolved into a means of convicting someone of first degree murder who otherwise would not have been guilty of the crime of murder (or even conspiracy to commit murder) at all. In a typical felony murder statute, everyone who participates in a felony designated in the felony murder statute that results in a death at the hands of any participate, without regard to premeditation or involvement in the murder itself, is guilty of felony murder, rather than merely the underlying felony crime. Typically, felony murder is one way to be guilty of first degree murder and typically the punishment for first degree murder is either life in prison without possibility of parole, or the death penalty (if the state has death penalty), as determined in a second phase of the jury trial after the guilt phase is completed. At the death penalty phase, following evidentiary presentation by the prosecution and the defense of aggravating and mitigating factors, in addition to the evidence presented in the guilty or innocence phase of the trial (at which the same death qualified jury convicted the defendant), the jury (except in Nebraska where a panel of three judges makes this decision, and in Montana where a sole judge makes this decision) must determine if the aggravating factors in the case outweigh the mitigating factors, if any. The fact that the defendant (now a convicted murderer) was a knowing participant in a felony is typically an aggravating factor. The possibility, if established, that the defendant (now a convicted murderer) was not expecting that violence would occur and did not participate in the killing would be a mitigating factor. The Supreme Court of the United States has held that the Eighth Amendment to the United States Constitution does not prohibit imposing the death penalty for felony murder. The Supreme Court has created a two-part test to determine when the death penalty is an appropriate punishment for felony murder. Under Enmund v. Florida, 458 U.S. 782 (1982), the death penalty may not be imposed on someone who did not kill, attempt to kill, or intend that a killing take place. However, under Tison v. Arizona, 481 U.S. 137 (1987), the death penalty may be imposed on someone who was a major participant in the underlying felony and acted with reckless indifference to human life. So, the constitutional standard for imposing the death penalty for felony murder is higher than the constitutional standard for imposing the default life without possibility of parole (LWOP) sentence for felony murder. Keep in mind also that following a jury imposition of the death penalty that this decision will be upheld if any reasonable jury could have found facts sufficient to impose the death penalty by finding some evidence to be credible and other evidence to be less credible, whether or not that was the most plausible interpretation of the facts and whether or not this was actually the reason for the jury's decision. Also keep in mind that the death qualification of the jury (i.e. striking for cause from the jury pool anyone who is categorically opposed to imposing the death penalty), means that juries in cases where the death penalty is an option are systemically biased in favor of the prosecution in the process of how the judge guilty or innocence, and also, in their evaluation of aggravating and mitigating factors in a case. | To answer the first question, the answer seems to be "generally not." In federal courts, this is explicitly not allowed -- rule 6(d) of the Federal Rules of Criminal Procedure states that the only people who can be present before a grand jury are government lawyers, the witness being questioned, interpreters, and a court reporter In state courts, the rules vary by state. However, again, private citizens are generally either completely not allowed to act as prosecutors, or are only allowed to act as prosecutors in a restricted set of situations and subject to the ultimate control of public prosecutors. For instance, in Virginia (which allows private prosecutors), the private prosecutor can't speak in front of a grand jury, initiate a criminal case, or participate in a decision to dismiss charges (page 23). In New Hampshire, private prosecution is limited to misdemeanors with no possibility of jail time, and again the state can dismiss charges (page 8). Rhode Island, like New Hampshire, allows private prosecution for misdemeanors but lets the state dismiss charges (page 11). The justification for allowing the state to dismiss charges is generally "prosecution is inherently a governmental task, so the government must retain ultimate control." |
Why is the Federal Reserve allowed to "coin Money" and define exchange rates? According the to United States Constitution Article 1 Section 8, The Congress shall have Power To coin Money, regulate the Value thereof, and of foreign Coin, ... But it is the Federal Reserve, not Congress, who is currently "coins Money" and defines exchange rates for foreign currencies. Why isn't it a constitutional violation? | It's not a violation because Congress created and gave the Federal Reserve the power to issue Federal Reserve Notes in the Federal Reserve Act which created the Federal Reserve. More here on the relationship between Congress and the Fed: https://www.bloomberg.com/view/articles/2017-09-27/how-congress-governs-the-federal-reserve. | Scenario 1. It doesn’t matter what it says. If it was not legally ratified, it is not legally in force. There is no absolutely no paradox at all. It is essentially just a draft amendment and would be thrown out if any attempt was made to enforce it and challenged. | Yes, and no You can't legally destroy banknotes but you can destroy coins. You can't "fraudulently" alter coins but that's not what you were doing; you were doing a science experiment, not committing fraud. The law prohibits the destruction of "bank bill, draft, note, or other evidence of debt": a coin is none of those things. The first three are obvious, and evidence of debt is a written obligation such as "a promissory note, bond, negotiable instrument, a loan, credit, or similar agreement, or a monetary judgment entered by a court of competent jurisdiction"; not a coin. It's a bit of a historical anachronism because when these legal distinctions were made, coins had intrinsic value; they were actually made of gold or silver or some other precious metal. They were not tokens of value like banknotes and all the rest are; they were physical repositories of value. Of course, in many countries today, coins at the lower end of the scale actually contain more value in their metal than the face value of the coin while those at the upper end contain much less. | In the US usa, at least, the concept of ex post facto laws, which is what you have described, are specifically prohibited: Article I, Section 9, Clause 3: No Bill of Attainder or ex post facto Law shall be passed. | Yes It's legal: but that's more of a bug than a feature. The Constitution says this about the appointment of Supreme Court judges: he [the President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, ... In the Federalist Papers: No 76, Hamilton had this to say: But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. and in No 78: It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." He was wrong about the first but right about the second. Now, this is only the way he saw it and others no doubt had other views but he was focused solely on balancing the powers of the executive and the legislature. There is no consideration of what would happen if, for whatever reason, including partisanship, the executive and the legislature were tightly aligned or hopelessly opposed. Even for the time, this view seems overly idealistic and hopelessly naive. However, these are the same people who thought it would be a good idea for the runner-up in the Presidential race to be the vice-President. Indeed, Hamilton saw and was an integral part of the intense partisanship that arose in the 1790s between the Federalists and the Republicans and the first rejection of a Supreme Court nominee happened during George Washington's Presidency. This analysis shows that the confirmation rate when the White House and Senate are politically aligned is 87.2% but only 47.2% when they are different. That said, most (78%) nominees have been confirmed with the last decade being about average. The US Supreme Court has always been partisan. Indeed, it's only since the Second World War that the idea that it shouldn't be has taken root. In earlier days, the Supreme Court was not populated by jurists - it was the domain of politicians, some of whom moved back and forth between the bench and the Capitol. In Brown v Board of Education 4 of the 9 judges had been Congressmen or Governours and some had never been on the bench of any court before their appointment to SCOTUS. So, yes its totally legal but no, it probably isn't what the founders intended but yes, it has ever been thus. | Only with the approval of Congress. An agreement between states is called an "interstate compact" (a variety of existing compacts are listed in the link). The federal government can also unilaterally create an independent agency with authority in some states, but not others such as the Tennessee Valley Authority and the Appalachian Regional Commission. The relevant parts of the Constitution are Article I, Section 10, which states: 1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. 2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. 3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. Also relevant are Article IV, Section 3, Clause 1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. and Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. | They aren't "imposing tax laws at the state level", and the states are still perfectly free to award whatever credits they like. There's a more complete explanation here. Before 2017, if you paid, say, $30,000 in state taxes, you could take a $30,000 deduction from your federal taxable income, thus reducing your federal income taxes by some fraction of $30,000 (depending on your tax bracket). The 2017 tax bill placed a $10,000 limit on this deduction. Some states responded by creating a provision where you could donate $30,000 to the state and receive a $30,000 credit against your state taxes owed - so you end up paying the same amount to the state, but now you characterize it as a charitable donation, which is still deductible from your federal taxable income. The new IRS regulation says that such a "donation" will no longer be deductible from your federal taxable income; that's all. Your state can still issue you a tax credit for such a donation if they want - the federal government has no control over that - but any such credit will reduce the amount you are allowed to deduct on your federal return, making the whole exercise pointless. The federal government certainly has the power to determine how you should compute your income for the purposes of your federal income taxes, including what you may or may not deduct. That's the power they're using here. | The "point" of including bank-interest income on your tax return rather than having the government automatically deduct what it feels that you would owe is that the government is not legally empowered to take money away from you in that fashion. The government is legal empowered to compel you to pay your taxes, and there are numerous rules enacted as law or as a consequence of laws passed. You can read the various relevant laws here. There simply is no general law that says that banks must withhold taxes on interest. There might be a specific case when an entity is subject to backup withholding (as a response to a taxpayer not following certain rules). There are also special rules regarding non-resident alien withholding, which could require interest withholding. Apart from the intrinsic political unpopularity of imposing new withholding requirements on people, it is difficult to compute the correct amount to withhold, since not all interest is taxable. In theory, a set of rules could be constructed to require withholding of interest income, if Congress were to pass a law similar to 26 USC 3402. |
Do employees have personal liability when working for a company that violates the GDPR? I work for a company that doesn't take privacy laws very seriously. As far as I can tell, they're woefully unprepared for GDPR and don't seem to care very much. My tasks mainly consist of software development and maintenance, with some degree of systems administration, data analysis, and reporting. I regularly come into contact with user data (including plain-text passwords). Am I in any way personally at risk? To what degree is "I was just doing what I was told" a valid defense (nothing is in writing though)? If I quit my job before GDPR applies, do I escape any such liability from that employment? | Not legal advice - you should consult an attorney who knows your local jurisdiction. That's a general statement, but especially true here because the GDPR does not include personal liability for directors (or others) in the event of a data breach, but domestic laws may indeed do just that. The UK is one example where certain circumstances can lead to criminal liability for directors of a firm in the event of a breach. That said, your company should care. The fines for knowingly allowing a breach or not reporting it properly in a timely manner have been made more significant than the prior Directive. There are things you could do to potentially mitigate consequences in the event of a breach and a fine being levied on the company, such as aligning with best practices and getting certifications. In sum, the actual punishments for noncompliance will vary by jurisdiction, but any business that handles data in the EU should undoubtedly be ensuring it is aware of what, if any, obligations it has and taking steps to comply before May's deadline. | the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply & demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled. | No, GDPR does not apply here — but other laws might . The General Data Protection Regulation only concerns itself with the following: This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. per Article 2. Furthermore, there is a specific exemption (Art. 2 (2)(c)) which would seem to apply to you (emphasis mine): This Regulation does not apply to the processing of personal data: (a) in the course of an activity which falls outside the scope of Union law; (b) by the Member States when carrying out activities which fall within the scope of Chapter 2 of Title V of the TEU; (c) by a natural person in the course of a purely personal or household activity; (d) by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. You are sharing the conversation in a purely personal capacity and are not processing it wholly or partly through automated means nor are you intending it to form part of a filing system. Additionally, depending on the contents of the conversation and what you share, there may not be any personal data involved at all. For example, if you only share the messages themselves (and they don't contain any personal data that could identify someone) and censor/black out any names or photographs/avatars from the senders. Either way, GDPR does not appear to apply to you in this context. However, it appears that Article 18.1 of the Spanish Constitution grants the right to "personal and family privacy", as does the Organic Act 1/982 on Civil Protection of the Right to Honour, Personal and Family Privacy, and Self-Image. It's possible that, depending on the contents of the conversation, the other party involved in the conversation may have a case for action against you in the civil or criminal courts (for example, if the information invades their privacy or is defamatory in some way) if you share the contents of the conversation with someone else. I am not familiar with Spanish law so cannot comment further on this matter. | Is this legal? Yes Or does it mean that employee will be in breach of his/her contract? Yes You are assuming that if the evidence is allowed to be presented then that automatically means that keeping it for that purpose is not a breach of the contract. This is not necessarily so; it can be both at the same time. That said, it is unlikely that an employer would attempt to sanction an employee for this as the courts would (rightly) see it as an attempt to pervert the course of justice. As in most things in the law it is possible for all parties in a matter to be on the wrong side of it. If you want to come to the tribunal with "clean hands" then the best thing to do is make a record (not a copy) of the relevant documents and return then to the employer. Before going to the tribunal get your solicitor to subpoena the documents that you want - they will have to produce them and you have them without breaking your contract. | Alice's business sells database management software. Organisations buy or licence the software, deploy it on hardware they control and use the software to help store and, process and analyse 'personal data' within the meaning of GDPR. Alice's business has no access whatsoever to the personal data being stored and processed by those organisations. In respect of that personal data, GDPR is not engaged by Alice's business. The business is neither a 'controller' nor 'processor' of that personal data. Who does the data protection law apply to? - European Commission Who does the UK GDPR apply to? - Information Commissioner's Office | You have several issues. Breach of Contract When you sign up with each of those services you are entering a legally binding contract and must comply with the terms of that contract. For example, this is taken from Facebook's terms: Here are some commitments you make to us relating to registering and maintaining the security of your account: You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission. You will not create more than one personal account. I haven't checked but its a fair bet that the other services have similar terms. Unless you have permission, what you are doing breaches these terms of service. If what you do causes damage to Facebook et al then they can sue you and your employer for damages. Even if it doesn't they can probably bar you from having an account for as long as they like. Improper use of images This is jurisdictional but it is generally required to have the permission of the subject of a photograph where that photograph is used for commercial gain. There are exceptions where the person is not the primary subject (e.g. crowd shots, or images primarily of something else where the person happens to be in the shot) but the type of photos you would use for these services are not going to be exempt. The sanctions for breaching this will be dependent on jurisdiction. Breach of Copyright Somebody owns the copyright in those photographs. If you do not have a licence to use them in the way you propose then you are breaching their copyright. The copyright holder can sue for damages (if any) and any profits you make. Vicarious Liability An employer is strictly liable for the actions of their employees, jointly and severally with the employee. That means a plaintiff can go after either the employer, the employee or both. An employee may have some statutory or contractual indemnity but this is by no means common. | The fact that the employer has vicarious liability for acts of its employees "within the scope of employment" does not mean the employees are not also liable for their own acts. In reality, however, the employer is more likely to have insurance for such "acts or omissions" of employees. The plaintiffs can "sue everyone in sight" and let them figure out who actually pays when they are found liable. That way, when the employee's actions are (for instance) ruled a "personal frolic" or otherwise outside the scope of the employer's liability (in tort or contract), the case doesn't get dismissed for failure to name all the proper parties. One policy goal is to place financial liability as close as possible to the person most likely to have been able to avoid the harm, thus discouraging such risks, without placing the entire burden on individuals employed in hazardous occupations and without artificially limiting potential sources of compensation. | The GDPR doesn't generally distinguish public from non-public personal data. If you have a good reason to contact the professor, do send them an email. GDPR does not prevent this. If you're sending this email for “purely personal or household purposes”, then GDPR doesn't apply anyway. There are rules in the ePrivacy Directive against unsolicited emails, but these specifically relate to emails for direct marketing purposes. A company is not allowed to send out spam marketing, regardless of whether they obtained the email address from a public data source. Companies can send email marketing to their own existing customers, or to people who have given consent. Consent is defined in a fairly restrictive way (as a specific, informed, freely given, and unambiguous indication of the data subject's wishes), so that mere publication of an email address cannot be interpreted as consent to receive marketing from a particular company. |
Are forged signatures on company documents illegal? Are forged signatures illegal on company documents even if they're forged by the director of the company? Example: I looked over some documents for a small company founded by three persons, I believe that the two of the three signatures used during the documentation to found the company were written by the same person. The false signatures also seem to be used in six different companies that all seem to start up then dissolve within months. These signatures were also used for tax exemption in the UK. I don't know if it's illegal since I believe he is the owner of said company that is writing all three signatures. | I was told that when you sign something in the UK, then it is your signature, no matter what name you are using. So if you sign a contract with my name, then it's your signature and you are bound by the contract. Things might be invalid because you signed and not me. For example, if you sign a contract selling my car in my name, then that contract is not valid. If some document needs signatures of two witnesses, and you sign with your name, then with my name, then there are no two signatures. As far as I know, signing under a false name is not in itself criminal, but might very well be supporting fraud, for example, and might therefore be illegal. The contract for the sale of my car, signed by you using my name, would very likely be part of fraud and therefore criminal. | A receipt is just a written proof that money was taken. It is hard to imagine a place on Earth where the legality of giving such a proof would be questionable at all so that you would need to talk about an "authority to issue receipts". Only if you find a place where money itself is illegal. Now, the real question here is whether such receipts (issued by private persons not registered as businesses) can be used for accounting purposes, e.g. to claim that your business, which transacted with those persons, incurred expenses. The mere fact that sole traders need to be registered to do business does not outlaw the use of receipts issued by non-registered persons. For example, your business could be buying old stuff from the public (used cars, electronics etc.) and refurbishing it. Provided that this activity itself is not illegal, receiving receipts from those one-off private sellers, and using them in your bookkeeping would be perfectly legal too. | It is not forgery to modify a signed document if you clearly indicate the date and nature of the changes, but the landlord could retain and rely on the original version, whoch would be to your disadvantage. I would suggest writing and signing a letter in which you acknowledge receipt of the condition from, and indicate that you know that it must be filled out, signed and returned within 15 days after your move-in date. That should deal with the landlord's legitimate concerns. Or you could write on the condition form "no inspection has been made as of {date}" and return it with that notation, which should protect you, retaining an unsigned copy for later use. | The Facebook forum doesn't prevent a contract from being formed. But, for a contract to be formed there must be an affirmative agreement, not silence (at least in cases that aren't between merchants). If they later decide to work together without reaching an agreement on the details, the draft contact could be considered, but the Facebook forum for its delivery and that fact that it wasn't expressly assented to might reduce its weight as part of the evidence in an attempt to determine what the terms of their oral or implied agreement to work together involved. It would be very unusual for a broker not to get a signed agreement in writing to pay his fees, although an oral or unsigned agreement to pay a broker is not necessarily barred by a statute of frauds. A finder of fact would be quite skeptical of a broker's claim to have an agreement in those circumstances and often the professional regulatory provisions related to brokerages would require that fee agreement must be signed and in writing even if contract law does not require that this be done. | The contract would be binding Many people make the mistake of thinking that the document is the contract - it isn’t. The contract is the binding legal relationship between the parties of which any documents are just evidence for. As this is a simple mistake on the document misidentifying one of the parties, it’s irrelevant. You and the company are clearly the parties to the contract - you because you signed it and they because they sent it to you. Minor errors in one or more of the documents that make up a contract are immaterial. | The standard of care to determine documents are accurate varies. For example, in an ordinary notarized document, notarizing the signature of an imposter will ordinarily only impose liability on the notary for harm caused by the fraudulent imposter signing, if the notary is negligent, i.e. fails to use the reasonable care of a similarly situated notary. But, suppose that instead of a notary, the imposter uses a fake ID to get a bank to confirm his identity as part of a "guaranteed signature", which is a parallel system of confirming people's identities arising from an industry organization and mostly used to confirm identity in life insurance payouts and other non-probate transfers (e.g. pay on death bank accounts). In the bank that guarantees the signature is duped, the bank has strict liability without regard to fault to the party that is harmed by the imposter's bad signature. In the case of fake signatures on checks, there is an elaborate web of statutes in Articles 3 and 4 of the Uniform Commercial Code and some related federal regulations, but basically, it boils down to the harm from a forged check falling on the person who dealt most closely with the imposter. The standard for a Fake IDs used to get alcohol is particularly tricky because rather than flowing from a common law rule, it usually depends upon the exact language of a liquor regulation statute and related regulations, so it is often non-uniform. There is not a general rule governing this situation and that situation is very common in American law. More often than not, you can not determine the correct answer to a legal question by simply applying a general rule to a new situation. Law is not physics. | Illegal to write? No. Notwithstanding the First Amendment which would almost certainly make a law prohibiting it illegal, writing such things is an essential part of an IT security professional’s toolkit. You can’t protect against worms if you don’t know how they work. Illegal to distribute on an unauthorised computer? Absolutely. This would be a clear breach of the Computer Fraud and Abuse Act. | A party may subpoena materials from a nonparty using a subpoena under Rule 45. A party may generally subpoena anything that is within the scope of discovery under Rule 26, i.e., any material that is relevant, not privileged, and proportional to the needs of the case. Rule 45 also protects third parties from subpoenas that impose an "undue burden," but I would argue that this is essentially the same thing as Rule 26's proportionality requirement. Records of phone calls, e-mails, and text messages are routinely subject to subpoenas under Rule 45, but again, that assumes that the messages are relevant and not privileged. Records to Facebook and Google can be a bit more complicated. I don't know that the question has actually been definitively answered, but social-media companies seem to take the position that access to certain records created by their users is exempt from subpoena under the Stored Communications Act. |
