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Is it a personal care or a Company care to correct the list of Authors of a Patent owned by the Company? My name was missed in several patents issued by a Company with whom I was in the past. I contacted a very experienced Attorney in Employer-Employee Relations for an advice. His belief was that I cannot do anything if the Company does not want to add my name as an Author of a patent owned by The Company. However, this is a matter of Authorship but not a matter of Ownership. In Authorship it is only the Person (the Author) who matter. A Company may own the Patent but they do not own the persons names. I gave the Attorney the following example: I own a Mercedes car and in my garage I replaced all the car signs of Mercedes with those of GM. I can do that because I own the car, but I cannot drive such a car on the street - It is illegal to change the Authorship (in that case Mercedes). He said "Very interesting example - I have not thought about such situation" but he remained firm on the belief that I cannot do anything to protect my name as an Author if the patent is owned by a Company, and the Company does not want to include my name regardless that the key idea of the patent is mine. In other words, I think it is illegal to ignore an Author of a patent, and it is a personal care of the missing Author in the list this to be corrected. It is not a Company care. I believe that a Person do not need an agreement by the Company to file a claim for Patent Authorship and support his claim with enough evidences. | You will want to speak with a patent attorney, not a labor attorney. Some of the facts you are presenting are entirely wrong. Patents have inventors, copyrights have authors. Inventorship has strict rules. Inventorship cannot be denied without consequence in almost any jurisdiction, but you'll need to get local legal advice. In the US, "A patent is invalid unless it lists the first and true inventor or inventors of the claimed invention." (See Stark v. Advanced Magnetics, 119 F.3d 1551, 1553, 1556 (Fed. Cir. 1997); 35 U.S.C. § 102(f) (“A person shall be entitled to a patent unless . . . he did not himself invent the subject matter sought to be patented). See also 35 U.S.C. §§ 111, 115-16, 256.) Assignment--the "ownership" of the patent--is different. It's very common to have you sign an agreement as a condition of your employment that you grant full assignment to your company for any patentable material created under their employ. If you did not, it is possible that the company would need to give you consideration for the right to assignment, e.g., they would have to pay you something to own the patent. If you are no longer there, that "something" can be substantial, because the patent is invalid without it, and they have little leverage over you. Bring all written records, emails, etc. to a licensed attorney who specializes in patent litigation. | The title of your question suggests that a patent is involved, but it isn't clear from the rest of your question if that is really the case. Simply seeing a product on the internet does not mean that there are any patent rights attached to it. If a patent does exist, then that patent's protection is defined by its claims. In the US, if you make or use an object that includes all the elements of the claims of a granted patent, then you are infringing that patent. It does not matter whether you share the object or attempt to make money from it—simply making or using it is enough to qualify as infringement. That said, based on your intended use, the patent owner is highly unlikely to ever find out about your infringement. Further, even if they did, enforcing patent rights in court is incredibly expensive (typically involving multi-million dollar legal budgets), and they wouldn't stand to recover much from you, so it is even less likely that they would sue you for the infringement. | 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. | Ideas aren't property Your employer does not own your ideas. However, neither do you. Ideas are not something that is protected by intellectual property law. To be IP, you need more than an idea. What is IP? The most common types are: Patents - protect inventions and new processes Trade marks - protect logos, words and other branding Copyright - protects art, writing, music, film, and computer programs Registered designs - protects the visual design of a product Circuit layout rights - protect layout designs or plans of integrated circuits used in computer-generated designs Plant breeders rights - protect the commercial rights of new plant varieties. The normal operation of IP law is that if a person is engaged under a contract of service (e.g. an employment contract) then their employer owns all the IP they make which includes progress towards something that might be IP (e.g. all the work that leads up to a patentable invention). However, if they are engaged under a contract for service (e.g. an independent contractor), then the worker owns the IP. The work the employer owns is generally limited to work in the course of the employment. So if you are a software developer they will generally own all code you write that is useful for their business but won't own the romantic novel you write in your spare time. In either case, the specific contract can override the default assumption. What can you do? You can certainly use the idea for the app but you can't use anything that is subject to your employer's IP. That means you can't use any code or copy the user interface - it all has to be redeveloped from scratch. You also can’t develop something that would be of use to their business while you are still an employee. | I will note from the outset that journal editors might require things from you that go beyond what is legally necessary. A typical case is that they will require one to obtain permission before reusing a figure from another article/journal/author (even though in the vast majority of cases no such permission would be needed). The legal answer might allow you to push back on the editor’s demands, but they still have the last word. There are two kinds of intellectual property to consider. Unless otherwise noted, this answer is valid for france and united-states. Trademark is almost certainly not an issue Trademark is a right to branding. A trademark holder can prevent others from using certain elements to promote their own products. The elements need not be complex, they just need to be recognizable by the public as related to the brand in question. For instance, "Tesla" is the name of an 19th century Serbian-American inventor known among other things for discoveries related to radio transmission. You would probably be able to market a radio transmitter under a "Tesla" brand (assuming there are no existing trademarks, which I have not checked). If you try the same thing with electrical vehicles, you will get sued. For a research paper, as long as you do not imply that Visa or MasterCard support your research or its results in any way, that should not be an issue. I assume, but cannot guarantee, that the above applies to most Western jurisdictions. Copyright Copyright is a protection or creative elements. Whoever authors a creative work can forbid others from distributing it under certain conditions. Are the Visa and MasterCard logos copyrighted? The first question is whether the elements at hand are protected under copyright. In the case of the Visa and MasterCard logos, this might depend on the jurisdiction. The criterion for "creativity" varies a lot. Some jurisdiction have adopted (some version of) the sweat of the brow doctrine, according to which work suffices to produce a "creative element" with copyright protection. The typical example are databases of facts where each individual entry is unoriginal but the collection might take some time to collect, curate and maintain (such as a phone book). In the united-states, the Supreme Court rejected the sweat of the brow doctrine in 1991. Accordingly, a work needs to reach the threshold of originality. Determining whether the threshold is met for a given work is done on a case-by-case basis at trial. However, it seems very likely that both logos are not protected by copyright in the United States. The Visa logo is a simple font with no significant creative elements; the MasterCard logo contains two overlapping circles. I note that Wikimedia Commons hosts both logos on their website and claims they are public-domain under that rationale (Visa, MasterCard). Wikimedia Commons usually follows copyright fairly closely, and they are a high-profile website hence a prime target for takedown requests by IP lawyers at Visa or MasterCard, so that is weak evidence that their claim is correct. But there is always the possibility that Visa / MasterCard just have not decided to sue yet. In france, the statute makes no explicit reference any threshold of originality: (article L-112-1 of the code of intellectual property) Les dispositions du présent code protègent les droits des auteurs sur toutes les oeuvres de l'esprit, quels qu'en soient le genre, la forme d'expression, le mérite ou la destination. The present code [containing all copyright statutes] protect copyrights for any works of mind, whatever their style, form of expression, artistic worth, or intended use. However, various court cases have tended to require "works of mind" to exhibit some amount of intellectual originality. For instance, Civ. 1ère 22 janv. 2009, n°08-11404 held that a perfume cannot be copyrighted because la fragrance d'un parfum, qui procède de la simple mise en oeuvre d'un savoir-faire, ne constitue pas la création d'une forme d'expression pouvant bénéficier de la protection des oeuvres de l'esprit par le droit d'auteur the smell of a perfume comes from the simple application of a know-how and does not constitute the creation of a form of expression subject to the protection of works of mind by copyright After a fifteen-minute look at various cases, I still do not have any strong idea of whether the Visa or MasterCard logo would be copyrighted in France. Let’s assume for the sake of the argument that they are. "Fair use" Even copyrighted works can be used without the copyright holder’s agreement under certain exceptions. Here again, any precise answer is jurisdiction-specific. "Fair use" is a US-specific doctrine, resulting from a string of court cases eventually codified into law (Wikipedia has a decent history). It is a rather general doctrine (any use case can be analyzed under the four balancing factors) and results can be hard to predict. I believe research articles usually fall on the right side, but because the logos under discussion are not under copyright in the US (see above), I will not attempt to make any in-depth analysis. Pedantic note: it is sloppy wording to use the term "fair use" for similar clauses in other jurisdictions. "Fair use" is a US doctrine. In france, the corresponding doctrine is given by a rather strict but precise statute at article L122-5 of the code of intellectual property: Lorsque l'oeuvre a été divulguée, l'auteur ne peut interdire : (...) 3° Sous réserve que soient indiqués clairement le nom de l'auteur et la source : a) Les analyses et courtes citations justifiées par le caractère critique, polémique, pédagogique, scientifique ou d'information de l'oeuvre à laquelle elles sont incorporées ; When the work has been published, the author cannot forbid: (...) 3° As long as the name of the author and the source are clearly mentioned: a) Analysis and short citations justified by the inclusion in a work with an aim of criticism, debate, pedagogy, science or information A research article is the typical case of a "work of science" (science means here "scholarly research", not STEM). I have little doubt that it would be a covered use, especially if the paper discusses the reason behind the choice of those logos (easily recognizable by test subjects? simple shapes? etc.). | Yes. Content not created by a user is not protected by Section 230, and if the platform agents or employees begin to substantively edit content, the platform becomes a co-author rather than merely a platform for that content. | The origin of a lawsuit will not be a license, but copyright law. Licenses are exemptions from copyright law enforcement. The original author holds the copyright. That person did offer a license O to the third party, but that third party did not take up that offer. Hence, there is a copyright violation, and a cause for a lawsuit. It is up to the original author what might be demanded there, but the usual demand is such suits is for damages. However, it is common practice to settle the case amicably outside the courts by agreeing to the original license O, although this may come with undisclosed extra terms. The problem with a lawsuit is that enforcement of the original license offer O is hard, because copyright law generally does not cover such licensing. The license terms L are mostly irrelevant as that person is not a copyright owner so there is nothing to be licensed. | The (journal) publisher's interest is presumably to comply with conditions imposed by the copyright owner: CUP might demand of Elsevier that their reviewers delete electronic copies of books after the review is finished. In keeping and using the work (and perhaps freely distributing that copy), you have violated CUP's copyright (assume that CUP holds the copyright). Therefore you can be sued. Elsevier can also be sued. What is not clear is how many people can sue you (and whether you can sue anyone). It would depend on whether you were informed of the deletion requirement before you agreed to review the work. If you were led to believe either that you would get a paper copy of the work, or at least would be able to retain and use the electronic copy for your own use, the journal publisher does not have the option of rewriting the terms of that agreement after the fact. If you reasonably relied on them granting you permission to keep the work, they can't sue you. You might even be able to sue them, insofar as getting a free copy of an expensive book in exchange of writing a review is a standard academic business deal. On the other hand, if they told you in advance that you'd have to delete the review copy, then that is the end of the discussion. If you didn't read the agreement, that too is the end of the discussion. It is not clear what recourse the rights holder might have against you. You have no contractual relationship with the book publisher, and the journal publisher is not the agent of the book publisher so the book publisher is not bound by the errors of the journal publisher. Because you are expected to know that all IP requires permission of the rights holder to copy and since you know that the journal publisher is not the copyright holder, you are on thin ice in assuming that the copyright holder has granted you permission to copy the work. Indeed, even agreeing to review a work in electronic form is a dubious proposition, without suitable legal assurances that the rights holder has granted permission to make the required copies. If a journal buys a physical copy of a book, it can lend or give it to you to write a review, and no permission is required wrong the book publisher. To review an electronic copy, permission from the book publisher is required. You might try defending yourself against an infringement suit under the fair use doctrine, since the underlying purpose of "fair use" is precisely to allow book reviews. If the journal publisher was negligent in not informing you of the copyright conditions imposed on them (which they are supposed to impose on you), your infringement may be innocent, and you might only have a small liability. You could sue the journal in case the book publisher sues you – the journal publisher has a duty of care to you. Technically speaking, you're in trouble once you download the illegal copy, and technically speaking, you infringe copyright every time you read the work. Digital content is, or should be, distributed under some license (a contract between you and the rights holder), otherwise it is illegal to receive or use the work. Hence various public licenses grant permission to copy, subject to various limitations: the use may not be commercial; the work may not be redistributed; the work may not be altered; the work may not be redistributed in exchange for money, or some something of value... The teeth that digital licensing has is that if you copy and use a work contrary to the terms of the license, you do not have permission (the rights holder has granted conditional permission). Copyright law gives the rights holder the exclusive right to authorize making any copies, and in order to use a computer file, a number of copies are made (by various programs). The basic protection is that "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work". Copies are statutorily defined as "material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed." One or more "derivative works" (with no added creative content) are created in getting from a pdf file to a computer screen. In §117, Congress created an exception to general copyright protection, whereby one can make "another copy or adaptation" of a computer program provided Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. This exception only covers computer programs, and not data files, and as the Copyright Office says You are not permitted under section 117 to make a backup copy of other material on a computer's hard drive, such as other copyrighted works that have been downloaded (e.g., music, films). It is also important to check the terms of sale or license agreement of the original copy of software in case any special conditions have been put in place by the copyright owner that might affect your ability or right under section 117 to make a backup copy. There is no other provision in the Copyright Act that specifically authorizes the making of backup copies of works other than computer programs even if those works are distributed as digital copies. I say that "technically", it is infringement if you open and process a digital file that you do not have permission to copy (via a license), because that is what the law says, and no court case has deemed that Congress intended something entirely different. It is notoriously difficult to establish legislative intent. Since Congress did articulate narrow exceptions in similar cases (computer programs, also secondary transmissions of performances and display of works, and did not include any exception for copies made by computer programs in the course of "using" a protected work, but could have, we can conclude that Congress did not intend to create such an exception. One might point to other facts to argue that Congress did intend that. At present, I believe that the Supreme Court would uphold the letter of the law, but there is really only one way to find out. That is, at any rate, the basis for the copyright holder pursuing an action against you (or, you and the journal). Even without any prior notification of a requirement to delete, they can still tell you that you must delete the work. They probably could not successfully force you to delete the work in a court of law, but there are many other things that they can do that boil down to the fact that you must delete that copy of the work. Blackballing, for example. |
How many lines of text in all currently active federal laws of US? LOC (lines of code) is a useful measure of amount of work done in software development. It works well when comparing orders of magnitude. Hello world: 1-10 LOC. Tetris: 100-200 LOC. Gmail: 1 Million LOC, Windows XP: 50 Million LOC. What is the estimated number of lines in all current US federal laws? I realize that this metrics isn't accurate. Which font size do we use? Do we include comments? How to count someone v. United States? Since only order of magnitude matters we should use use 12px on letter, include comments and only include verdict if Supreme Court ruling changed the way a federal law is interpreted. | What is the estimated number of lines in all current US federal laws? I realize that this metrics isn't accurate. Which font size do we use? Do we include comments? How to count someone v. United States? U.S. federal law consists of: 52 Titles of the United States Code (some of which have more than one volume) and a smattering of uncodified statutes that probably would take up one or two additional books. On the order of 100 volumes. About 2 volumes worth of federal court rules of general applicability. About 200 sets of local court rules for particular federal courts. On the order of 20 volumes for the whole set. About 2000 volumes of the Federal Reporter which sets forth published appellate court decisions. About 2150 volumes of the Federal Supplement which sets forth selected federal trial court opinions. On the order of 500 volumes of the Federal Rules Decisions which sets forth selected trial court opinions interpreting court rules. 582 volumes of the United States Reporter which sets forth U.S. Supreme Court decisions. A set of U.S. Treaties in Force on the order of 20-30 volumes. The Code of Federal Regulations (50 titles, some of which have more than one volume). On the order of 200 volumes. Several hundred treaties with U.S. Indian tribes, probably about 20 volumes. About 500 volumes of territorial legislation still in force (e.g. statutes of Guam, Puerto Rico, U.S. Virgin Islands, District of Columbia, Indian reservations). So, this would mean roughly 4500 volumes that have about 1000 pages of text each for a total of 4,500,000 pages, typically single spaced in 10 point (10/72nds of an inch) font on letter sized paper with half inch margins (i.e. 7.5 inches for text per page top to bottom) which works out to on the order of 50 lines per page. So, roughly, 225 million lines of code equivalent for primary federal materials only. There are some judgment calls about definitions here. For example, I did not include the full text of all works deposited with the library of Congress as part of the documentation of copyrights, or the full text of all patents and trademarks ever issued, each of which would dramatically increase the total, even though reference to those materials is necessary to determine if another work infringes a copyright or patent. Similarly, I omitted recorded real estate documents and publicly filed corporate documents even though those could each be referenced as evidence in a court case to determine someone's legal rights. And, I didn't include court orders in trial courts with no precedential effects which are binding between the parties even though some consent decrees in that set of documents have the force of law. Of course, the problem is that U.S. federal law isn't an independent body of law by itself, by design. U.S. federal law routinely incorporates the law of the state in question by reference. For example, criminal liability in federal parks is determined in part by reference to state law. A full set of state statutes and regulations in a typical U.S. state would require perhaps 50 volumes for a total of about 2500 volumes, and the entire corpus of published state level case law for all states combined is on the order of 10,000 volumes. So, excluding municipal ordinances, you are looking at another 12,500,000 pages at 50 lines a page, for about 600 million lines of code. Local government ordinances are litigated in state court so there is no separate body of case law for them. But, there are about 100,000 local governments and there are probably about 2 volumes of law for each, so about 200,000,000 pages and about 1,000 million lines of code. I'm sure I've made some minor omissions (e.g., case law from the courts of U.S. Indian Tribes), but the grand total for all U.S. law local, state and federal is on the order of 2 billion (i.e. 2,000,000,000) lines of code. Also, keep in mind that this is only the primary materials and doesn't include treatises and textbooks and digests and law review articles interpreting the law which you need in practice to utilize this corpus of primary legal materials, and which can be referenced by courts in cases. On the other hand, secondary sources are profoundly less redundant than primary sources. You could have a pretty comprehensive collection of secondary sources with 2,000 volumes which would be about 2,000,000 pages and about 100 million lines of code which could be rolled into the omitted materials in my 2 billion lines estimate. Of course, this is highly redundant. Case law spends lots of time reciting rulings from prior cases and the language of the relevant statutes and regulations, for example, and many municipal ordinances start out with an exact copy of another municipality's municipal ordinances before the municipality starts writing its own original legislation. Similarly, state traffic codes are often copied from one another. Also, not every reported case continues to be good law. But, there is no good way to separate the wheat from the chaff for a user of these legal authorities. You need them all. | Let's say I wanted to generate a report on the trends in outcomes of civil cases. Is there anywhere I could download any kind of data related to it? The parties involved, maybe information about the size of compensation, result of the case etc. The raw data is a matter of public record, but it isn't available in a downloadable format. You have to go court by court, or case by case, look at the public records, code and classify it, and then analyze the data yourself. Some summaries are available in annual reports of the federal court system and of many state court systems, but this typically looks at total dockets, and dockets by type of cases, but rarely looks at outcomes. The most detailed outcomes you are likely to get from these sources are number of cases terminated in a year (often by geographic subcategory), number of jury or bench trials with some division by type of case, number of defendants adjudicated, and number of dismissals prior to trial. The U.S. Sentencing Commission does more analysis of outcomes from detailed case data. Many professors writing articles for academic journals do it the hard way, and there are some collaborations of professors and research institutes that collect large, detailed (although not complete) databases, for example, limited to federal courts (where it is easy to get data on individual cases in PACER) or to, for example, 75 most populous counties with cooperative custodians of records. But, often you need to be an accredited member of the collaboration working on that to get access to the raw data. One commercial source is a firm called the Jury Verdict Reporter that regularly publishes detailed data on as many jury verdicts as it can, but this is quite an expensive resource to use. | Do these warnings have any legal force? In the United States, no. They do not have any legal force. Some have tried to argue that the Electronic Communications Privacy Act (ECPA) applies; however, this law only applies to intercepting e-mails—not accidentally sending to the wrong party. There is no legal protection for "reply all" or "accidental send" human errors. If so, what are their consequences? If you're asking why some people put them in there, even if it's not legally enforceable, one reason is lawyers trying to prevent an accidental waiver of attorney-client privilege. Generally, a waiver of the attorney-client privileged must be intentional and knowing. Therefore, some argue that a disclaimer could help one argue that privilege was not waived. Although, I could not find a published case where an e-mail disclaimer actually helped this argument. Additionally, placing the e-mail disclaimer on the bottom of an e-mail (which is customary) is less effective than placing one at the top. As a note, some legal commentators and ethics committee's suggest that lawyers should use encryption "to ensure the confidentiality of such communications remain so when the circumstance calls for it, particularly if the information at issue is highly sensitive and the use of encryption is not onerous." See Legal Productivity's Post that quotes a California Ethics Opinion For more info, read this article here from the American Bar Association's Litigation Section regarding the efficacy of E-mail disclaimers: Do Email Disclaimers Really Work? | OK, seems I was right to begin with, but after building some work with this I had to be sure. The problem seems to step from a lot of not-lawyers overinterpreting the reach and applicability of copyright law, which, with a few asides, is the full extent of the AGPL. Additionally, the software is not based in an English-speaking country, which may have thrown the interpreted meaning of "derivative product", as opposed to simply "product". The AGPL is indeed in almost all ways the same as the GPL version 3; in fact you can see this by diffing the two documents. The only extension of the GPLv3 made for AGPL applies to software being run on a server. While it is indeed possible to include code in the final files, which might, in theory, constitute a significant portion of this program, that does not happen. The AGPL is apparently also meant almost exclusively for software, though the wording does include the ambiguous phrase "and other products"; this concerned me as it felt as though it might apply to the resources created by the work. It, broadly speaking, does not. So, I've got nothing to worry about--unless I was distributing derivative software, which would be an entirely different question and subject to this. | A law has to be "broad" to include a lot of possible crimes and intent of criminals and account for the good faith of non-criminals. "Intentionally access without authorization/exceed" is actually fairly specific; "intent" is the keyword. Someone making a mistake may have intent to login, but no intent to commit a crime. Someone confused by "different pages of demo and live accounts" can easily defend their actions by pointing out that they were confused. It's up to the reasonableness of the pertinent law enforcement and prosecutors to take into account the evidence that reasonable mistakes were made by little old ladies and not charge them with a crime. And for the most part, 98% of the time, law enforcement and prosecutors are reasonable. | NOTE: This answer assumes jurisdiction in the US. No. Length does not determine whether or not something is fair use or not. There was a court case (Harper & Row v Nation Enterprises, 471 U.S. 539 (1985), all credit to Dawn) where it was determined that just a few paragraphs from a 300+ page biography were infringing content, due to them capturing the "heart of the work". As user6726 said, in your example the clips you mentioned are most likely licensed. Also, courts tend to look poorly on things that are simply "shared" claiming fair use against copyright claims. Now, if you were to use a short clip as an example of something you were explaining, teaching, or critiquing, that would be different and would more likely be fair use. It is important to note that there is (by design) not a clear cut line if something is or is not fair use. There is a set of guidelines, but determination is made on a case by case basis There are a couple of cases that it is out and out NOT fair use, but none for fair use. This is because fair use is an affirmative defense, which is to say, you admit to the offense, but claim an exception to the rule. Self-defense as a defense to charges of homocide, assault, etc. works in a similar manner. | As a linguist who reads laws for a hobby, I would say that "and" legally means what it was intended to mean. There are often interpretive statutes which say that "and" can be read as "or" or vice versa, when necessary (as in ORC 1.02 "And" may be read "or," and "or" may be read "and" if the sense requires it. Delaware doesn't have that as a rule, but it is a rule employed by courts "as required". One approach to interpretation is to discern intent from surrounding text, so we would look at the whole code. The general context is the rule that "A building or land shall be used only for the following purposes". Following Article XXVII of the code, other uses could be permitted because "§115-32. Special use exceptions may be permitted by the Board of Adjustment and in accordance with the provisions of Article XXVII of this chapter and may include...". That section ends with "C:Other special use exceptions as follows", and includes "Private garages for more than four automobiles and with floor area of more than 900 square feet in a residential district". From the list of things enumerated in §115-32, there is no coherent pattern – some things are in the list of special exceptions, some things are in this list, some not. So the "surrounding text" approach doesn't help in this case. Scrutiny of legislative debate is sometimes invoked, especially at the federal level, but there is negligible chance that there is any such evidence here. The almost-final approach is to spell out the competing interpretations, and see if anything jumps out as ridiculous (because it is assumed that lawmakers do not pass ridiculous laws). The two interpretations are "both must be true", versus "one must be true". Since the general rule is that you can go ahead unless it is restricted, then with the "both" interpretation, you need a special exception permit if you simultaneously plan to have more than 4 automobiles (which means, 5+, so 4 is allowed) and floor area greater than 900 sf. Thus if you plan for only 4 cars, or can fit the 5 cars into 900 sf, then you would not require a permit (on the "both" interpretation). Which btw is the literal interpretation of "and". This is not an absurd scenario (using a generous 10'x18' space, which I derived from parking slot regulations in Danbury CT). So it is reasonable to think they meant "both". The "either of these" interpretation says that they are being even more restrictive – you need permission to have a 5+ car garage (regardless of size), and you need permission to have a garage larger than 800 sf (even if there were only 1 car in it). This seems a bit specific since there isn't generally a size restriction on structures in the code – except that playhouses are limited to 150 sf. and can't be tall enough for an adult to stand up. Since the literal meaning of "and" is "both at once", and since no facts about the code say otherwise (i.e. that interpretation does not result in an absurd nullification of some other provision), an objective court should interpret this rule to mean "both at once", thus the government imposes the fewest restrictions on your property. No way to know what they will do. | In the UK and USA (and I imagine other jurisdictions) there have been laws that explicitly provide for orders obliging entities to (A) provide access or information and (B) keep the order secret. For example, in the USA the Stored Communications Act, Fair Credit Reporting Act and Right to Financial Privacy Act authorise the FBI to issue National Security Letters (Wikipedia, EFF, EPIC, Lawfare). These are an administrative subpoena, without prior approval from a judge, for meta-information (e.g. phone numbers dialed or email recipients addressed but not the content) of communications relevant to national security investigations. They typically contain a non-disclosure requirement prohibiting the recipient of the NSL from disclosing its existence or the FBI's demands. There have been challenges on First Amendment grounds to the non-disclosure aspect but, so far as I'm aware, they have all ultimately failed. Some of their non-disclosure requirements may eventually expire under other laws. In response, so-called 'warrant canaries' (Wikipedia) have been developed (and gone a bit further than the original idea) - these are intended to allow entities to relatively passively warn of such an order having been received if not the detail of the order. However, they can be legally risky in that they might be seen by a court as trying to circumvent the non-disclosure requirement and therefore breaking it. |