Can I refile a case I withdrew without prejudice many years ago? My son was born with catastrophic injuries due to the delivery and what happened afterward I filed a suit for malpractice and withdrew without prejudice so that I could beat the deadline for the statute of limitations. This has been over 20 years ago is there a time limit when you can refile something like this? | Once you withdrew the complaint without prejudice, any statute of limitations benefit you obtained from filing the lawsuit evaporated. From a legal perspective, it is as if you never filed at all, except that the lawsuit that was filed proves that you had notice of the claim at the time you filed, so you cannot take advantage of any "discovery rule" that allows a statute of limitations to start running from the date that you knew or should have known of your right to file a lawsuit. In all likelihood, the statute of limitations has now run, although that would depend upon the jurisdiction in which it was filed. Some jurisdictions toll the statute of limitations during a period of minority, but that tolling might very well be insufficient to allow the claim to be filed 20 years later. | If you sue a person for a tort X, one of the things you have to prove is that the defendant did do X. A baseless belief that it must have been so-and-so will do you no good. You do not have to have iron-clad evidence of your allegations, for a civil suit, but you have to show with a preponderance of evidence that the claim is true. A combination of "hates me" and "provably did this a number of times in the past" could well suffice. As for damages, it depends on what harm you actually suffered. If you get fired and you show that it was because of a false allegation, you would probably have to take this to the big court, since small claims court handles amounts in the $5,000 range (jurisdiction-specific). | Just below the section you quoted it says: (3) The victim’s prior sexual conduct is not a relevant issue in a prosecution under this section. There is no stated provision for the case you mention. I suspect that the law would apply. Whether the authorities would choose to prosecute in such a case is a very different question. There might be caselaw of this subject. I wouldn't know. If this is more than hypothetical, i would urge consulting a lawyer with local knowledge of criminal practice. | united-states Overview The big picture to keep in mind is that in the United States the applicable deadline for filing a lawsuit is very specific to the legal theory upon which relief is sought from a court, and that there are numerous special rules (which can vary from claim to claim and based upon the individual facts of the case) that can modify these general rules. Exceptions to the general rules are common enough that it is not safe to rely upon them. There is a lot of case law on these issues because dismissals of cases because a statute of limitations has run are usually all or nothing issues in a lawsuit, don't depend on too much evidence, and are often relatively straightforward and inexpensive to appeal relative to other kinds of legal issues. Also, lawyers whose cases are dismissed for failing to meet a statute of limitations often have a strong incentive to encourage their clients to appeal, because they may face malpractice liability if the dismissal of their client's claims is upheld. While the question is specifically directed at how statutes of limitations apply to continuing violations, it isn't possible to really clearly answer that question outside of the larger context of how statutes of limitations in the United States work in general, and without considering other legal doctrines that can have similar effects to rules based upon continuing violations under different legal theories. Also, keep in mind that when you hire a lawyer to bring a lawsuit, the lawyer needs lead time to prepare the documents starting the lawsuit. The best practice is to contact a lawyer as soon as possible because this may allow claims with shorter statutes of limitations that you had not even considered to be brought. It is usually very imposing on the lawyer to bring a new lawsuit to them less than a month before the deadline for bringing suit. Sometimes it is possible to get the job done a week or even a few days before the deadline, but this invites mistakes that could impair later phases of the lawsuit, limits the time available for factual investigation and legal research before bringing the lawsuit, drives up the cost of preparing the documents because work that would otherwise be done by staff or junior lawyers may have to be done by senior lawyers, and exposes you to the risk that you won't be able to find a lawyer who is actually willing to take on your case on acceptable financial terms right away. Statutes of Limitations In Ohio In Ohio, for non-criminal cases, some of the most common statutes of limitations are as follows (citations to the relevant statutes are found in the linked material): 21 years to recover real estate; 8 years to sue on written contracts; six years to sue on oral contracts; two years for actions for personal injuries or property damage; and one year for libel, slander, malicious prosecution, false imprisonment, and professional malpractice. Most other types of lawsuits are subject to a four-year limitation. See also here (providing more specific examples including four year statutes of limitations for claims for trespass and fraud). Different and usually must shorter statutes of limitations apply to reopening court judgments in cases due to irregularities in the proceedings, and to appeal court judgments. If a statute of limitations runs without a lawsuit being filed, the right to seek legal redress for the wrong committed expires. With very narrow exceptions, usually invited or assented to by the party sued in some way, once a statute of limitations has expired the claim that is barred can never be revived. A nice medium length summary of the various doctrines applicable to statutes of limitations (mostly discussed below) in the state of Minnesota, which is fairly typical of U.S. states) can be found here. Statutes Of Limitations For Federal Law Claims These limitations apply to claims under state law. Claims under federal law sometimes have their own statutes of limitations (e.g. federal copyright and patent infringement lawsuits), and sometimes are governed by the analogous statute of limitations under state law. For example, the statute of limitations for lawsuits under the federal Lanham Act is based upon the most analogous state law statute of limitations. In those circumstances it is usually necessary to look a case law in the state and federal courts in that state to determine the correct statute of limitations for that kind of claim. When Does A Claim Accrue? The date that one starts to calculate from for a statute of limitations is sometimes the date when the wrong is done (also known as a statute of repose), and sometimes when it is known or should have been known by the person bringing the lawsuit. The date when you start counting to determine the statute of limitations deadline is the called the date that 'the claim accrues" or that the "claim arises." Usually a claim accrues when the person bringing the lawsuit knew that a particular person breached a legal duty to them and that this breach of a legal duty to them caused them injuries, even if the amount of the injuries caused is uncertain. But for some kinds of lawsuits, knowledge that a person breached a legal duty to them alone is enough even if it wasn't clear at the time that the person to whom the duty was owed would suffer legal injuries. What Must One Do Before The Statute Of Limitations Runs? In most U.S. states (including Ohio pursuant to Ohio Rule of Civl Procedure 3) and in the federal system pursuant to Federal Rule of Civil Procedure 3, a statute of limitations is met by filing a lawsuit with a court by the deadline, so long as a defendant has a summons and complaint delivered to the defendant within the time allowed by court rules after the lawsuit is commenced. But, in other U.S. states, such as Minnesota, the statute of limitations applicable to a defendant can only be met by delivering the summons and complaint in a lawsuit to a defendant, whether or not the lawsuit has been filed with the clerk of the relevant court. When a summons and complaint has been delivered to a defendant but the case has not yet been filed with the clerk of the court in which the lawsuit states that it is brought, that court has what is called "hip-pocket" jurisdiction over the lawsuit. Tolling and Estoppel Certain circumstances (such as a victim who is a minor, or the death of the victim before the statute of limitations has expired) can toll the statute of limitations (i.e. stop it from running) while that situation continues or for a certain maximum length of time. Some statutes of limitations can be lengthened with an agreement of the parties in what is called a "tolling agreement". Another concept similar to tolling is that someone who is sued may be prohibited from asserting a statute of limitations defense under a doctrine called "estoppel" if the failure of the person to bring the lawsuit within the statute of limitations is caused by the misconduct of the person seeking to assert the statute of limitations defense. Both tolling and estoppel are exceptions to the general rule that are frequently interpreted strictly against people bringing a lawsuit, however. One should never assume that these doctrines apply and rely upon them making a lawsuit timely, unless one has no other choice but to do so. Continuing Violations Sometimes in the case of a "continuing violation" the statute runs from the last time that the continuing violation was committed. But, it is not safe to assume based upon logic alone whether a violation is a continuing violation or not. Sometimes the statute of limitations runs from the initial violation, even if it continues. Sometimes a lawsuit can seek remedies from the first time the violation occurred until the present based upon a continuing violation if a lawsuit is commenced within the statute of limitations after the violation ceases. Sometimes a lawsuit can be brought based upon a continuing violation until the requisite number of years after the violation ceases, but the remedy is limited to harms caused by conduct that was within the statute of limitations or to injuries that occurred within the statute of limitations. There is really no way to know which of these rules applies to a particular kind of claim without examining the case law for each particular type of claim. A related concept is that in lawsuits to collect a debt for money owed, the statute of limitations is typically reset every time a payment is made or there is a written affirmation from the debtor that a debt is owed. Other Exceptions To The General Rules Previously Time Barred Claims Sometimes a statute of limitations is amended to make it longer. When this happens, claims that were already barred by the statute of limitations are generally not reinstated. But claims that are not already barred by the statute of limitations on the effective date of the new law usually, but not always, benefit from the new statute of limitations. Borrowed Statutes Of Limitations Sometimes someone can bring a lawsuit in a court where, for example, the defendant resides, even though the wrong occurred in another jurisdiction that has different statutes of limitations. The way that this situation is handled varies. The most common rule is for the state where the lawsuit is filed to apply its own statute of limitations unless the lawsuit would have been barred by the statute of limitations in the place where the wrong occurred. But not all states follow this rule in all cases. Special Rules For Counterclaims Some states allow counterclaims that would otherwise be barred by a statute of limitations to be brought when they relate to what someone is being sued over, even when otherwise, the statute of limitations for the counterclaims would have expired. For example, suppose that someone sues Joe for breaching a promissory note in Colorado (which has a counterclaim exception), five years after the contract was allegedly breached (in a state where the statute of limitations is six year); Joe may be able to counterclaim against the person suing him for fraud in the same transaction in which the promissory note was created even though the three year statute of limitations for bringing a fraud claim in Colorado would have otherwise expired. Dismissals Without Prejudice For Suing In The Wrong Court Some states allow you to bring a lawsuit that is otherwise barred by the statute of limitations, if a lawsuit is filed within the statute of limitations in a court that then dismisses the claim for a reason unrelated to the merits of that claim (usually lack of subject-matter jurisdiction), and the person bringing the lawsuit promptly refiles it in the proper court. The Relation Back Doctrine Sometimes after a lawsuit is filed against a defendant the complaint in the lawsuit is amended to assert new claims against the existing defendants, or to assert claims against a new defendant, after the statute of limitations for filing the new claims against the existing defendants, or the existing or new claims against a new defendant has expired, even though the original lawsuit was filed within the statute of limitations applicable to those claims. In those cases, the claims in the amended complaint will be treated for statute of limitations purposes as filed when the lawsuit was originally filed, if the "relation back" doctrine is satisfied. This is governed by Ohio Rule of Civil Procedure 15 and Federal Rule of Civil Procedure 15 respectively in state and federal court. In cases where new claims are asserted against an existing defendant, the relation back doctrine applies roughly speaking when the new claim arises from the same transactions and events that the lawsuit was originally based upon, even if it attaches significant to different facts or different legal theories. In cases where a new party is sued, the claims roughly speaking relate back when the new party had notice of the lawsuit within the statute of limitations and the new party knew or should have know that the new party was not sued originally only due to a mistake regarding who the proper person to sue in the case was (e.g. because related corporate entities had similar names and the wrong corporation in the group of affiliated companies was sued). Failure To Assert The Defense Statutes of limitations, and most other grounds for dismissing claims as untimely, are affirmative defenses, not something that must be established on the face of the complaint initiating a lawsuit. So, if the defendant fails to raise a statute of limitations defense in a case, even if it is actually available under the true facts of the situation, then the lawsuit will not be dismissed for failure to sue within the statute of limitations. Other Rules That Can Bar A Claim Filed Too Late Contractual modification of the statute of limitations Sometimes a statute of limitations can be shortened by a contractual agreement of the parties, most often for breaches of the contract shorting the deadline for bringing claims arising from its breach. If this shortening of the statute of limitations isn't unreasonable and is obtained with fair disclosure, and no public policy is violated by the modification, it will often be upheld by a court. For example, a contract might require a party to raise a dispute concerning an item contained in a statement or invoice presented to the party asked to pay it within a certain reasonable time period, even if the relationship between the parties is ongoing and the statute of limitations would otherwise run from the last date upon which the parties reached a final settlement between them of their dealing with each other. Probate and Bankruptcy Cases There is also generally speaking a strict time limitation in addition to a statute of limitations on enforcing claims against people who have died (sometimes called a "non-claims statute") and against people who have filed for bankruptcy. Sometimes, however, a deadline involving a non-claims statute that is triggered by giving notice to the person to be barred by it can be waived in cases where the person with the claim had no actual notice of the deadline. Lawsuits Against The Government There are also often special additional time limits that apply to lawsuits against government entities and governmental employees acting in their official capacities, especially for torts as opposed to breaches of contract. These are often much shorter than the usual statute of limitations. Laches Sometimes claims have no statute of limitations at all, but those are the exception and are quite rare. But even when there isn't a fixed deadline for filing a lawsuit, a legal doctrine called laches bars lawsuits when they are filed an unreasonably long time after they arise in a manner that is prejudicial to the person sued. Sometimes the doctrine of laches can even bar a claim in a lawsuit, or certain kinds of relief in connection with a claim in a lawsuit, even if the claim is brought within the applicable statute of limitations. In these situations, this doctrine is similar to the doctrine of estoppel preventing someone from asserting a statute of limitations. For example, if someone knows that the records necessary to defend against a lawsuit are about to be destroyed even though the statute of limitations will not run for another few years, the lawsuit could be dismissed under the doctrine of laches if the person bringing the lawsuit knew that and deliberately waited until after the documents were destroyed to bring the lawsuit. Mootness A claim can also be barred because it has become "moot" which is to say that due to the circumstances that have occurred since a legal wrong was committed, it is no longer possible for a court to provide relief the relief that the person bringing the lawsuit is seeking. For example, in a lawsuit seeking possession of an apartment and no other relief, the lawsuit becomes moot if the person in the apartment leaves the apartment and surrenders possession to the person seeking it, or if the building burns down. | If the question asks, "did you do X" where X is or includes a crime that you could be criminally prosecuted for, you can invoke the 5th amendment in refusing to answer that. I have seen that done and seen that objection to the question sustained in court. However, if admitting to X would provide only civil liability, then the 5th would not apply. At trial, you may also have to take care not to give direct testimony on things that are so closely related that you "open the door" to being required to answer that question. For example, you can't say "I don't owe because I did X" and then expect to not have to answer "So just to be clear, did you do X?" Also, depending on context, invoking the 5th might cause a jury to view your testimony more skeptically (cpast points out that "For civil cases, adverse inferences based on pleading the fifth are totally okay"), and if that's going to come up you should ask your attorney about whether or not it'd be a good idea strategically. | the first two highlighted parts seem to contradict each other. No, in this case they do not. The first highlighted portion refers to works or items produced "for or under the direction of the Company", whereas the second highlight refers to your creations that satisfy conditions (a) and (b). Where contradictions actually exist, the doctrine of contra proferentem entitles you (the non-draftsman of the contract) to adopt the portion or reasonable interpretation that favors your legal position. Also wondering how valid those statements actually are They are valid and become enforceable as soon as you sign the contract or your subsequent conduct reflects your acceptance thereof. it's a matter of privacy. So the question is what I can do or what the reality is of the situation The reality is that you are asked to sign a contract that is abusive and ridiculous. One vulnerability from describing your inventions (presumably in Appendix A) is that the employer gets "irrevocable, worldwide, etc" rights on them as soon as you "use or disclose any [items listed in Appendix A] when acting within the scope of [your] employment". This means that if instead of reinventing the wheel you share or apply any portion of your prior creations so as to enhance your productivity, you knowingly and irreversibly grant to the employer perpetual rights to those items. Legal disputes regarding APIs can become extremely intricate. And, since judges usually have no decent background on IT, even those few judges with integrity are unlikely to grasp the key subtleties that would lead to a correct ruling. "not useful with or related to any Company Interest" is very vague. The company could be interested in literally anything these days. Clauses which are too vague or excessively wide-encompassing are supposedly stricken as unconscionable, unenforceable, etc. However, I personally would foreclose upfront the risk of judicial hassle and decline the abusive contract. Legal issues aside, keep in mind that you are offering your expertise (in terms of supply & demand, you are on the supply side). This fact has a less derogatory connotation than "asking for a job". Accordingly, the relation between the parties should be more leveled. | NO If there were no extenuating circumstances (or they should not have been looked at as they were not presented), the losing party can petition for reconsideration and appeal the decision as a matter of law. The Judge/court of appeals then reviews the case and decides if the verdict stands. But you can't plead new facts at that stage, so if the losing side's lawyer messed up the case, that's up to them, not the judge. If it was a criminal case, the victim can't force the DA to appeal either, though they can try to get an injunction in related civil cases. But no person, or for the matter neither party, can sue the judge at all for misbehavior on the bench because judges have judicial immunity. Even when they did something so out of scope, such as a judge ordering from the bench that a lawyer shall be beaten up by police because they missed a court date, they get immunity as they acted as a judge (Miles v Waco). Indeed, let me quote from the first section of that SCOTUS case (emphasis mine): A long line of this Court's precedents acknowledges that, generally, a judge is immune from a suit for money damages. See, e. g., Forrester v. White, 484 U.S. 219 (1988); Cleavinger v. Saxner, 474 U.S. 193 (1985); Dennis v. Sparks, 449 U.S. 24 (1980); Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U.S. 719 (1980); Butz v. Economou, 438 U.S. 478 (1978); Stump v. Sparkman, 435 U.S. 349 (1978); Pierson *10 v. Ray, 386 U.S. 547 (1967).1 Although unfairness and injustice to a litigant may result on occasion, "it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself." Bradley v. Fisher, 13 Wall. 335, 347 (1872). ... Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Pierson v. Ray, 386 U. S., at 554 ("[I]mmunity applies even when the judge is accused of acting maliciously and corruptly"). See also Harlow v. Fitzgerald, 457 U.S. 800, 815-819 (1982) (allegations of malice are insufficient to overcome qualified immunity). In the example OP posed nobody, not even the police, becomes liable for the actions of Bob but Bob himself: Police does not need to help you, even if they know for a fact that something is happening right now. There's a huge error in the case as presented by OP You start to work up a case, and points 1 to 3 are fine. But you start to get off the rails starting in point 4: The evidence does not say that someone is to be locked up, it only indicates what the facts of the case (upon which is to be decided) might be. The decision if someone is to go to jail or not is only up to the verdict - which happened in dot 5. Dot 5 however indicates that the judge looked at extenuating circumstances which is also evidence, so point 4 is presented incompletely. Let me present a more complete version of point 4: Evidence from side A was presented, as was other evidence by side B. To the victim, it seemed that side A (either her attorney or the DA, not clear from OP) had the better evidence and might get a conviction on side B. But the Judge did weigh the evidence differently than the observer and declared a verdict favoring B in point 5 to the dissatisfaction of the victim The missing bullet between 5 and 6 (a motion for reconsideration or appeal) does not seem to happen. Assuming it did not happen, because months go by, the verdict becomes final and the case becomes res iudicata - the case is closed. Point 6 is a different and separate crime. The case files of the earlier case can get pulled to show a pattern of behavior, but not to re-adjudicate the earlier case. Finally: Point 7 does not matter before the law: If-Then hypotheticals can't be adjudicated. Because the counterpoint to the presented argument in this point is: Would the lawyer of Side A have filed for reconsideration and/or appeal, the verdict would not have become final and waiting for the verdict from the court of appeals, Bob might still await the next step of the trial. tl;dr As presented, the rundown of the hypothetical case does not present anything that the judge could be liable for but instead shows that side A did not take the necessary steps to ask for reconsideration or file an appeal to the verdict they didn't like. The separate incident opened a new case, the hypothetical that side B would sit in jail is conclusory. | A case for negligence or some other tort would likely never reach the stage where we could answer this question, as lawyers are generally immune from suit for their litigation conduct. I don't know of any case with facts likey you've described, but my understanding is that the litigation privilege precludes virtually any tort action based on a lawyer's statements in the course of the proceedings. Florida's Fifth District Court of Appeal, for instance, has specifically acknowledged that claims for defamation, extortion, fraud, perjury, forgery, slander of title, injurious falsehood are unavailable: The policy reasons for the privilege have often been repeated: In fulfilling their obligations to their client[s] and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation. Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309 (Fla. 3d DCA 1989). |
Can police refuse criminal case about stolen mobile phone? How can such crimes be investigated? Mobile phone and some precious things were stolen from my friend, but the police refuses to start a criminal case (proceedings) to investigate the crime. They are saying that the thief cannot be detected. There is no lower limit on the amount of theft in our country (Baltic country, European Union). The crime obviously had been done, so - obviously the criminal case should be opened and investigation started. But the police refuse to do this. Is there case law to appeal such decision? My friend does not know the IMEA code of this phone. But I have heard that police can request (during the investigation in an open criminal case) the call history from the operator and the IMEA code is certainly there. So - the remaining steps for solving the crime are simple - locate the current location, e.g. in pawnshop and then request documentation who has made it a pawn. And the case is solved! So - can police refuse to investigate a crime that can be solved so simply? The case happend in a Baltic country but the practice from the any other EU country is welcome, especially from Germany as it belongs to the continental law and the legal systems of the Baltic countries have borrowed a lot from German law. | Presumably, they at least took a report which could make it possible to file an insurance claim for the stolen phone. But, a good faith belief of law enforcement that is unable to figure out who committed the crime with the resources available to them is a legitimate reason not to investigate and prosecute a crime, even in countries with legal systems based upon the German one where prosecutors have an enforceable legal obligation to prosecute criminal offenses known to them. A prosecutor can't bring a case unless he knows who did it. And, the police may be wise not to try to investigate a crime that previous experience has proven to them is a dead end most of the time for a crime of modest economic value. Most cases of simple larceny are never solved. And, institutionally, the police have to balance the cost of investigating the crime against the seriousness of the crime. Murders and kidnappings are almost always going to take priority for police resources over stolen phones, particularly if investigating the phone theft may require international cooperation that makes the investigation more costly. A key point is that the mere fact that a phone is pawned doesn't mean that the person pawning it is necessarily committing a crime, so even if you find out where the phone is in some pawn shop (possibly in Albania or Turkey, by now), that doesn't mean that the job is over. That person could have bought it innocently and at fair market value from a flea market, from someone who could have gotten it from someone who received it innocently as a gift, from a friend of a criminal fence, who may have bought it not innocently from a true thief. In fact, because criminals respond to incentives like anyone else, it is far more likely that the phone was swiftly "laundered" along the lines I suggest in this example, than it is that it is still in the possession of someone close to the thief. But, only the fence and the thief would have criminal liability. It is a lot harder to solve the crime of a stolen cell phone than you would think, and the agency may simply not be able to justify the resources it would take to investigate that case properly to a situation where someone had a phone stole that was worth maybe 400 Euros in used condition. The more you can do to solve the crime, the more likely it is that they will find that it is worth further investigating until a thief can be identified and apprehended. For example, the company with the network that serves the phone might be willing to cooperate with its owner. Also, the more that you can do to show that this case might crack an entire ring of people involved in a black market in stolen cell phones might make it more attractive to law enforcement. | Criminal charges are filed and prosecuted by the government, on behalf of the public, and there is no requirement for approval or cooperation by the victim. As a policy matter, a DA may decide to not charge a person in case the victim is unwilling (though less so in cases of domestic violence), perhaps because of the widespread impression that the victim has to "press charges" (which indeed they would have to do in the case of private prosecution, which is no longer allowed in the US). The alleged victim's reddit exchanges on the topic are here. An uncooperative victim does not make a good witness, even if they are compelled to testify. The police statement that they cannot pursue an investigation should not be interpreted as a statement of law, it's probably a statement of policy and practicality. | I'm not aware of case law on point, other than Riley, which you mention (which doesn't mean that there isn't any - I'm not a specialist in this area). But, I think that the answer would be that you do have an expectation of privacy because the Riley holding that there was an expectation of privacy in a smart phone didn't really hinge in any meaningful way on the existence of a password. The linked summary of the Riley decision explains the court's reasoning as follows: Chief Justice John G. Roberts, Jr. wrote the opinion for the unanimous Court. The Court held that the warrantless search exception following an arrest exists for the purposes of protecting officer safety and preserving evidence, neither of which is at issue in the search of digital data. The digital data cannot be used as a weapon to harm an arresting officer, and police officers have the ability to preserve evidence while awaiting a warrant by disconnecting the phone from the network and placing the phone in a "Faraday bag." The Court characterized cell phones as minicomputers filled with massive amounts of private information, which distinguished them from the traditional items that can be seized from an arrestee's person, such as a wallet. The Court also held that information accessible via the phone but stored using "cloud computing" is not even "on the arrestee's person." Nonetheless, the Court held that some warrantless searches of cell phones might be permitted in an emergency: when the government's interests are so compelling that a search would be reasonable. Justice Samuel A. Alito, Jr. wrote an opinion concurring in part and concurring in the judgment in which he expressed doubt that the warrantless search exception following an arrest exists for the sole or primary purposes of protecting officer safety and preserving evidence. In light of the privacy interests at stake, however, he agreed that the majority's conclusion was the best solution. Justice Alito also suggested that the legislature enact laws that draw reasonable distinctions regarding when and what information within a phone can be reasonably searched following an arrest. The 4th Amendment expressly protects "papers" in your possession, which can't be password protected, and a smart phone file is analogous to a "paper" for 4th Amendment purposes. Your expectation of privacy in an unlocked smart phone flows from your exclusive possession of the phone as a piece of tangible personal property containing information, and not just from the password protection. In the same vein, I don't think that you would need to have a lock on a diary to have an expectation of privacy in it. This said, this is a cutting edge area of the law and password protection for a smart phone provides both more practical protection and potentially a less ambiguous cases of legal protection from search (since it brings you closer to the facts of Riley), and is therefore still a good idea. | You are not obliged to say anything to a police officer during a traffic stop, in fact you are generally better off staying silent. This is your Fifth Amendment right to silence. The only exception to this is that the officer could ask for your name and you are obliged to give it under Arizona Laws 13-2412, but the answer to that is language-independent and is usually already answered with your driver's license in a traffic stop. If you did choose to communicate only in German, this may have the effect of frustrating the officer's investigation but if you only make truthful statements in German it is unlikely to be obstruction of their investigation. Arizona Laws 13-2409 is I believe the relevant section (emphasis mine): A person who knowingly attempts by means of bribery, misrepresentation, intimidation or force or threats of force to obstruct, delay or prevent the communication of information or testimony relating to a violation of any criminal statute to a peace officer, magistrate, prosecutor or grand jury or who knowingly injures another in his person or property on account of the giving by the latter or by any other person of any such information or testimony to a peace officer, magistrate, prosecutor or grand jury is guilty of a class 5 felony, except that it is a class 3 felony if the person commits the offense with the intent to promote, further or assist a criminal street gang. In general, a law that required you to give answers to a police officer during an investigation in English if you understand English and have waived your right to silence would violate your First Amendment right to free speech (as it is in effect "forced speech"). However, you would need to be careful not to tell the police officer that you do not understand English if that is not true, as it could be misrepresentation. Police officer training likely includes instructions for detaining someone that cannot understand them and the police can detain you and wait for an interpreter to continue their investigation if they determine that is necessary. You may actually be shooting yourself in the foot by doing this, because the time it takes for them to get an interpreter likely extends the amount of time the detainment can last while remaining "reasonable," so you may be waiting by the side of the road longer than you would have if you had simply told the officer that you were invoking your right to silence and followed the officer's instructions without speaking. As an aside, as more people are educated on their rights via the Internet and understand why they should always invoke their right to silence when detained, police officers will get more used to people they pull over immediately and politely telling them that they are going to invoke their right to silence. I doubt most police officers will hold it against you as long as you are otherwise cooperative and don't yell at them or berate them. | Basically, it is up to the court. The relevant law is the Police and Criminal Evidence Act (PACE). You don't give much in the way of specifics, but it sounds like you confessed something to the police at the side of the road immediately after the accident, and now wish to dispute that confession. If you are taken to court and the police want to introduce your confession as evidence then you (through your lawyer) can ask the court to rule it out. You may be able to do so on a number of grounds. Was the confession properly recorded at the time? Were you treated in an oppressive manner, such that you felt you had to say what the police wanted to hear. Did you think you might get more favourable treatment if you said what the police wanted? For instance, did you think you might be allowed to go home once they were satisfied? Were you given a proper rest, or were you in a mental state that might cause you to say things without understanding the consequences (it sounds like this would be your main argument, but consider the others too). [Edit] If you needed medical treatment that would also be relevant. Were you properly cautioned (that speech beginning "You do not have to say anything...") before the police asked you questions. If you think you may be facing criminal charges then you should get yourself a lawyer sooner rather than later. A lawyer will know all about this and be able to navigate the relevant legal processes on your behalf. A bit of background: back in the 1970s the police frequently attributed incriminating statements to suspects when arrested, such as "Its a fair cop, guv", or "Who ratted on us?". The rules in PACE were made to stop such "verballing". | england-and-wales In England and Wales, with the exception of private prosecutions, complainants don't 'press' (or drop) charges. There are several public authorities that can prosecute criminal offences but generally we talk about circumstances that involve the police and the Crown Prosecution Service (CPS). When a crime is reported to the police the police investigate. When the police complete their investigation they refer the case and send the evidence to the CPS. (A minor offence such as low value shoplifting can be handled by the police, although if the case goes to court it must be reviewed by the CPS before the first hearing.) Generally the CPS decides whether to prosecute based on 'the Full Code Test'. In short: "Is there enough evidence against the suspect to provide a realistic prospect of conviction?" "Is it in the public interest to prosecute?" (In urgent situations the CPS might decide it's necessary to decide based on 'the Threshold Test'.) The CPS prosecutes on behalf of the Crown, not the complainant. A criminal case is named along the lines of Rex/Regina or R. v Alex, not Bob v Alex. Sometimes it may be difficult to proceed with prosecution if a complainant (or witness) decides not to cooperate or sometimes the CPS might decide not to prosecute because of the complainant's circumstances. But the CPS is allowed to prosecute without the complainant's approval or cooperation. Under the Victims' Right to Review Scheme, in some circumstances a complainant can seek a review of a CPS decision not to prosecute or decision to stop a prosecution. | From a US perspective, in a word, "no". Firstly, "presumption of innocence" is in a trial, not in police interactions. Being arrested does not violate the presumption of innocence. Police do not need any reason to interact with you or ask you questions. Police can arrest you if they have probable cause to suspect you have committed a crime, but this is not always necessary. More on this later(in the fourth section). Secondly, I wouldn't describe requesting to see your ticket, or any document as a "violent communication", in general. It may be rude or insulting, but not violent. (Also "violent communication" is not a legal term. The closest legal terms, verbal assault and threatening communication, are also not this.) More over, there is no indication of am implication of lying in this request. Thirdly, there are many situations in which possessing a document or credential is not sufficient; one must legally display or present them upon request. For example, multiple occupational licenses such as liquor licenses and barber/cosmetology licenses require that the licenses be prominently displayed; whereas, in California at least, a vehicle driver on a public road must not only possess their driver's license and proof of insurance, they must produce them upon the request of any law enforcement officer (Source: https://www.dmv.ca.gov/portal/dmv/detail/pubs/brochures/fast_facts/ffvr18). Fourthly, there are situations in which you can be legally searched and questioned without reasonable suspicion. Examples of this include boarder searches and sobriety checkpoints. Sources: (US Supreme Court rulings): https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte; https://en.wikipedia.org/wiki/Michigan_Department_of_State_Police_v._Sitz A note on sources: bdb484 and I have opposing court case sources. My sources have binding precedent over all courts in the US, save the US Supreme Court, whereas theirs don't have any binding precedent, but are more directly on-topic. | No If she has probable cause, yes. The question is whether "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts [Bob is a thief] are probably true"? Its likely that the answer to this question is yes. None No Charlotte listens to Alice, Charlotte asks Bob questions which Bob may or may not answer. Charlotte can ask Bob to produce the receipt, Bob doesn't have to. Charlotte can ask to search Bob, Bob doesn't have to consent. If Bob tries to leave, if Charlotte has reasonable suspicion the Bob has committed a crime (which she could certainly justify) she may detain him temporarily without arrest. If Charlotte has probable cause to believe that Bob has committed a crime (which she could probably justify) then she can arrest him. |
Create a lead sheet and play a song in a church service I am an amateur musician who often performs (sings, plays guitar, plays piano) at church. I attend a Unitarian Universalist congregation, and so the songs are often secular ones (a recent one was Lenny Kravitz's "Let Love Rule"). I play by ear, so my work process is the following: Find the lyrics via Google and copy them to a MS-Word file Find the song on Spotify or Youtube Listen and write down the chords on the lyrics sheet (i.e. create a lead sheet) Decide if the native key is appropriate. If not, transpose the chords to the desired key. Practice Perform it in the church service (utilizing my self-created lead sheet) Are there any copyright issues with what I described? Would it be any different if I shared my lead sheet with a couple of friends who performed the song with me? I understand that no license is needed to perform any type of music in a church service. I suppose my question pertains specifically to my creating and utilizing the lead sheet. | Recording the original work and editing that record is a breach of copyright. You are taking unauthorised copies of the original music and lyrics when you make the notes, and creating derivative works when you alter the notes of the song to match what you think they should be. Performing the songs is a breach of copyright in countries that don't provide for it explicitly (the USA is notably strange on this point). You cannot simply just take a piece of music and perform it this way everywhere, even for church service. In sum, what you're doing is at least partly and could be fully illegal. | By "buying the song" on Gumroad you don't actually buy the song, you buy the right to do specific things with that song. I couldn't find the exact license terms, but for 800 Yen (about $6) for a whole album I highly doubt that this will include much more than the right to listen to the song on a private device. The rights to publicly perform, reproduce, redistribute, use commercially etc. usually cost a lot more. So if you want the rights to use the song in your own video, you will have to negotiate the purchase of a license which allows you to do that with the creator. Or if they reassigned their copyrights to a music label or copyright collective (which some music artists do), with that organization. There are some exceptions in the copyright laws of some countries where you can use parts of a song without a license. For example, the "fair use" exception in US copyright law if you review, discuss or analyze a song. But such exceptions usually don't apply if you use the song as background music, adapt the song into an own work or even just reupload the song on your own channel. | First of all, this is probably a poor idea even if it is legal. Verse, and song lyrics, are notoriously hard to translate well, and make poor examples for language learning, They tend to employ metaphor, allusive language, and idiom heavily, and will in many cases distort the sense of the language for the sake of rhyme, meter, or other auditory effects. But suppose you still want to go ahead. The developer of such an app could use songs old enough to be in the public domain. "The Star-spangled Banner' for example is not protected by copyright. Neither is the French national anthem, the La Marseillaise. Most well-known songs published before 1900 will not be under copyright. But more recent songs will almost surely be protected. The use of a line or two from a song might well be permitted under fair use (in the US) or fair dealing (in those countries that recognize this exception to copyright). Use of the entire lyrics of any given song would be more questionable. The use for educational purposes would tend to favor the applicability of any such exception, but the availability of the whole lyric (or even a major part) might serve as a replacement for the original, and harm the market for the original. No one can ever be sure in advance if a given use will be ruled to be a fair use. That determination depends heavily on the specific facts of each case. It would avoid risk to use songs that are out of copyright, or short sections of songs, if songs are to be used at all. | The lyricist and composers already have copyright. Copyright exists for the moment of creation: registration is not necessary to enforce copyright rights and to grant licences. Registration in the US is merely useful if you want to prove that you own the copyright which otherwise would require providing evidence of the date of creation, priority etc. Most countries do not have copyright registers. Similarly, you will have copyright in the derivative work of the soundtrack from the moment of its creation. | Sound recordings can be, and new ones normally