Am I legally obligated to pay for a medical bill? During an annual checkup, my doctor requested blood work to be done, he told me there would be no charge. I later received a bill for the blood work for an amount I never consented to. I was told it was because the health insurance company rejected the claim. Am I legal required to pay? What would be the consequences if I refuse to pay? | You probably don't have any legal recourse. I once got out of a dental bill by arguing along these lines: "you told me the cost would be X and you knew the terms of my insurance coverage when you provided that estimate, or at least you claimed you did, and I would not have consented had I known the cost would be Y instead of X. "In that case, however, the service was partially paid by the insurer; it was just less of a payment than the office has expected. Another option you have is to challenge the insurance company's denial of the claim. They may have denied it incorrectly. Look up the diagnosis codes and service codes on your bill and make sure they describe the visit accurately. Read your policy to see the terms of your coverage. | Suppose the shop bills you $2000 and you have a $750 deductible. You pay them $750, your insurance company pays $1250. Now suppose instead that the shop purports to waive the deductible. In order to get the insurance company to pay $1250 they still have to bill $2000. Then they don't collect the $750 from you. Presumably they write it off as bad debt. It smells like insurance fraud to me, on two counts: first, the shop expects to receive $1250 for a service but they produce a bill of $2000 for the insurance company's benefit and then do not seek payment from the insured party for any balance purportedly due beyond $1250. Second, the insured party has a contract with the insurer undertaking to pay the first $750 of the claim but has conspired with the shop to avoid paying that amount through deception. Had the shop played by the rules, they would have billed $1250 and the insurer would have paid $500. The shop isn't waiving your deductible; it's getting it out of the insurance company by fraud, with your collusion. Another way of handling this is that the auto body shop submits an estimate for the cost necessary to restore the car to a certain degree but then restores the car to a lesser degree. If everyone is aware that this is happening then it might be acceptable, depending on the terms of the insurance policy. | 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. | Yes You have a contract and, while I don't know what it says, its a fair bet that not making payments the contract requires you to make would be a breach of that contract. This would allow the other party to sue you for the unpaid fees as well as interest on them and the consts of collection (collection agency fees, legal fees etc.). In addition they can report you as a defaulter (which you would be) to any and all credit reporting agencies which would wreck your ability to get credit in the future. If the do sue you and succeed (as the probably would) they can seize your assets to sell them to recover their debt - since the time-share appears to have limited value they would probably seize your savings or your car instead. You need to read the contract to find out how you can end it legally. | A doctor can choose their patients A doctor has a professional duty to render aid in an emergency. However, apart from this and assuming the decision is not made for a prohibited or unlawfully discriminatory reason, they can refuse to see whoever they want. What you have here is poor customer relations, not illegally. Find a better doctor. | In Illinois: The General Assembly has established numerous protections for the generous and compassionate acts of its citizens who volunteer their time and talents to help others. Basically, if you are a licensed medical profession, or have had successful training in CPR provided by the the American Red Cross or the American Heart Association, and you try in good faith to save somebody's life and fail, you are not liable for their death, under the assumption you did not cause harm in the first place (i.e. you can not stab someone in the chest, attempt CPR, and be exempt from lawsuit(s)). Note that this doesn't apply to just CPR or physicians. This also covers dentists, Pharmacists, Optometrists, Physical Therapist, etc. | 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. | The solicitor is allowed not to accept a case. If your ex-wife asked him to prepare papers, and he feels that she is getting ripped off, it is absolutely understandable that he won't prepare these papers for her, because he doesn't want to be sued or badmouthed when the deal goes wrong. "We would also reserve the right to take our own professional advice as to our efforts on your behalf." means simply he is not specialised in some subject, and will prefer to ask someone who is. Like a medical doctor asking for a second opinion before going ahead and cutting your leg off. Now I would have preferred if the solicitor had said concretely what exactly is wrong with the contract. Also, it would be obvious that you would be very comfortable with anything that he would advice her against. If he thinks that it is a good deal for you but not for her, he should advice against it. (Your comment to another question seems to indicate that she should be paid a lot more than you offered, so her solicitor seems to have been perfectly right). |
Self incrimination during medical examination If, during a medical examination, an alleged accused says anything that might incriminate himself, it should be neither recorded nor reported.[emphasis mine] source: Synopsis of forensic medicine and Toxicology by K.S. Narayan Reddy Country: India Why should the officer not record this clue? or report it? If the convict is self incriminating (though by ignorance) then why not take advantage? | If such conversations are reported, it can place the suspect in a dilemma. Consider a man who appears to have overdosed on illegal narcotics. He is taken to the hospital, and the doctor asks what kind of drugs he took, in order to plan his treatment. If the man thinks that what he says could be used to prosecute him, he might lie to the doctor. Then he would not receive proper medical treatment, putting his health at risk. Lawmakers or police authorities might decide that it is better for society for people to always be able to speak freely to their doctors and receive proper treatment, even if it means that it will sometimes be harder to prosecute criminals. That would be one possible rationale for a rule like this. | 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. | Police can lie However, in the United States they have to read you your Miranda warning (most other democratic countries have similar warnings): You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time. They have told you everything they are required to tell you - effectively “we are not on your side.” After that, they can lie their asses off. Of course, they wouldn’t ask you for a DNA sample - they’d ask you if you’d like a glass of water. Then they’ll take the DNA from that. | First, if the police officer had reasonable cause to believe that a crime was in progress then the search would not be illegal in the first place. However, let's assume the search was illegal. Normally the evidence would be excluded under the exclusionary rule. However, there are two exceptions known as the independent source and attenuation doctrines. The evidence of the police officer as to the imprisonment would be excluded. However, the evidence of the victims is independent of that illegal search and their testimony would be admissible. Further, that testimony would allow independent discovery and admissibility of any physical evidence in the property. However, if the victims were dead, then there would be no independent discovery and none of the evidence would be admissible. | Perjury is not 'not telling the truth'. It requires (in most jurisdictions) being proven to have deliberately lied under oath. As Xavier pointed out, you are not on oath when entering a plea (among other reasons, you would be required to incriminate yourself). Secondly, "I am not guilty" could mean anything from "the prosecution wrongly think that what I did is illegal" to "this law is unconstitutional" even if the facts are not in dispute; either may be mistaken without being a lie. If the facts are in dispute, the jury will have to deliver a verdict that implies (it does not state, let alone prove) that they disbelieve one party; deliberate falsehood, whether by a defendant or a police officer, would be several steps beyond that. | There aren't any specific laws or regulations about medical charges. Instead, this is a matter of general contract law, where you have to agree. You have to consent to be treated, and a signature is taken to be evidence of consent. The law does not say that they have to ask permission for absolutely everything they do, the action just as to be in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community as that of the person treating, examining, or operating on the patient for whom the consent is obtained This law insulates doctors from getting sued. In a situation where treatment is provided against a patient's instructions, you may have a cause of action for e.g. battery. In general, a doctor can't poke you, draw blood, make "offensive contact" etc. without consent, and consenting to one procedure does not "open the floodgates" of consent for any othre procedure. Of course, if the procedure was not performed, you obviously are not liable for the cost (and they are not liable for a non-occurring battery). This may in fact constitute gross negligence. During trial, the primary issue is likely to be whether there is proof that the procedure was expressly rejected. The doctor would probably provide the consent form, and that form may or may not indicate that the test would be conducted. It would not be surprising if the patient never saw an actual form and instead just electro-signed, having been told that this is authorization to treat. Corroborating witnesses would be helpful. From a practical perspective, especially if the billing department is being recalcitrant, this is probably a matter best handled by an attorney who would start with a formal letter summarizing the consequences of unauthorized medical treatment. | The Legal Answer: An officer's job is to turn over all evidence to the State's attorney and testify at trial truthfully. It is the State's attorney's job to turn over all evidence in discovery to the defense; to only prosecute people they believe are guilty or likely guilty; and to remedy clear and convincing false prosecutions as outlined in ABA rule 3.8 which is echoed in many state laws. Rule 3.8: The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;... ...(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;... ..(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. If this new exonerating evidence is turned over to the prosecutor they would be required to submit it to the defense and the trial would likely be postponed for both sides to evaluate the new evidence. If they suppress the evidence it would be grounds for appeal and disbarment of the prosecuting attorney. It is not the officer's job to direct the trial, just supply evidence that supports the truth. But it also wouldn't help if the State's own witness suddenly started offering testimony contrary to supporting guilt and in light of new evidence the prosecution may reevaluate to not have this happen. The Ethical Answer: Kind of sticky going into ethics and the exact right response to this situation, but it sounds like the answer you want. Assuming an ethical prosecutor the this would be the same as the legal answer. If this is not the case and the officer reasonably believes evidence will be suppressed, they could turn over evidence to both parties directly or to the prosecution and make the defense aware that he submitted evidence. He could also notify the state bar association of the suppression by the prosecution should that happen. Of course these actions may be at peril to their job as an officer despite whistle blower protections, but if ethics were easy, people wouldn't have to talk about them so much. | The Miranda warning only has to be given to a person being interrogated in custody, and on the premise that the wife is not in custody, the police do not need to read her the warning. Therefore, anything she says can be used against her, or somebody else, unless there is a separate reason why the statement could not be used. The wife may invoke the spousal testimony privilege, in which case she cannot be compelled to testify against the husband. The officer could theoretically testify that the wife said "I washed blood out of his clothing", but this is an assertion made by an out-of-court declarant to prove the truth of the question at hand, i.e. hearsay. There are numerous exceptions to the definition so that in some cases, the statement would not be hearsay. If the wife refuses to testify, that cuts out half of the exceptions, but maybe the wife is a co-conspirator. |
Unauthorized access to bank account Western Union processed an unauthorized withdrawal of $840 from my bank account, but the reversed the transaction. I am very concerned and a bit stressed out about this given all the security and identity breaches going on. I recently received noticed I was affected by the Equifax breach. Do I have any legal options to protect myself? | You haven't suffered a legally cognizable harm because you got your money back, before you even had a chance to complain, so you have no basis for a lawsuit. For what it is worth, pretty much every adult in the United States was affected by the Equifax breach. Also, usually Equifax wouldn't have had access to full bank account numbers in the first place, so that is an unlikely source of the problem. You could open a new account and close the old one (as suggested by @mkennedy in the comments) because then if anyone had access to your bank account number and was abusing it, they could no longer do so. The fact that it only happened once rather than involving many transactions, which is what you commonly see when there is a true identity theft, however, suggests a more benign possibility. There is a pretty good chance that this errant transaction which was reversed was simply a clerical error involving an inaccurate typing in of an account number that got your number instead of the intended one and was reversed when the money didn't leave the intended account (in contrast, identity theft incidents are almost never reversed without a complaint from the account holder). In other words, this may have simply been the banking equivalent of dialing the wrong number by mistake. If this happens again, you should definitely shut down the account, but so far, it seems more likely that this was a one off clerical error. Humans are just not built to input scores of fifteen digit numbers on a daily basis in a 100% accurate fashion. As long as this job is in the hands of humans rather than computers or robots, the humans are going to make mistakes. | You didn't bother to state who this appeal is with or even where you are but I'm almost certain I know the answer. Just once. If the appeal is denied, you may be able to appeal to a higher body such as a higher court or an ombudsman. However, any group or court allowing the same appeal ad infinitum until you get what you want would be farcical. | In my opinion, your question is no different from "If I steal money from a bank to pay off my credit card in the same bank, can I be held liable for stealing". I think the obvious answer is yes for both your question and the modified one, for exactly the same reason. | No The bank is not pretending in any way that the money received from depositors is guaranteed. If they had done, then that would be deceptive marketing. The bank held itself out to be a bank and to provide the services that a bank provides. They are allowed to assume that their customers know how banking works. It is clear that you do not because both explanations you have provided are wrong. | FDIC Regulation 500 prohibits discrimination in making loans on the basis of "National origin" but not on the basis of immigration status. This story from The Nation says that Bank of America is denying accounts to non-citizens, and arguing that it is legal because of increased risks, although there are current court challenges to this. Perez v. Wells Fargo Bank, N.A is a case now pending challenging loan denials based on immigration status. This has particularly come up in regard to DACA recipients, rather than people with LPR status. The US "public accommodation" laws probably do not apply, as a bank is not usually considered a place of public accommodation. Any specific state laws prohibiting discrimination on the basis of immigration status might apply. In short, this is an issue still not clearly settled. There seems to be no law or regulation requiring banks to ask for citizenship information, much less to deny accounts based on it, and it would be well to seek a bank with a different policy if possible. The above is very US-specific. Many countries do limit banking access based on citizenship, i understand. I am not a lawyer, and this is not legal advice. Before challenging any bank action, you may well wish to seek advice from a lawyer. | The date and location of the signature merely documents when/where the signature was made, and doesn't have a lot of legal significance for ordinary contracts. This information is probably only useful if you need to argue that you could't have signed the contract because you weren't in that town on that day. Despite this small lapse your contract is perfectly valid, in particular you are required to make any payments that are part of this contract. It doesn't make sense to get this corrected. However, if any actual information (for example, you address) changed, then you should notify the gym to update the information. | If I understand your question correctly, you have some clients who have paid you for services that you have not yet provided and, indeed, they have not yet requested. Is this correct? The accounting term for this is a "prepayment". The correct accounting treatment is to increase an asset account (your bank account) and create a liability account (Prepayments or something similar). You need to talk to your accountant about how to treat these for consumption and income taxes. Legally, these people are now creditors of your business - just like all of your suppliers and employees. There is no legal requirement to escrow or otherwise treat this as trust money. Basically, if your business goes bust they will lose their money. This is something that you should have dealt with in your contract with your customers - if you are running an online business then you should get a lawyer to revise your terms of service to cover things like how they can ask for a refund (and how long you have to get it to them) and how long (or if) they forfeit the funds. As it stands the money effectively becomes yours after whatever time under a statute of limitation applies to transactions of this type and size (under whatever law applies to the contract) since after that time they cannot sue to get it back. | You certainly can't legally steal anything, ever. If it is legal, it is not stealing. In particular, if it is your property, it isn't stealing. The question is really, "is it your property"? This will be jurisdiction dependant. I am familiar with England and Wales, and other common law jurisdictions may be similar. The fact you co-signed for the car definitely does not make it your property. It just means that out of the goodness of your heart, you agreed to reduce the finance company's risk by promising to pay if your ex-friend didn't. In E&W, I don't think it is possible to register a car jointly, but there is a long page explaining that the registered keeper is not necessarily the owner of the car. My guess is that the car probably does not belong to you, so if you take it you will probably end up with a conviction for theft. |
When including libraries licenses, do I need to include the libraries' dependencies' licenses too? So I am building a project with SDL2_image, and I noticed that it includes libpng, jpeg, libtiff, and other dependencies. If I want the code to be closed sourced, do I need to include the dependencies' licenses too, or would just the base license (SDL2_image in this case) be enough? | You will need a license for any library that you are including in your product. Including libraries that you didn't really want to include, but which are needed by another library that you intentially include. And you will have to agree to all the licenses simultaneously, which may be difficult. If several libraries have conflicting licenses (that is you cannot possibly respect A's and B's license at the same time), then you must remove one of the libraries until no conflicts are left. | The software being free and open source has no impact on whether it infringes any patents or violates any copyrights. Copyrights attach to fixed representations of creative work in a tangible medium (e.g., the actual code and graphical elements of the software in question). As long as you aren't copying the copyrighted work of someone else, you should be in the clear. So, if you write your own code from scratch, or rely on code that you're allowed to use (e.g., "free" software with a permissive license that allows it to be used freely), you should be fine. On the other hand, if you copy a chunk of code that you aren't allowed to use, and then change the variable names so that it's superficially different, you're likely violating someone's copyright. Patents are a much more difficult question. To determine whether you would infringe any patents, you would have to read the independent claims of every patent that might be related. If you perform all the steps of any one of those claims, then you are infringing that claim (and therefore, the patent in which it is found). Unfortunately, this is much easier said than done. First, it may be difficult to search for all the potentially relevant patents, and once you've found them, there may be far too many to read. Second, claims are written in a type of language that is specific to patents, and someone without experience in patent law may not understand them correctly. Finally, the terms in the claims may not take on their plain English meaning, but rather may have been defined by the language in the rest of that patent, so it's possible that you might incorrectly think you were in the clear based on a misunderstanding arising from that. All that said, it may be best to go ahead with implementing an idea and then waiting to see what happens. Chances are that the implementation will arguably infringe some patent in some way, no matter what's done. But chances are also high that there will never be any worrisome enforcement action taken against it by a patent owner, simply due to the difficulty and expense associated with enforcing patent rights. | The MIT license is non-exclusive. If S is the sole copyright holder, S can issue any other non-exclusive license in parallel, and can also stop offering the software under the MIT license. However, open source licenses such the MIT license are generally understood to be irrevocable, so S cannot prevent other people from using the software who already received it under the MIT license terms. But: only if S is the sole copyright holder. There is no particular reason to believe that S would be the sole copyright holder. One does not gain a copyright ownership just by supervising other people, although an employer might gain copyright ownership over works created by employees (e.g. the US “work for hire” doctrine). That the copyright notices only mention S's name is an indication that S might be a copyright holder, but that's neither sufficient nor necessary for showing that S holds sole or joint copyright in the software. This leaves three relevant scenarios: S might be the sole copyright holder, in which case, yes, S can effectively discard the MIT license. This might be the case e.g. if there was some other copyright assignment, outside of the MIT license. What copyright transfers or assignments are valid depends on the local laws, e.g. some jurisdiction do not recognize copyright as transferable and at most allow the assignment of economic aspects of copyright. S might not be the sole copyright holder, but have additional permissions to the work. For example, there might have been extra licensing agreements, outside of the MIT license. Or S might have special rights for a work of joint authorship, if and only if the jurisdiction recognizes such additional rights. S might not be the sole copyright holder and not have any agreements outside of the MIT license. Then S has no additional rights, and is bound by the terms of the MIT license. This doesn't have to be a problem: S can still pretty much do whatever S wants with the code, as long as S fulfils the license terms. These are pretty simple: just keep a copy of the copyright+license notice with any copies of the software the students created. | Choice 2 is what the writers of the license have in mind. You own the physical media on which the copy is delivered, such as a DVD or floppy disk (if there was physical media). But you do not own the copy of the software, you merely have purchased a license to use it, which may be revocable under specified circumstances. This is different from the law in the case of a book. Why you buy a book, you own a copy of the book, although you do not own the copyright to the book, and may not make additional copies. The license model was adopted by commercial software distributors for several reasons, but largely to avoid the "first sale doctrine". When you buy a copy of a copyrighted work, you have the right (under US law at least) to lend, rent, sell, or give-away that copy. You do not need the permission of the copyright holder to do any of these. Those in the commercial software business did not want customers to be able to do those things legally. By making the software subject to a license, which is a contract, they could write that license to restrict or prohibit those rights. Sellers also wanted to prohibit reverse engineering of the software, and to restrict use of the software. (For example, to limit the user to installing it on a single computer.) There was at first much dispute over the enforcability of such license agreements. But most US courts now accept them as valid and enforceable, and copyright law has been modified to take account of them. Specifically, 17 USC 109 (2)(b)(1)(A) seems to include a legislative acceptance of this rule. | 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. | The GPL that covers the OpenJDK certainly allows you to write and distribute your own Java implementation. On that point, your reading is absolutely correct. However, if that implementation is a derivative work of the OpenJDK, then the GPL requires you to make your derivative implementation available under the GPL as well, per the GPL's copyleft rules. If you follow the rules of the GPL, you can do exactly what you propose. Note that the Supreme Court ruling in Oracle v. Google found that using only API structure and names, without copying any underlying implementation, constitutes fair use, and therefore doesn't require copyright permission. If you hold your implementation to that standard and use/look at only interfaces while authoring your new implementation, then your new work is broadly allowed under copyright law, so you do not need to rely on the GPL's permissions (and therefore neither