are, protected by copyright. The copyright would usually be held by the person who made the recording, or that person's employer, not by the speaker if that is a different person. Use of such a recording without permission might well be copyright infringement. But more clearly and directly, broadcasting a statement: I am {performer} and you are listening to {song name} on my favorite station {station name } without authorization from the performer would in many jurisdictions violate the performer's right of publicity, giving the performer grounds to sue the station. It might well also be false advertising, implying that the performer had endorsed the station when s/he has not done so. That would depend on the specific laws of the jurisdiction where the broadcast was made. A suit over publicity rights or an action for false advertising would probably be simpler than a copyright suit in such a case. I think that most if not all such announcements are made with the consent of the performers involved, and are probably recorded directly by such performers. (For one thing it is usually in the performer's interest to cooperate with stations and networks that play the performer's work.) If such announcements were somehow artificially synthesized, but with the permission of the performer, and of any owner of copyright in any recording used, I don't think there would be any legal problem. If an AI was trained to create a good imitation of a person's voice with9ut diretly copying a recording, I am not at all sure if there would be any copyright infringemetn under current law. That may be an area where the law will need to change to respond to the technology. But if such an imitation were used without permission to make the kind of statements discussed above, the personality rights issue and false advertising issue would still be there. Those do not in any way depend on whether the announcement uses a copy of a recording or not, those are both about the use of someone's name and reputation without authorization. In fact, even if the announcement did not pretend to use the performer's voife, those woudl still bne an issue. Suppose the announcer saids, in his orm her own voice: {Performer} said to tell you that s/he is glad thit his/her song is being playing on his favorite outlet {station name}. There is no technical fakery there, deep or shallow, but if done without authorization it is still a problem, or would be in some jurisdictions at least. If technology is used to create a plausible imitation of someone's voice, but it was not distributed with any claim, direct or implied, to be that person, then the case is different. I suspect that in most jurisdictions there would be no grounds for legal action, just as celebrity imitators do not need permission as long as they don't fake endorsements. | Not very novel What you are talking about is a derivative work. This is arguably the most famous example: It's an interesting example because Leonardo da Vinci did not have copyright in the original but Marcel Duchamp and Francis Picabia do have copyright in the derivative. Even though the changes are physically small, they are enough. A crucial factor in current legal analysis of derivative works is transformativeness, largely as a result of the Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc. The Court's opinion emphasized the importance of transformativeness in its fair use analysis of the parody of "Oh, Pretty Woman" involved in the Campbell case. In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is. For an author to have copyright in the derivative they must: Meet the (low) threshold of originality for copyright to exist. Make their derivative lawfully - either because they have permission or because their use falls under an exception to copyright like fair use or fair dealing. However, they do not have copyright in the original elements. For example, I could take the Mona Lisa and give her different clothes, a different background or a hat I will not be infringing their copyright. If I give her a different style of moustache? However, there is an issue with "I have copyright on the contents of the post" when you don't. Even if your work is derivative, you do not have copyright in the original parts and do not have the right to licence them. So, for example, this post is a derivative work of the Wikipedia page linked to above and I have copyright in my original contributions because: They meet the threshold of originality I have permission to make the derivative either through the Wikipedia licence or because my use is fair use. I can give Stack Exchange a licence for my work but I cannot give them a licence for the original work including, for example, the image and quote above. So, someone could quote my entire answer subject to the licence or fair work, but they couldn't copy just the image or quote. | The reason is 17 USC 106: the owner of copyright under this title has the exclusive rights to do and to authorize any of the following... (2) to prepare derivative works based upon the copyrighted work The original picture is the underlying protected work. The ASCII reproduction is a derivative work. If you get permission to make the derivative work, it is okay. Otherwise, it is copyright infringement. There is an escape clause, "fair use", which amounts to taking a chance that you won't be sued and then arguing that you didn't do them any prohibited harm. If you make any money off of the game, you have a major strike against you. I suggest reading the fair use FAQ; basically, it is really hard to know how a fair use defense will fare, but based on prior cases, I'd say it's infringement, not fair use. | In German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content). If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court. Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms. Also note that everything said is only based on my own knowledge and can not be used as safe legal source. |
When a contract is being analyzed in court, is it the understanding of the parties or the written contract that is to be established? This is a difficult question to phrase so bare with me. From reading questions on this site, I understand that a written contract (e.g. a lease) is only a written record of the actual contract, that is to say the understood "abstract" contract takes precedence. So someone can't argue something silly like "the contract said I must pay them $100 but never specified the currency". But in complex situations, different parties may have different interpretations of the contract, even after signing it in writing. Just because something is in writing doesn't mean it's clear. My question is, isn't it wrong to think that in court the judge and jury are trying to establish the actual understood contract? It is very well possible that the parties were not on the same page when the contract was formed. If this were the case, then what is the job of the judge/jury? For example if Bob and Joe are going to court because Bob believes Joe owes him $100 in accordance with a contract they both signed, but Joe believes he doesn't, if the contract really is ambiguous and both Joe and Bob really do believe they are in the right, what is the job of the Judge and Jury? You can't really say it's to find out who was right because there was a misunderstanding when the contract was formed - but I don't think that invalidates the contract because businesses do this all the time to rip people off for money :P Is it possible the a judge/jury actually decides who wins the case based on the judge's/jury's own interpretation of the contract and not the plantiff's or defendant's? UPDATE: sorry for the confusing question, I think what I was trying to get at is what happens when a party finds an "alternative" interpretation to a clause before agreeing to it, so they can find a loophole if/when a dispute arises. I think large corporations do this a lot. | The court's job is to resolve the dispute. The parties are in court specifically because there isn't agreement on what the terms of the contract were or even if there is a contract at all. If one of the parties contends that there is no contract then the court will have to determine if there is or isn't. Even if both parties agree there is a contract the court will need to satisfy itself that there is. This is a jurisdictional matter; in the absence of a contract the court can't make a ruling. Having decided there is a contract, there is something about the contract they don't agree on - if they agree then why are they in court? Each party will state their position on the dispute and provide evidence that supports that position. The court will decide based on the evidence and on the balance of probabilities which version is more correct. It is a given that the parties are in dispute about the exact terms of the contract, whether this was because of an initial misunderstanding, someone didn't read it or someone saw an opportunity to screw someone else doesn't matter. The court will decide what it thinks the parties thought (or should have thought) at the time on the basis of the evidence and the law. | as a witness. You secretly disapprove of the thing taking place Does this actually invalidate the document (as not properly witnessed)? No. In regard to the substance of a contract, witnessing does not imply, entail, or require approval thereof by the witness. The meaning or relevance of a witness's signature is nothing more than him or her certifying that the act of "2+ other parties entering a contract" took place indeed. And are you committing a crime by doing it? I highly doubt it, regardless the country or jurisdiction. The witness's [bizarre] act of acquiescence falls short of criminal conduct such as (1) forging someone else's signature, or (2) fraudulently "acknowledging" the presence of the contracting parties when in fact at least one of them was totally absent. Only if the witness subsequently acts in a way that hinders the purposes of the contract, thereby causing harm, the harmed party(-ies) might sue the witness for tortious interference with business or relation (or its equivalent in other non-U.S. jurisdictions). For instance, suppose a contract-based transaction requires involvement by a third party, who is hesitant to perform the transaction because suspects that the witness's signature was forged. That suspicion may prompt the third party to inquire of the witness whether he actually signed as witness to the contract. If the third party rejects the contract-related transaction due to the witness's [false] denial, the harmed party(-ies) in the contract may sue the witness for any losses (examples: bounced checks, costly delays, missing of deadlines, provable loss of business opportunities) that his false denial caused. | I finally found the actual transcript of the voir dire part of the case mentioned in the question. http://www.groklaw.net/articlebasic.php?story=2012090614295190 As can be evidenced from the transcript, the judge has specifically instructed the two jurors working as engineers at the local tech companies that they'd have to "forget" what they know about both the software engineering and the patent law itself, too, starting their work on the whole case with a completely clean sheet, using a very simple criteria for making decisions: One side or the other is going to have the burden of proof on -- one side has the burden of proof on some issues, the other side has the burden of proof on other issues. When you go into the jury room to deliberate after you've tried your hardest to understand the evidence, if they haven't educated you on it or if they haven't persuaded you, the party with the burden of proof loses. It's that simple. You don't have to -- you have to make a good faith effort to understand it, but if the party with the burden of proof has failed to do that, the party with the burden of proof loses. That's the standard. You have to -- you, the jury, decide. Now, what you cannot do is bring to bear something that you've learned in some other case, some other patent case, about how some piece of equipment works or something like that. You can't do that. It has to be based on the record here. Then, after a short break and a consultation with the lawyers, where Oracle seems to have expressed some concern to having the computer experts be on the panel, which subsequently prompted the judge to declare the following to the two potential jurors who worked at Cisco and HP: So this is really going to be directed at both of you, but, you know, you come to the party, so to speak, with some prior training that bears upon the subject matter we're going to be hearing a lot about here. That's okay. That's not disqualifying, but you -- it's okay to use your common sense when you render a verdict, but you cannot add to the record in court something that you know about the way software programming works that the witnesses didn't actually testify to. You see what I'm saying? You've got to decide the record -- the case based on the record made here as opposed to adding into it what else you may have known about the way programming and software works. Since both jurors had so much software and patent experience that they couldn't disregard it easily, they were thus both excused (page 95 of 224). All right. I think it would be too hard for you to sit in this case and sort out what you knew already against what is proven or not proven here, and itwould not be fair to the parties to have that extra burden even though you two actually know something about the subject. It's in a way too bad, but it's for the best. So you two are excused to go back to the jury assembly room. Thank you. The other instructions that the judge gives to the potential jurors is also worth reading (starts on page 36 of 224) The full transcript is at http://www.groklaw.net/pdf3/OraGoogle-942.pdf. In summary -- jurors are only allowed to talk to one another when the deliberation process starts, and, no, they are not allowed to bring any "baggage" to the case at stake. | Contracts do not have to be written and signed on pieces of paper, except in a few cases specified by law. Writing style (ordinary style of talking vs. high-register formulaic language) does not affect the validity or a writing in contract law. You do have something in writing. What matters most is what he actually said (exact words, not your belief of what it must have meant), and how it relates to any existing contractual obligation. For example if the message says "You're fired, turn your badge in at the desk. I'll think about giving you two weeks pay", that's not an enforceable promise. But your existing contract might say "You get 2 weeks severance pay when we fire you", and that can't be walked by by saying "I'll thinking about it". And it also depends on whether there are any laws mandating severance pay (but California does not have any mandatory severance pay law). | None of the three factors you identify is correct. With respect to reason (1): The belief that a judge is likely to be landlord friendly on the merits, while a factor favoring a bench trial is actually a pretty minor one. Empirically, actual outcomes on the merits are far less different between jury trials and bench trials than you might expect. There aren't a lot of "moving parts" in a typical landlord-tenant case that afford the trier of fact much discretion. Usually there is evidence quantifying the amount of damage to the property in dollar terms and the amount of rent owed is usually just math. It isn't like a personal injury case where pain and suffering damages are highly subjective and even liability which hinges on a common sense assessment of what constitutes "reasonable case" is very vague. There may be some wiggle room in a landlord-tenant case to disagree on the credibility of witnesses and to differ in opinion regarding what constitutes "reasonable wear and tear", but the differences in litigation costs between a jury and bench trial will usually be greater in magnitude than the differences in outcomes on the merits between the two. Of course, in the rare case where the tenant is suing the landlord for a personal injury on the premises, the difference in outcome on the merits does matter quite a bit and a judge is much less likely to enter an extremely tenant favorable damages award than a jury is to do so. But, usually, lawyers for landlords aren't thinking about this scenario very much when they write a lease because it doesn't come up very often. With respect to reason (2): The landlord actually probably has a procedural advantage over the tenant in a jury trial where having a lawyer is more important than a bench trial, but this is pretty irrelevant, because landlords are overwhelmingly more likely to win than the tenant anyway. It isn't hard to prove that somebody didn't pay all of the rent that was owed, or that they damaged the premises. Landlords care more about litigation costs than they do about their odds of winning on the merits. With respect to reason (3): And, the judge interprets of rental agreement for the jury - the jury only decides the factual issues that are disputed with regard to the rental agreement as the judge explains what it means to them. So, confusion isn't a major concern either. Instead, the biggest factors are timing and litigation costs. A jury trial is longer, because it takes time to select a jury, to prepare jury instructions, to instruct the jury, and for the jury to deliberate. A landlord-tenant bench trial might be half a day or one day long, while a jury trial on the same matter might take two or three days. Selecting and charging a jury alone takes about half a day, and instructing a jury and having it deliberate takes another half-day at least. The longer duration of a jury trial means that it takes longer for a case before a jury to be scheduled than a bench trial, because there in any given time frame, there will be more slots available for short trials than long ones. A half day bench trial might be possible to schedule two or three months out, while a two or three day jury trial might not fit into a judge's calendar for five or six months. And, a lawsuit involving a jury trial is more expensive to conduct. It probably takes something on the order of 32 more hours of lawyer time to litigate a case that goes to a jury trial than a case set for a bench trial, which is on the order of $8,000 at $250 per hour. Generally, a tenant who is being evicted or owes rent is either judgment-proof, or at least hard to collect from, so the landlord has an interest in keeping litigation costs low. The out of pocket costs other than attorney's fees are also higher in a jury trial - there is typically a jury demand fee and a need to prepare a juror notebook for each juror. The need for better quality exhibits (e.g. exhibits may need to be blown up and put on an easel, or made into a powerpoint that can be see by all the jurors, rather than just photocopied and put in a single binder for a judge). | The clause refers to what might be a lawsuit, which can be adjudicated in appropriate government courts (cf. the choice of law clause), but instead would be submitted to an arbitrator. The contract will spell out the details. An offence is a punishable criminal act, which is outside the scope of civil suits. In US law, the government prosecutes the wrong-doer, not e.g. one of the parties to the contract (if for example the vendor ships an illegal substance to a customer). The same goes for a "breach of law", depending of course what you mean by breach of law. A breach of contract could not be pursued in court, given a mandatory arbitration clause. The fact that the two parties are in different countries does not nullify a mandatory arbitration clause, at least between the US and the UK. | First of all, there is no breach - they said they would pay it "over the course of the first year"; in what way is the first week not part of the first year? Second, breaching a contract doesn't always allow the aggrieved party to terminate it: in fact, being able to terminate is only for the most egregious of breaches or ones that are specifically spelled out as giving a right to termination. For example, failure to deliver (or pay) on time or in full would not allow termination, only damages. | Possibly. I am analyzing this issue under generally applicable, majority, common law rules of law (applicable in the U.S. (except Puerto Rico and Louisiana) and in most countries that are or were part of the British Commonwealth), when not modified by statute or regulation. If there is a contract regarding what is to be done, the measure of damages is "the benefit of the bargain". And if the benefit of the bargain included an express or implied warranty that the transaction would be conducted in a manner that obtained a tax benefit and that tax benefit was not obtained, the difference between the economic value of the agreed result and the actual result would be recoverable as monetary damages (which would then raise the meta issue of the tax treatment of the recovery which is beyond the scope of this answer). Two other kinds of claims in addition to a straight breach of contract claim are also plausible. One is a claim for breach of the duty of good faith and fair dealing arising in every contract, which requires that someone who has discretion in the way that they perform a contract to do so in a manner that reflects the intent of the parties regarding the objectives and purposes of the contract when carrying it out. By intentionally disregarding the intent of the parties, in how the transaction would be carried out, damages in the form of additional taxes could be incurred. Another is a claim for breach of fiduciary duty in a case where the person carrying out the transaction and the person for whom the transaction was carried out are in a fiduciary relationship, such as a customer and a broker with discretionary authority, or an agent and principal, or a lawyer and client. Usually, when someone is entrusted with discretionary management of someone else's money or property, a fiduciary relationship arises by operation of law. The taxes unnecessarily and intentionally incurred in this case could also be damages for a breach of fiduciary duty. On the other hand, in contracts and transactions of this character, there would frequently be an express contractual waiver of any right to recover for taxes incurred, allegedly wrongfully, in the transaction. This waiver would be effective against a claim for breach of contract or a claim alleging that a fiduciary negligently violated a duty of care owed to the person upon whose behalf the transaction was conducted. But, waivers of rights are generally ineffective and void as contrary to public policy, when the wrongdoing purportedly waived is intentional or conducted in bad faith in a manner that is knowingly contrary to the mutual intent of the parties to a transaction. So, while a waiver would be effective if someone accidentally incurs additional taxes for someone else, it generally wouldn't be effective if someone screwed up the tax outcome intentionally as the question proposes in its example. |