do you need to follow its requirements). Google didn't want to have to abide by the terms of the GPL, probably because due to concerns that the any GPL terms that applied to their Java implementation might also apply to other components of their system, which they wished to keep closed-source. In other words, if Google had claimed their acquired their right to use the APIs under the GPL, then they would have been required to put potentially the entire operating system under the GPL, which they had not done nor wished to do. For this case, the GPL has been largely ignored because Google has not followed the requirements of GPL in licensing their Java implementation (and operating system that uses it), so there's no point in Google trying to claim that their right to use the API came from the GPL. Furthermore, Google claimed that they didn't use any of Oracle's copyrighted material, so it's not possible for them to say their use of Oracle's material was licensed under the GPL, as they claim there was no use whatsoever, licensed or otherwise. This is explained at length on fosspatents.com's article "Q&A on the Dec. 4 Oracle v. Google Android-Java copyright hearing before the Federal Circuit": 2. Q: Does this litigation involve Google's rights to use certain Java code under an open source license? A: No. Google could have incorporated Java into Android on open source terms, but chose to eschew the GNU General Public License (GPL) because of its "copyleft" feature. [...] If Google had ever claimed in this litigation that Android's incorporation of Java was authorized under the GPL, this would have been inconsistent with its claim that it didn't use any copyrightable material (you can only license something, on whatever terms, if it's protected) and, far more importantly, a blatant violation of Rule 11 (truthful pleading standard) resulting in sanctions for Google and its counsel. The GPL affords you four freedoms: it allows you to use software without paying for it (freedom 0), to modify its source code as you please (freedom 1), to redistribute copies (freedom 2), and to distribute your modified versions to others (freedom 3). But once you exercise freedom 3, you're subjected to the copyleft rule: you must make your modified version available under the GPL. As a result, Google would have had to publish Android under the GPL. But it did not. [...] [...]Google seeks to exercise as much control over Android as possible. If Android had to be released under the GPL (and only under the GPL, or at least a compatible copyleft license), Google would have a hard time keeping a growing number of core Android components like its Mail and Map clients or even the new on-screen keyboard (again, more about that in the next section) closed -- and Google's hardware partners would have to release their proprietary enhancements such as Samsung's Touchwiz and HTC Sense under the GPL, which would run counter to their objective of differentiation because their competitors could then use the same code. | For the GPL "family" of open source licenses, the answer is no. The GPL FAQ answers a closely related question: I'd like to license my code under the GPL, but I'd also like to make it clear that it can't be used for military and/or commercial uses. Can I do this? (#NoMilitary) No, because those two goals contradict each other. The GNU GPL is designed specifically to prevent the addition of further restrictions. GPLv3 allows a very limited set of them, in section 7, but any other added restriction can be removed by the user. More generally, a license that limits who can use a program, or for what, is not a free software license. I'd also recommend looking into "Why programs must not limit the freedom to run them" (the page linked by the FAQ). Stallman there argues (among other lines) that copyright is about limiting, well, copies rather than running the program. Similar to limiting the production of copies of a book as opposed to restricting what you are allowed to do with the information contained in the book. (I may add: or restricting who is allowed to read it.) Also, "Imagine selling pens with conditions about what you can write with them." (So this is basically the FSF's position) The OSI definition of what requirements a software license must meet in order to be considered open source by them has relevant clauses: Free Redistribution (though this says that anyone can distribute the software, it does not directly talk about restricting to whom the software may be given) No Discrimination Against Persons or Groups No Discrimination Against Fields of Endeavor The OSI has a newsletter post "Open Source responds to the Russia-Ukraine war: First thoughts from the Executive Director", which links to a further discussion on the topic. This is more about politics and ethics than legal questions. However, I think it's relevant in 2 ways: For the situation at hand: They point out that while the open source definitions do not allow the license to have such restrictions, there is nothing that forces you (or a repository provider) to serve "customers" from all regions worldwide. I.e., geoblocking downloads is not prohibited by the FOSS licenses. It does show that there is a discussion on licenses that are somewhat more restrictive than the current open source definitions. As David Siegel points out, there's nothing to keep you from putting such restrictions into a proprietary license. And if there are sufficiently many people who want to do that, we may see "more restricted open source" licenses in the future. (IANAL, but I'd expect there may be limits to what can be restricted in a boilerplate license wrt. anti-discrimination laws.) Independently of what the license allows, people are anyways bound by general law, e.g. sanctions. | IANAL, just a programmer with an interest in legal rules. Due to the very permissive nature of the MIT license, no, it does not appear that anything illegal has been done. Specifically, the section to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software (emphasis mine) grants everyone the right to modify your code and share those modifications, provided one includes the license. Since this person has included your license (including your copyright notice), they have followed the conditions of the license and are able to share your stuff. Legally. Ethically, I still think its ****. This might be a good starting point in selecting a license (note the Modification column). https://en.wikipedia.org/wiki/Comparison_of_free_and_open-source_software_licenses The CC-BY-SA license family, as mentioned by Ron Beyer in comments is on this list, for example. TL;DR: You unfortunately granted a more permissive license than what you wanted/needed to. This was a BadThing(TM), analogous to giving too broad of access rights to a method or class. Determine your desired permissions, then select a license that matches what you'd like to grant. |
Medical. Is it legal to treat someone without reporting it to the US government? I have a friend that wants to treat me, but is highly concerned about doing so "off the clock" if you will. He's an oncologist for a large Hospital and is forbidden from doing work outside of the hospital as it could damage their reputation if a doctor were to "damage" someone outside of work hours. My main question is aside from his employer, could he legally treat me without reporting back or keeping it off the books? I don't want to get him in legal trouble, but I also don't really know the legalities and procedure of this. He's only been working for the hospital for 2 years and they apparently don't go over legal matters in school. If anyone could point me in the right direction or link me to anything I would highly appreciate it. "To add to this, he is a fully licensed and certified M.D. / D.O." I didn't want it to sound shady or anything, I just want him to be my private doctor, rather than someone I don't know. | There is no general law requiring a doctor to report to the government that they have given medical treatment. On the contrary, there is a federal rule (the "Privacy Rule") that somewhat requires keeping medical information private. There may be certain instances where a report must be made, such as the obligation to report gunshot wounds or suspected child abuse. There could be entanglements regarding use of drugs that require a prescription, where there is a required paper trail. | Yes, in Ukraine, it is legal for doctors to prescribe it, for pharmacies to sell it if prescribed, and for patients to buy it. It is registered with the State Register of Medicines of Ukraine. I’ve seen published cases where the facts mention prescriptions and sales in 2020. It is also frequently supplied through public procurement (as Hydazepam or Gidazepam). As you already noticed, hydazepam is not on the effective list of narcotics, psychotropic substances, and precursors by the Cabinet of Ministers of Ukraine. I’ve even encountered a recent court decision citing an expert report from the end of 2019 stating that it doesn’t belong to them under the list which was effective then. In 2019, a procedure was adopted for determining analogous substances, which reproduce the psychoactive effects of the drugs from the above-mentioned list. But no list of such analogous substances has been published yet. According to the effective procedure, the list must be published at the website of CMHMDAMH. | HIPAA does not legally protect physicians from disclosing PHI to another party, although there are a few exceptions: HHS provides an excellent resource on these, but the regulation most relevant to your question is Permitted Uses and Disclosures (5) Public Interest and Benefit Activities, which includes "Required by Law. Covered entities may use and disclose protected health information without individual authorization as required by law (including by statute, regulation, or court orders)." These statues, regulations, and court orders vary from state, but almost all of them refer to STDs and not genetic conditions (in some states, physicians are required to disclose positive STD test results to known sexual partners, but I can't find similar legislation for genetic tests). Here's an example of a voluntary patient information disclosure form – you'll notice that an individual has to specify the parties to whom they're willing to have PHI disclosed. The example you provided is still a violation of the Privacy Rule in the U.S., but this is a very curious grey area in bioethics and law. Disclosure of Genetic Information Within Families: How nurses can facilitate family communication. Gallo et al. Am J Nurs. 2009 Apr; 109(4): 65–69. (Emphasis mine.) HIPAA and Genetic Disclosure Does the law affect families? The privacy rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) went into effect on April 14, 2003. The rule created new requirements for health care providers, third-party payers, and health care clearinghouses to protect the privacy and security of health information, including genetic information, that could identify a person. A person's decision not to disclose her or his risk of developing a genetic condition to a family member may pose a dilemma for the health care professional, who has to choose between ethical obligations to inform the at-risk party and legal requirements to respect and protect the patient's privacy. The potential for harm to family members often plays a large role in the decision. For example, in rare cases, the use of a certain surgical anesthesia can cause death in people with the mutation that disposes them to malignant hyperthermia. Likewise, strenuous exercise can bring on sudden death in people with hypertrophic cardiomyopathy. In such cases, clinicians should carefully explain the reasons for sharing information with family members, strongly encourage patients to notify at-risk relatives, and offer to help develop a plan for notifying them. When patients choose not to notify family members, clinicians typically respect the decision. There are situations, however, in which the clinician may consider overriding the patient's preferences because the family member is judged to be in danger of serious or immediate harm or there is a high likelihood that a dangerous condition will occur that can be either prevented or adequately treated with early recognition. Clinicians who believe it is necessary to override a patient's wish regarding the notification of family members, should consider consulting an ethics committee or legal council. In most situations, though, the risk of serious harm associated with nondisclosure is not clearly immediate. For instance, if a woman has tested positive for the BRCA1 or BRCA2 mutation but doesn't want to upset her two sisters by sharing that information with them, the need for disclosure isn't clearly urgent. Each sister has a one in two chance of carrying the same mutation. It would be understandable for the patient to try to learn more about what the mutation means for her and her children and to give careful thought to whether and how she'll share her test results with her sisters. Clinicians can best help family members by clearly informing patients who test positive for genetic conditions or the mutations that cause them about the risks faced by their family members, discussing the value of disclosure and offering assistance with it. The "Duty to Warn" a Patient's Family Members About Hereditary Disease Risks. Offit et al. JAMA. 2004;292(12): 1469–1473. (I can send you the full-text of this if you want it; it contains an excellent overview of cases and their outcomes relating to disclosing genetic information in the U.S. under HIPAA.) In general, the special nature of genetic tests has been viewed as a barrier to physicians' breaching the confidentiality of personal genetic information. However, the failure to warn family members about hereditary disease risks has already resulted in 3 lawsuits against physicians in the United States. While the findings of case law and the state and federal statutes that bear on the issue of "duty to warn" of inherited health risk are still being defined, we believe that health care professionals have a responsibility to encourage but not to coerce the sharing of genetic information in families, while respecting the boundaries imposed by the law and by the ethical practice of medicine. ...in considering whether to breach patient confidentiality to warn of risks of a genetic disease, clinicians need to balance the actual risk of that disease, the efficacy of potential preventive interventions, as well as emerging legal considerations and potential liabilities. Overriding patient confidentiality and genetic privacy might very well mean violation of HIPAA and certain state regulations, with attendant civil or criminal liability. At the same time, in one state appellate court decision that has not been overturned, the estate of a physician was held liable for his failure to warn relatives of hereditary disease risk. | All laws (federal, state and local) apply to everybody, unless you have diplomatic immunity. That is, unless e.g. the federal government decides as a matter of policy to ignore certain federal laws. California does not have a law generally prohibiting the use of marijuana, though public consumption is illegal, minor consumption is illegal, and possession over 28.5 grams is illegal. So that is one less law to be concerned with violating. The federal law still exists, and has not been repealed for anyone. However, the federal government by policy is not pursuing marijuana cases in legal contexts in those states that have legalized marijuana. The complication for foreign students is that there are also immigration laws whereby you may be deported for a drug offense (that link is full of technical details on immigration and drug laws, worth reading). The immigration laws basically make it easy to penalize a foreigner (for example you might be deemed "inadmissible" so you cannot be re-admitted to the US if you leave; it just depends on what their grounds are for action). For example, "a noncitizen is inadmissible as of the moment that immigration authorities gain substantial and probative 'reason to believe' the noncitizen has ever participated in drug trafficking," which does not mean a conviction. It is reported that in California, DHS officers have treated minor infractions as "convictions," which means to be safe you have to avoid even infractions. It appears (and hire an immigration attorney if you want to test this) that trouble only arises if there is reason to believe you are trafficking, if you are a drug addict or abuser, if you are "convicted" (not necessarily "tried and found guilty," it also includes certain legal maneuverings), or if you admit to drug use (even in the case of home use under doctor's orders, i.e. a California-legal context). This incidentally includes non-use but working for the marijuana industry. It is possible that you could get stopped on the street by a random immigration search, and if you are in possession, then... it is not guaranteed that possession of a small amount of marijuana, when caught by federal authorities, cannot lead to immigration problems. | Doctors are obliged to act in the best interest of their patients. If it would be in your best interest to see another doctor (due to the doctor being out of practice for that particular diagnosis), your current doctor would be obligated to tell you and refuse treatment. The physician‑patient relationship is fiduciary in nature and certain duties arise from that special relationship of trust and confidence. These include the duties of the doctor to act with utmost good faith and loyalty[.] MvInerney v. MacDonald Now, onto your question about the counselors assessment; probably not worth it's weight in salt. They likely have little to no training regarding diagnostic medicine and are by no means an expert. | You give no jurisdiction but in general: First, police have no obligation to be honest. So, yes they can collect this without consent by e.g. taking hair from your hairbrush (with a warrant) or giving you a glass of water while interviewing you and getting it from your fingerprint oils (which may not actually be technically possible but never mind that). No, they can't take it by "force" by sticking a swab in your mouth. Yes, it will almost certainly go into a database. Of course, there are some jurisdictions where police are entitled to decide you are guilty based on the fact that you didn't pay them a bribe. | HIPAA imposes obligations on some people, but not all people. In the case of security and privacy questions, you would consult 45 CFR Part 164. A patient's actions are not subject to government sanctions, so a patient can provide or decline to provide email addresses following their own judgment. A healthcare or insurance provider would be required to securely keep PII under wraps. The regulations also do not impose obligations on unknowing potentially involved third-parties, i.e. no obligation is imposed on Google to know that an individual is using a Gmail account to transmit PII-related information. The medical provider has an obligation to store and transmit such information securely, which would mean for example that they do not send insecure plain text emails saying "Sally Jones at 12345 67th Ave SW was treated for a loathsome disease, we're coding that as 0102, and we want $500". That obligation is passed on to employees via employment-contractual obligations, for example that may dictate what computer or software you can use to do the job. If the provider passes the buck to the employee (and I assume that the employee is just an employee), they have violated the security rule. In that case, they may be attempting to mitigate the consequences of their actions or at least check if there were identifiable violations of the privacy rule. In the scenario where SmithMed provides all of the infrastructure needed to bill insurance companies, it is not a HIPAA violation to inspect computer logs, email etc. to verify that the employee has been complying with security and privacy policies. It would likewise not be a HIPAA violation to inspect third-party accounts (Gmail etc) to determine whether there has been a security / privacy rule violation. That is as far as HIPAA takes you. Whether or not the ex-employee has an obligation to turn over their email account information is mostly determined by the employment contract, but it is highly unlikely that any such contract has a "gimme your personal email on termination" clause. It is not inconceivable that the employee negligently used their personal account rather than opening a new billing-job only account. Also depending on the email service provider, it may well be a violation of the terms of service to hand over your account information. (Instead, for a certain email provider, the company is expected to set up and pay for a company account). Those are considerations bearing on possible legal impediments to turning over the email information. Needless to say, don't share passwords etc. because that exposes you legally, but that is not about HIPAA. | You may not assault a violator, you may notify the authorities. If your state has passed a law making it a felony to be outside without a mask, you can perform a citizen's arrest (but no state has such a law). So you cannot take the law into you own hands, and you run the risk of being arrested on felony assault charges if you do. There is always a significant risk that you are wrong about whether the order applies to a particular individual. You can always file a lawsuit, but you'd be in highly-experimental legal territory in terms of succeeding, specifically the claim that the person endangered your health (you can't sue on behalf of others, except e.g. as a parent on behalf of harm done to a child). For instance, nobody has successfully sued another person for going out in public having the flu on the grounds that they unreasonably put plaintiff at risk. You would have to experiment with that argument, to show that going out with a mask is reasonable and going out without a mask is unreasonable. |
Is it legal to give non cash tips to waiters and other servers and what are the consequences in terms of taxes? I wasn't sure I should ask this under Law or Personal Finance & Money. I was wondering what the rules are regarding non-cash tips in the United States. By non-cash tips, I do not mean using a credit card, but rather giving a tip using something of value other than USD: movie tickets, silver coins, etc. Additionally, how is that treated in terms of reporting and taxes? | https://www.irs.gov/pub/irs-pdf/p531.pdf Page 2: The value of noncash tips, such as tickets, passes, or other items of value, is also income and subject to tax Page 5: What tips to report. Generally, you must report all tips you received in 2016 on your tax return, including both cash tips and noncash tips. Any tips you reported to your employer as required in 2016 are included in the wages shown in box 1 of your Form W-2. Add to the amount in box 1 only the tips you did not report to your employer | 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.) | There are vendors providing software to facilitate this sort of task. Avalara is perhaps the best known, but I don't have any experience with it and couldn't say whether it's actually any good or not. But the bottom line is that in a destination-based sourcing regime, sales taxes must be computed based on the address of the destination, not city or ZIP code associated with that address. As Avalara has noted, this is a giant hassle, but it's nonetheless the current state of the law. Of course, this assumes the seller has sufficient nexus with Louisiana to trigger a duty to collect sales taxes in the first place. From the question, it is not clear whether this is true. | 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. | I've been wondering if it is possible to hire / create a company with someone who would open a restaurant in my place and manage it according to my guidelines. Yes, of course. You can do it just like you described: Create a company, hire employees, (let them) open the restaurant. You, as the owner of the company, could set up whatever guidelines you have in mind, and your employees would be bound by them (limited only by general laws, such as on health and safety). Some caveats, however: You will need money to set this up - for buying / renting space for the restaurant, for paying your employees, obtaining supplies, initial marketing etc. It may take a while until the restaurant earns money (if ever), and you'll need money in the mean time. Someone will need to manage, that is make decisions. You can do that yourself, but then you will work for the restaurant (which you write you do not want to do). Or you can hire someone to do it for you, but that will cost more (in salary), plus you will have to find someone you can trust. That's a tradeoff for you to make. I guess it'd be like an intellectual property. That depends, but usually there will be little in terms of intellectual property. If you have a unique idea for the restaurant, you could patent it, but there are many restrictions on what you can protect, and ways around it, plus this also costs money (a lot if you need a lawyer's advice). Apart from that, you can register a trademark for the restaurant, but that only protects the name / logo, not any ideas. Finally, some of your ideas might be considered trade secrets, but again the protection is limited. In general, there is no blanket "idea protection". If you have a good idea for a restaurant, in most cases other restaurants will be able to copy them, possibly with slight changes - take that into account. | What "reasonable accommodation" were you requesting? That they lower the bar of determining your ability to pay your bills on time? I don't think that will qualify. A business setting a minimum bar for financial viability isn't a burden tied to a handicap. It's one thing to request a ramp, contracts in braille, etc., but it's another thing to request that they accept a highly-probable financial risk. What would you expect of them the next time "life" got in the way and you couldn't pay your rent? Another accommodation? I think what they were saying is that since you didn't pass the financial background check, and as such were not accepted as a resident, you aren't in a position to make an accommodation request. | Since you asked two questions: No and No Does a company’s T&C or their house rules supersede law No and is asking private health status (including the request to wear a mask) an offence? No A company cannot require you to do things that are against the law but they can require you to do things that go further than the legal minimum. The UK and Spanish governments do not require you to wear a mask but they do not prohibit private organisations (like airlines) for making it a requirement to access their facilities. The law requires that they make reasonable accommodation for people with disabilities. But you don’t have a disability, you just can’t sleep with a mask on. If you had a disability you would have no trouble in getting a letter from your doctor to that effect. The contract requires them to take you from the UK to Spain: they don’t have to enable you to sleep. If you read the T&C, you will find that they can refuse to carry you if, in their reasonable opinion, you pose a hazard to the aircraft or the people aboard 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. |
In Canada, is there a difference between province and territory? As it goes, Canada is a country in North America, consisting of 10 provinces and 3 territories. Are there any legally significant differences between being a province compared to a territory? Do all the provinces and the territories have the same authority and jurisdiction to specify the laws of the land? | To answer your question, no they are not the same legally and no, Territories are not able to govern themselves, but only are allowed to exercise power delegated to them by the Federal Government of Canada. To quote from the linked official Canadian Government Page: There is a clear constitutional distinction between provinces and territories. While provinces exercise constitutional powers in their own right, the territories exercise delegated powers under the authority of the Parliament of Canada. Historically, this authority has meant that the North was largely governed by federal officials. However, over the past 40 years, major changes have occurred in the governance of the territories. Federal statutes have established a legislative assembly and executive council for each territory and province-like powers are increasingly being transferred or "devolved" to territorial governments by the Government of Canada. This process, known as "devolution", provides greater local decision-making and accountability. | Yes More exactly, nations will not regard places outside of their physical limits as outside of their jurisdictions. Overview Traditionally, a nation has regarded any ship flying its flag as under its jurisdiction, and a place where it may enforce its laws. More recently, many nations will undertake to enforce laws in cases where their citizens are the victims, or in some cases the perpetrators of crimes even within other nations, and more freely on the high seas outside the physical limits or territorial waters of any country. Historically, all nations undertook to enforce laws against piracy wherever they might be committed. Several countries, including the UK and the US, now treat the UN Law of the Sea convention as part of their national law, which defines as piracy: "illegal acts of violence or detention ... against persons or property on board such ship or aircraft" This would include the situation described in the question. Therefore such actions could and quite likely would be prosecuted by any of several countries, depending on the registry of the vessel and the nationalities of those involved. Sources 18 U.S. Code § 7 provides that: The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. ... (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States. (8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States. This US DOJ page says: Among the offenses within the special maritime and territorial jurisdiction of the United States are the crimes of murder, manslaughter, maiming, kidnapping, rape, assault, and robbery. Pursuant to 18 U.S.C. § 7(1) there is also jurisdiction over such offenses when they are committed on the high seas or any other waters within the admiralty and maritime jurisdiction of the United States that is out of the jurisdiction of any particular state. See JM 9-20.000 et seq. The page "Maritime Offenses" from the law offices of Trombley and Hanes says: The Federal government also exercises jurisdiction over certain maritime offenses. There is Federal jurisdiction for offenses committed on American vessels in the territorial waters, harbors and inland waterways of foreign nations. See United States v. Flores, 289 U.S. 137 (1933). ... A number of Title 18 sections specifically declare certain conduct to be a Federal crime if committed “within the special maritime and territorial jurisdiction of the United States.” See, e.g., murder, 18 U.S.C. § 1111. In some instances, the Assimilative Crimes Act, 18 U.S.C. § 13, is also applicable. See also, 15 U.S.C. § 1175; 15 U.S.C. § 1243; 16 U.S.C. § 3372. 18 U.S. Code § 1111 (b) provides that: (b) Within the special maritime and territorial jurisdiction of the United States, Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. The Britannica Article on "Piracy" says: Because piracy has been regarded as an offense against the law of nations, the public vessels of any state have been permitted to seize a pirate ship, to bring it into port, to try the crew (regardless of their nationality or domicile), and, if they are found guilty, to punish them and to confiscate the ship. The UN page on Piracy says: The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the framework for the repression of piracy under international law, in particular in its articles 100 to 107 and 110. The Security Council has repeatedly reaffirmed “that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (‘The Convention’), sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities” (Security Council resolution 1897 (2009), adopted on 30 November 2009). Article 100 of UNCLOS provides that “[a]ll States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” The General Assembly has also repeatedly encouraged States to cooperate to address piracy and armed robbery at sea in its resolutions on oceans and the law of the sea. For example, in its resolution 64/71 of 4 December 2009, the General Assembly recognized “the crucial role of international cooperation at the global, regional, subregional and bilateral levels in combating, in accordance with international law, threats to maritime security, including piracy”. The UK Piracy Act of 1837 defined as a crime: Whosoever, with intent to commit or at the time of or immediately before or immediately after committing the crime of piracy in respect of any ship or vessel, shall assault, with intent to murder, any person being on board of or belonging to such ship or vessel, or shall stab, cut, or wound any such person, or unlawfully do any act by which the life of such person may be endangered, shall be guilty of felony... The more modern UK law, the Merchant Shipping and Maritime Security Act of 1997 embodies the UN law of the Sea convention, including its article 101, which says: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed— (a) (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (a) (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; | canada The term "child" is expressly defined for various offences. For example, for s. 172: child means a person who is or appears to be under the age of eighteen years. The offence of "child pornography" is expressly defined to relate to "a person who is or is depicted as being under the age of eighteen years." The offence of "child luring" has several variants, for luring those who are or who the accused believes to be under the age of 18, 16, or 14. They are all called "child luring." Other sections criminalize conduct in relation to a child without defining the term. See e.g. s. 243: Every person who in any manner disposes of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth, is guilty... For s. 243, courts had to conduct statutory interpretation in order to determine the meaning of the word "child." The Supreme Court of Canada held that "child" in this offence includes children born alive and fetuses that were likely to have been born alive. See R. v. Levkovic, 2013 SCC 25. I know this is Canadian law, rather than Massachusetts law, but one thing you can take away from this is that terms can take on distinct legal meanings from one provision to another. And where a term is not expressly defined in statute, its meaning will be enunciated by a court. These meanings need not line up with the definitions you find in a dictionary. But, for a general description from a specialized dictionary, see Black's Law Dictionary, 10th ed. (2014): child. 1. An unemancipated person under the age of majority. 2. Hist. At common law, a person who has not reached the age of 14. 3. A boy or girl; a young person. 4. A son or daughter. 5. A baby or fetus. | Country A and country B must do whatever they agree in the settlement of the conflict between themselves - returning or ceding of territory being one of these. Or they can disagree about these laying the seeds for further conflict. The most recent example of this is Russia's seizure of the Crimea from Ukraine; which they legitimised by a plebiscite. AFAIK, Ukraine and the international community has not accepted this but neither are they doing anything about it - legally Crimea is still part of Ukraine, practically it is part of Russia. | The laws of both countries apply | Yes, it’s a treaty It’s a treaty between the Republic of Ireland and the United Kingdom of Great Britain and Northern Ireland which both countries have given force to in domestic law. It is also an agreement between eight Northern Irish political parties/groups. | By volume, it's almost certainly Statutory Instruments (SIs). From the relevant page on legislation.gov.uk, we can see that the number since 2010 has ranged from 1241 to 3485 per year. Compare that to, say, Acts of Parliament (23 to 41 per year in that period). The EUR-Lex page has some numbers relating to EU law. For example, in 2018, there were a total of 430 "legislative acts", and 1496 "non-legislative acts". Note that while EU Regulations become law directly in member states, EU Directives have to be implemented by domestic legislation. In the UK, this is normally done with SIs, which contribute to the numbers in the previous paragraph. | Actually, Queen Elizabeth I and Queen Elizabeth II are not sovereigns of any common state. QEI was sovereign of England and Wales and QEII is sovereign of the United Kingdom of Great Britain and Northern Ireland (among others). The numbering has nothing to do with the states they are sovereign over: it is familial number dating from William I (the Conquerer). It is no different from the numbering that would occur if I were named for my father and my son were named for me. Some monarchies use ordinals that include mythological kings or kings that ruled a completely different state that shared a common geography or culture, or were claimed to do so in the founding myths of a state. The only legal issue here is that the number that a monarch accepts is the legally relevant one - if the next Elizabeth decides she will be Elizabeth XVII then so she will be. There is actually a case about this relating to QEII in Scotland: A court case, MacCormick v Lord Advocate, contesting the style “Elizabeth II” within Scotland, was decided in 1953 that the numbering of monarchs was part of the royal prerogative, and that the plaintiffs had no title to sue the Crown. So, legally, she is Queen Elizabeth II in Scotland even though Scotland never had a Queen Elizabeth I. Practically, state owned assets in Scotland are not embossed with EIIR (Elizabeth II Regina) but with the crown of Scotland out of consideration of Scottish sensibilities on the matter. In any event, certainly in Australia (not sure about Canada), the head of state is the Governor General, not the Queen. You can read about they whys and wherefores here. |
Is the estate I administer entitled to money after foreclosure of a destroyed house? I am the administrator of an estate in upstate New York. Unfortunately, there is effectively no money in the estate which would allow me to hire a lawyer, so I'm hoping you folks can help. By the time I found out about the passing, the house had lain fallow for six months. There were break-ins, burst pipes, the cops had been called multiple times but openly refused to investigate (we actually had a voicemail where the police officer explained that they didn't bother investigating reports of looting for that property anymore) which also meant there was no way to file reports with the police to report the stolen goods because they outright refused to have anything to do with the place. The house had been refinanced six months before the passing. By the time I came on the scene, the house was in ruins and the refinancers were going crazy from lack of feeding- er, payment. I tried to ask for a stay from them, explaining the circumstances, and that I was trying to get the various paperwork and such in order. They conveniently lost almost every single document I sent them at their request, and when they did manage to track them down, would dispute them. Meanwhile, the insurance company (as an aside, we were more assuredly not in good hands, they made the whole process into a nightmare and if I had the money I would sue them for fraud) eventually paid out a check for the personal items and a check for the damage to the house. The former went into the estate account, the latter went to the mortgage company. A week before that resolution, the lenders announced that they were foreclosing on the property. An hour ago, I was served with the foreclosure paperwork. I don't particularly see anything that I could do to stop the foreclosure (in part because I'm not really sure what I could do, and I also live several states away so showing up in court would be difficult), and none of the heirs particularly wants the place, especially now, so there doesn't seem much point in fighting it. So. The money from the insurance company to pay for repairs for the house is a substantial percentage of the mortgage on the house ($45,000 on a mortgage of ~$110,000). Assuming the house is foreclosed upon and presumably sold, what happens to the money? Can the loan company do what they want with the money, use it to fix up the house? Or can they short sale it and pocket the difference? What are my options here? Is the estate entitled to any money left after selling the house assuming the sale price plus the insurance money is above the mortgage loan balance? | IANAL. I am not your lawyer. The following is not legal advice. The insurance company, regardless of how you feel about their process, has it appears, to have discharged their duties, namely they have paid out two separate claims. The personal property claim has been paid to the estate as the beneficiary, while the property claim has been paid out with the mortgage company as the beneficiary. The mortgage company seems, to me (disclaimer, I work at a financial institution, albeit in an IT role), to also be reasonable. Six months is an extremely long time without contact or payment (where I work, the loss mitigation department is sent all loans that are 3 months delinquent); the fact that you, the estate executor were not aware of the passing of the debtor is of no consequence. Also, many loans contain clauses that allow the lender to accelerate the loan (i.e. demand "immediate" payment of the whole outstanding balance). So they've started foreclosure proceedings, probably about 3 months ago. As for the foreclosure proceedings: The received $45,000 will be applied to the loan. The property (not just the house, but the entire lot) will be sold at public auction, as all foreclosed houses are in the state of New York. Proceeds from the sale of the house shall be applied to paying off the loan. If the proceeds exceed the outstanding mortgage amount, the estate will be sent the remaining proceeds. If the proceeds are less than the remaining amount, the estate is retains (i.e. owes) the remaining debt. EDIT: As an example of why the noting of jurisdiction is important on this stack-exchange, Nate Eldredge has informed me that in New York, it is possible for a judge to reduce the "remaining debt" of the estate by declaring that the sold house had a higher "fair market value" than it sold for. | we would like to know whether we have sufficient legal grounds to sever/terminate/exit this contract with Superior Management Co.*, if the company does not mutually agree to do so. No. In that event the HOA is stuck with the contract at least for the remaining part of the current period. The HOA's concern that the provider could breach the contract by significantly underperforming seems speculative and does not entitle the HOA to breach it first. Changes in the name and/or ownership of a party does not alter the parties' rights and obligations pursuant to the contract. This implies that neither party is entitled to disavow his obligations by terminating the contract altogether. For early & unilateral termination to be an option, it would have to be provided in the terms of the contract itself. | If three people inherited a house in equal shares, then a new deed should have been prepared and filed with the appropriate governmental authority (the county in most US states) before probate is closed. When that is done the authority of the executors over the house as executors has ended. However, if I understand you correctly, the two former executors are also two of the three heirs to the house. Thus they own a 2/3rds interest in the house. At least they can sell their interests without your consent, leaving you a minority owner with the purchaser owner a majority. In some jurisdictions they may be able to force a sale, paying you your share of the purchase price. But this would be because of their majority ownership, not because of their former status as executors. Addition: In some states co-owners who are joint tenants may not sell their interests without the consent of the other co-owners, but this is jnot true in North Carolina According to the site of the Hutchens Law office: ownership as tenants in common provides each party with the right to sell, gift, devise, or otherwise convey their interest in the property without the permission of the other owners. This means that the ownership interest is freely alienable or transferable. As a result, an owner may sell or give their interest in the property to anyone they want, or they may willingly or by judgment use their interest in the property to secure or satisfy a debt with a creditor. Therefore, parties entering into an agreement to purchase property as tenants in common should be aware that they may ultimately end up owning the property with a stranger. If this were to happen, there is a way out, but it may be costly. At any time, if the parties can't agree, any owner may petition the court for a partition of the property. The court could require one owner to buy another out or force the sale of the property. The court will decide the ultimate outcome based on equity. ... [I]f the intent of co-owners holding interest as joint tenants is to automatically transfer their interest at death to the survivor, the language must be on the conveying instrument as right of survivorship is not automatic with joint tenancy in North Carolina and if the language in not included, the decedent's interest will pass to his heirs. ... However, any owner has the right to convey their ownership interest during their life; and if they do, the survivorship agreement ends, and owners simply become joint tenants by operation of law. In North Carolina there seems to be little practical difference between co-owners who are tenants in common, and those who are joint tenants without a right of survivorship. But whichever form of co-ownership is chosen: tenants in common, joint tenants without a right of survivorship, or joint tenants with a right of survivorship, each of the co-owners has a right during his or her lifetime to sell, give away, or use as collateral on a loan his or her share of the property, without consulting the other co-owners. They cannot force the other co-owner(s) to sell, except by starting an action of partition in a court, when a judge would decide. An unrelated buyer might be unwilling to purchase only a 1/3 or 2/3rds interest, because the remaining co-owner(s) would still have full rights to use and occupy the house, can could sell to a different buyer. All co-owners are responsible for their proportionate shares of all expenses, including mortgage payments, repairs, and taxes. | Unfortunately, your relative is more in the wrong here First, the COVID situation does not change anyone's rights and obligations under a contract (see What effect does an event like the current Covid-19 pandemic have on contractural obligations?). So the landlord (through their agent) is obliged to provide the property and your relative is obliged to pay the rent and to occupy the premises (most residential leases contain a requirement for the tenant to live in the premises and not leave it empty). Your relative (through you) has indicated that she will be in breach of her contract. The agent has considered her position and has offered two (IMO generous) alternatives: Allow her to continue with the lease without taking possession providing the rent is paid. To release her from her obligations under the contract and return the rent. To put it in perspective, if your relative simply "walked away", she would be liable for the rent until a new tenant was found and, if that new tenant was paying less rent than she was, the difference for the duration of the lease plus the costs of finding a new tenant - advertising, agent's fees (usually 1 month's rent) etc. Now, the landlord has an obligation to minimise your costs so advertising the property could just be prudent. However, if they lease it when your relative's contract has not been properly terminated then it is they who are in breach. Surely they can't take the rent and offer to re-let the property at the same time? Surely they can. What they can't do is relet the property without properly terminating your relative's lease. Would they even be entitled to retain the deposit under these circumstances? Absolutely. The deposit is to cover their losses if your relative breaks the lease - as she has indicated she is going to do (this is called anticipatory breach). Finally, I'd rather not go down this route but is there any protection for my relative for not being forcefully 'evicted' - since she's paid the deposit, rent - and those haven't been returned? Having never taken possession, she is not being evicted. | There are two very important points you should keep in mind here: You are not under any obligation whatsoever to investigate the owner of a vehicle parked on your property. You have full rights to tow any unauthorized vehicle off of your property. So, by far the easiest thing for you to do is to shift all responsibility off of yourself. Make it somebody else's problem. Try the police first. The safest thing you can do is simply dial 911 (or try to find a non-emergency number if you live in a major city, but Nebraska suggests just calling 911 directly) and report the abandoned vehicles to police. Their process for declaring a vehicle abandoned can take a bit longer (takes seven days in Nebraska). Essentially they'll document the vehicles' location and tag them, and probably run the license plates (if they come back stolen, they'll be towed by law enforcement immediately). Then they'll come back seven days later and, if the vehicles are still there, have them towed as abandoned vehicles. Law enforcement will sometimes only respond to private parking complaints that are actually on paved surfaces, and it sounds like these vehicles are just parked out in the middle of a field somewhere, so they may not actually care. But it doesn't hurt to check. If that fails, just have it towed. If law enforcement says it's ok or doesn't care about the vehicles, the next easiest thing for you to do is to call around to different tow companies, and see if one will tow it off your property for free in hopes of recovering tow costs and other fees from the actual owner of the vehicle, or through sale of the vehicle if it's never claimed. Let them do all the research and contact the owner, or report the vehicle to the police if necessary. You don't need to do any of the work yourself. Sure that doesn't get you any money, but any scenario that gets you money will be a very long process and it sounds like you just want the vehicles gone. You do not own the vehicles. The previous owner saying you bought the vehicles with the land is blatantly wrong. Ignore him, completely. By that logic, someone buying an apartment complex would subsequently take ownership of all vehicles on its private parking lot. That's not how vehicle ownership works in any state, and you do not own the vehicles, nor do you have any right to dispose of them. Even if the vehicle is abandoned, there is still a legal process that must be followed to claim ownership of an abandoned vehicle with the state. Unless you really want to take ownership of the vehicle, those processes are probably way more time and effort than you're willing to expend (usually resulting in years of waiting). Taking it to a scrap yard could be very bad for you. Since you do not have ownership of the vehicles, you definitely should not take them to a scrap yard. Destroying the vehicles without giving a person the chance to come claim the vehicles could get you into a lot of trouble. You're basically destroying someone else's property. If the person came back looking and found out you destroyed them, they may even be able to press charges against you, the scrap yard, or a combination of both (a Class IV felony in Nebraska, since vehicles are worth more than $1500). As an aside, any legitimate and reputable scrap yard should outright refuse to destroy the vehicles for you, because you won't be able to provide them with any documents that verify your ownership of the vehicles. Make sure you don't destroy the vehicles in any other way, though. Again, shift the responsibility. Don't put yourself into situations if you don't have to. Law enforcement and tow companies deal with this stuff every single day, and are much more qualified to handle this situation in a legal way than you are. Let them take all the responsibility off of you, and don't worry about doing anything yourself. It will make sure you don't do anything illegal, and thus don't open yourself up to repercussions later on down the line. | From a comment on the question: They did damage the trailer door and headlight is smashed This seems like the best thing to focus on, especially if you can show that it was not damaged before they towed it. The unusual method of towing (with video evidence) may be a factor in whether they are considered negligent. If the damage to the door looks like they caused it directly by breaking in, that would also help your case. You also asked in your comment if you should go to the police or to a lawyer first. Might as well go to the lawyer and see what they tell you to do. I'm not sure what the police would do if there is no clear crime that has been committed. (The lawyer should have better advice about whether/why to go to the police.) | Disclosures are prescribed by state law. Fair housing, which is a federal concept, pertains to issues such as using prohibited personal facts to determine whether to accept an offer. (Hazardous materials disclosures are also mandated at the federal level, but are are included in state requirements which can get pretty broad). If you are buying in Washington state, RCW 64.06.020 says what and how you must disclose. The list of disclosures is very detailed, covering title and covenants, water, sewer, structure, systems and fixtures, environment, and mobile home related. The only one of the 86 questions about smoke is whether smoke alarms are present. Thus smell of smoke is not a legally material fact that must be disclosed, in this state. The California disclosures, even longer, are here, and there is likewise no "smells bad" disclosure. It is unlikely that any state in the US mandates such a disclosure, since it is somewhere between a subjective evaluation and a self-evident fact. Some people are very sensitive to certain smells while others do not care. The burden is on the buyer to pursue matters of personal concern (in writing!), such as whether any dog has been present in the house in the past 5 years (some people care). You have to look carefully at the response. "Don't know" is usually a safe bet, unless you actually have factual knowledge. From what I can determine, Massachussetts is on the opposite end of the spectrum from California. There are some requirements imposed on real estate agents, and there is the federal lead paint disclosure, but otherwise it appears that nothing is mandated by law. This form seems to be used by the real estate association, and there is a question about "history of smoke/fire damage to structure". The reasonable interpretation of that is "has the house caught fire and suffered damage", so "no" from a cigar-smoker would not be fraudulent. If the intent of the question were to reveal if someone has smoked frequently in the house, that would he the question they'd ask. You can check whether you have this form and see what it says, but "smoke damage" would not normally be interpreted as meaning "smells a bit funny". | Often, evictions are bifurcated. An initial hearing determines all evidence necessary to determine if there is a default existing sufficient to justify an eviction, and if so, the eviction goes forward immediately despite the fact that not all issues in the case have been resolved. A later hearing resolved the precise dollar amount of any damages claim. If the grounds for eviction is non-payment of rent, and the amount of payments or the amount of obligations of the landlord that can be setoff against the rent due exceeds the amount of rent found to have not be paid, then it is a defense to an eviction in the initial possession phase. If the counterclaim is smaller than the amount of rent owed (or cannot for some reason be set off against the amount owed) then it is only at most, a setoff against a damages award in favor of the landlord. I'm have not researched, in particular, how this is handled in New Jersey, but I am providing this answer on the theory that some insight is better than nothing. For the purpose of this question assume the landlord does not dispute the tenants underlying claim. His only argument is that the tenant should counter sue and that it should not be raised as a defense for non payment / stop the eviction. If this is true, it is both an affirmative defense to the eviction claim and a basis for a counterclaim in most cases. The better practice would be to raise it both ways in the same lawsuit. But, if the counterclaim is not sufficient to overcome the claim that rent is owed and not paid in full, or triggers some other different alternative ground for an eviction (e.g., maybe the lease provides that application of a security deposit against rent owed is itself an event of default), then that wouldn't prevent an eviction. |
Is there a copyright on that content? I'm posting here, because I'd like to do something but I'm concerned about the legal aspect of it. A lot of websites propose to sell t-shirts, goodies, etc. based on your designs. I'd like to sell t-shirts with the direwolve emblem of the "House Stark" in Game of Thrones, and of course, I've been immediately asking myself if HBO which produces the serie actually had some copyright on that emblem. I've searched a lot, but didn't found anything. I also saw this video, where a girl who used a simple sentence from the serie was threatened to be sued, so you get my point : http://www.dailymail.co.uk/news/article-4032504/Game-Thrones-threatens-SUE-autistic-schoolgirl-13-girl-used-phrase-winter-coming-artwork-competition.html Of course I do not intend to use some copyrighted content, so that's why I'm asking, but how to know what can be used freely ? what sentence ? what sigil ? For example can a sentence as "The North Remembers" be copyrighted if there's no image under it ? Thanks for all your legal advices ! | I'd like to sell t-shirts with the direwolve emblem of the "House Stark" in Game of Thrones, and of course, I've been immediately asking myself if HBO which produces the serie actually had some copyright on that emblem. This is not a close case. Your proposal, or anything remotely similar, would almost certainly constitute a copyright violation and result in a lawsuit by the producers of the show if not done with a license from the company. They would easily win this lawsuit. The damages that they were awarded would greatly exceed the amount of profits you made from your sales (realistically, more than a $1,000 per T-Shirt plus many tens of thousands of dollars of legal fees and costs would be typical). You would probably have to go bankrupt and some or all of the damages award against you might survive bankruptcy because your copyright violation was an intentional act. Every episode of the TV show is a copyrighted work and what you are proposing would be a "derivative work" since it is derived from the copyrighted TV show. Derivative works made without a license from a a copyright holder are a violation of copyright laws. There are also probably myriad specifically trademarked symbols and phrases that are registered with the appropriate government official (the Patent and Trademark Office for U.S. trademarks). So, it is highly likely that there would be a trademark violation as well if a license was not obtained. Your basic business model is at its very heart and essence fundamentally illegal. There is nothing you can do to fix it without getting written permission from the publishers who have probably long ago sold the rights to do this to somebody else for an immense amount of money. You should abandon this idea and try to come up with another business venture instead. | 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. | Assuming that the images are in fact released by the copyright holder under the CC_BY 2.0 license, and not under the CC_BY_NC or CC_BY_SA license, you are free to use the image on a book cover. That the book is erotic makes no difference. You must attribute the cover image to the original creator, as specified in the license, unless the creator has indicated that no attribution should be provided. You must not state or imply that the original creator has in any way endorsed your book or you. Be careful to check that the person releasing the image is in fact the copyright holder. It is not unknown for someone to upload someone else's image and claim to release it under a CC license. Obviously a "license" from someone who had no rights does not give you or anyone any rights. Just as buying stolen goods from a thief does not give you title to them. It is your responsibility to confirm that the person who released the image had the right to do so. | A figurine, or other artwork, that is clearly based on the published images, or on the published description, of a fictional character in a copyrighted work would be a derivative work. To publish, display, sell, or distribute such a work without permission would be copyright infringement, and the copyright holder could sue for damages. Whether something is a derivative work is a question of fact, and the details can matter. In general, the more vague and generic the fictional description, and the more original elements not derived from the fiction are included in the work, the less likely the new work is to be held to be derivative. But any significant element clearly taken from the previous work may be enough to make it derivative. | The image is almost surely protected by copyright. The model used in the game would probably be a derivative work of the original image. As such, permission from the copyright holder on the original image would be required. In the absence of such permission, the copyright holder could sue for infringement, and have a reasonable chance of winning. Whether such a holder would choose to sue cannot be predicted. It would depend on whether the holder ever learned of the infringement in the first place, whether it could be proven, and the degree of damages that might plausibly be claimed. It would also depend on the holder's attitude toward such circumstances. In addition, the gun makers might claim trademark infringement. This would depend on how recognizable the guns are, and what trademarks the makers have secured protection on. If a logo is visible and recognizable, that would strengthen a claim by the maker. On the conditions described in the question, trademark infringement seems a bit unlikely, but exact details will matter in such a case, so one cannot be confident in any generic answer on that point. | You are confusing two separate concepts: trademark and copyright. I'll give you a broad overview of both of these, although the details will differ depending on what country's law we're talking about. A copyright is held by the creator of a work of artistic expression. It gives the creator certain exclusive rights, including the right to create copies of the work and to prepare derivative works. For example: The movie "Star Wars" is a work of artistic expression. You cannot copy "Star Wars," or any significant part of it--including the script, the music, etc.--without the permission of the copyright owner, unless your use fits into one of the exceptions to copyright in your jurisdiction. Likewise, you cannot write your own book featuring the Star Wars characters: that would be a derivative work, a work based on the original work, and would violate the rights of the copyright holder. Without having read the book in question, I'm not going to comment on whether it does or doesn't infringe the film's copyright. But ideas can't be copyrighted. A film review, for instance, isn't a copyright violation--and a longer work discussing the ideas involved in a film isn't necessarily a copyright violation, either. Copyright only protects the expression itself--the language, the images. You are very limited in how much of that you can copy, but as long as you're using your own words, copyright protection is less of a concern. Trademarks, on the other hand, are intended to protect a business from customer confusion. Trademarks are not protected in the same way as copyrights; the key analysis of a trademark infringement lawsuit is: does it create confusion about the origin of the goods? For example: if you slap a swoosh on a shoe, Nike will sue you. If you use a swoosh in a political cartoon criticizing Nike, they won't, because nobody is going to think Nike wrote the political cartoon. So: If you write a book and call it: "Ewoks Gone Wild: A Star Wars Story," Disney will sue you, because it would be reasonable for someone who saw that book in a store to think that Disney authorized that book. If you wrote a book called "Forcing the Issue: The Hermeneutics of Science Fiction Movies from Star Wars to Inception", the case would be less clear-cut. But the important thing to understand is that these issues are complicated. There are exceptions to these rules; there are applications that may not be obvious to the non-lawyer ("initial interest confusion" is one minefield in U.S. trademark law), there are national and EU-specific considerations, there are safe harbors, and there are practical considerations, like whether you can afford to fight a lawsuit even if you're in the right. Therefore, I'm not going to tell you whether your hypothetical work would infringe anyone's copyright or trademark, and I'm not going to give you a set of rules on how to avoid it. The only person you should be listening to that sort of advice from is a real, non-anonymous-internet lawyer, licensed to practice in your jurisdiction, who is familiar with the specific details of your specific situation. | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | 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. |