Is there an offence when you kill to prevent a murder? Suppose Person A shoots and kills Person B, who was about to shoot to kill Person C, and Person C makes a statement to police to say that if Person A hadn’t intervened, there was no doubt they would have died (i.e. Person B actually pulled the trigger, and only missed due to a bullet to the head). In the United Kingdom, what crime could Person A be charged with? What might be the minimum sentence, if they can be found guilty? | Murder Which is the unlawful taking of a life with intent to do so. However, the doctrine of self-defence can make killing lawful: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. if the prosecutor is of the opinion that the force used "is reasonable in the circumstances" they may not lay charges. If they do lay charges the judge may decide that there is no case to answer before going to trial if self-defence applies. If there is a trial this will probably be the strategy the defence employs and they may or may not be successful. If convicted the penalty is life imprisonment. Also, there is no UK law: there is the law of England and Wales, the law of Scotland and the law of Northern Ireland. | Any country is free to decide what actions are considered to be crimes, and what crimes are prosecuted depending on whether you perform the action in the country, outside the country, and depending on whether you are a citizen, a resident, both, or neither. They can also decide what are accepted defences in court and which are not. Any other country is free to decide under which circumstances they will ever extradite someone to that first country. Now you have to check the laws of the individual countries. | There is a big difference between knowing something and proving it. A lawyer who knows a client is guilty can take steps to prevent the state from proving guilt. (E.g., motion to exclude evidence, cross examining witnesses.) The belief that a client has committed a crime does not necessarily mean one knows what specific crime was committed. Is a killing Murder 1, Murder 2, or manslaughter? There are defenses even when an act may be a crime. E.g., self defense, insanity, justifiable. Lawyers are not permitted to assist in perjury. E.g., allow the client to testify to something he knows is false. | This is manslaughter of the vehicular variety Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:... (c) Vehicular— (1) ... driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. This is what they call a wobbler, and could be charged as a felony or a misdemeanor. In the latter case, the maximum penalty is a year in county jail and in the former it is six years in state prison. If the cause was ordinary negligence, it is just a misdemeanor. The details of gross negligence are set forth in the jury instruction CALCRIM 592 A person acts with gross negligence when: He or she acts in a reckless way that creates a high risk of death or great bodily injury; AND A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with gross negligence when the way he or she acts is so different from how an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. The "absent-mindedness" defense seems a bit far fetched, but still not everybody who drives inattentively is prosecuted for a felony, or even a misdemeanor. However, it is really hard to imagine not being acutely aware of the fact that people drive on the right side of the road here. Without a more-detailed story, I don't see a basis for deciding what level of negligence a prosecutor is likely to argue for, and what the prosecutor's agenda is: somewhere between no prosecution, and (most likely) misdemeanor manslaughter. | england-and-wales It depends on Alice's belief about who Mallory is and what Mallory is doing and whether Alice's force was reasonable. If Alice is aware that Mallory's action is lawful, then Alice cannot use force to protect Bob. Is Mallory a doctor who is lawfully withdrawing treatment? (You say there is "no law allowing Mallory to disconnect Bob's life support" but I'm not aware of a jurisdiction that requires indefinite treatment regardless of the circumstances.) If Alice honestly believes Mallory is attempting to unlawfully kill Bob, Alice can use force to protect Bob. Is Bob on life support because of Mallory's previous attempt on his life; is Mallory a hitman, a vengeful spouse or some other person with no lawful reason to kill Bob? Crown Prosecution Service guidance: Self-Defence and the Prevention of Crime: Self-defence is available as a defence to crimes committed by use of force. The basic principles of self-defence are set out in Palmer v R, [1971] AC 814; approved in R v McInnes, 55 Cr App R 551: "It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary." The common law approach as expressed in Palmer v R is also relevant to the application of section 3 Criminal Law Act 1967: "A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large." ... In assessing the reasonableness of the force used, prosecutors should ask two questions: was the use of force necessary in the circumstances, i.e. Was there a need for any force at all?; and was the force used reasonable in the circumstances? The courts have indicated that both questions are to be answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr App R 276), (R. v Oatbridge, 94 Cr App R 367). To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive. | No. It is illegal to hire someone to kill someone else. Even if the killer enjoys diplomatic immunity, the person hiring the killer has committed a crime. As to your last paragraph, that is properly a separate question, but the answer is that they can't do it because murder is illegal. | It looks like this is covered by article 34 of the criminal code you linked: ARTICULO 34. - No son punibles: [...] El que obrare en defensa propia o de sus derechos, siempre que concurrieren las siguientes circunstancias: a) Agresión ilegítima; b) Necesidad racional del medio empleado para impedirla o repelerla; c) Falta de provocación suficiente por parte del que se defiende. Se entenderá que concurren estas circunstancias respecto de aquel que durante la noche rechazare el escalamiento o fractura de los cercados, paredes o entradas de su casa, o departamento habitado o de sus dependencias, cualquiera que sea el daño ocasionado al agresor. Igualmente respecto de aquel que encontrare a un extraño dentro de su hogar, siempre que haya resistencia; English (my translation, no guarantees): ARTICLE 34 - Not punished are: [...] Someone who acts in self-defense or in defense of their rights, as long as the following circumstances apply: a) illegitimate aggression b) a rational need for the means used for preventing or repelling the aggression c) a lack of sufficient provocation on the part of the defender It is understood that these circumstances apply with respect to someone who during the night defends from a housebreaking or a breach of the enclosure, the walls or entrances to their home, or the home of their dependents, no matter what damage is caused to the attacker. Reading these rules, which look quite similar to the law in most other countries, I'd say shooting an armed intruder would be covered. It would probably already be covered under the general rules ( a) to c) ): There is an illegitimate aggression, and shooting is necessary for stopping the agressor, because no milder means is practical in the situation. Additionally, the last paragraph would apply, which provides additional protection to someone defending their home, so even if a judge decided that normally shooting someone attacking with a knife is not necessary for protection, it would still be ok for home defence. | There are problems with the claims. In summary: someone that in Sweden acts to defend themselves while "in peril" when subjected to — or are in imminent risk of — a criminal attack, will not the convicted, unless the act is "blatantly unjustifiable". Context We have a problem here in Sweden with people being ill-informed about the right to self-defence, and this is compounded by people with opinions spreading myths about it. Often these myths err on the side of claiming you have less rights than you really have. So, two things before we go on... The characters may have been unreliable. Do not ever assume that just because a character says something in a work of fiction, that the character is meant to know what they are talking about. And even if they are meant to know what they are talking about... The author may have been unreliable, and done their homework poorly. Keep this in mind... That said, the right to self-defence is not infinite. The law According to the Swedish Criminal Code (Brottsbalk, 1962:700), Chapter 3, §§ 1-2 and 6... If you intentionally kill someone, you get convicted of "murder" If you intentionally kill someone, but there were mitigating circumstances, you get convicted of "manslaughter" If you act in reckless disregard for the risk your actions are causing, and this leads to the death of someone, you get convicted of "causing the death of another", or what we here can call "reckless killing" And Swedish Criminal Code (Brottsbalk, 1962:700), Chapter 24, § 1 states that an act performed in "peril" shall only lead to a conviction if the act was "blatantly unjustifiable". "Peril" is enumerated to exist in cases of... A commenced or imminent criminal attack on person or property A person has gained or trying to gain unauthorized access to a room, house, yard or ship A person refuses to leave a domicile after being told to If — when caught red-handed — a person uses violence or threats of violence to resist stolen property from being retaken When judging whether an act is "blatantly unjustifiable", the prosecutor must look at... the nature of the attack that caused the peril the significance of that which the attack was aimed at (such as a human life) other significant circumstances That last bit is interesting because it takes human psychology into consideration, and let the defendant's assessment of the peril be the standard by which the act is judged. The claim Let us start with the easy bit first... "if she killed the intruder, under Swedish law, she could very well be charged with manslaughter, and possibly murder if it could be proved that she placed the golf clubs around the house ahead of time." Murder? No. According to the Swedish Criminal Code (Brottsbalk, 1962:700), Chapter 3, §§ 1-2, a person that kills an intruder in their home could at the most be charged with manslaughter, because there are mitigating circumstances, i.e. the person felt threatened and there was a home invasion in progress. In order for this to become murder, she would more or less have to have invited the assailant or in any other way drawn them in with the intent to kill them. Yes, she prepared to defend herself or a potential intrusion, but without knowing for certain that the assailant would come at certain time or at least a certain day, any kind of premeditation towards killing is more or less impossible to prove. With this, murder is off the table. That claim is simply wrong. Whether it is the author or the character that is erring, I cannot say. So, manslaughter then, or the even lesser degree, called "causing the death of another", or reckless killing. Manslaughter would come up of she — when whacking them with the club — did so with the intent of killing them. The operative word here being intent. The prosecutor has to prove that intent. Sure, we can dream up scenarios where this is the case; the classic reason for why people do get convicted even acting in peril is when they keep harming the assailant after the danger has passed. But — again — just preparing for a potential intrusion is not enough to prove that intent. Finally, reckless killing. This is where such cases usually ends up. And — again — this usually happens because the defendant did something when the danger has obviously passed; the criminal attack was no longer imminent but passed. Conclusion Unless the protagonist in question had set up lethal traps; unless they had foreknowledge of an attack; unless they invited the assailant in with the intent to kill them; unless they fend off the attack and gets themselves into a perfectly safe situation and then proceeds to beat the assailant to death; and unless all of this can be proved, then it cannot become murder. Manslaughter or reckless killing, yes, there will be an investigation for that, but from the description of the situation — the protagonist fearing the assailant is dangerous and means them harm — preparing a home defence with strategically placed golf clubs does not in any way preclude the prosecution being dismissed as justifiable self-defence. Only(!) if the home invasion was obviously harmless, and/or the protagonist keeps harming the assailant after the home invasion has been staved off / neutralised, can a conviction for manslaughter or reckless killing become a possibility. Summary Yes, in Sweden a prosecutor will look at the case when you kill someone. But — no — in the situation described, a home invasion by someone perceived as wanting to cause harm, this is very unlikely to become "murder", for lack of premeditation. The remaining possible charges — manslaughter or reckless killing — will only result in a conviction if the situation was obviously and provably harmless in the eyes of the defendant, and they still killed the assailant. |
Is it possible to sue a hacker based on his mail? Some friend of mine got his mailbox hacked yesterday, meaning his entire contactlist received mails from him saying something like: I'm in a bad period in my life, I really feel sad, please mail me back. So he got warned by some of his contacts, and therefore changed his password asap. Today, he was surprised to receive no mail at all, even when specifically trying to send himself a mail from another mailbox. I immediately suspected that the pirate could have redirected his mails to another mailbox, so I checked in his parameters and found that it was indeed the case. So now we have a presumed adress of said pirate as it was written in clear in the redirection params, and the question comes: Would this be sufficient to sue the pirate for intruding my friend's mailbox ? And if so, how should he do it ? | Yes you can sue for whatever damage has been suffered. However, good luck identifying someone from an email address - they are effectively anonymous. Your friend needs to change all of his passwords immediately. The hacker has probably used the day he had to change all the passwords he could think of. This may include your bank. The hacker almost certainly now has enough info to carry out an identity theft - make sure your friend protects his credit. | If your friend uses your address for mail, then it is his responsibility to ensure that he has ready access to the post - that is, generally, by providing the address to businesses, courts, etc, he warrants that he has access to the address and therefore the post. Depending on your arrangement with your friend, you may have a duty to notify him of the arrival of the mail, and/or to deliver it to him, and/or to forward it to him. Again, depending on whether the arrangement forms a legally binding contract, your duty may or may not be legally enforceable, and your friend may be able to seek indemnity or damages from you if he suffered adverse legal consequences as a result of the mail arriving and your failure to notify/deliver/forward. If he ignores it, the liability is likely to be his and his alone, subject to the above. It is unlikely to affect your visa or its extension but it's best to engage a solicitor to review your circumstances and advise you on this. As far as your credit score (though my understanding is that credit scores are evaluated by individual institutions and not provided by any of the credit reporting bureaus) will be affected, it would only be affected if your friend committed fraud in your name or became a debtor in your name. Letting a friend's mail be delivered to you is not a criminal offence that I've been able to identify. | Are online stores supposed to state the true “order cost”/value of an order on the package/envelope for the customs? Yes Is it common practice to slash 10x off of the price for the customs to not add various fees? Common? Probably no. Uncommon? Also, probably no. Isn't that illegal? Yes Of course, they can claim it was a mistake if ever found out, but if they do it consistently, that seems difficult... Not to mention there must be electronic proof of how much each order actually cost the customer? Yes Look, robbing banks is illegal but people still rob banks. Similarly, ripping off HM Revenue & Customs is illegal but people still do that too. In fact, far more people do that than rob banks. | The GDPR does indeed require that the password be stored "securely". It does not specify the technology which must be used for that purpose. Hashing the PW is a common method, and should be sufficient if properly implemented (strong hash function, use of salt, etc). But other methods of securing the password might be sufficient. Encrypting the PW rather than hashing it, so that an authorized person could decrypt it temporarily might be OK. Or perhaps a security app can separately retrieve only the specified characters of the PW through some sort of encryption. Or perhaps the ISP is not using proper security. In the case of Knuddles in the linked news story, an actual breach occurred which led to the poor security being reported. You could send a report to the appropriate national Data Protection Authority. | As a baseline, you may assume that your code will be used legally. It sounds like this still applies in your case: there is an entirely reasonable and legal use for login code, so you had no reason to assume that there might be a problem. This puts you legally in the clear. To be liable, you'd need to know or at least reasonably suspect that your code would be used to violate the law. | Article 10 (1) Basic Law / Art. 10 Abs. 1 Grundgesetz: The privacy of correspondence, posts, and telecommunications shall be inviolable. You can send whatever you want via postcard (as long as it doesn't constitute a different criminal offense). Technically, whoever were to decrypt your message, besides the addressee, would probably commit Data Espionage according to §202a (2) Criminal Code / § 202a Abs. 2 Strafgesetzbuch. The second paragraph states that this only applies if the data is transmitted electronically, magnetically, or otherwise in a manner which is not immediately perceptible. I would argue that a non-sealed postcard with an encrypted message would be "not immediately perceptible". | An Art 15 Subject Access Request (SAR) “shall not adversely affect the rights and freedoms of others.” It would be a grave violation of privacy for an email provider to search its users' account contents. It is therefore likely that the email provider would refuse to fulfil that subject request, unless required to perform a search via a court order. Instead, the SAR could be directed to the account holder (Alice or Dave), if they are subject to the GDPR. Depending on the exact legal framework, emails might be protected under confidentiality of communications rules, making such searches similarly illegal to wiretapping. At least in germany, I am fairly certain that an email provider would be criminally liable if they were to disclose emails from their users' email accounts to a third party. | Yes (in most jurisdictions), but why should you? There might be some interests in publishing the 1,000 most common passwords, e.g. to support security awareness lectures (or to build rainbow tables for nefarious purposes), but anybody who wants to hash them with a specific algorithm can do so easily. It is probably easier to type the passwords from a printed book and to hash them on the computer than it is to type the hashed passwords -- bad passwords would tend to be easy to type. That being said, computer crime laws are generally lagging behind the state of the art, or they are overly broad, so it might be illegal in some places as a "hacking tool" ... |
Are the U.S. military police allowed to operate on U.S. soil? Recently I saw an action movie about military police officer in the U.S. One question surfaced for me - as far as I understand main task of military police (including its investigators) is to combat crime inside U.S. army (and crime related to the army). On the other hand, as far as I remember almost in every country, including U.S., army cannot be used on the domestic territory for pretty much any operations. As I understand, military police is part of the military and technically any investigation or operation which military police will perform would be a violation of this ban on usage of army in homeland. How this paradox is resolved from legal perspective? Am I misunderstanding something? | It's probably not a good idea to take action movies as authoritative sources on the law. The law that you're referring to is presumably the Posse Comitatus Act (18 USC 1385) which says Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. There is an article on the act which reviews the pre-history of the act and subsequent congressional authorizations, and there have been many, e.g. the Rivers and Harbors Act of 1894, Espionage Act of 1917, 33 USC 3 pertaining to gunnery ranges, Fisheries and Conservation Management Act of 1976 and so on. The military police are authorized to enforce military law (though not civilian law), see article 7 of the UCMJ, authorized by Congress in Title 10. P. 167 of the article discusses limits on arrest and investigative powers: their powers pertain almost exclusively to the military. | There may be a purpose to have laws which are impossible to follow. (I'm neither a lawyer nor a politician, following points are what I like to call qualified hearsay - they come from qualified people I know personally but were given as a remark or during a chat over a cup of coffee and therefore are not easily substantiable with rigorous sources. You can treat them as a hypothetical ideas for your thought experiments.) Everybody is implicitly guilty Confident citizens and transparent law is the worst enemy of totalitarian regime. You learn to live with ingrained feeling that there surely is something you are guilty of. Merely being addressed by police makes you nervous and malleable; should you stand up against oppression, it is easy for the state apparat to detain or convict you of one or more default offenses. A good example would be the law present in many, if not all, socialist bloc countries saying that knowing of a comrade having commited an offense or merely planing to and not reporting it to authorities is an offense in itself. Whether you did or did not know would be determined by the authorities. Make your laws very strict with a hope thay they will be followed at least to a degree Not laws in themselves, but standards (technical norms) regarding nuclear power stations in the former Soviet Union were strict to the point where they were technically impossible to follow given the state of the art. For example the standards for manufacture of high pressure pipes would state very low level of material impurities that when the actual manufactured material contained twice the level of impurities the pipe will still be very safe to operate. In a centrally planned economy with ever more ambitious production projections and declared zero need for contingency this was one of several ways how to create a bit of a wiggle room. (Source: I once worked for a nuclear power research institute supporting Soviet technology and was told this by an expert on stainless steel.) So there you have a bit of an illustration what may happen if a law is intentionally impossible to follow. Since you labelled your question 'United States', I believe the follow-up question is why would anyone want to propose such a law. | Only in the “most unusual and extraordinary circumstances” "conceivable" Respect for the chain of command is central to the armed services. As a result, lower ranked officers generally cannot relieve a higher ranked officers of command. Instead, they must work through the chain of command, taking their complaints to their superior's superior. To do otherwise is usually considered mutiny. As far as I know, the only service that has made formal provisions for this is the Navy. This makes sense, given that ships at sea may be out of contact for extended periods. The Navy regulations involving a subordinate can relieve a superior of command are found in § 1088. Relief of a Commanding Officer by a Subordinate of Chapter 10: Precedence, Authority and Command of the US Navy Regulations, issued by the Secretary of the Navy. Here is what that sections says: In the “most unusual and extraordinary circumstances,” a commanding officer can be relieved only by the “next in succession to command.” The problem must be so “obvious and clear” that any “reasonable, prudent and experienced officer” could reach only a “single conclusion:” that leaving the officer in command would “seriously and irretrievably prejudice the public interests.” Unless it is a “undoubtedly impractical,” the subordinate cannot act “without the approval of…higher authority...” The subordinate can act only after “much careful consideration” and after an “exhaustive investigation of all the circumstances…” The decision “must be based upon…substantial evidence,” and supported by “the official views of others in a position to form valid opinions…” Any subordinate who relieves a superior will “bear the legitimate responsibility for…such action,” and “must be prepared to justify…” it. | The general answer is "yes." Who ever said that only one set of laws applied? Jurisdiction isn't a matter of "one country's laws matter here, let's find out which one it is." All jurisdiction means is that your laws apply to the conduct, not that no one else's can as well. Broadly, there are a few sources of jurisdiction that are generally considered legitimate (to at least some degree) in international law: Territoriality: You have jurisdiction over actions performed in your territory. You also have jurisdiction over crimes where just one part of the crime happens in your jurisdiction (e.g. standing in country A and shooting someone in country B), or even if it just has a significant effect in your territory. Nationality: You have jurisdiction over crimes committed by your citizens anywhere in the world, regardless of whether or not they were breaking the law of wherever they were. Passive personality: You have jurisdiction over crimes committed against your citizens anywhere in the world. Protective: You have jurisdiction over crimes directly harming core state interests, like counterfeiting your passports or sabotaging your warship. Universal: A handful of crimes (like piracy or genocide) are so serious that every country in the world can exercise jurisdiction. If you catch a pirate, you can punish them. These are accepted to different degrees. Passive personality and protective jurisdiction tend to be iffier; territorial jurisdiction is unquestioned (although if it's just based on effects in your territory, it becomes a bit iffier as well). But any of them can be a basis for jurisdiction. If multiple countries have jurisdiction, whoever actually has the offender decides who will try them (jurisdiction to make an arrest is limited to the country in which the arrest is made). So: If you're located in a country, you have to comply with their laws, and they can regulate just about whatever they want, including what you're doing to foreign computers. The foreign country can also generally regulate what you're doing, because part of what you're doing is happening on their territory. Even if both you and the computer are in a foreign country, you may have to answer to the courts of your country of citizenship. Depending on what exactly you're doing, the protective principle may come into play. For instance, if you hack into a computer on a foreign military base, the foreign country