What protects civilians from police corruption and lying if there isn't any video evidence? Can't a police officer arrest someone on the street for anything and just lie about what happened? For example, there are some drugs found near someone walking down the street. An officer just decides to arrest that person and say they were in possession of the item even though then weren't. How would one fight this if there's no video evidence? Is it also possible for police to use DNA as evidence in drug cases such as these? For example, DNA is transferred from your body to the drugs through someone moving it or it falling onto it somehow but you never actually touched it or had possession of it in reality. I would think that DNA alone wouldn't prove this, so there isn't a point to use it as evidence, but I could be wrong, which is why I'm asking. | The answer by @A.fm. isn't wrong, but it also is unduly optimistic. In my experience, in real life, people are more likely to lie when they are under oath than when they are not under oath, and law enforcement officers tend to be particularly good at lying on the stand because they testify frequently in court cases. In almost all places in the United States (and most foreign jurisdictions), in a pure battle of credibility in the eyes of a judge or jury between a law enforcement officer and an individual citizen charged with a crime, the law enforcement officer's account is going to be found to be more credible (beyond a reasonable doubt) about 90% of the time or more, unless you have a majority-minority jury or an outlier extremely liberal judge or the law enforcement officer has a personal involvement in the case (e.g. it involves a family member of the officer). The likelihood that it will be resolved one way or the other does depend significantly on race and social class, however. The credibility imbalance is still great and favors law enforcement, but not as extreme, when it is between an unrelated third-party witness and a law enforcement officer. In the absence of hard evidence or a law enforcement insider witness willing to testify in your favor, it is almost impossible to win a credibility contest in a case like the ones you suggest. One important step an attorney can take, however, is to seek discovery on any prior instance in which the testifying officer has been disciplined for untruthfulness or had his testimony in court found to be untruthful. This will usually be fruitless, but levels the playing field to closer to 50-50 if you get lucky and received such evidence. Such a request also provides a means of collateral attack on a conviction if the law enforcement officer has a history of untruthfulness that wasn't disclosed by the prosecution after such a request is made by a defense lawyer. So, what does protect you? Mostly the desire of the bosses of law enforcement officers (who are ultimately politicians, mostly local politicians in the United States) to see the law enforced in a non-corrupt manner and the fear of a law enforcement officer that he or she might be found to have lied using physical evidence unknown to him at the time (like a secret recording of an interaction). Law enforcement officers usually don't have much to gain from lying (although this equation changes a law when police department can receive assets seized in civil forfeitures that they are involved in) and usually they want people who are "bad guys" to be in jail to protect "good guys" although they aren't always very concerned about the means by which they achieve these ends. Of course, "usually" is a weasel word here and there are many exceptions that crop up in real life (e.g. when police have engaged in misconduct and want to protect themselves from the consequences of that misconduct). The other obvious solution (so common that in certain eras of U.S. history there were travel guides targeted at African-American motorists to help they carry out this approach) is to avoid places with police who have historically been corrupt. The United States has a uniquely bottom heavy law enforcement structure. Something on the order of 95% of law enforcement officers are employed by local governments or are otherwise tightly constricted geographically (e.g. rangers in national or state parks). And, even the small number of state law enforcement officers are heavily concentrated doing traffic enforcement on major state and federal highways. Similarly, lots of federal law enforcement agencies are broken up into geographic divisions some of which are known to be more corrupt than others (e.g. there is more corruption in the border patrol on parts of the border with Mexico than on most of the border with Canada). So, if you want to avoid the risk of encountering bad cops, stay away from places that are known to have bad cops. The solution may seem like a "cop out" (sorry, pun intended), but it is actually a pretty unique feature of the American law enforcement system. Most countries (e.g. the U.K., South Korea, Russia, Japan, Spain, Mexico, France) have a much more centralized law enforcement bureaucracy, which is fine when the people are the top are scrupulously non-corrupt, but which also makes it much easier for the rot of corruption to become geographically widespread and hence unavoidable from the point of view of an individual citizen. In contrast, in the U.S., even in the most corrupt of times (e.g. the Prohibition era), there are almost always many jurisdictions where law enforcement is not corrupt and corrupting the entirely system is much more difficult than in most countries. | 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. | 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. | It depends on the nature of the crime, among other things. Under Section 8 of the Police and Criminal Evidence Act 1984 (PACE) the police must provide evidence to a court that a search warrant is necessary to secure and obtain evidence relevant to an ongoing investigation into a crime. If there is evidence that time is of the essence with regards to the evidence at stake (e.g. there is a high probability that the evidence will be destroyed unless it is secured immediately) then the search warrant will be expedited. Once the search warrant has been secured, it will be an operational matter for the police to decide when and how to act on it. They could choose to do a dawn raid, for example, or they could monitor the suspect for a week and then search the property when the suspect is out. Be aware that under Section 18 of PACE, a search warrant is not necessarily required. The police may, in the course of arresting someone for an indictable offence, search the premises without a warrant provided certain criteria are met. Of course, this is predicated on the police having grounds for arrest, and in the vast majority of cases, a search warrant will be obtained. | A fact cannot by itself constitute reasonable suspicion; the word "reasonable" describes not only the relationship between the fact and the possible existence of a crime, but also the officer's knowledge about the fact. The officer must not only sincerely believe the truth of the facts constituting reasonable suspicion, but must also reasonably believe it. I do not know whether a hallucinatory experience may be found reasonable for this purpose; I suspect that it would be a matter of dispute at trial. The first example is perhaps more straightforward, as there are probably a few possible explanations for the officer's failure to notice the turn signal. Still, are they reasonable? If the officer could not see the turn signals because something blocked the line of sight, it would not be reasonable for the officer to conclude that the driver had failed to use the signal. Rather, the officer has no evidence one way or the other, and absence of evidence is not evidence of absence. The question deals in hypotheticals, where we can assume that the officer is sincere. But in a trial, the jury (or judge in a bench trial) cannot do that. They will look at the evidence, including the officer's testimony, and assess the officer's credibility. They will form an opinion about whether the belief was sincere and reasonable before they look at whether the facts, as the officer believed them to be, reasonably indicated that a crime was being committed or was imminent. | You did not commit any crime, but that does not mean you cannot be charged with a crime. Up to the point where you take the item back out of your pocket, a police officer would have probable cause to believe you were attempting to steal the merchandise, and probable cause is all he would need to charge you. At trial, the government would have the burden of proving that you intended to actually steal the item, but it can satisfy that burden merely by showing that your actions were consistent with such an intention. You would have the option of testifying that you planned to pay for the item. From there, it would be up to a jury to decide whether it believes you. If so, you should be acquitted. If not, you would likely be convicted, and your conviction would likely be affirmed on appeal. | The citation could be written but it should be easy to beat. In the circumstance that you describe the accused could just say the he was not driving his car at the time. If the prosecution is a sham with all your friends saying you all saw this thing, then the defendant can bring all of his friends to say that he was at some other place. The benefit to having a cop on the scene is that the cop will get ID and positive identification. The other thing the cop has is expert judgment. If a cop sees unsafe lane movement and writes a ticket, his testimony in court carries more weight than the "it was not unsafe!" testimony of the accused. Keep in mind, getting all of your witnesses to court on the same day, after continuances and other delays, and getting them all to tell the same story to overcome the presumption of innocence is no small feat. All that to say, it's easier with police as witness. There are two mechanisms which could get you where you want to go. Private prosecution and citizen's arrest. Private prosecutions are a part of history but not strictly unavailable at the state level. You could write up some charging documents to see if you can get your target indicted. Citizen's arrest is interesting because the rules are fairly unclear unless governed by a specific statute. There are two necessary parts of citizens arrest and the first part gets the attention. The first part is the detention (arrest). The crimes for which a citizen can legally detain a suspect are likely defined by state statute. The second part is giving testimony about the witnessed crime. Let's assume that you see a felony happen and watch the perp walk into a gas station bathroom. You are prepared to arrest, do part number one, and then call the cops, to do part number two. But while you wait for the guy to come out of the bathroom a cop walks up. You explain the felony and the cop goes into the bathroom and arrests the guy. It's purely witness testimony that led to the arrest and the indictment (physical evidence - let's say there is none) and even the trial. You successfully get the guy indicted and when you show up to testify you tell the story as you witnessed it. Now the accused gets to take the stand. When he takes the stand he says, "it was the other guy." When asked, "what other guy?" He says, "I was in the bathroom and a guy ran in and went into the stall. Then a cop came in and arrested me." Reasonable doubt right there. How much more if it's a bunch of friends ratting on some lone driver? Police need evidence. Prosecutors need evidence. Judges need evidence. | There is a good amount of case law addressing this question going back two centuries. Legally, as soon as you are subject to "excessive force," you are allowed to defend yourself as you would against any assault, even if that force is being used in the course of an otherwise lawful arrest. Furthermore, in some states you are still allowed to resist unlawful arrest. Unfortunately, the matter is no longer as clear as it used to be. (There is a lot of material on this subject; just search for resisting unlawful arrest.) For example, police reflexively invoke a virtual safe harbor by shouting, "Stop resisting!" while battering arrest subjects. Video evidence has uncovered a plethora of examples in which this was done to subjects who were not only not resisting, but even later determined to have been incapable of resisting. If you intend to defend yourself against police, even when justified by law, you need to realize that the system is stacked against you. Police carry the means of escalating to lethal force. So, for example, if you are being beaten but you are potentially able to physically overpower and restrain an officer, you will likely then be met with baton blows or tasers. Since a baton is a deadly weapon, you would be (in theory) justified in shooting an officer attacking you with one. But as soon as any officer shouts "gun!" you will be shot, and most likely killed. Police seem to be given the benefit of the doubt by prosecutors and grand juries when they claim, "I feared for my life." You (even if you survive) will likely have any such claim subject to a full criminal trial. So even though you can legally defend yourself against excessive police force, these days you will almost certainly be unable to in practice. |
Courtroom rules of order Robert's Rules of Order famously provides widely accepted guidelines for conducting formal meetings. Is there an analog for conduct that applies generally or specifically to open sessions of judicial courts? For example, the Federal Courts provide very detailed rules of procedure, but I can't find anything that covers conduct by admitted parties during a hearing. If Hollywood is to be believed, counselors can interrupt almost anything by shouting, "Objection!" at which point everything else is put on hold while they are allowed to state their objection. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. Obtain clarification of a statement. Determine or clarify the purpose of an ongoing statement or line of questioning Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") (Under Robert's Rules all of these scenarios are covered without recognition by the president as points of order, information, personal privilege, parliamentary inquiry, tabling, taking from the table, reconsidering, appealing, etc. Robert's Rules also make it clear how any such interruption can be addressed and disposed.) | The main rules in a civil case are the rules of evidence, the rules of civil procedure, and a set of largely unwritten rules governing issues such as the order in which matters are presented in a trial and courtroom conduct. Basically, the rules of evidence are really a subset of a larger set of written and unwritten rules about courtroom conduct the unwritten parts of which are assumed to be known by people using them. Robert's Rules of Order do not apply to courtroom proceedings. The judge also has the "direct contempt" power to summarily punish disrespectful conduct in the courtroom without a trial, with fines or incarceration, even if it wouldn't be a crime outside the courtroom. But what if a party to the proceedings who does not "have the floor" wishes to do things like the following: Obtain a restatement (perhaps because it was unintelligible, or perhaps as a ploy for emphasis) of something uttered by another. If you are a party asking a question (or more likely an attorney for a party asking a question on behalf of a party) it is not improper to say, "I'm sorry, I couldn't hear you." It is also not generally improper for a non-questioning party to interject and state that they can't hear a witness to a judge. Obtain clarification of a statement. This can be done by a party only when it is the party's turn to cross-examine or redirect as the case may be. A judge can ask for clarification, but a party cannot do so when it is not their turn. Determine or clarify the purpose of an ongoing statement or line of questioning Generally the party not asking a question objects and the court asks the party asking the question to clarify the reason. Sometimes, in a jury trial, the party asked to clarify will say "may we approach the bench" and a private discussion will be held between counsel for both sides and the judge regarding an ongoing issue. Determine whether the judge will allow something later in the proceedings. (E.g., "At some point I hope to speak to point X. May I do that now? Or will I be afforded that opportunity at some later point before the conclusion of this hearing?") Lawyers are expected to know this for the most part without having to ask. Also, usually before the court starts to take evidence, and at breaks, the judge will ask "are there any preliminary matters that need to be addressed?" or "are there any procedural matters that need to be addressed?" and questions such as this can be raised at that time. | This is a great question because it's a useful vehicle for understanding a cross-cutting principle of law: baselines and exceptions. I find that thinking of law as a system of baseline rules and exceptions to these rules is a great way to organize and make sense of the mess that is 'the law.' A police officer testifying about what you told them, whether it helps you or hurts you, is hearsay. So, as you correctly pointed out, the baseline assumption is that that testimony can't come in. But, the hearsay rule is famous for having a ton of exceptions to it. Two relevant exceptions here are: (1) statements against interest, and (2) prior inconsistent statements. If what you told the police officer was a direct admission of liability, or a statement that contradicts the theory of the case that you're presenting to the jury, either or both of these exceptions are going to kick in and make that hearsay admissible. These exceptions are not going to kick in, however, for hearsay statements that help you. A humorous, but related, aside, is that there's some jurisdictional differences in how far the 'statements against interest' exception goes. In some jurisdictions it only applies to admissions of liability, but in other jurisdictions it also applies to simply embarrassing statements. My evidence professor illustrated this by, out of the blue, mind you, saying, in class, "I stopped wetting the bed when I got to college," and then explaining that in the latter type of jurisdiction, that statement would be admissible. He then paused after the class had finally stopped laughing and said "that's not true, by the way...I stopped in high school." | Only in a civil case Yes, in a civil case, Alice generally can call Bob as a witness to take the stand. In many cases, this is done very early, locking in their testimony, before expert witnesses or other evidence by the plaintiff are presented to try and undermine the testimony. Alice may ask only questions that have relevance to the case. Let's take for example a dispute about a contract: Alice may ask Bob if he engaged in negotiations to form the contract, about the matter of the contract, if he signed the contract, or how he (or his employees) fulfilled (or not) the contract. Pretty much everything that pertains to the contract or the execution thereof. This does not extend to the settlement of the case or attempts thereof. Alice may not ask if Bob has an affair with Clarice unless that somehow is material to the contract at hand. Alice may not re-ask questions where an objection was sustained in the same way. However, Bob might not need to answer all questions (there are things that are banned from being asked), especially as Bob's attorney will object to questions. A few examples of competent questioning can be seen towards the end of My Cousin Vinnie, though this is a criminal trial. Never in a criminal trial In a criminal trial, not only can the prosecution not call Bob to the stand, he has to elect to go to the stand to even be questioned by the prosecution. That is because he can "plead the 5th". There is a tiny exception for civil cases, where they can do so there too. | If I understand your question, you're asking the difference between something like this: "You shouldn't do business with Bob; he's a child molester. Raped a whole bunch of kids. Everyone knows about it." and this: "You're thinking of doing business with Bob? Huh. That's your call, of course. I won't say anything against Bob. But Bill is in the same business, and I happen to know that Bill has never molested any kids." or this: "There are three people you could do business with. There's me. I've never molested any kids. There's Bill; he's a little expensive, but he's never molested any kids either. Then there's Bob. I don't have anything to say about Bob." I don't know the answer under German law, but under U.S. law, it's surprisingly complicated, and varies by jurisdiction. Here is a thorough but somewhat dated article on the subject. New York has recently established an explicit test for defamation by implication: To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference. Stepanov v Dow Jones & Co., 2014 NY Slip Op 03940 (App. Div. May 29, 2014). That opinion also discusses the other approaches used in other U.S. states. Under that standard, it seems clear that my example statements would be defamatory; any juror would immediately understand both the factual implication and that it was 100% intentional. In practical terms, I doubt any court in the United States would not consider them defamatory. In general, defamation is harder to prove in the United States than in other jurisdictions, because of the strong protections afforded to speech under the First Amendment--but I don't know enough about German law to speak to that issue. | While you have correctly stated the usual order of events in a trial, the judge has wide discretion to modify the order if it seems that justice will be served. Even in a serious criminal case, the judge can reopen testimony after closing arguments have started if the judge finds that there is good reason to do so. Traffic cases are generally less formal, and the judge will more freely modify procedure to bring out the facts of the case. I have often seen judges at traffic court ask significant relevant questions, and if they are in fact relevant, i don't think you will get far objecting to their begin asked. I am not a lawyewr, but I also have observed several traffic cases in Maryland and in NJ. | Does the law or judge ever make exceptions for events such as this? From a legal standpoint, your friend is at high risk of being found in contempt and thus be sentenced to imprisonment. Your friend should have called 911 rather than violate the protection order under pretext of consoling her. Asking from the standpoint of whether judges ever do this or that is pointless. The answer would be "yes, they make exceptions" even in scenarios which are plain aberrant. However, a judge's departure of the law quite often is not a reliable standpoint for understanding the law, but the result of his/her ineptitude and unfitness for judicial office. | The already existing rule 11 penalizes baseless litigation. The modifications in this bill makes sanctions obligatory rather than optional, removes escapes for what would be sanctionable actions, and expands the range of sanctions. The clause in question strikes me as redundant, because existing rule 11(b)(2) says of the action that (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; Without either of these clauses, sanctions could be imposed on a bright guy who comes up with a new legal argument that actually works, which I think is clearly contrary to the intent of the original rule. Such a clause is a way of telling the courts "No, that is not the legislative intent". But the existing rule already covers that outcome. It may be that the added sanction "striking the pleadings, dismissing the suit, or other directives of a non-monetary nature..." was thought to potentially threaten "creative lawyering", but again that seems to be already covered by 11(b)(2). The words "assertion or development of new claims, defenses, or remedies under Federal, State, or local laws, including civil rights laws, or under the Constitution of the United States" differ from "nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law", but they seem to describe the same kind of facts. Perhaps a historical reading of the various versions since 1983, especially related to the advisory committee notes, would reveal more precisely why this is necessary. | To be valid, a point of order generally needs to be made at the time of the possible Rules violation Exceptions are where the Rules violation violates the law, where it conflicts with a previously adopted motion (other than a motion to rescind that earlier motion), or where it violates a fundamental principle. Assuming your example doesn’t do any of those things, then the point of order is moot once the vote has been taken. |
13 y/o Sexual Harassment -- What will happen? I am the parent of a 13-year-old. He has recently gotten involved in sexual harassment. He iMessaged a girl some very, very inappropriate messages (eggplants, inappropriate cussing, etc) at school ~1 month ago. We just now got a letter that we need to attend an Intake Conference on the 25th. Details: -- We are in Oklahoma (Norman) -- He had confessed and took it upon himself to right an apology letter to the girl. -- He has no previous history of this, other than asking some girls sexual questions that they allowed him to ask & a history of porn. -- He barely knew the girl. -- The age difference was roughly 4 months. -- We pulled him out of his public middle school and put him in an online school. -- This is his first legal offense ever. (Other than drug possession, but there wasn't enough evidence from the school to warrant them to charge him) -- We have gotten him psychologically tested for sleep issues and because of this. No results yet, but the psychologist stated he wasn't a danger to society. She also gave us a notice stating that he had attended. -- We have gathered his med. records, school records, and other requested documents. We do not have his social security card. My Questions: -- Whats the difference between a charge and a referral? -- What do they do at an intake conference? -- Do I need an attorney? -- Will they (NPD) need to forensically investigate his electronics? -- What is the sentencing for Sexual Harassment? -- Is it sexual harassment? On the referral it states "Threat / Harass.". -- What will they already have on record? -- Can he be arrested if the intake officer deems the family or him unfit for society? My lawyer has stated I can fully disclose this information without legal consequence. I'd appreciate as much input as possible. Thank you. | You don't say who is telling you that you need to do these things, and it does matter. Educational institutions are required to maintain a discrimination-free environment, so if a student makes inappropriate remarks to another student, they have to address the matter (if they ignore it, saying "Boys will be boys", they can get sued). They will have previously spelled out procedures for addressing such accusations, which probably include giving a good talking-to to the guilty party, and maybe some harsher sanction like suspension. The school district might then have in mind a parent-teacher conference, with the underlying threat being to turn the matter over to the police: did the letter come from the school district? A minor can commit a crime, such as assault or threatening: in Oklahoma, this includes Ok. Stat §21-1172, which makes it a crime to send a message that is obscene, lewd, lascivious, filthy, or indecent, and a first violation of the law is a misdemeanor. For an adult, the penalty can be a year in prison and $500 fine, but that is unlikely for a minor. There may be a hearing in Juvenile Court with some disposition, and if the charges are proven then the court has wide latitude in meting out punishment. Did the letter come from the juvenile court system? The Oklahome law regarding children and juveniles is here. When the Office of Juvenile Affairs engages in "the intake process", they are investigating the case to make a recommendation to the DA. "Intake" is defined as a mandatory, preadjudicatory interview of the juvenile and, if available, the parents, legal guardian, or other custodian of the juvenile, which is performed by a duly authorized individual to determine whether a juvenile comes within the purview of the Oklahoma Juvenile Code, whether nonadjudicatory alternatives are available and appropriate, and if the filing of a petition is necessary Since "intake" is juvenile justice jargon, I assume this is a legal proceeding, not a parent-teacher conference. An actual criminal charge might result from the hearing, which is brought about by a referral. Because detention is a real possibility, consulting an attorney is wise. Whether or not it is a good idea to have the attorney present for the proceeding is something only your attorney can say (in his professional judgment). There is really no way to know in advance what they already know. | In a civil action: If you are serving written discovery on a party, under the federal rules of civil procedure, or in any state whose adopted the model rules, (rules 33-37 typically), you need only send your requests for interrogatories, the production of documents, or for admissions to the party (through their counsel unless they are pro se), accompanied by the discovery notice, detailing the time frame in which they are due. It is typical that this time frame will get extended, sometimes by double or triple the original 21 day period plus 3-5 days for mailing. When the party is represented (this is 99% of the time) the attorney will just call you or email you for an extension and it is pro forma to assent to this. The court will not be happy if they need to seek permission of the court for this because you refused, as it is that common, and you will just get a reputation as a non-cooperative pain (not to mention, the time will come when you need an extension, and what comes around goes around). If they seek an unreasonable amount of time (I'm talking so close to the discovery cut off that you'd not have time for depositions after receipt), then you can limit it, but a couple of months is common. This need not go through the court. If they are not represented, they may just be late rather than calling, in which case you have a duty to contact them before involving the court. This is just because they don't know it is the norm, and it is nearly impossible to pull together everything needed from a full set of discovery in 21 days. When there is a true discovery dispute, you must show the court that you made all due diligent efforts to resolve it on your own. I don't have my rules in front of me (I will edit and add this when I do) ... but this is in the rules, it is not just practically speaking. Also, many jurisdictions require that you contact the court's clerk and get permission before filing any discovery motions. Sending a subpoena is not ever how this is dealt with. If the opposing party fails to respond, or if they are continually late and despite numerous contacts they still do not produce, then you would schedule a discovery conference with the court at which time you will seek a motion to compel. The court will typically give them even more time at this point. You are correct in that when a third-party is served with discovery request, since they have no obligation to take part in the case but for the presence of a subpoena; hence, in this situation you would use a subpoena to request whatever it is you are requesting. They may get their own lawyer who will try to limit your right to get anything from them as a non-essential party, but if it is really relevant you can do it. You would also use the subpoena for depositions, to ensure that witnesses present themselves. Otherwise, subpoenas are reserved for acquiring witnesses to appear in court or for custodians of records to bring records to court for hearings or trial. | It is not obvious that is it illegal in Washington state. Everett WA has local ordinances against "lewd conduct" (there are versions of this at the state level and in most municipalities). Having sex and masturbation are included in the class of "lewd acts", and are also included in "sexual conduct". An activity is "obscene" if three things are true. First, the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest and when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political or scientific value. I think having sex or masturbating could pass these two tests. The third condition is that the act explicitly depicts or describes patently offensive representations or descriptions of... [sex, masturbation, or excretion] The prohibition is more narrow: A person is guilty of lewd conduct if he or she intentionally performs any lewd act in a public place or under circumstances where such act is likely to be observed by any member of the public. If lewd conduct were completely illegal, you could not excrete or have sex withing the city limits. Now we have to turn to the definition of "public place": an area generally visible to public view, and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), buildings open to the general public, including those which serve food or drink or provide entertainment and the doorways and entrances to buildings or dwellings and the grounds enclosing them, and businesses contained in structures which can serve customers who remain in their vehicles, by means of a drive-up window Focusing not on the probable intent but on the words, it is primarily defined as "an area generally visible to public view". Your house qua building is probably generally visible to public view, as is a public toilet or hotel. The inside of your bedroom is probably not generally visible to public view, nor is the inside of a toilet stall. While the building is probably a public place, a closed stall within the building does not meet the definition (nor does a hotel room). It might however qualify under the clause "or under circumstances where such act is likely to be observed by any member of the public". The statute does not give a definition of "observe", but under ordinary language interpretation, observation may be seeing or hearing. Silent sex, masturbation or defecation might not qualify as being public. Obviously, excretion in a stall of a public bathroom cannot be a lewd act, presumably because the average person does not generally consider ordinary excretion as appealing to the prurient interest: but there could be contexts where it does. Another avenue for prosecution is the Indecent Exposure state law which is when one intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. It is totally non-obvious that sex or masturbation in a toilet stall is "open". There is a slippery slope regarding quiet sex or masturbation w.r.t. knowing that the conduct is likely to cause reasonable affront or alarm. Because the contexts where sex and masturbation are not clearly spelled out by statutory law, the matter would depend on how courts had interpreted previous cases. There have been arrests in Washington of people having bathroom sex, but I don't know if anyone has ever or recently-enough been convicted for having quiet sex out of view in a toilet stall, or similar place. There is a potentially applicable case, Seattle v. Johnson, 58 Wn. App. 64, which seems to involve public sex, and the conviction was overturned because the complaint was defective, in not including the element "that the defendant must know 'that such conduct is likely to cause reasonable affront or alarm'". It is not clear from the appeal what the act actually was – it probably was for public nudity. There is also an decision by the state appeal court division 3 (not publicly available) in Spokane v. Ismail which, in connection with a charge of public urination declares that "A toilet stall is not a public place. The center of Riverfront Park during the lunch hour is a public place", in connection with an ordinance just like the Everett one against public lewd acts. | In addition to the general considerations of (1) who is allowed to use non-deadly physical force to maintain order in a shop (which I think that one could do if "deputized" by the property owner or to protect the property of another as well), and (2) the use of non-deadly physical force to make a citizen's arrest (which many of these scenarios would justify as the disorder would be a crime if committed by an adult), (3) I suspect that there is also some point at which a bystander may intervene to prevent harms associated with an unsupervised minor being at large and in need of supervision. Generally speaking, intervention with the minimum reasonable non-deadly physical force to prevent property damage, or an assault, or a threat, is going to be permissible. As to the third reason: for a mentally normal ten-year-old that might be a stretch; for a four-year-old or a clearly impaired older child it might not. One could approach the child, say, "where's your mom or dad", "do you have a babysitter or sibling around?", "what is your name?", or "are you lost?" and detain the child until a satisfactory answer is provided or a suitable authority arrives, to prevent the problem of a child being lost, abducted or hurt by the child's own actions. It would be quite hard for a parent, guardian or babysitter to complain about this kind of conduct when the child was unsupervised and is released as soon as you confirm that this really is a responsible adult or older minor who is responsible for the child. It would be important in doing so to not secret away or isolate the child, to try to determine the location of the child's caretaker, to refrain from doing anything that would harm the child, and to seek assistance from an authority within a reasonable time. Typically, if no caretaker appeared, a cop would come and the cop would oversee the situation until a social worker could come. For example, Colorado has the following statute that would apply once a cop arrived (omitting lengthy provisions that apply to newborn children): § 19-3-401. Taking children into custody (1) A child may be taken into temporary custody by a law enforcement officer without order of the court: (a) When the child is abandoned, lost, or seriously endangered in such child's surroundings or seriously endangers others and immediate removal appears to be necessary for such child's protection or the protection of others; (b) When there are reasonable grounds to believe that such child has run away or escaped from such child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has not made a report to a law enforcement agency that the child has run away from home; . . . (1.3) A child shall be taken into temporary custody by a law enforcement officer without order of the court when there are reasonable grounds to believe the child has run away from the child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has made a report to a law enforcement agency that the child has run away from home. (1.5) An emergency exists and a child is seriously endangered as described in paragraph (a) of subsection (1) of this section whenever the safety or well-being of a child is immediately at issue and there is no other reasonable way to protect the child without removing the child from the child's home. If such an emergency exists, a child shall be removed from such child's home and placed in protective custody regardless of whether reasonable efforts to preserve the family have been made. (2) The taking of a child into temporary custody under this section shall not be deemed an arrest, nor shall it constitute a police record. A child is considered neglected or dependent under circumstances including the following (provisions related to drug or alcohol abuse by parents omitted): § 19-3-102. Neglected or dependent child (1) A child is neglected or dependent if: (a) A parent, guardian, or legal custodian has abandoned the child or has subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring; (b) The child lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian; (c) The child's environment is injurious to his or her welfare; (d) A parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for his or her health, guidance, or well-being; (e) The child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian; (f) The child has run away from home or is otherwise beyond the control of his or her parent, guardian, or legal custodian; I don't have easily at hand legal authority authorizing a third-party who is not a law enforcement officer to take custody of a dependent or neglected child until a law enforcement officer arrives, but I strongly suspect from the context that this is allowed either under common law, or a statute that I have not located, or some legal fiction (e.g., that the citizen is implicitly deputized by the law enforcement officer after the fact), or simply as a matter of custom and ordinary practice not codified in any authoritative legal source. | 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. | "Does the needlessly obnoxious and antisocial manner in which they're behaving and clearly drugged intoxication create any kind of charge like disturbing the peace or something like that?" Probably. But you don't want to take the law into your own hands. Call the police and have them make the judgement. There is a lot of discretion involved; some police officers may simply tell the preacher to move on; others may detain him on public intoxication or being a nuisance, according to local and UK laws, as well as check for permits and licenses for street/public performances. Many people gathered around the busker to express support and appreciation for him as well as disgust toward the preachers unnecessary disrespect. That's well within rights, as long as the behavior doesn't degrade into the same type(s) that the preacher is exhibiting and possibly be a nuisance or worse (i.s., assault) as per the law. | Was/is it permissible for judges in the US to talk ex-parte like that? No. Ex parte interactions of that sort are not allowed. See, for instance, Disciplinary Counsel v. Bachman, 2020-Ohio-732 (Dec. 18, 2020) and Maze v. Judicial Conduct Commission, 2019-SC-0691-RR (Dec. 17, 2020). An example of less recent decision but with a reporter citation number is Comm'n on Judicial Performance v. Bozeman, 302 So.3d 1217 (2020). For situations of imminent risk of irreparable harm, procedural law provides for ex parte motions and ex parte petitions, such as this granted petition for Personal Protection Order. See M[ichigan]CR 3.7003(G). But the scenarios you depict fall short of the necessity for which ex parte provisions are intended. do the above scenes in the movies essentially portray judicial misconduct? Yes. A judge's house is inappropriate for communicating, let alone ex parte, his ruling (I am not knowledgeable of the films but my understanding of your description is that that judge made the ruling on the application). As for The Untouchables, any evidence of jurors' & judges' conflict of interest and likely bias has to be filed in court and comply with procedural law so that all parties have an opportunity to litigate the matter. | 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. |
Under British law if first copyright belongs to a company, does it expire and if so, when? Under British law (s11 of the Copyright, Designs and Patents Act 1988), the first copyright of a book belongs to its creator, or, if the creator writes it for an employer, his employer (s9). Now his employer does not have to be a natural person; it could be a fictitious legal person, such as a company. If it is, does the copyright expire and if so, when? S12 states that copyright endures until 70 years after the author dies. Does that mean that if a company holds the first copyright then the copyright lasts as long as the company stays in existence, plus 70 years? If so, what is to stop an author avoiding the automatic expiry of copyright 70 years after he dies by incorporating himself as a company for which he does the work of writing? Or perhaps a company that holds the first copyright loses it 70 years after its employee dies? | Regardless of whether the first copyright holder is the author (always a natural person) or an employer (natural or non-natural), the copyright under British law expires 70 years after the death of the author. British law makes a distinction between the author of a work and the owner of a copyright that is not present in U.S. copyright law. This gives the author of the work "moral rights" which are absent in U.S. copyright law and also changes the analysis of how long a copyright lasts. Under Section 9 of the law, the author of the work is always a natural person according to the rules set forth there, and if no natural person can be associated with the work, it is a work of unknown authorship. Section 11 governs who owns a work, not who its author is, so the fact that a work is made for hire under a corporation does not mean that the author of the work is the corporation. Indeed, by definition, the author of the work cannot be a corporation. If no individual can be associated with a corporate work it is simply a work by an unknown author. A work by an unknown author enters the public domain 70 years after it is created, or 70 years after publication if it is first published within 70 years after its creation, pursuant to Section 12. The authorship of a work is fixed under Section 9 at the moment of its creation, so neither the first owner of the copyright (under Section 11) nor an assignment of ownership of the copyright from the author or first copyright owner to someone else (in your scenario where an author transfers ownership of the copyright to a corporation) changes the author of work. Hence, neither the fact that a work is made for hire, nor the fact that the author transfers ownership of the copyright, changes the duration of the copyright. | Yes Such a work might well still be protected by copyright after 50 years. The time that copyright protection will remain in force depends on the country where the work was created (normally where the author was living). In some countries it will also depend on when the creation occurred. In many countries such protection lasts for 70 years after the death of the author. Under US law recent works use the "life of the author+70 years" rule. Works created before 1978 may be protected for 95 or 120 years after creation, depending on the circumstances. See This well-known chart for details. If the work is protected by copyright, preparing a new derivative work, or performing or distributing the original or a derivative work are all copyright infringement, and the owner could sue. This is true whether a fee is charged or the work is performed or distributed for free. Exploiting the work for commercial profit might increase the amount of damages available, however. If the author has not published or exploited the work for 50 years or more, the author might not choose to sue, but that is entirely the author's decision. The author would have the right to sue, and given the facts as described in the question, to collect some damages. There is not enough information in the question to guess how large the damages could be. In the US 17 USC 504 provides for statutory damages, which the court has significant discretion on the amount of, with no proof of economic loss. Specifically this law says: (c) Statutory Damages.— (1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work. (2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118(f )) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work. In short, the mere lapse of 50 years does not make the unpublished musical work free for use without permission. | You are confusing two separate concepts: trademark and copyright. I'll give you a broad overview of both of these, although the details will differ depending on what country's law we're talking about. A copyright is held by the creator of a work of artistic expression. It gives the creator certain exclusive rights, including the right to create copies of the work and to prepare derivative works. For example: The movie "Star Wars" is a work of artistic expression. You cannot copy "Star Wars," or any significant part of it--including the script, the music, etc.--without the permission of the copyright owner, unless your use fits into one of the exceptions to copyright in your jurisdiction. Likewise, you cannot write your own book featuring the Star Wars characters: that would be a derivative work, a work based on the original work, and would violate the rights of the copyright holder. Without having read the book in question, I'm not going to comment on whether it does or doesn't infringe the film's copyright. But ideas can't be copyrighted. A film review, for instance, isn't a copyright violation--and a longer work discussing the ideas involved in a film isn't necessarily a copyright violation, either. Copyright only protects the expression itself--the language, the images. You are very limited in how much of that you can copy, but as long as you're using your own words, copyright protection is less of a concern. Trademarks, on the other hand, are intended to protect a business from customer confusion. Trademarks are not protected in the same way as copyrights; the key analysis of a trademark infringement lawsuit is: does it create confusion about the origin of the goods? For example: if you slap a swoosh on a shoe, Nike will sue you. If you use a swoosh in a political cartoon criticizing Nike, they won't, because nobody is going to think Nike wrote the political cartoon. So: If you write a book and call it: "Ewoks Gone Wild: A Star Wars Story," Disney will sue you, because it would be reasonable for someone who saw that book in a store to think that Disney authorized that book. If you wrote a book called "Forcing the Issue: The Hermeneutics of Science Fiction Movies from Star Wars to Inception", the case would be less clear-cut. But the important thing to understand is that these issues are complicated. There are exceptions to these rules; there are applications that may not be obvious to the non-lawyer ("initial interest confusion" is one minefield in U.S. trademark law), there are national and EU-specific considerations, there are safe harbors, and there are practical considerations, like whether you can afford to fight a lawsuit even if you're in the right. Therefore, I'm not going to tell you whether your hypothetical work would infringe anyone's copyright or trademark, and I'm not going to give you a set of rules on how to avoid it. The only person you should be listening to that sort of advice from is a real, non-anonymous-internet lawyer, licensed to practice in your jurisdiction, who is familiar with the specific details of your specific situation. | Copyright law is not based on contracts, and does not require agreement. No one may distribute copies of a copyrighted work without permission from the copyright holder. For instance, in the US, both Persons A and F can be sued because Title 17, Section 501 of the US Code says: (a) Anyone who violates any of the exclusive rights of the copyright owner ... is an infringer of the copyright or right of the author, as the case may be. (b) The legal or beneficial owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it. Copyright infringement isn't an issue of violating terms you agreed to with a private entity. Your duty to not infringe copyright was imposed by your country's legislature, who does not require your personal agreement to do that. | 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. | Yes, patents expire. The term is generally 20 years, but a patent can expire earlier if the owner fails to pay the scheduled maintenance fees. 35 U.S.C. § 154, 35 U.S.C. § 41 The patent owner could grant you permission to make, use, or sell the invention. This isn't the same as getting permission to call it your own, and it is completely separate from copyright. | Software qua property is protected by copyright *perhaps patent, in some jurisdiction). The general rule is that whoever creates the thing (book, song, software) has the exclusive right to the thing. If an employee of Company 1 writes software for Company 2, that employee might (rarely) hold the copyright, but typically that scenario would involve a "work for hire", where the employee is hired by Company 1 to do such tasks as part of his duties with Company 1 (which might then be given to Company 2). This would then be a work for hire, and the copyright is held by Company 1. If the actual author was an independent contractor, he would hold the copyright – see Community for Creative Non-Violence v. Reed for analysis of the subtle nuances in making that determination. The concept "work for hire" which crucially involves the "employee" relationship would not be applicable to Company 2 paying Company 1 for a product, and as long as the actual author is an employee of C1, C1 has not created a "work for hire" in the legal sense. Without some explicit disposition of copyright, Company 2 is in a sketchy position. Since C1 holds copyright, they must grant a license to C2 so that C2 can legally use it; or, C1 must transfer copyright to C2. This does not happen automatically, and (if C1 does not want to remedy the situation after the fact) C2 would need to take C1 to court to force a resolution to the situation. At that point, the issue would be what C1 implicitly promised, even though they didn't put it in writing. It is likely that the initial exchange was along the lines "Can you make us a program that will do X?", and the answer was "Sure, that will cost Y", and then "Okay, go ahead, looking forward to the product". The courts would not simply say "Well, you didn't explicitly require a license, so you don't get to actually use the software that you paid for". However, it's a somewhat open question whether the court would order a license (of what nature?) or a transfer of copyright. The disposition would depend heavily on the facts of the case (what was said, what C1 actually did, what kind of business they are, what did creating the work involve...). | You own it In general, if you own an object, you can do what you like with it if you otherwise comply with the law. It is possible that a particular object may be protected under heritage or similar law, but if it isn’t, and you comply with environmental and safety law, you grind that thing into dust if you want to. Of course, if it did, you would never be able to delete a voicemail, email, or throw out used notepaper - they’re all copyright. |
Subcontractor being refused payment I’m a IT contractor based in the United Kingdom, I have my own limited company. Recently I have been working on a project for a client through a recruitment company. My contract is with the recruitment company who has then sub contracted me to the end client. Last month the end client went into administration. The client went into administration at the start of October, the recruitment company is now refusing to pay me for the work I completed during the previous month September, as they will not get paid by the end client. The recruitment company claims they have the right to do this because I the contractor opted out of "The Conduct of Employment Agencies and Employment Businesses Regulations 2003" and our contract states under the sections termination. "The Company reserves the right to terminate a Project with immediate effect with out liability in the event of any of the Client entering into liquidation/becoming insolvent, dissolved or subject to a winding up petition or administration order, or having its credit rating revoked or materially reduced." As the recruitment company is still operational and they themselves have not gone into liquidation can they refuse to pay me the subcontractor for work I have already completed? The section on terminations seems to be referring to cost that maybe occurred from the sudden termination of the project not work already completed. Where does a contractor stand in this situation? | They can terminate the "Project" (presumably defined elsewhere) if the client blah, blah, blah, however, they must still pay you for the work you did prior to them terminating the Project (if, in fact, they have terminated it - they have the right but they still have to exercise it). Hire a lawyer. | Generally a signature is binding even if you have not read the document you have signed; as far as the law is concerned you should have and it's too bad for you if you didn't. Of course, this presumes the contract is otherwise valid. In the circumstances you describe you should ask to see the document before signing. If that is not possible, then instead of signing you should write "I do not agree" instead and take the printed statement - only 1 in 100 people will actually check that you did sign. If you have signed and do not wish to be bound, you should contact the company immediately in writing and say that and that they can collect whatever goods they have supplied. | Don’t be a dick Tell your earlier employer that you can no longer take the position rather than have them waste time and resources on you. You can try to negotiate a waiver of the break cost, most people will agree. If they want to hold you to the letter of your contract then you’ll know you were lucky not to work there; pay them what you owe them and move on. | According to your description, you have a contract to work 200 hours, and this must be accomplished between May 12 and July 10. Apparently you are 25 hour short on that obligation, which may mean that you probably will be in breach of contract. I don't see what error there is w.r.t. the date: whatever the contract says, that is what you agreed to. Perhaps you are wholely responsible for the shortfall of hours, or perhaps the employer bears some responsibility (e.g. making it impossible for you to work). It sounds like the employer is offering you an accommodation so that you can fulfill the hours part of the contract, by extending the termination date. Technically, you also have to do the work by a particular date, but a reasonable delay in performance is standardly allowed under contract law, unless the contract has a "time is of the essence" clause which states that completion by the specific date is essential to the contract. If not, then there is reasonable flexibility in completion. Doing less than you contracted for, on the other hand, is not a standardly-available option. Pursuant to the comment, it sort of sounds like the employer made it impossible to satisfy the conditions of the contract, and wants to use the end of contract date as a form of hardball to extract additional hours (i.e. "we'll sue you for breach of contract for not having done this by the deadline, unless you agree to work an additional 15 hours"). Hardcore deadlines without a time is of the essence clause don't support a claim for damages in case of minor delay, and even less so when the employer bears responsibility for the delay. Consulting an attorney (bring in the contract and all), in this case, would be a good idea, if they are hinting at a lawsuit if you just walk away 15 hours short, or won't accept your compromise. | An agreement to agree is void There is a multitude of case law on this point. If the NDA was not available to you when you signed the employment contract and the term was couched as you describe; then the term would be unenforcable. That is, your employment contract would be binding except for that term i.e. you could not be compelled to sign the NDA. Now, there may be a requirement on you to negotiate in good faith in an attempt to find an NDA you can agree to but if you can't find one you can't find one. You cannot (legally) be fired for this reason. Now, if the NDA was available, and you were told where to find it, and irrespective of if you did or didn't find it, you would be bound to the NDA. | An employee is an agent of the employer when working and owes a duty of loyalty to the employer. One of the obligations associated with a duty of loyalty is to refrain from receiving anything other than the employer authorized compensation for the work, rather than benefitting personally from work done on behalf of the employer. By appropriating additional benefit from the customer in a way that is unauthorized by the employer (the employer would be within its rights to sanction and authorize this conduct if desired), an employee who does not turn the profit in this transaction over to the employer has breached a fiduciary duty to the employer for which the employer would have a right to sue the employee for the amount by which the employee was unjustly enriched in the transaction. Would it actually play out this way in real life for these sums of money? Probably not. The stakes involved wouldn't justify the time and money of a lawsuit. But, breaching a fiduciary duty of loyalty to your employer in this context probably constitutes good cause to terminate the employment of the employee without paying severance that would otherwise be payable under Canadian employment law (in theory anyway, I've never seen a reported court case on point). | Provincial jurisdiction may need to be specified. But in general, assuming you are not covered by a collective bargaining agreement, you can be terminated for any reason or even no reason, as long as the contract is followed, the actual or apparent reason is not discriminatory or otherwise illegal and the termination procedure meets the provincial employment standards. The labour law usually provide requirements for notice periods or severance pay (or both), unless there exists a just cause (e.g. extreme disregard of duty, theft, repeated insubordination, etc.; lack of funds on the part of the employer is not a just cause). shouldn't the employer be fully responsible for the salary coverage of his employee in the course of his contract? Yes, but the contract is saying it can be terminated under certain conditions, after which time you are no longer "in the course" of your contract. Termination due to lack of funds is usually not considered discriminatory or otherwise illegal. You remain entitled to wages for any period you have worked. Additionally, the employer needs to respect the required notice period or severance pay under the provincial employment standards related to termination with or without cause, regardless of the funding situation. | Do I give my letter 60 days from the end of the contract, or 60 days before September? My boss told me that it would be 60 days before the end of the contract, but I wanted a second opinion. Your boss is wrong. The contract requires a party to give a 60-day notice only if the party intends to override the default condition that "the contract shall run for the full term named above". Since your contract ends on June 30th and you plan on working there up to and including that date, you are abiding by the [contract] default condition. Therefore, you are not required to send a notice for something you are not intending to do (namely, to terminate the contract ahead of schedule). The information you provide here does not reflect any language in your current contract relating to subsequent contracts/renewals. The existence of such language might or might not change the assessment. That issue aside, you might want to ensure that the preliminary offer made to you verbally be somehow reflected in writing. It will not be more binding than the verbal offer, but that evidence could prove useful in the event that the new employer unexpectedly changes its mind at a time when your current employer has discarded you for contract renewal. Your prospective employer should become aware of how its request for a reference from your boss jeopardizes a renewal with your current employer. |