could prosecute you for endangering their security. If you're coordinating a genocide, universality applies and anyone can prosecute you. If you hack the computer of a foreigner, passive personality may apply, although this tends to be controversial. | That is not a valid assumption. Many states have laws that let you presume someone is a threat to your life if they forcibly enter your house. Simple trespass on your land does not let you reasonably presume someone is a murderer. An autonomous killer drone is not a comparison you want to make: those may be illegal entirely, and are likely to seriously hurt any claim of justifiable force. “You forfeit your right to live when you set foot on my property” is not justifiable. If the dogs are trained to be a hazard to the community, that’s an argument in favor of having them confiscated and destroyed. Dogs are not people. Under normal circumstances, they cannot be protected under self-defense or the defense of others. Those doctrines only apply when a person is in danger. Deadly force is sometimes allowed to protect property, but this tends to be strictly limited. To start with, you can only ever use force to prevent illegal damage to property. If your concern is “this animal control officer will destroy my dogs within the scope of their duty,” that’s not protecting against an illegal use of force. Deadly force in defense of property is also normally limited to particular crimes that are inherently dangerous, like arson, robbery, or burglary. Even in Texas, simple theft only justifies deadly force during the nighttime. Deadly force is also not justifiable if there were reasonable other options. Shooting an animal control officer is unlikely to be the only way to temporarily stop them from destroying a dog. Threatening violence in order to influence a judge’s decision is terrorism. This hypothetical man is a terrorist. He may well find himself on death row for murder, but he’s also going to face separate charges for terrorism. | I'll use Washington state as my source, but laws will be similar in other states. RCW 9A.76.020 outlaws obstructing a law enforcement officer, which this would be: it is a gross misdemeanor. In using lethal force, you would have committed first degree murder, under RCW 9A.32.030. There is a defense that can be used, per RCW 9A.16.050, that homicide is justified when: In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished. Law enforcement officers have access to justifiable homicide defenses as well under 9A.16.040, for example (b) When necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty or (c) When necessarily used by a peace officer or person acting under the officer's command and in the officer's aid: (i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony The outcome of the case would hinge in part on whether the officer's arrest and use of force was lawful. To take two extremes, if the guy on the ground had just killed a dozen people and was aiming to rack up another dozen kills, the officer's arrest would almost certainly be held to be legal and his degree of force justified. Your personal belief that the suspect was compliant and unarmed might be refuted by the facts. On the other hand, if the guy on the ground had slept with the officer's sister and the officer wanted to rid the world of this vermin, then the arrest and force would almost certainly be held to be not legal. It can be legal to use deadly force to resist unlawful arrest. See John Bad Elk v. United States, 177 U.S. 529, where the court held that if a party resisted arrest by an officer without warrant, and who had no right to arrest him, and if, in the course of that resistance, the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had had the right to arrest, to manslaughter The court also said where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest from what it does if the officer had no such right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed. This ruling has been somewhat eroded, in US v. Simon: We recognize that law enforcement officers are frequently called on to make arrests without warrants and should not be held, so far as their personal security is concerned, to a nicety of distinctions between probable cause and lack of probable cause in differing situations of warrantless arrests. It is for this reason we believe that the force of John Bad Elk has been diminished The upshot of this is that (assuming no warrant), leeway is granted to officers in assessing probable cause (I'm not sure anybody really knows at a general conceptual level what constitutes "probable cause". The court seems to imply that the remote hearsay used as the basis for the arrest would not have been sufficient for a warrant, but it was "reasonable grounds" for believing accused had committed a crime). Your premise that the officer is about to shoot would have to be substantiated by some fact, such as a declaration "I'm gonna kill you". Otherwise, your belief that the officer was about to commit unjustified murder would itself be unjustified. With better fleshing out of the circumstances, you could manufacture a justified-homicide scenario. | The term "enemy" in the U.S. Constitution's definition of treason is generally considered to be a term of art that means a party against whom Congress has authorized the use of military force or a declared war. The only such country in existence at this time, to the best of my knowledge, is North Korea. Terrorist organizations which had affiliated involved in the 9-11 attacks (including ISIS and Boko Haram) are also covered. Russia is not an "enemy" of the United States, within the meaning of the constitutional definition of treason. Neither are any individuals or corporations in Russia, unless they are affiliated with a 9-11 terrorist organization. An important statutory definition of "enemy" might also be considered informative to a court presented with this question, which is slightly broader (as it requires "hostilities" but does not require a full fledged war and does not require Congressional action): According to 50 USCS § 2204 [Title 50. War and National Defense; Chapter 39. Spoils of War], enemy of the United States means any country, government, group, or person that has been engaged in hostilities, whether or not lawfully authorized, with the United States; (3) the term "person" means (A) any natural person; (B) any corporation, partnership, or other legal entity; and (C) any organization, association, or group. In this context, "hostilities" would generally mean physical warfare acts like shooting Americans, or blowing up American property, in a warlike manner. | It isn't clear that the example you give is illegal police action, but let's assume that it is for the sake of this question, since it doesn't affect the analysis. If possession is not compelled, then it is voluntary. |
How can people confess to their drug use in a book without any legal consequences? Using illegal drugs is illegal. Yet Obama and Steve Jobs confess that freely. Write a book about it. Imagine if they confess to murder instead. That would be problematic. So why? | Not all illegal things are crimes. Lack of evidence. They are asked to testify, and they say "what I said in my book was a lie". There is no general law against lying, except when under oath. Statute of limitations. Saying "10 years ago I did smoke drugs" means that any offence is no longer prosecutable. Lack of details. Which jurisdiction were they in? When did they commit the act, how many acts? You cannot be arrested for being a "bank robber" or a "murderer". You are charged with "robbing Bank X on 123 Fake Street the Thursday 25 April 2018" or "murdering Jim Thio in January 2017". Otherwise the defendant would have a hard time defending himself (how to prove that you have not killed anyone at any time?) All of the above combined with prosecutorial discretion in the form that any possible prosecutor will most likely determine that bringing charges would be just a waste of time and resources. UPDATE February 2018: Just for the sake of completeness, a reference to the situation of Jacques Cassandri, who did boast about a serious crime(a robbery in a Societe Generale vault in 1976) in a book. Unfortunately for him, he made some kind of mistake/miscalculation and the crime had not yet expired, so he has become an example of someone being prosecuted by confessing a crime in a book. | Recall that federal non-enforcement of the ban no marijuana is via a non-enforcement memo from the Attorney General (which was revoked in 2018) and not an actual change in the law. Since sale of marijuana is illegal at the federal level, receiving money in exchange for marijuana is a federal crime. There are also federal laws prohibiting various forms of "banking" in a broad sense, if you know that the money is the proceeds of a criminal transaction. Taken together, it is not possible to devise a legal banking system to cover such transactions in the US, without a change in federal law (a small change, legalization, or a huge change, tweaking every little law involved in banking). The main concern is federal laws against racketeering and money laundering. The Bank Secrecy Act of 1970 requires finanicial institutions to report suspicious activity 18 USC 1956 starts the prohibition with Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity and since sale of marijuana is illegal, those funds are covered by this law. The federal agency FinCEN receives and analyzes data on financial crimes, and they issued a "guidance" in 2014 regarding marijuana banking. They affirm the obligation to file Suspicious Activity Reports for marijuana-related businesses, which essentially tells banks to specially-tag SAR to distinguish cases that an institution reasonably believes comply with the Cole memo. But this only addresses the requirement for FinCEN reporting, and does not address other federal regulatory and criminal resources for crime prevention. Even just looking at the FinCEN requirements, dealing with a marijuana-related business imposes a huge ongoing burden on the financial institution. Civil forfeiture is a risk which a prudent businessman would shy away from. Property that is used in commission of a crime or results from commission of a crime can be sued and seized (that is a bit bizarre, but you can sue property), and the person who holds the property need not have committed any crime. Assets in the possession of banks and credit card companies are not immunized against civil forfeiture proceedings. | I found an example of "is illegal" in RCW 78.52.467: "If the department believes that any oil, gas, or product is illegal...". There are some examples of "shall be illegal", e.g. RCW 39.84.050 "It shall be illegal for a director, officer, agent", where "illegal" is used predicatively. I tenatively conclude than the latter kind of use is less frequent that the adjectival use. Black's Law Dictionary 2nd Pocket ed does not include "illegal" except in some "illegal"+noun constructions, but it does list "unlawful" alone. "Unlawful" has been used since 1387 (J. Trevisa translation of Ranulf Higden Polychronicon), whereas "illegal" only goes back to 1626. Legal language tends to be very conservative, so the fact that "unlawful" got there first (aided no doubt by the fact that it is an Anglo-Saxon construction, not a medieval Latin borrowing) gives the term priority in legal usage. It sounds more legal to say "(un)lawful" that "(il)legal". | BAD idea It is one thing to upload the phonebook and associated pictures for use of the owner of the phonebook. It isn't a fair use of the phonebook pictures - and you might not have a license anyway, as some people associate photos with numbers that they don't have a license to associate with anyway. But what if instead of a photo of the person, the first photo someone associated with the person is a photo of something like... crack cocaine, a photo of someone in a very compromising situation, just genitals, or some other thing that is just as tasteless or possibly criminal to share? In that case, your company is possibly committing defamation, and in case sharing or possessing of the image itself is illegal, your company is now the actor and liable. Depending on the content of the picture, distribution of pornographic material (possibly even underage material of that sort) could be up that alley just as much as hate speech through symbols, usage of banned symbols (such as swastikas in Gernamy) and many many others. | The police (and any other involved public agencies) do not work for Steve. They make their own decisions. You didn't specify a location, and requirements to consent to a search vary by location. It wouldn't be surprising, though, if Steve can't legally consent to a search of someone else's room (but possibly could consent to search of common areas). One possibility you don't seem to have considered is that the police or prosecutor would, if Steve is willing to testify, use Steve's testimony as probable cause to get a warrant. Then they could obtain text messages from Mike's service provider (even if he's deleted them from his phone), search his room without his consent, etc. Details again vary by location. Finally, any jail/prison term is typically up to a judge or jury, not the police. Pre-trial detention is typically up to a judge or magistrate. (Also, outside the scope of your question, but if there is any chance Steve has allowed himself to become involved in the misdeeds, even slightly, Steve would be wise to talk to a lawyer. Or if he suspects the police could believe that.) | In the United States who has the authority and what is the procedure to determine if conduct by an individual is "illegal"? You are conflating several different ideas here, which is probably the source of your persistent confusion. 1) Actions are legal or not Illegal: Not authorized by law; Illicit ; unlawful; contrary to law The law sets out certain things that you must do (you must stop at a red light) and things you must not do (you must not drive under the influence). Sometimes actions fall into a gray area of the law, or aren't addressed at all, but if something is spelled out, then it's very clear whether the abstract action is legal or not. Running a red light is illegal. Driving under the influence is illegal. There are definitions and specified penalties for both. 2) A person may or may not be guilty of an illegal action Guilty: Having committed a crime or tort Abstract actions can be legal or illegal, but people commit crimes. When someone commits a crime, they are guilty of that crime. This is true whether or not they are ever prosecuted, or even if law enforcement knows who the guilty one is. If someone runs a red light at 2 in the morning on an empty street, it's still illegal and thus they are guilty of running a red - but no one will ever catch them. If someone is shot in the middle of the street, then someone is guilty of shooting them. Again, the shooter may never be found, but whoever they are, they are still guilty. 3) An individual may or may not be guilty of the crime of which they are charged. Charge: the statement of the alleged offense that brings a person to court If law enforcement (whether your local traffic cop or the FBI) believes that you are guilty of a crime, they can charge you with committing it. They may be right. They may be wrong. But the suspicion of having committed it is enough to charge you. To continue the traffic example: If an officer sees you running the red light, they can write you a ticket (effectively charging you) for doing so. They may or may not actually be right (it could have been yellow or malfunctioning, for example), but law enforcement has the power to charge regardless. 4) A defendant may or may be found guilty and convicted. Conviction: In a general sense, the result of a criminal trial which ends in a judgment or sentence that the prisoner is guilty as charged. Finding a person guilty by verdict of a jury. This is where the presumption of innocence comes in - the default assumption is that the accused did not commit the crime that they are being charged with, and it's the prosecutor's job to prove otherwise. If the accused is found to not be guilty of the crime, then they (presumably) didn't do it - it doesn't necessarily mean the crime didn't happen, just that this specific person didn't commit it. Alternatively, the defendant can be found not guilty for other reasons - the judge or jury can determine that the crime didn't take place, took place but was justified, or the defendant wasn't in their right mind at the time. On the other hand, if they are found guilty, they're convicted and sentenced to whatever an appropriate punishment is. TL;DR Whether something is legal is determined by the legislature when they pass laws. Someone who commits an illegal act is guilty of doing so, even if they are never charged. Again, this is determined by the legislature when they pass laws. People are charged with violations of specific laws by law enforcement. Defendants can be found guilty by the court system. In other words, only the courts can determine whether a specific individual actually committed illegal behavior, but the behavior is still illegal regardless. | Generally speaking, what isn't illegal by law is legal. It's possible for law enforcement agencies to share crime rates, maps, and their data, but within any laws regarding access and sharing of that data. Such crime data may be publicly available, but that depends on local and state laws. The local or state agency would have to enter into a legal licensing agreement - if local and state laws allow such sharing - with the GPS company to provide the data, update it, and reasonably assure that it is accurate. The more realistic reason GPS systems might choose to not show crime data may be public relations. If a GPS user lives in an area that has been objectively identified by data as having a higher than baseline crime rate, i.e. for carjackings, that user may not be very happy with that designation. Worse, what happens to public relations when data errors show an area is wrongfully identified as high crime? What kinds of lawsuits could result? Real estate agents suing since bad data from a GPS unit soured the sale of a house? | First, as Mark Johnson said. Second, the job of police and prosecutors is not to put people into jail, their job is to put guilty people into jail. If you go to the police and tell them that you beat up a person, then before they investigate, they know that either you are guilty of assault, or you mistakenly believe that you are guilty of assault, or you are a phantasist who enjoys confessing non-existing crimes to the police. The police will either investigate which one it is, and may prosecute you either for assault or for wasting police time, or they may decide based on your behaviour that there was never any assault and not investigate further. I suspect they will at least question you about details of the claimed assault, to decide whether the crime is real or not. |
Is there a concept of a plea-bargained confession in English law? Forgive the basic questions, I know nothing about law. I’m writing a novel that ends with a serious crime and I’d be so grateful for assistance. A StackExchange user from the US suggested that a genuinely remorseful criminal could offer a plea-bargained confession in court, where he explains in detail what drove him to commit the crime he did. Is there such a concept in English law? Would the victim be expected to appear in court to hear such a confession? Or, if they decided they didn’t want to appear, could it be made in a statement to the court and passed to the victim. Or, would it go on public record? | Considering that the US legal system is more or less similar in practice to the English Courts, yes it is possible to plea bargian a deal. I'm linking to the wikipedia article on the matter with a specific link to the England and Wales for guidence. Normally, I'd explain, but I'm an American and the differences between Magistrate and Crown courts are big enough differences that I can't tell you what the differences in the case is. I should point out this is a legal area where America differences with much of the world. 90% of the United States criminal cases (and a good number of civil cases, which are settled privately before discovery phase) are plea bargained to lesser sentences. Additionally remorse has nothing to do with the plea bargain. You might only be sorry that you got caught breaking the law and can still plea. The lighter sentence is sort of a "thank you" for saving the state money in not having to build their case against you. It is also used to coerce cooperation with the police, as they may have the accused dead to rights and can prosecute him successfully, but he's a little fish who can give intel to a big fish (this usually comes with the caveat of it being a sworn statement, so they can still prosecute you for something if you're lying... OR that the deal holds on condition that everything is factually true. If evidence contradicts you, you're charged as if you never made a deal). It's also important to note that the police will not honor their deals made for your confession... but they will offer you deals (In the United States, police are allowed to lie to you and do it all the time). However, the prosecutor will honor their deals. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. Finally, most jurisdictions allow the judge final say at sentencing, so if the prosecutor does honor the deal and advises the sentence, don't get upset if the judge is tougher and gives you a harsher sentence on the crime, or rejects your plea outright (expect him to scold the prosecutor for wasting his time with a horrible deal, too. Watch the Law and Order SVU episode Raw for a particularly wonderful instance of this rare event occurring). As a part of US federalism, the rules about this change from jurisdiction to jurisdiction, so make sure you understand this. Another thing to be aware of is that a prosecutor who offers a plea could be doing so because they have a weak case. If you are absolutely sure the prosecutor has the wrong guy, it may be to your benefit to go to trial and have them prove it. Innocent people do go to jail all the time because they think there is something worse on them than the plea deal and its hard to fight off as you cannot appeal a plea deal as easily as a court conviction. I would definitely do some leg work into the English Legal system's opinions on plea bargains. Just because they have it does not mean the state lawyers like employing it and many jurisdictions see it as full on corruption in other parts of the world, even the Common Law jurisdictions. | The best course would be to contact the public defenders office and explain the situation to their intake or consultation services. Remember, you don't have to be going to trial to avail yourself of their services and sometimes, helping cops makes the cops suspicious about you (it would not be the first killer who cozies up to the police to learn what they know about his crime). If the Public Defender thinks you're rich enough not to need their services, you should call criminal defense attorney practices. Most law offices will offer consultation free of charge as part of client intake, so they will be willing to hear your case and offer advice. In either case, check with the lawyer that attorney client privilege is in effect. If they say yes, explain in detail to them, everything you know and want to discuss, even if some of it could criminally implicate you in this or another crime. Treat it as your deathbed confession and you know full well which circle of hell you're going to if the priest doesn't absolve you of sins (okay, too Catholic... but the Lawyer is not going to turn you in if the privilege is in effect... he could lose his license to practice law over it... we can make all the evil lawyer jokes we want, but this is one of the few sacred tenants of their profession.). Listen to his advise. Also see if you can find a second opinion. It's not that the first guy gave bad advice, but the next guy might give you something different. If you still do not feel comfortable, then keep your mouth shut. If they arrest you for the murder, do not talk until you have an attorney present and prepare to tell him exactly what you did. Especially if you did do it. Always answer your attorney truthfully. | He does not need to be mirandized unless he is being arrested and the officers want to use things he will say as evidence. The officers in your situation seemed content to let the matter be handled through the school. If they had wanted to arrest him, they could easily have done so as soon as he pulled out the joint and handed it to the director. The "write a confession or you will leave in handcuffs" pretty much invalidates it in a court of law. Even if it weren't excluded, his testimony as to why he wrote it looks pretty bad in front of a jury. That said, I doubt that's where this case is headed. My understanding is this: The school director and two police officers caught your son smoking marijuana on school property. The punishment they sought is that he admit culpability and that he continue school online, and (presumably) on probation. In the grand scheme of how these cases could go, this isn't that bad. There are some procedural irregularities you could press, but there's enough evidence without the irregularities that work against your son. Having said that, sign nothing without consulting a lawyer. But it could be worse. | Since you asked about any jurisdiction, and presumably any common law jurisdiction, in which one of the elements of theft is the intention to permanently deprive the owner of the property, here's the UK* answer. Regarding borrowing specifically, the UK statute referring to theft - the Theft Act 1968 - provides for this in section 6(1): A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. In other words, a thief may say 'I only wished to borrow it', but that won't necessarily amount to a defence under English law. It depends on how long (s)he borrows it for, and how (s)he treats it while borrowing it. In addition, the case law clarifies what is meant by 'his intention is to treat the thing as his own to dispose of regardless of the other's rights'. This has been held to mean: Selling, Bargaining with. R v Cahill, R v Lloyd Rendering Useless. DPP v J Dealing with in a manner which risks its loss. R v Fernandes, R v Marshall Borrowing in certain circumstances. R v Lloyd Pawning. s6(2) Theft Act 1968 Not enough to just deal with it. R v Mitchell So how do we prove whether someone intended to deprive the owner of the property permanently, or at least permanently enough to amount to an offence under the Act? The answer seems to be that we look at how they deal with it, and what condition they leave the property in. If they do any of the things listed above, with the exception of no. 6, then they have demonstrated an intent to permanently deprive; if they merely use the property, then that isn't enough to show such intent. You asked specifically: I am looking for an answer that explains whether someone who credibly asserts – e.g., by advance sworn affidavit – that they intend to return the item can be convicted of theft, or any other crime, for taking someone else's property for an extended but not infinite period of time. In the case of R v Lloyd, the court held borrowing would become intention to permanently deprive the owner of the property if 'all goodness, virtue and practical value is gone'. So if someone swore they were planning on returning the item, the court could nonetheless convict them of theft if they held on to the item for so long, and treated it as their own to such an extent, that all its value was gone. (In R v Lloyd, the items in question were films, and as they were returned in much the same condition as they'd originally been in, this was held not to be intention to permanently deprive, and therefore not to be theft.) *By 'UK' I mean 'English and Welsh'; the answer may be different in Scotland. | There actually is a practical effect to a "not proven" v. "not guilty" verdict in Scotland, but it is mostly sociological or social in nature rather than legal. If your question is, are there future legal concerns, than no. Not proven is, to be sure, an acquittal. However, it is an acquittal that the tells the public something important: that the trier(s) of fact thought the person likely guilty. That's a fairly substantial distinction. In Scotland, a criminal case may be decided either "in solemn procedure", which is simply the Scot term for a jury trial v. "in summary" or in "summary procedure" which is the U.S. equivalent of a bench trial. The difference between the two (and the divergence from the U.S. procedural vehicle) is that for lesser crimes the accused doesn't have an automatic right of a jury trial for any criminal matter. In some ways this lesser included makes up for the fact that the Scottish accused is without absolute right to choose jury or bench trial, which in the U.S. can be very meaningful from a tactical perspective. Think of how important the make-up and emotional proclivities of juries are to both convictions and acquittals. A bench trial can be beneficial to the truly unlikable defendant, or in especially brutal crimes, where juries may convict out of fear or sympathy for the victim, even if the case is weak. At the same time, they may nullify the conviction for the sympathetic defendant. Juries are notoriously emotional and bias driven. Being able to choose a bench trial where the judge will follow the evidence and avoid the emotional response of a jury can be invaluable. Just as a sympathetic defendant can appeal to the emotions of the jury for acquittal or jury nullification, on the opposite spectrum. In Scotland, lesser crimes are always (with limited exclusions) tried by a judge, while more serious allegations always (again w/ limited exclusions) get a jury trial, automatically. The defendant does not choose the type of trial he is afforded. Hence, a defense or a prosecution cannot fiddle with the balance of proof based on emotion or lack there of. They get what they get. There are various rules procedurally that differ in comparison, but since this isn't the question that is the general rule and should suffice for background. Also hugely important is the fact that in Scotland, jurors decide a case by majority vote (like a civil trial in the U.S.); hence, there are no hung juries and they don't need a consensus. So, one way or another the verdict will be given in a Scottish criminal action. Scots also get comparatively huge juries to any other country (15 jurors) and they only need 8 in agreement to reach a verdict. Tactically, the "not proven" is a lesser included verdict (like U.S. uses lesser included charges in cases that are weaker for the prosecution). This lesser included finding can be used by choice when the Prosecution has a sympathetic defendant or when the defendant is probably guilty or unlikable. If the jury thinks the defendant (called "accused") probably did the crime, but the prosecution has failed to prove the elements, they can/will issue a "not proven" verdict. This sends a big message. This, again, is typically only reserved for those cases when there is strong but not conclusive proof that someone committed a crime. They don't want to profess their innocence with a not guilty verdict, so they are still acquitted, but with he stigma of the "not proven" verdict attached. Some estimates have from 1/5 to a full 1/3 of all acquittal verdicts by Scottish juries as "not proven" as opposed to "not guilty". Not proven can also be used by judges in the bench trial (summary procedure), however it's much less common. The proportion of 'not proven" acquittals in general is higher in the more severe cases; but so then are the proportion of acquittals versus convictions. These would likely be hung juries in the U.S.. Both in the "solemn" and the "summary" acquittals, not proven is interpreted as indicating that the jury or judge, respectively, is not convinced of the innocence of the accused; in fact, they may be morally or even factually convinced that the accused is guilty, but do not find the proofs sufficient for a conviction under the elements of the crime on the jury instruction/verdict form. I look at this as similar to the adage oft used in the U.S., which is an acquittal, despite the fact that the verdict is termed "not guilty" does by no means indicate the person is in fact "not guilty", it just means the prosecution couldn't prove its case. Sociologists in the U.S., as well as legal scholars, have studied the phenomenon, and it appears that most not guilty verdicts in fact let go a guilty person. This can be intuited by the evidence the jury never saw, either by suppression from bad searches, by the exclusion of witness testimony due to procedural rules like hearsay, privilege, etc., and other forms of keeping relevant evidence from the jury to protect the rights of the accused. But in the U.S. the person can go forth and say, "Hey, I was proven not guilty!" Scotland also has another interesting rule of criminal procedure, whereby a criminal can't be convicted without corroborated evidence. What this means is that if all the prosecution has is the victim witness, by way of proof, testifying, and no physical or corroboration testimony, Scottish law requires acquittal, but often will be so by the verdict "not proven". This is huge, if you think about it. Use, for example, a rape trial. A woman testifies, saying that Joe Schmoe climbed through her window and raped her. She knows Joe - he's her neighbor. Nobody saw him climb in. But she knows it's him. He leaves no physical evidence, having shaved his entire body and used appropriate protection (gloves, condemn, etc.). She has a rape kit done. Rape is obvious, but the only proof is her testimony. Joe goes free. But in Scotland, he goes free with a stigma attached. He's found "not proven" rather than "not guilty". I think this corroboration rule has a lot to do with why this verdict system still exists. In the U.S. the trier of fact would weigh the testimony and decide if one person was substantially more believable than the other, and a verdict would issue. That is a substantial difference, procedurally. Since Scotland doesn't have the hung jury because there is no consensus required they use the "not proven" in the same way a U.S. jury uses the hung jury when one or more jurors thinks the prosecution didn't prove their case but it's fairly clear the defendant is, in fact guilty. Then, you will often get a "hold out" juror, and since the U.S. requires a unanimous verdict, the hold out hangs the jury. It's sort of the opposite of jury nullification. The person knows that the evidence fell short, but their conscience can't reconcile letting the person go free, so they will vote guilty to hang the jury, almost ensuring the prosecution gets another shot. There has been a lot of debate about this three verdict system in comparative law circles, with many legal scholars saying it's antiquated. But I think it serves an important purpose. It carries the stigma of likely guilt for those people who probably committed the crime but got off. Further, the hung jury cost tax payers millions of dollars in the U.S., and this is often the side effect of people not wanting there to be absolutely no recognition of the fact that the accused probably committed (especially serious) crime(s). The Scots, on the other hand, have found away to accomplish this without the cost and emotional toll multiple trials takes on all the players involved, from witnesses and victims, their families, the accused, and even the lawyers and the prosecutions, who have to put in all the work of a trial just to start anew. Here is a really good scholarly article that deals with this interesting phenomenon not seen in (I don't believe) any other country: https://journals.iupui.edu/index.php/iiclr/article/viewFile/17848/18019 | Intent matters here, but yes. Alice could be considered guilty of either Second-Degree Murder or Manslaughter, though the latter is far more likely. Texas has no laws condoning assisted suicide that could absolve Alice. Second-degree murder requires the following: The defendant intentionally and knowingly caused the death of another person The defendant intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and this act caused the death of an individual This is tenuous, but it could be argued this way if Alice intended to cause Bob's death. It certainly meets the second criteria: shooting oneself constitutes serious harm and giving a firearm to someone who has stated an intent to kill themself is reckless. It's more likely that Alice would be charged with manslaughter. The only definition is: A person commits an offense if he recklessly causes the death of an individual. As discussed above, giving someone who has announced an intent to kill themself a loaded gun is reckless. Alice's actions resulted in Bob's death. | Generally speaking, ex parte communications with a judge (i.e. communications to which all parties to a case are not notified) are prohibited, both by law and as a matter of judicial and attorney ethics, subject to some narrow exceptions (e.g. applications for arrest warrants prior to the arrest warrant being carried out). Generally speaking, communications with the court (which is to say with judges or their subordinates) are made a matter of public record, and if the communication is about a particular case, all attorneys in the case must be given notice of it (if someone is not represented by an attorney, the notice goes to the defendant rather than their non-existent attorney). The attorney may then communicate the communication to their client, and generally speaking should communicate it to the client. I don't see anything in the question that suggests that this proposed communication would fall outside the general rule. But, the question isn't very specific and I wouldn't rule out the possibility that an exception might apply in a case with very unusual facts. Also, usually, a request to reconsider a sentence has to be made by a formal motion filed by the prosecutor or the defendant. Generally speaking, a third-party cannot file that motion unilaterally. A third-party or victim would usually only have input into the decision through the prosecutor's office. Third parties and victims are not generally permitted to file motions to reconsider sentences that have been imposed even in states with "victim's rights" statutes, but can publicly provide input to the court before a sentence is imposed, usually at the behest of either the prosecutor or the defendant. Furthermore, generally a criminal defendant has a constitutional right to not have a sentence made more severe after being sentenced the first time around. Reconsideration of a sentence once it is imposed may only be in the direction of leniency. Once a sentence is imposed, it can't be reconsidered to be made more harsh. | What happens to someone who’s committed a murder in the UK? Considering the person will be caught. This is a basic and somewhat vague question so I will provide a basic and very general answer. The name of the court with proper jurisdiction, the relevant criminal procedural rules, and the substantive law that applies varies within the U.K. In particular in Scotland and the various dependencies of the U.K. differ significantly from England-Wales. There are some minor differences in Northern Ireland. England-and-Wales are treated as one for most purposes, but there are some slight differences at the very lowest levels but none materially impact a murder case. If they are caught in England and Wales they are arrested, interviewed, charged then brought before the next available Magistrates' Court who send the defendant to the Crown Court for trial. As a Magistrate has no power to grant bail for murder the defendant must be remanded in custody until he can make an application for bail before the Crown Court, but the default position is that bail should not be granted for murder unless in very exceptional circumstances. In other U.K. jurisdictions, the names of the courts will differ and there may be some other fine details that aren't the same in the pre-trial process but the same general outline applies. If they are outside of the U.K. they will be subject to either an International or European Arrest Warrant and extradited to the UK at the request of the U.K. Government under the terms of the relevant extradition treaties. On arrival in the UK they are arrested for murder and the process proceeds in the same manner. (If they are someplace that does not have an extradition treaty with the U.K., the trial may be deferred until U.K. officials have an opportunity to arrest him and are often dogged in attempting to accomplish, perhaps, for example, while the suspect is on holiday somewhere that there is an extradition treaty.) Prior to the trial, the Crown Prosecution Service (CPS) and the defence will prepare their cases and return to court at various times to settle any issues etc before going to the expense of a full trial. Also, at any time the CPS determine the case to be too weak for a realistic prospect of conviction or the suspect is innocent, they are supposed to dismiss or amend the indictment. The defendant is then tried for murder before a jury (almost always, but not in every single case, e.g., if the defendant admits guilt and the plea is accepted in appropriate proceedings before a judge). The CPS instruct a barrister to present their case with another barrister acting on behalf of the defendant. The process is for juvenile defendants is pretty much the same as for adults, apart from added safeguards to ensure the juvenile understands the proceedings and is not put at any disadvantage due to their age. All of the jurisdictions within the U.K., however, will have a trial that involves presentation of sworn evidence and exhibits and opening and closing arguments from both prosecution and defence counsels to a jury, procedural objections, cross-examination, and sometimes offering of additional evidence under the supervision of a single judge; normally with the defendant present. There will be some means of court reporting, and unless the judge orders otherwise (which is only done in relatively exceptional circumstances), the trial will be open to the public and the press to observe. If the defendant dies before the legal process to secure a conviction is not completed, the case is dismissed as moot. If the defendant is convicted of a homicide offense the trial/sentencing judge will impose a prison sentences, which is "fixed by law", with a life sentence in the case of the most serious homicide offense, murder (there are multiple homicide offenses that hinge largely on the intent of the defendant, often a murder prosecution will include less included homicide offenses as options for convictions). Only in exceptional cases this will be a whole-life term, in all others the judge will prescribe a minimum sentence according to the judicial sentencing guidelines after which the defendant may be released on licence, which is what an American would call parole. Any offences committed on licence will normally result in a recall to prison. The U.K. does not have a death penalty and does not authorise corporal punishment. The vast majority of people who are arrested and tried for murder are convicted, although there are sometimes acquittals or hung juries. This conviction may be appealed by the defendant to the Court of Appeal (and again up to the Supreme Court) (the intermediate appellate court may not be the same in all U.K. jurisdictions) which reviews the proceedings to determine if the law was applied correctly and if there was sufficient evidence to support the verdict. If the court finds that this was not the case, it can vacate the conviction and orders an appropriate revised disposition of the case depending upon the circumstances justifying the reversal of the trial court. If the appeal court affirm the trial verdict then the sentence continues to be carried out. Usually, but not always, the defendant will be in prison pursuant to the sentence imposed pending an outcome of any appeal. Eventually, if the sentence imposed upon a conviction is affirmed (and not a whole life term) the prisoner may be released on licence (which includes some post-release supervision) and is free and to about living their life again, subject to some collateral consequences based upon their criminal record (e.g. inability to work in certain occupations). If the defendant is acquitted, then they go free and cannot be tried again for the same offence, unless the exceptions under the double jeopardy provisions that apply in that jurisdiction apply. The main exception of double jeopardy is for newly discovered evidence of guilt in a case where there was an acquittal. If the person convicted is not a British citizen, they will usually be deported at the conclusion of their sentence if international law allows for it. There are a few exceptions to these rules that come up in a tiny percentage of all U.K. murders that apply (1) in the case of people subject to courts-martial such as active duty military service members, (2) in the case of foreign diplomats with diplomatic immunity, (3) when the murder is classified as an act of terrorism, and (4) in the case that the defendant has a title of nobility that calls for special treatment such as, e.g., Prince Charles (the current heir to the throne) or the Queen. These special cases are really too esoteric for the plain vanilla facts stated in the question and involve unique processes that are very different from the usual one described above. The fourth case is one that does not exist in my country (the U.S.) and in other countries that are republics rather than constitutional monarchies like the U.K., although most countries have some special rules for criminal trials of their very highest officials (like Presidents and Prime Ministers). |
Is Time Travel Legal? Currently, there is no publicly available technology which would permit one to time travel. However, assuming one were to create such technology, is there any laws prohibiting time travel? I am interested in the various jurisdictions within the United States, but answers based on other jurisdictions would be interesting to read as well. | In theory, this should be protected by the UN Dec. of Human Rights: Article 13 1. Everyone has the right to freedom of movement and residence within the borders of each State. 2. Everyone has the right to leave any country, including his own, and to return to his country. Since it does not specify the type of movement, or restrict its dimensions, this could be construed to include freedom of movement through time as well as space. Other than that things like this there is no real law regarding this. | Google maps (Street View, Google Earth) are all legal, although perhaps they are illegal in North Korea (along with many other things). Permission would be required for them to enter your house and take pictures, but if it can be seen publically, it is legal unless there is a specific law forbidding taking pictures. It is possible that there are legal restrictions on the Street View method of driving around with a camera in some countries, but Earth view shots are obtained by satellite, which is out of the jurisdiction of the objecting country. The Street View gap for Belarus may be due to a legal restriction, or it could just be Google-strategic (there seems to be no public explanation). There have been numerous "legal encounters" involving Street View and the authorities, in the realm of privacy concerns: there is no general rule. Google has the right to make and distribute these photos because there is no (enforceable) law against doing so, unless there is. | Is it illegal to ask a company for money in exchange for information on a bug in their software/website? That in itself is legal. Indeed, the company would incur unjust enrichment if it coerced you to disclose your discovery for free. Only if you threatened the company to divulge to others your discovery unless the company pays you, it would be illegal and trigger charges such as extortion (likewise, legislations outlaw the unjustified delivery of programs or instructions for hacking a software/network/etc., although this goes beyond your actual question). Can the company take legal action against me? That seems doubtful, futile, and it could backfire (please note I have not done any research on legal precedents about this). Although the terms and conditions of the website or the End User License Agreement (EULA) of software might prohibit you to reverse engineer (RE)/decompile/etc. the application, anti-RE clauses are unenforceable and the remedies therefor are indeterminate because the sole act of conducting reverse engineering does not subject the company (or third parties) to any losses. The company's decision to take legal action for your discovery could backfire from two standpoints. First, it calls attention to the fact that the software at issue is defective and unsafe. And second, the bug is likely to be detected by someone else anyway, thereby potentially compromising customers' systems. | Owners of property establish rules of trespass. This applies when the government owns the land just as it does for private property owners. Being a citizen of a country does not give you ownership rights on government land. The government is question can apply multiple rules to multiple pieces of property such as: Park use only during certain hours of the day No unauthorized access Access only for certain uses, such as no camping allowed Certainly no one thinks that military bases, prisons, etc. should have unrestricted access by the public. In general, if you're not allowed to be there the government will put up barriers, gates, lock doors, etc., or place signage to indicate limits. Really not all that different from private property. | Would any offence be committed for: Having this on your person? Buying or selling this? Leaving it around for people to plug in to a computer? In the abstract, I don't think that this conduct would violate either Section 36 of the U.K. law or U.S. law, although, obviously, purposefully destroying a computer itself (i.e. actually using the device without the consent of the owner of the computer) would violate many U.K. laws and would also violate many U.S. laws at both the state and federal level. I also don't think that possession or buying or selling this product would be a crime absent some intent that it be used illegally, in which case there might be an "attempt" to commit a crime offense, or an offense that would make one part of a conspiracy to commit a crime. In the "leaving it around" example, there is arguably an intent to use it to harm another improperly, although the phrasing is ambivalent. While many statutes in the U.S. criminalize possession of burglary tools, or drug paraphernalia, sometimes with an associated intent element (although even these crimes often have an express or judicially implied intent to