What international body would one go to file a case against Australian Immigration? I have a situation with Australian immigration that sounds like a cheap scam... Immigration process goes as follows, you submit documents to one of agencies that are appointed by the Australian government, in my case ACS (Australian Computer Society), and based on paperwork provided they give you certain amount of points. Then you go to SkillSelect where you again submit documents and they show you how many points you have... then you have to pay application fee, for me it was 7800AUD (~6k$)... Then you need to submit documents again to Immigration and they can give you radically different points... which exactly happened to me... There is mechanism to ask for your application money back which I submitted but let's say they refuse to give the money back, which from my interaction with them so far feels that they might... which international agency should I turn to to take them to court? What international body would one go to file a case against Australian Immigration? | No international body has jurisdiction Australia is a sovereign nation which means it has sole jurisdiction over its immigration policy. So, short answer: no international body has jurisdiction. Who does have jurisdiction? As it seems that the decision made is that the points you have been assessed by the Department of Immigration and Border Protection (DIBP) have not met the amount required in their invitation to you. If you wish to dispute this decision the correct venues are, in order, Informal dispute resolution with DIBP - i.e. ask them for their reasoning. Formal dispute resolution with DIBP Review of the decision by the Migration and Refugee Division of the Administrative Appeals Tribunal A case in the Federal Court starting with the Federal Circuit Court and working your way up Appeal to the Minister for Immigration The role of Australian Computer Society (ACS) and DIBP You are mistaken in thinking that these organisations do the same thing: they actually have totally different roles in the process and as far as I can see they have both discharged them appropriately. ACS is tasked with assessing your foreign qualifications and experience. They have done this and they state that your qualifications meet the requirements for a Developer Programmer. They make no statements that you will qualify for immigration, indeed their website specifically says: Applicants must have a clear understanding of their personal visa requirements as set by the Department of Immigration and Border Protection (DIBP) or should obtain professional assistance from a Registered Migration Agent (MARA) before applying for an ICT skill assessment. If you had received your qualifications at an Australian university and your experience was in Australia, this step would not have been necessary. In a completely separate process, you have put in an expression of interest with DIBP. DIBP have invited you to apply and would have specified the points total you needed to meet. With everything you provided, including ACS assessment of your qualifications, DIBP has assessed your application and found that you did not meet the requirements that they set for you. You are not entitled to a refund of the application fee: that's whay its called an application fee and not a success fee: you pay the fee to make the application. DIBP have done all that the law required of them and, as a government body performing a government duty, your relationship is not contractual so you have no grounds to sue for it. Where you went wrong On the face of it, your self-assessment of your points seems wrong to me based on what you have posted. For example, you have given yourself 5 points for having a post graduate Specialist Education Qualification - that is a Masters by research or a PhD in one of the nominated areas (Computer Science is one). ACS have equated your qualifications to a Bachelors degree - this doesn't cut it. You have also claimed 5 points for the Australian Study requirement. Have you actually studied for 2 years in Australia? On the other hand, assuming you have certified experience of between 3 and 5 years from ACS (I can only see 11 months in the letter but there may be more that you didn't post) you should have got 5 points for that. You may be entitled to 55 points but probably not more than that. It may not be too late to amend your application but you should hire a migration agent now to help you do this. However, if you don't qualify, you don't qualify and your money is gone. Skillselect Terms of Service The terms of service that you agreed to include: That the Department of Immigration and Border Protection is not liable for the completeness or accuracy of any information provided by me where I do not provide information that is true and correct in all respects. That the Department of Immigration and Border Protection accepts no responsibility for the completeness or accuracy of any of the information contained on or accessed through this website including SkillSelect and makes no representations about its suitability for any particular purpose. I should make my own judgement about these matters. That to the extent permitted by law, the Department of Immigration and Border Protection is not liable for my loss, expense or damage arising from my access and use of, or reliance on, the information contained on or accessed through this website whether or not caused by any negligence on the part of the Department of Immigration and Border Protection or its agents. As previously mentioned, you do not have a contract with DIBP and are therefore not protected by Australian Consumer Law and have limited, if any, access to negligence law. If you can demonstrate that DIBP were grossly or recklessly negligent you might have a case for reimbursement. However, they did tell you not to rely on anything they said and that you should seek your own legal advice. | Dress respectably. Don't forget any documents (either those that support your explanation, or that you might have been instructed to bring). Printed Emails are fine unless you have been instructed otherwise. Arrive at the court on time and prepared to follow instructions and be respectful. Beyond that nobody expects that someone entering a magisterial court for the first time will be familiar with customs or process. If you're sitting in the wrong place, not standing at the right time, or touching something you're not supposed to, then a court officer will tell you; just follow directions and it's no problem. Address officers as "sir" or "ma'am" unless they ask you to call them something else. If you have a question ask any officer. If you are unsure of what is going on – what you are being charged with, what is at stake, what the purpose of the hearing is – then call the court ahead of time and ask. It sounds like this is an administrative issue and the only thing at stake is a few hundred pounds in fines. If that is in fact the case then hiring a solicitor would be silly. | Can a district rescind an offer of employment? Yes. Any contractural offer can be withdrawn so long as it has not been accepted. You did not accept it, so the withdrawal is legal. Can they hire someone who is not qualified ... That depends on the particular law that mandates the qualification. As a general principle, anyone is allowed to work at anything unless there is a law that says “you cant do job X unless you have qualification/licence/accreditation/whatever Y.” So you need to actually read that law. Some allow a grace period for a person to do X while they get Y and some are outright prohibitions. And there are some things that people think require a specific qualification because everybody has one but there is actually no legal requirement. For example, I’m a qualified arbitrator, adjudicator and mediator. I need the qualification to work as the first one in australia and I it to work as the second in queensland but not new-south-wales but I don’t need it anywhere to work as the last one - most mediators have qualifications but they are not legally required. I am not a qualified lawyer because I don’t need to be to work as any of the above and, indeed, merely being a lawyer does not allow you to work as an arbitrator. … and rescind my offer of employment? The eligibility of the person they chose to hire has no bearing on their decision not to hire you. If they have hired an unqualified person then that is for the relevant regulator to deal with and has nothing to do with you. Are they not obligated to hire the most qualified applicant? No they are not. Employers have the discretion to choose the applicant they consider the “best”. And they can assess how your better qualifications weigh up against someone else’s past history with the organisation. Provided they do not consider things that they are not permitted to consider under discrimination law and that the process is not corrupt, they can weight the various factors how they wish. However, if an employer has stated that they will weight various applications is a specific way, then they have to do that. | I run CourtListener.com and RECAP and I hear this question from time to time. It depends a little on what kinds of data you're after. Some folks need court data in real time as it's published by the courts, other folks just want to follow particular cases, etc. I think your options are A commercial provider. Maybe Lexis or Bloomberg? I admit I don't know these options particularly well, but it's probably an option. You could use our services, depending on your needs. In the RECAP Archive, we have millions of documents. We get a lot of these from journalists that use our RECAP Extensions, so if it's stuff that's in the news, it can work particularly well. We also do bulk downloads of court data for researchers, but I'm guessing that's probably not your use case. I think the final option is to use a gift card from Visa or another provider. I think if you have a friend in the US, you could buy one, send it there, and they could send you photos of the card to help you out. If this is to gain PACER access and if you need an American address, we could probably lend you our address (we're a non-profit, this is part of our mission, and not a big deal). | According to the information I was able to find, every zone, country, or even states, have their own taxation rules for sales made there. Correct. Well, in no way it's possible that small companies or individuals that sell products internationally deal with tax rules for each buyer, that would be a non-sense, and paying such taxes worldwide would be a nightmare not worth having a small business at all. You are required to comply with the law. If it is complicated, or difficult or expensive to do so then, it's complicated, difficult and expensive and you still have to do it. The answer is obvious: if it's not worth having a small business, don't have a small business. The main question, if someone buys a license from my web-site, is it considered a sale in the buyer's country/state which requires me to collect and pay some remote tax, or it's a purchase in my country/state which requires me to collect HST from that buyer? It depends on the law in both Canada and the destination country. In most cases, the sale will be an export sale from Canada (GST/HST exempt) and an import sale in the destination country - requiring you to comply with GST/HST obligations there. Another question is regarding invoices, I know that Canada requires certain information to be included into an invoice for sales in Canada. If my sales will be considered sales in a buyer's Country with some other rules, does it mean I have to manage tons of invoice templates? Yes. Let's say if my sales in UE exceed 30K EUR it looks like I need to register and pay VAT there. But what if I have less? Then you don't need to register and remit tax. Nor are you allowed to collect it from your customers. By the way, I have no idea what country in the Eurozone goes by the initials UE. In most jurisdictions, you need to register either when you reach the threshold in fact or reasonably expect to reach the threshold. Also in most, you can usually register even if you are below the threshold. For example, these are the rules for Australia. Anyone, please advice. Hire an accountant versed in international digital services. They will be able to give you the advice you need. They will also be able to recommend sales/payment platforms that can handle most of this for you (for a fee, of course). | where does the prosecution occur? Prosecutions generally occur where a crime is committed. The area where a crime or other wrongdoing is committed is considered the proper "forum" for adjudicating the case. With respect to the law you cited, you should take note of the statutory limitations imposed upon the Attorney General in pursuing such a case (called a § 1119 prosecution). When considering the limitations, it is unlikely a trial of an American who killed an American in Canada would be tried in the United States. Those limitations begin with a prosecutor seeking written permission by the AG. This permission cannot be granted if the other country has already prosecuted the individual for the same conduct. Also, the AG can only give that permission if, after consulting the Secretary of State, he or she determines that the killing occurred in a jurisdiction where the suspect is "no longer present" and that the country is unable to "lawfully secure the person's return." and I'm wondering what that process actually looks like. This would be a consultation between Justice Department attorneys and the Assistant Secretary(ies) of State whose portfolio contains the foreign country in question. From the DOJ in particular, the Assistant AG for the Criminal Division is in charge of considering the above criteria and granting approvals. The Human Rights and Special Prosecutions Section handles these issues within the Criminal Division. Does the Attorney General have to petition the other government for permission to prosecute them in the home country? No. The statutory limitations listed above necessitate that the suspect has already left that country and part of the AG's determination must be that it is unlikely that country will be able to secure the person's return. That said, might that country petition the United States that it wants the suspect to be returned to stand trial there? Potentially. Does it make a difference if the key witnesses are also all Americans, therefore arguing that chances of conviction are more likely if tried within the U.S. where all participants reside and are available to testify? This is, of course, a general consideration when determining which jurisdiction should handle a matter. It isn't clear to what degree it comes into consideration in this type of prosecution. does anyone know any famous/well known examples of this happening? Famous/well-known? I can't be sure, but see, e.g., United States v White, 51 F. Supp. 2d 1008 (E.D. Cal. 1997), United States v. Nipper, 198 F. Supp. 2d 818 (W.D. La. 2002), United States v. Wharton, 320 F.3d 526 (5th Cir. 2003), and United States v. Brimager, 123 F.Supp.3d 1246 (S.D. Cal 2015). Interestingly, the statute gets substantial discussion and review in this Department of Justice White Paper entitled, Legality of a Lethal Operation by the Central Intelligene Agency Against a U.S. Citizen, in the context of whether the CIA could kill an American citizen in Yemen who has been reasonably determined to be a senior leader of al-Qaida. | You didn't post the details of what exactly is involved with a "vampire initiation fee": is this simply the purchase of an physical object? Or the purchase of a service, such as the placing of a spell or the providing of the service of alleged protection from vampires? Or is this some form of a real "Advance-fee scam" where money and banking credentials or personal information is involved? (See link below). But in the big picture, one person's scam is another person's persuasive business sales pitch for an unusual item or service. Simply being able to pay for such an item or service doesn't make the sale - or the contract to sell it - illegal everywhere. It may be the case that selling an "vampire initiation fee" does not happen to be illegal in Nigeria. Illegal in the US, possibly yes. illegal there? Maybe not. Contract laws differ; in the US, contracting for something that is illegal voids the contract. In Nigeria, maybe not. Though the "vampire initiation fee" doesn't sound to me like a classic Advance-fee scam (Wikipedia), Google search on 419 scams and the results will tell you that it will be nearly impossible to get a prosecutor in that country to deal with anything like that, even if it is a real scam that promises lots of money for an upfront fee. Prosecutors have much better things to do. And you might have to go to Nigeria to make your case; see other answers that more fully outline the laws and legal aspects. Good luck. And it's better to spend your money on some garlic and a mirror. 7/03/18 Update re: the email transcript linked in question That's not a scam; the person is simply trying to sell you on the initiation fee. There is no crime. There is no promise of more money for a small fee (and bank credentials or personal information) like a typical 419 advance fee scam. You're not producing useful evidence for a prosecutor by engaging in the email and mostly agreeing to pay him. It's not illegal for you to send money by Western Union for the vampire fee. Even if you did send money, you're not being defrauded because you already know the vampire initiation is fake, and as a result you couldn't logically prove to a prosecutor or court that you were scammed. He's not guilty of fraud as no money has changed hands for a (fraudulent) service. Emailing with him might make you feel good by wasting his time, but that's all. | As a matter of contract law it would not be possible to enforce a requirement to pay legal fees without agreement. You could easily see how this would be problematic: one could just draft letters to hundreds or thousands of people and require them to pay the costs of composing the letter. My understanding is that this is common practice in the United States (see speculative invoicing). However, people are generally free to pay whatever they want to anyone they want. The other side is free to pay the legal costs, they just probably won't. In some common law jurisdictions, the concept of a Calderbank offer may be another reason to write a letter such as this; the settlement offer can be relied upon in later proceedings as an indication as to the costs that would be appropriate to award to the winning party, should the offeree unnecessarily prolong legal proceedings |
Putting up a "we're closing!" sign illegal? There's a store near our home that has the "We're closing! Everything must go! Huge discounts!" Sign. It has been on their store for at least 6 months. Is it fraudulent or illegal to make such an advertisement when the store has no plans to close? | The jurisdiction does matter. Generally, at the national level, the Federal Trade Commission prohibits deceptive advertising. From the FTC's website, "Advertising FAQ's: A Guide for Small Business:" When can a company advertise a "going out of business sale"? The short answer is: only when a store is going out of business. It would be deceptive to advertise a “going out of business sale” when a store is not going out of business. If a store in your area is advertising what looks to be a bogus “going out of business sale,” contact your state Attorney General’s office. In their answer, they specify to contact your state Attorney General's office. Many states and localities have specific statutes that regulate "going out of business sales." San Diego, California, for example, requires a permit from the San Diego Police Department whenever a business has a "closing-out sale." Their permit application indicates a list of the types of sales that are subject to the ordinance and closes with: Or, any other term tending to convey to the public that upon the disposal of the stocks of goods on hand, the business will cease and be discontinued. The permit in San Diego is valid for 60 days and the business is required to provide an inventory of all goods that will be sold as part of the liquidation sale. The requirements of the city of San Diego are similar to many other jurisdictions. Some of these requirements are specified at the state level, such as Texas (Business & Commerce Code Section 17.45 Deceptive Trade Practices), while other states leave it to the localities. California doesn't appear to have a statewide "going out of business sale" law but they do have other laws and regulations governing false advertising. California Business and Profession Code section 17500 prohibits untrue or misleading advertising. The California Bureau of Home Furnishings has promulgated regulations based on this statute to prohibit such sales to only include items that are on premises, in the warehouse or in process from previous orders the date the sale is announced This regulation for furniture retailers in California is common among the "going out of business sale" regulations in that it prohibits the closing business from purchasing new merchandise while liquidating and is one of the reasons that inventory lists are required when applying for a permit for a liquidation sale. As a side note, I was always amused by a store on Fisherman's Wharf in San Francisco that had a "Going Out For Business" sign in their store window. I probably read it a hundred times over the years before I realized what it really said. | The rule you are alluding to with respect to a television set is called the "first sale doctrine" which basically prohibits copyright and trademark owners from limiting the ability of a buyer of a good (like a CD or authorized logo T-Shirt) protected by copyright or trademark, from limiting further sales of that good (or the manner in which the good is used by its new owner) after a first retail sale of the good with copyright or trademark protections. This doctrine was derived from an old common law rule that invalidated "restraints on alienation" of property other than intellectual property on public policy grounds, and like the "restrain on alienation" rule for tangible property, the first sale doctrine that applies to intellectual property was also (at least originally) a court created common law rule. But Minecraft isn't, conceptually, a good. It is a continuing service provided over the Internet, and firms that provide continuing services on a licensed basis, as Minecraft does, can impose terms of service (a.k.a. an "end user license agreement" a.k.a. EULA) which must be complied with in order for users to be allowed to continue to utilize the service. So, its prohibition on exchanges of things of real world value for things of game value, except as the terms of service authorize, is permitted. A user of Minecraft is more analogous legally to someone skating at an ice rink than to someone who buys a CD or book. If you buy a ticket to skate at an ice rink, the people granting you the license to use the ice rink have the right to set rules governing how you utilize that service, and to terminate your license if you don't follow the rules (e.g. by skating in the wrong direction at the wrong time). Indeed, a ticket to an event is also known in legal parlance as a form of "license" just like a EULA, and licenses to use real property are the origin of the body of law that now governs the licensing of intangible intellectual property. A Minecraft license isn't something that you own (even if you have a license of unlimited duration), it is a qualified and limited right to use something that someone else owns, that you aren't allowed to purchase, but you are allowed to use on the owner's terms. How can they enforce servers to follow that rule if the server's are not using Mojang's proprietary software. The EULA or TOS obligation in the Minecraft business model is enforceable because Minecraft isn't in the business of selling proprietary software, even though it does do that. Minecraft is in the business of licensing access to data and online resources. The EULA regulates your access to the data on servers, and the computing power of those servers, not your ownership of an app which facilitates your use of the licensed services. And, while there are various contractual remedies for violating a EULA, the most basic one is a self-help remedy: to cut you off from your ability to use the service if you violate the owner's rules. Indeed, at least heuristically, the easiest way to distinguish an intellectual property good, which is subject to the first sale doctrine, from an intellectual property service, which can be licensed pursuant to a EULA, is whether, as a practical matter, the firm distributing the intellectual property has a practical ability to deny you service going forward without resort to the courts. If the owner of the intellectual property has no practical ability to do that, the intellectual property being distributed will probably be classified as a good and be subject to the first sale doctrine. But, if the owner of the intellectual property has the practical ability to cut you off from the intellectual property being distributed without resort to the courts, the intellectual property being distributed will probably be classified as a service, which is not subject to the first sale doctrine and may be licensed. | 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. | Dale has the right answer, but I'd like to elaborate on why it isn't lawful (as compared to why it would be unlawful). I know it doesn't work that way on line, but it's simpler to think of a credit card as a physical piece of plastic. The bank will have issued this to their customer. It will have a number and an expiry date. You have no way of knowing whether a replacement card has been issued. Even if one has, the customer has authorised you to charge a specific card - you do not have the customer's authorisation to charge a different card with a different expiry date. By guessing the expiry date, you would be making a representation to the bank that the customer has authorised you to charge that card (if it exists), when they have not. | 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". | No If you breach the contract that may allow the rental company to terminate it (among other things), however, termination would need to be communicated to the customer. Only if they kept it after that, with the intention of permanently depriving the company of it, are they stealing it. | Can't park within 30 ft of a stop sign. Tex Tn Code 545.302 b4. If this is the law they don't need to post a sign. http://codes.lp.findlaw.com/txstatutes/TN/7/C/545/G/545.302 | 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. |