use element), I'm not aware of any statute that criminalize possession of tools for malicious destruction of property. So, if the tools aren't possessed or used in a manner intended as a step in the facilitation of a crime, I don't think that any law is violated. So far as I know, the U.S. does not have a counterpart to Section 37 of the British statute cited above (it isn't a terribly easy thing to search for to definitively rule out the existence of such a law because federal law has many uncodified crimes in unexpected statutes and there are many sets of state criminal statutes, not all of which are codified either). The example giving in the comments by @gnasher729 of possession of a hammer which could be used to do the same things that this object could be used to do is instructive. Arguably, this USB-like tool is more specifically targeted at malicious conduct. But, for example, when I used to work as a radio news reporter, we had a machine that was basically a high powered magnet that was specifically designed to destroy all information on magnetic media. This was, in part, so that it could be reused, but it was also so that confidential interviews wouldn't fall into the wrong hands once they were no longer needed, in much the way that one might shred paper documents. It isn't so implausible to think that a device like this one might be necessary for individuals or firms with national defense secrets embedded in their hardware and software to have on hand in order to destroy a sensitive computer in order to prevent a security breach, if necessary. In a case like that, leaving one of these devices around the office unlabeled might be negligent, but wouldn't have the intent necessary to be an intended crime. And, it is hard to imagine that the device itself, which seems pretty simple, would itself involve any technology that is a national security secret, so it probably wouldn't violate export control laws. Of course, possession, purchase or sale of such a specialized device, or leaving it around unlabeled would certainly be powerful evidence of an intent to use the device in a wrongful manner, and hence, of an attempt to commit a crime. Indeed, possession of such a device or purchase of one might very well be sufficient to establish probable cause to seize the device and arrest the person holding it on charges of an attempt to destroy a computer. But, this device would be merely powerful evidence of an intent to commit a crime, rather than something that is a crime to commit in and of itself. There are no international laws that govern this kind of thing. The only international laws applicable to individuals pertain to war crimes and nuclear and chemical weapons. Even then, most international laws direct member nations to adopt domestic laws on the subject rather than being self-executing. | I'm a notary. If someone showed me a marked-up license, I'd refuse to perform the notarization, and make a note of the persons name and phone number, to make sure I would never make another appointment with the person. Is there a law that says I have to refuse? I don't think so. Is there is a law that says I can refuse if I have any doubts about the person's identity? Absolutely. | In the United States, no. For something to be illegal in any meaningful way, you have to be able to point to a law that makes it illegal. If there's no law to break, it's not illegal. I would wonder if your colleague was thinking about question of whether cryptocurrencies are legal tender. For something to be "legal tender," there would need to be some kind of law or regulation requiring people to accept them as payment. There is no such requirement in the United States, so Bitcoin, for instance, is not legal tender. But that doesn't make it illegal tender; it just means that people can decide whether to accept it or not. | A book (or any other creative work) published in the 1800s is now in the public domain everywhere in the world (excepting odd cases like Peter Pan where a special rule applies in some jurisdictions.) Anyone may legally quote from such a work at any length with no legal requirement for permission. In fact there is no legal requirement to attribute the quote to the author (although there is an ethical requirement). In fact one may publish a new edition of such a work, unchanged or modified in any way one chooses, with no legal need to obtain permission from anyone or to pay any royalties or fees. If the work were recent enough to still be protected by copyright, a limited quote could be used under fair use, fair dealing or another exception to copyright under the laws of most countries. The exact rules vary by country, and are often highly fact-dependent, so the exact details will matter. If one wanted to quote enough from a recent work that permission is required, the copyright holder, who is often not the publisher, would need to grant permission. That is often the author or the author's heir, but it can be a person or firm to which the author transferred the rights. Sometimes the rights-holder can be hard to identify. Update: it would be possible for a work published in, say, 1890 by an author then young who lived to a fairly old age, dying in, say 1960, to still be protected in some countries, although not in the US. (Anything published before 1925 is now PD in the US.) But Charlotte Bronte died in 1855, and all of her work has long been in the public domain |
If a judge appears to be biased, can a lawyer request that another judge be present in the courtroom? Hypothetically, in a court of law, if a lawyer notices that a particular judge is biased and unfair, can he request that another judge be present to ensure that there's no bias? | Judges simply do not supervise each other in a courtroom in terms of keeping each other "honest." That's simply not how the courts work. Judges are independent in order to not be influenced by bias. A judge would look very unkindly upon a lawyer who requested another judge be in the courtroom in an extra-judicial sense, or in some sort of legal sense as (wrongly) perceived by the lawyer. A lawyer is an officer of the court, and as such, knows what is legal in an administrative sense, and would simply not request another judge be in the courtroom. A lawyer can request a different judge be assigned or take over a case, but the request must generally have a legitimate reason that has a legal basis, i.e., a documented conflict of interest on the part of the judge, or evidence of racial bias. And it is up to the court to grant a change. Yes, judges have been found to be corrupt and have been removed from the bench. But that doesn't happen very often, and that removal is part of the judicial process to keep judges honest and get rid of "bad" judges. Yes, judges do issue rulings that are struck down on appeal; that's why there is an appeal process. That is the legal mechanism to keep judges "honest." So, the remedy for what is perceived as an unfair judge or a biased ruling is an appeal to a higher court. | As a comment by @DavidSchwartz notes, this is not wrong. Questions of law but not fact are allowed. It is worth noting that the line drawn is arbitrary. In Colorado, where I practice, jurors issue written questions (pre-reviewed by the judge and counsel for all parties before being presented) to witnesses at the close of the testimony of each witness called by a party to testify. This is very helpful to counsel, as it provides indirect evidence of whether the jury understands what they are being told, and often juries will directly ask questions that for tactical reasons, both parties have refrained from asking that go to the heart of the matter. It also frequently clarifies misunderstandings that trained legal professionals assumed were not made about terminology. This is more problematic in criminal trials, where jury questions could provide evidence pushing a case over the threshold of proof needed to prove beyond a reasonable doubt that the prosecution failed to provide, than in civil cases with a preponderance of the evidence standard. Also, as a matter of reality, when jurors ask questions, counsel often loathe to object even when they have valid grounds to do so, for fear of offending the decision-maker, unless it is really critical to keep certain information away from the jury. | CCP § 1281.6 provides that a party may petition the court for the appointment of an arbitrator, if the agreed method fails to appoint an arbitrator. Then under § 1281.91, one party may only disqualify without cause only one court-appointed arbitrator. In extreme cases, a party may also petition to move the case to court if the other party is engaging in other dilatory conducts rising to the level of waiving arbitration. Lerner v. Masterson: Petition to Appoint an Arbitrator If a party to arbitration engages in dilatory conduct and an arbitrator has not been appointed, the other party may petition the trial court to appoint an arbitrator under section 1281.6. “In the absence of an agreed method [to appoint an arbitrator], or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.” (§ 1281.6.) Once an arbitrator has been appointed, the arbitration may proceed even without the participation of one of the parties: “If a court has ordered a person to arbitrate a controversy, the arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party ordered to arbitrate, who has been duly notified, to appear.” (§ 1282.2, subd. (e).) The Engalla court concluded a trier of fact could find that the defendant's pattern of delay, which was arguably unreasonable or conducted in bad faith, waived the arbitration agreement and allowed the claimants to proceed in court. (Engalla, supra, 15 Cal.4th at p. 984.) The court emphasized that “the delay must be substantial, unreasonable, and in spite of the claimant's own reasonable diligence. When delay in choosing arbitrators is the result of reasonable and good faith disagreements between the parties, the remedy for such delay is a petition to the court to choose arbitrators under section 1281.6, rather than evasion of the contractual agreement to arbitrate. The burden is on the one opposing the arbitration agreement to prove to the trial court that the other party's dilatory conduct rises to such a level of misfeasance as to constitute a waiver [citation], and such waiver ‘is not to be lightly inferred' [citation].” (Id. at p. 984.) | Yes. There is a special attorney-client confidentiality rule (at least in most U.S. jurisdictions) that requires an attorney to keep confidential and protects with the attorney-client privilege, information disclosed when an attorney and client are in the process of evaluating whether they want to establish an attorney-client relationship. If enough relevant information is exchanged, this information can also create a conflict of interest that would prevent the attorney from representing the opposing party in the same dispute. The ethical rule in states that have adopted a version of the Model Rules of Professional Conduct is Rule 1.18: Duties to Prospective Client (a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing; or (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client. | Is it possible for a witness to backtrack and claim that their previous statements were wrong because they misremembered? ... Is the witness now allowed to say something along the lines: "Huh. That's odd. I clearly remember it differently. But it's such a small detail and it was so long ago..."? Yes. Or is it now considered a deliberate lie? A judge's assessment of a witness's credibility and reliability is much more nuanced. See "How is a judge to evaluate a witness's credibility?" | No. In order to practice law, one must establish an attorney-client relationship. Participation in Internet forums absolutely does not establish an attorney-client relationship. Everyone involved in law spends a disproportionate amount of time disclaiming this, so nobody inside the field will be confused on this point. I believe this is also directly stated in the Terms of Service. And as Jen notes, upvoting/downvoting is not even agreeing with the legal validity of the answer. Take the tour or read help pages for what voting means. It's perfectly conceivable for a psychic who knows how to sway people could write a better voted answer than three lawyers. | The burden of proof is always on the plaintiff (except for counterclaims brought by the defendant against the plaintiff). In your example, the businessman has to prove that he did not rape her. | Is it acceptable for person A (representing themselves) to refer to person B as "their neighbor" instead of by their name, or would that cause the suit to be dismissed? Omitting the neighbor's name in the pleadings & proceedings cannot singlehandedly cause the dismissal of a defamation suit. The matter would result in dismissal only if the plaintiff repeatedly disobeys court order(s) (if any) to disclose that information. Before the proceedings get to that point, the plaintiff will have had one or more hearings to dispute the defendant's alleged need for identifying a non-party by name. When opposing to that disclosure, the plaintiff's goal is to establish that the false narrative about robbing a neighbor at gunpoint is defamatory regardless of neighbor's name. Keep in mind that the focus in a claim of defamation is the defamed person, whereas the relevance of details such as who the non-parties are pertains to context and evidence. Lastly, the fact that a party to the suit is a pro se litigant is irrelevant from both substantial and procedural standpoints. |
Can a landlord demand that a house rented when new be returned to "new" condition? We are living in California. In our lease agreement, it states under the "condition" section: Tenant acknowledges these items are clean and operable condition, with the following exceptions: Tenant acknowledges that the building and everything in it is new. Now we plan to move out. The house has regular wear-and-tear, no excessive wear. The landlord says he will renovate the house at our expense to bring it back to "new" condition. We say it is unlawful to demand a house back in "new" condition that has appropriate wear-and-tear. It also states in the contract: All or any portion of the security deposit may be used, as reasonably necessary, to: (i) cure Tenant's default in payment of Rent (which includes Late Charges, NSF fees or other sums due); (ii) repair damage, excluding ordinary wear and tear, caused by Tenant or by a guest or licensee of Tenant; (iii) clean Premises, if necessary, upon termination of the tenancy; and (iv) replace or return personal property or appurtenances. SECURITY DEPOSIT SHALL NOT BE USED BY TENANT IN LIEU OF PAYMENT OF LAST MONTH'S RENT. If all or any portion of the security deposit is used during the tenancy, Tenant agrees to reinstate the total security deposit within five days after written notice is delivered to Tenant. Within 21 days after Tenant vacates the Premises, Landlord shall: (1) furnish Tenant an itemized statement indicating the amount of any security deposit received and the basis for its disposition and supporting documentation as required by California Civil Code § 1950.5(g); and (2) return any remaining portion of the security deposit to Tenant. Who is right? | You have acknowledged that the house was in "new" condition, which establishes a baseline for determining if the present state is normal wear and tear. The lease and California law agree that normal wear and tear is not the responsibility of the tenant. You may then need to sue the landlord in small claims court to get the remainder of the deposit (the above guide will be useful). The thing that is not clear is exactly what constitutes "normal wear and tear". The state guide tends to emphasize extreme forms of damage such as dogs chewing the woodwork, or cigarette burns. If you do ordinary cleaning on the walls, windows, carpets etc. then it is more likely that the judge will find in your favor. | Inferring from the question, it appears that: The tenancy is an Assured Shorthold Tenancy. The tenancy agreement started on 16 December 2014. The initial fixed term was for 12 months. (Please comment below if any of this is incorrect). A Section 21 order gives notice that, unless the tenant leaves by the date given in the document, the landlord will begin legal proceedings against the tenant, in order to obtain a court order forcing the tenant to leave. To answer the OP's questions: Does it mean that she wants to use her right to cancel the contract after 2 months? It looks like that to me but I am not 100% sure. Yes - but if this is before the end of the fixed term (which I'm assuming is 15 December) there must be a clause in the tenancy agreement (normally called a "break clause") allowing the fixed term to be terminated early. If there is no break clause, then you cannot be asked to leave before the end of the fixed term. What does it mean "after 16/11/2015"? After can mean anything... even end of contract in December. Yes. The landlord would like you to leave before the date shown - but if you don't, the landlord can begin legal proceedings any time after that. Is this a legal document or just something she made up? It is a legal document. Section 21 of the Housing Act 1988 allows a landlord to ask a tenant to leave without having to give a reason. The landlord must meet certain conditions in order for the notice to be valid. What happens if I want to leave the house later because I don't find alternative? You'll need to discuss that with the landlord. However, if you don't leave by the end of the fixed term, you are entitled to stay (and pay rent!) until a court (not the landlord) orders your eviction. EDIT: This website goes into a lot more detail about the whole Section 21 procedure. | The default rule is that a landlord can refuse to rent to anyone for any reason, in which case the landlord can refuse to rent in this case. There are civil rights laws that limit this discretion in the case, for example, of discrimination based on race, or family status. But, those laws often have exemptions for owners of small amounts of property (e.g. a unit in their own home), which can't easily be determined from the question. If a civil rights law applies, the landlord must choose among potential renters on a non-discriminatory basis - the landlord doesn't have to rent to anyone in particular, but can't use the prohibited reasons to make the choice. If the default rule does not apply because a civil rights law unrelated to immigration bars discrimination against a tenant, someone's undocumented immigrant status probably doesn't provide an absolute defense to the civil rights law, but might be one factor among many that a landlord could consider in choosing among available tenants in much the same way that credit ratings, income, and a prospective tenant's criminal record, and other factors might be considered. | In general, a properly signed lease is binding. But there are exceptions, and they vary depending on the jurisdiction: country, state/province, and even city or county in many places. You mention a claim that the property should not be leased "because the owner needs it". In some jurisdictions, there is a special exception if the owner personally, or a member of the owner's immediate family, intended to live in the property. It is not clear form the question if such an exception would apply. it might well be that a person in the position described in the question has a valid and enforceable lease, and could simply remain in the property, paying rent, and the owner would have no valid grounds for eviction. But this kind of case will depend on the exact wording of the rental agreement, and on the exact provisions of the applicable laws, which vary widely depending on the location of the property. A person in this kind of situation would b wise to consult a local lawyer who will know local property law, and how the provisions of the agreement and other claims will be treated by local courts. There may also be local tenant assistance organizations, run by the government or by non-profit groups, who will know local law and can assist in such cases. A general answer cannot be gotten from a forum such as this which an individual should rely upon in such a case, particularly when the question does not even state what country, let alone what specific locality, is involved. | Not in the state of California. California law prohibits discrimination based on source of income; only discrimination based on amount of income is allowed. See the California Government Code, section 12955. It is not even legal to indicate a preferred source of income in the advertisement; landlords may ask prospective tenants about the source of income, but may not discriminate or indicate preference for a particular source (provided it's a lawful source). Also, you can't really force a city to re-zone based on "I'll make sure this bad thing doesn't happen." If the city doesn't want to re-zone, they won't re-zone. You have no right to force them to re-zone; this is especially true when the property was purchased under those zoning rules (if the buyer didn't like them, they didn't have to buy). | You can read about your rights as a California tenant at http://www.dca.ca.gov/publications/landlordbook/catenant.pdf This is rather ridiculous: 1) No judge will evict someone for paying rent by mail. (I assume you have the new landlord's address.) 2) If the landlord cashes the check you mail then he's not going to be able to claim you didn't pay the rent. If he actually refuses to cash your mailed check then that's all to the good for you. 3) You can ignore any requirements imposed by the new landlord that aren't in the lease, just as the landlord could ignore any new requirement imposed on him by you. Even some terms in a lease can be ignored, because not all terms in a contract are legal. (This is especially the case in tenant-landlord law.) If you think there will be trouble then use certified mail. | Your question is not particularly clear, but it sounds like you're describing a situation where: The tenant doesn't pay the rent The landlord files an action to evict the tenant, and The tenant files a request for a jury trial. The act of filing for a jury trial doesn't guarantee that the tenant won't be evicted, but it will likely make the eviction process more time-consuming and expensive for the landlord. I'm assuming the tenant is entitled to a jury trial--otherwise this would be useless as a stalling tactic. In that case, the question you really want answered is, can the landlord force the tenant to waive any right to a jury trial by contract, for example in the lease? In California, the answer is no. The linked document suggests that you may be able to specify some form of ADR, which would avoid the expense of a jury trial, but the California courts won't let you get away with a straight jury trial waiver. | I do not have anything official proving that I gave him the 2-months worth deposit What did you do, hand him a wad of cash? Pay by check, and put what it's for on the memo line. You've been there for nine months and there are several other people who can testify that you've been living there, so it would be difficult to claim that you aren't a renter. If you can show that the landlord is aware of your residence, that definitely helps even further, as does receiving mail there, registering to vote or with the DMV with that address, etc. Question 1 : what would be the best course of action to force the landlord to give me the requested lease agreement? You can't "force" someone to give you an agreement. That's kinda part of the definition of the word "agreement". If you find the conditions unacceptable, you can find another place to rent. When I asked the landlord about what he was planning to do regarding that, his answer was that it was not his business. It doesn't seem like it is. You could take the money you would have given to the other roommate, and give it to the power company instead. If paying for the utilities is part of the renters' responsibilities, and the renters are not paying for the utilities, then it's their choice to not have power. In California, landlords are required to make power available, but that just means that they can't interfere with you purchasing it from the power company, not that the landlord has to pay for it (if the landlord had agreed to pay for it, and isn't, then you can deduct the cost from the rent, but you can't simply withhold all rent, and your question indicates that the landlord hasn't agreed to pay for power anyway). Am I protected in any way, or can the landlord just come in my room and throw everything away, or worse just point me with a gun and force me to move? It would be difficult for the landlord to get rid of you, and would probably take several months to do legally. Performing an eviction himself, rather than getting the sheriff's department to do it, would expose him to serious charges, especially if a gun were used. Besides criminal charges, "If this or other unlawful methods, such as locking a tenant out or seizing his possessions before an eviction process has ended, are used to force a tenant to leave a property, a landlord may be subject to fees up to $100 per day of unlawful method use." http://homeguides.sfgate.com/tenants-rights-utility-billing-california-8073.html However, while the legal process will take a long time, at the end you will still be liable for back rent, and you will have an eviction on your record, which will make it harder to rent in the future. |
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