Employer Paying Less Than Agreed I'm an undergraduate in the U.S., and a few weeks after starting my tutoring job this year at my university, my employer changed the manner in which I am being paid. I signed a form that states "ALL TUTORS ARE PAID 8 HOURS, unless told otherwise." However, a few weeks later, I received an email stating I would be paid for the exact number of hours worked. I had this same job for the past two years, and I was paid for 8 hours while only working 5 hours each week, and the department was fully aware of this. They hired me again without indicating things had changed until after I signed the form. I spoke with the person who sent the email, and she said that she was sorry I misinterpreted the statement "ALL TUTORS ARE PAID 8 HOURS, unless told otherwise," and that it actually means that it is expected that people with my position will work at most 8 hours. I expected she would say that I am now being "told otherwise," so the contract had not been violated, but that was not the case. It seems like my university may have done something wrong, but I'm not sure. In particular: The sheet I signed seems pretty informal, and it was clearly made by someone in the department just for this position. It's not some government form with a name. Does that mean it isn't legally binding? If it is legally binding, does the phrase "unless told otherwise" mean that it has not been violated? It seems like the moral thing to do would probably be to tell me before starting to work, but maybe its still legal to do it afterwards. The department totally thinks that the sheet is being violated, but it's possible they're in the clear without realizing it. Even if it is a binding contract and it has been violated, does that mean anything? Am I supposed to just quit and look for a job elsewhere, or is there something else I ought to do? Thanks for the help. | It is not necessary for an agreement to be verbose and written by a lawyer, for it to be binding. There is some danger in having untrained people writing up agreements (they don't know the distinction between "what the law says" versus "what we had in mind"). The agreement is binding, but their interpretation of the contract language does not automatically prevail. The statement "ALL TUTORS ARE PAID 8 HOURS, unless told otherwise" is slightly problematic since it is not true (you can't pay time, you pay money for time spend). With no other statements about time and payment, and just looking at the words, this says that an employee will be paid for 8 hours work, period. Unless they say something different. That could mean "even if you work 20 hours, you only get paid for 8" (illegal under various labor laws), or it could be "even if you only work 2 hours, you get paid for 8" (the most reasonable interpretation). The interpretation "You are limited to 8 hours of work per pay period / contract" is not a reasonable interpretation: that isn't what the clause says. Such a limit could be clearly expressed ("can work up to 8 hours" is a clear way to state the limit), and since they didn't say anything like that, that is not how the courts will read the clause. They can, however, inform you otherwise, e.g. say "your minimum automatic pay is now 2 hours", or "we will only guarantee 2 hours work", and at that point that's what the number is. Since this is (presumably) a take-it or leave it contract which they wrote up and you didn't actually negotiate, any unclarities are legally interpreted in your favor. If you have worked more than 8 hours and they are using the contract language to argue that you won't be paid for the overage, that is not at all likely to hold up in court. Under terms of the contract (interpreted as stating a minimum guarantee of hours), they can inform you that your new minimum is 0 hours. Also, unless there is some kind of tenure clause, they can terminate the contract at will, and maybe they'll hire you under a different contract. What the terms of employment were for you in the past does not matter, what matters is what the current terms are. If you did not pay attention to the fact that they changed the terms of the agreement as of this quarter, that is not their problem. If they decided to change to "actual hours worked" after the current contract was formed, and they informed you of that fact later, then thereafter that is what the agreement is. Until you are notified of that change, the guaranteed minimum is what it says in the contract. In case their argument is "The university sets this policy, the department made a mistake in not informing you", the university has to take responsibility for the errors of their inferiors. | Overtime pay in Ontario is required by the Employment Standards Act (ESA). Most employees are entitled to "time and a half" if they work more than 44 hours in a single week. According to this Ontario Government web page For most employees, whether they work full-time, part-time, are students, temporary help agency assignment employees, or casual workers, overtime begins after they have worked 44 hours in a work week. Their hours after 44 must be paid at the overtime pay rate. Managers and supervisors do not qualify for overtime if the work they do is managerial or supervisory. Even if they perform other kinds of tasks that are not managerial or supervisory, they are not entitled to get overtime pay if these tasks are performed only on an irregular or exceptional basis. ... A fixed salary compensates an employee for all non-overtime hours up to and including 44 hours a week. After 44 hours, the employee is entitled to overtime pay. ... An employer and an employee cannot agree that the employee will give up their right to overtime pay under the ESA. Agreements such as these are not allowed and would be deemed void. However, an employee can make an agreement to take paid time off in lieu of overtime pay or to average hours of work for overtime pay purposes. An employer cannot lower an employee’s regular wage to avoid paying time and a half after 44 hours (or another overtime threshold that applies) in a work week. For example, if Josée’s regular pay is $17.00 an hour, her employer cannot drop her regular rate in a week when overtime was worked to $15.00 an hour and then pay her $22.50 (1½ × $15.00) for overtime hours worked instead of $25.50 (1 ½ × $17.00). There are various industries that are subject to special rules that modify the usual rules for overtime. There are particular kinds of jobs that are exempt from the ESA. These are listed on this page. Conclusion The situation described in the question sounds like a violation of the ESA. But it might come under an Averaging Agreement, which is permitted. Under such an agreement weeks with longer hours are averaged with weeks that have shorter hours. There are rules governing such agreements. Note that the hours listed in the question amount to 35 hours per week. An additional nine hours could be worked in any given week before getting to the 44 hours of work which usually triggers overtime pay. The linked pages include official contact information for ESA information and enforcement. | 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. | Employees are only required to work in the sense that refusal to report can result in discipline (like reprimand or firing) and forfeit of whatever money you would have earned had you shown up. This is exactly the same way federal employees (or most employees, for that matter) are always required to work. The fact that they're not being paid on time has nothing to do with whether it's slavery. That's because pay has nothing to do with slavery. Slavery is forced labor and/or ownership of people, and civilian federal employees are just as free to quit as they normally are. Military personnel can't freely quit, but they can never freely quit. Nothing relevant has changed for either group. Not paying employees is potentially a violation of labor law, and the government in fact lost a lawsuit after the last shutdown for violating the FLSA. If that happens this time too, they'll have to pay damages. | If you want to protect yourself or any property interests you may have in this circumstance you have to talk to a lawyer. You cannot get (or trust) legal advice from the internet. I will, however, make the following personal observations: I only provide a W-9 to people who are paying me money, and who request it as a condition of paying me. I don't know of a legal requirement to supply it after the fact. However, not providing it to someone who did pay you more than $600 in a tax year could certainly make it difficult for them to comply with their tax filing obligations. I do not sign any agreements, assignments, or contracts, without what I consider to be fair consideration. E.g., if on leaving a job (as has happened) I am asked by a former employer to sign something that I am not already obligated to sign due to some prior contract, then I negotiate what is commonly called a "severance package." They pay me and/or extend benefits, and I sign something that limits their liability. | Your title doesn't quite match your question. "Reneging" would mean saying that a lease would be offered at the reduced rent, and then not offering the lease. Here, they offered the lease, and you accepted. So now the question is not whether they can refuse to offer you the reduced-fee lease, but whether they are owed the back rent. Verbal agreements are indeed binding, but they are rather sticky from an evidential point of view. Also, there are other possible complications. If your original lease stated that verbal agreements are not binding, or that only specific people are authorized to modify the terms and the person you talked to is not such a person, then this is not binding. If after they said you could keep the rent reduction, you signed a lease for the full amount or otherwise indicated acceptance of the full amount, then it may be considered not binding. Even if the agreement is not binding, you have further arguments. If you believed that it was binding, and did so out of good faith, then there was not a meeting of the minds, and they can't go after you for breach of contract. They may have other claims, such as damages if they can show that they could have gotten more money from another prospective client, but them accepting the rent makes that difficult to pursue. Now, again, verbal agreements do have evidentiary problems. If your case were nothing than your word claiming that they agreed, you would not have much of a case. But here, you have: -They were willing to take the lower rent for the initial period -You stated that you would leave unless given a continued discount, and you stayed -They didn't make any attempt to collect the full rent for three months -They are willing to give you the discount if you pay the back rent All of this points rather strongly towards your claim being true. You also say "this situation is not unique to me." It's not clear what they means, but if other tenants also got verbal assurances that the discount would continue, and they testify to that effect, then your case is even stronger. | are contract terms enforceable that say the employee has to pay the employer if they leave without giving notice? Yes, as long as the penalization is not of punitive nature. The doctrine of at-will employment is only the default condition, but a contract may supersede it. As for the extra question, reciprocity of sanctions (as in leaving without notice) is not a requirement for enforceability of a contract. In general, the lack of reciprocity only signals that there is a difference in the parties' bargaining power, but usually that does not affect enforceability. | A typo in a contract does not ever void the contract. If the typo changes the meaning of the contract from what was actually intended, then it is up to a judge to interpret the contract and whether it is reasonable that a person would assume its intended meaning. In your example, it is obvious that the word "least" was meant to be there and not "lease" - as the alternate word makes no sense in context - so a judge would not void the contract or release you from your 30 day obligation (which is probably even granted to the landlord by local laws regardless of whether it was stated in the contract). Even misspellings of people's names or addresses on a lease do not void a contract if you have already paid or taken up residence. If any of these situations were brought to court, the judge would just amend the contract to a corrected version that would then serve as the contract between the two parties, replacing the version with the typo. This is known as contract reformation. |
Can I write a computer program based on a theory in a borrowed book? Suppose I borrow a book from a library and then use the theory described in this book to write a commercial computer program. In this situation, am I infringing any copyright laws? | In the US, Copyright does not extend to theories: Section 102 of the Copyright Act (title 17 of the U.S. Code) clearly expresses this principle: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Copyright of Ideas, Methods, or Systems - govcirc31.pdf Copyright does protects the expression of a theory. In your case, A computer program is a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result. Copyright protection for a computer program extends to all of the copyrightable expression embodied in the program. The copyright law does not protect the functional aspects of a computer program, such as the program’s algorithms, formatting, functions, logic, or system design. Copyright Registration of Computer Programs - circ61.pdf So you can develop a commercial computer program that does what the theory postulates, and that program itself will be under your copyright. The idea that you borrow the book from the library isn't relevant; nor would be reading the book in a bookstore. | The copyright Act gives copyright owners certain rights: right to reproduce the copyrighted work right to prepare derivative works based upon the work right to distribute copies of the work to the public right to perform the copyrighted work publicly right to display the copyrighted work publicly The audiobook you create from a copyrighted work is a derivative work (perhaps it is a reproduction; for the analysis it does not matter). It works the other way also. A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. It is a violation of the copyright to create derivative works without permission. The commercial nature of the derivative work does not come into play in this situation. Commercial use might be an issue in a fair use defense, but fair use is not applicable based on these facts. Fair use might apply given facts such as: Ten students own copies of the printed work. These students are blind. A teacher reads the book and provides the recording to the students. | Copyright infringement requires that you actually copy elements from an earlier work produced by a different author. If you created a similar, or even identical, work independently, it is not copyright infringement. When considering whether or not infringement has occurred, the court is likely to consider whether the defendant could reasonably have had access to the plaintiff's work. If the court finds that they could have, then the defendant would be required to produce evidence of original authorship. Consider the My Sweet Lord/He So Fine case, where the court found the defendant had subconsciously copied the plaintiff's song. Had Harrison been able to produce evidence of original authorship, the judgment could have been different. In your example, it is unlikely that an suit in copyright infringement could be decided against you, as you've stated the text is generated randomly. However, more evidence of this randomness might be required to support your case. Of course, whether a computer or automated process can produce works independently is still questionable; I'm not aware of cases that have tried this. The US Copyright Office has said that Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Of course, whether this has a bearing on your particular scenario is undecided, and I'm not sure how it would be decided. It is almost certain that the worst case outcome would be an injunction requiring you to cease publicising the product, or perform reasonable checks prior to publication to ensure that the product of your program infringes on works; it would be unlikely that you would have costs ordered against you, especially if the program is truly random, and the random text was given as much, or more, publicity than the coherent text. | Can he use another commercial product that is copyrighted, e.g. a map of a location (the map is a political map and has nothing to do with trees), for his tree research purposes, if such a map won't be part of the book he works on? Yes. Copyright protects particular expressions of ideas and knowledge, not the ideas and knowledge themselves. Using a map for research purposes when the map or a modified version of it does not appear in the final work does not make the final work a "derivative work" covered by copyright. | 17 U.S. Code § 107, which governs fair use in the US, says (emphasis mine): Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. Note that commercial/educational use is part of only one factor. Even if that factor is in your favor, it may not be fair use, and even if it isn't in your favor, it might be fair use. Because fair use is determined on a case-by-case basis, we can't really say whether your use is fair use, with or without the donations. That would be the sort of thing you'd ask a lawyer about to get real legal advice on your particular case. | 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. | Your understanding of the GPL is a bit off. GPLed code doesn't generally force you to GPL the output of the program, but that's just because the output of the program is normally not a derivative work of the program. For instance, if you write a novel in Emacs, your novel is an entirely original work. The fact that you used Emacs as a tool doesn't mean that your novel is somehow based on Emacs. This generator is different. It generates sprites by putting together art assets made by the program's creator. That means that the output contains a substantial amount of content made by the program creator, which means that it would likely be covered by the program creator's copyright. If the content was licensed to you under the GPL, you normally have to abide by GPL restrictions when you redistribute the content or incorporate it into your own program. Copyright holders can, if they want, grant additional permissions to their content and allow you to incorporate that content into nonfree software. For instance, the GCC compilers have an additional permission for their runtime libraries to let you use them in any GCC-compiled code; without that permission, GCC could only be used to compile GPL-compatible code. But unless the copyright holder has granted those permissions, when program output contains large amounts of their copyrighted content you're bound by the GPL when using it. In this case, the program specifically says that the art is dual-licensed under GPLv3 and CC-BY-SA-3.0. Since the generator's output is a combination of premade art assets (the buttons just let you tell the program which art assets to combine), the output is a derivative work of those assets. You can't use it unless your use is compatible with the GPL v3 or CC-BY-SA-3.0 (either works, since dual licensing lets you pick either license). | 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. |
Explanation of "habeas corpus" What body? And who has to have it? For what purpose? And then (it might be obvious once you've answered those questions, but please spell it out anyway) why is habeas corpus so central to the law? | It is short for habeas corpus ad subjiciendum, and refers to "the great writ" in Medieval Latin Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve. that is, We command you, that the body of A.B. in Our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatsoever name the said A.B. may be known therein, you have at our Court ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ. What you do with it is determine if a person is being legally detained, so the person holding the person must bring them to the court. So it is the body of the prisoner, the jailer does have it and the court must have it. However, it's not just producing a body, it refers to the requirement to explain the legal basis for the imprisonment. The purpose of the writ is to assure that individuals are not imprisoned illegally. Otherwise, people could be randomly swept up off the streets and directly imprisoned, with no legal recourse. This is a fundamental right recognized since the Magna Carta: No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land | Separate law? Is a separate law needed to prohibit people to whom Section 3 applies from taking office, or to remove such people from office? Griffin’s Case There is some reason to think so. In 1869 there was Griffin’s Case, 11 F. Cas. 7, 2 Am. Law T. Rep. U. S. Cts. 93; 8 Am. Law Reg. N. S. 358. This was tried by Chief Justice Chase, in his role as a Circuit Justice, not as a Supreme Court case. One Caesar Griffin was accused of shooting with intent to kill, tried before a Virginia state court, convicted, and sentenced to two years in prison. He then filed a writ of Habes Corpus claiming that his imprisonment was unlawful, because the jusge before whom he was tried, Hugh W. Sheffey, (in the words of Justice Chase): in December, 1849, [Sheffey] as a member of the Virginia house of delegates, took an oath to support the constitution of the United States, and also that he was a member of the legislature of Virginia in 1862. during the late Rebellion, and as such voted for measures to sustain the so-called Confederate States in their war against the United States; and it was claimed in behalf of the petitioner, that he thereby became, and was at the time of the trial of the petitioner, disqualified to hold any office, civil or military, under the United States, or under any state ... Several other people tried and convicted before Judge Sheffey in the circuit court of Rockbridge county, including some convicted of murder, filed similar Habes Corpus petitions, claiming that Sheffey was prohibited by Section 3 from holding office, and that therefore their convictions were invalid. Judge Sheffey had been appointed to the office of Judge after the end of the US Civil War by the reorganized government of Virginia, the one recognized as valid by the Federal Government. He was appointed before the ratification of the 14th Amendment. There was no dispute that he fit the letter of the group of prohibited persons in Section 3. Justice Chase wrote: The general question to be determined on the appeal from this order is whether or not the sentence of the circuit court of Rock-bridge county must be regarded as a nullity because of the disability to hold any office under the state of Virginia, imposed by the fourteenth amendment, on the person, who, in fact, presided as judge in that court. Justice Chase rejected the suggestion that all official actions by Sheffey and anyone in a similar position were automatically void and of no authority because of sectio0n 3. He wrote that: The proposition maintained in behalf of the petitioner, is, that this prohibition, instantly, on the day of its promulgation, vacated all offices held by persons within the category of prohibition, and made all official acts, performed by them, since that day, null and void. After pointing out that many of the offials of the reconstructed governments of the sothern states were withign the terms of the prohibition of section 3, Chae went on to write: If the construction now contended for be given to the prohibitive section, the effect must be to annul all official acts performed by these officers. No sentence, no judgment, no decree, no acknowledgment of a deed, no record of a deed, no sheriff’s or commissioner’s sale — in short no official act — is of the least validity. It is impossible to méasure the evils which such a construction would add to the calamities which have already fallen upon the people of these states. As a further reason not to construe section 3 as instantly and automatically removing all such officials, Chase wrote: Now it is undoubted that those provisions of the constitution which deny to the legislature power to deprive any person of life, liberty, or property, without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent in their spirit and general purpose with a provision which, at once without trial, deprives a whole class of persons of offices held by them, for cause, however grave. It is true that no limit can be imposed on the people when exercising their sovereign power in amending their own constitution of government. But it is a necessary presumption that the people in the exercise of that power, seek to confirm and improve, rather than to weaken and impair the general spirit of the constitution. ... Is there, then, any other reasonable construction? ... The object of the amendment is to exclude from certain offices a certain class of persons. Now, it is obviously impossible to do this by a simple declaration, whether in the constitution or in an act of congress, that all persons included within a particular description shall not hold office. For, in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress. ... [I]t seems to put beyond reasonable question the conclusion that the intention of the people of the United States, in adopting the fourteenth amendment, was to create a disability, to be removed in proper cases by a two-thirds vote, and to be made operative in other cases by the legislation of congress in its ordinary course. Chase also note that, 2 months after the conviction of Griffin: in February, 1869, congress adopted a joint resolution entitled “a resolution respecting the provisional governments of Virginia and Texas.” In this resolution it was provided that persons, “holding office in the provisional governments of Virginia and Texas,” but unable to take and subscribe the test oath prescribed by the act of July 2, 1862 [12 Stat. 502], except those relieved from disability, “be removed therefrom;” and that this indicates that such people were regarded by Congress as having remained in office and not beign automatically removed. Griffin's Case seems to establish that some proceeding is needed to establish when a person falls under the exclusion rule of Section 3 of the 14th. In 1869 this was done by military order. In 1870 Congress passed a statute providing for criminal proceedings in such cases. This was repealed at the end of Reconstruction. Currently 18 U.S. Code § 2383 makes "rebellion or insurrection against the authority of the United States or the laws thereof," a crime, and provides that anyone convicted of it "shall be incapable of holding any office under the United States." This is not quite the same as the section 3 disqualification. One the one hand, it does not depend on a prior oath to support the constitution, and on the other it does not appear to ban holding a state or local office. But it shows how a similar law could be drafted by Congress. Legislative declaration Can a Congressional resolution, or a Federal statute declare that specific people have so engaged? This is probably prohibited as a Bill of Attainder, that is, a legislative declaration, without trial, that particular persons are guilty of particular crimes. Other Proceedings What proceedings would be needed to establish that a person had "engaged in insurrection or rebellion"? If a person subject to the section 3 disqualification was elected to either house of Congress, that house could refuse to seat such person, or expel him or her, as the Constitution permits. Most state legislatures have similar powers over the seating and expulsion of their own members. If a person is convicted under 18 USC § 2383 or any similar law, that person would clearly be excluded. Congress could pass a law establishing a special tribunal for determining when a person was subject to Section 3 of the 14th. But it has not done so. See also See also: this leglal blog post This article in Constitution Daily 14th Amendment's Section 3 Gets New Look as Democrats Weigh Measures Against Trump from the National Law Journal | I was initially going to vote to close this as a political rather than a legal question, however, I think there is scope for separating out the two dimensions. Our society makes a distinction between children and adults by giving them different legal rights, obligations and protections. If you think about it, there are a lot of things beyond sexual activity where the law does this: voting, drinking, military service, compulsory schooling, legal culpability etc. What things are subject to legal restriction is a political distinction. Now, there is no reason politically why these laws could not have been drafted to say "children can do this, adults can do that" and leave it to the courts to decide who is a "child" and who is an "adult". Biologically and emotionally people reach maturity at different ages so this is perfectly sensible. It might even be more just. However, justice is only one thing that we require of our legal system. Among the others are certainty and efficiency. Providing a bright line based on birth date gives certainty. Not requiring the court to deal with this on a case-by-case basis increases efficiency - justice is not free. This is why jurisdictions use age as a proxy for adulthood. As to why they choose any particular age, that is a political question. | In the US, Pennsylvania specifically, the court in Pettigrew v. Pettigrew, 207 Pa. 313 says that the law recognizes property in a corpse, but property subject to a trust and limited in its rights to such exercise as shall be in conformity with the duty out of which the rights arise. Larson v. Chase, 47 Minn. 307 likewise states in this country it is, so far as we know, universally held that those who are entitled to the possession and custody of it for purposes of decent burial have certain legal rights to and in it, which the law recognizes and will protect. Indeed, the mere fact that a person has exclusive rights over a body for the purposes of burial leads necessarily to the conclusion that it is his property in the broadest and most general sense of that term, viz., something over which the law accords him exclusive control. This is in contrast to the English legal tradition where the church has jurisdiction over a corpse, giving rise to a doctrine that a corpse is not property, citing a dictum from Lord Coke that It is to be observed that in every sepulchre that hath a monument two things are to be considered, viz., the monument, and the sepulture or burial of the dead. The burial of the cadaver that is caro data vermibus is nullius in bonis, and belongs to ecclesiastical cognizance; but as to the monument action is given (as hath been said) at the common law, for defacing thereof. This article provides further analysis and case citations, mostly in the US. The topic of body-ownership is the subject of a book-length analysis (ten Have & Welie, Ownership of the human body). I think, according to this article, that under Islamic law, a body (living or dead) is not property, so an advance directive is not an absolute right. | The Magna Carta acted as an origin of many legal concepts of today, includng the English, and thus US, common law system. It clearly affected the Founders' views of government and was instrumental in creation of the US constitution. But no provision of the Magna Carta would be considered on its own to be valid US law. | Primary Theory I suspect there might not be a legal answer to this question. I have always suspected a sort of pseudo-intellectual elitism (or simple preference or carelessness) with passive voice sentence construction in general. I sense license writers have not (yet) escaped this general trend. I would love someone to prove this theory incorrect. But, alas, I doubt it will happen. Alternative Theory But because this is a Law Q&A site, I will advance the following alternative theory. I don't believe it's correct. But I will advance it because it's the only possible explanation I can think of that might be even remotely based on legal reasoning... Maybe they are just basing their construction on the way the law itself is written? For example, if the law says, "Permission must be granted..." Then it would follow that a writer who wants to comply with the law might choose, "Permission is hereby granted..." instead of something like "The authors hereby grant permission..." or, as the OP suggested, "You may..." | There is no such law mandating this layout, nor is there any law permitting the defendant to demand a change to it. The arrangement seems most likely to have been driven by security concerns when courts began removing "the dock" and letting the defendant past the bar to sit with his attorneys. One court has also concluded that it was meant to assist the government "because it bears the burden of proof." It's of course impossible to prove a negative like this, but I'll note that Kenneth Lay's attorneys raised the issue in the Enron case, and they were unable to cite a single case saying that the defendant has the option to sit closer to the jury. If they couldn't find it, it probably doesn't exist. Meanwhile, the government was able to find several cases saying that the defendant does not have the right to demand a change, though it did not have any cases saying that the layout is mandatory. Instead, it described itself as "traditionally" having a right to the table. In that case, the judge ended up splitting the baby. Saying that there was "no law" to inform his decision, he sat the government next to the jury during its case, and it sat the defense next to the jury during its case. That was quite a bit more generous than the Seventh Circuit, which has rejected the jury-proximity argument as frivolous. So there are some cases addressing the issue, but I don't know of any case where a court has actually looked at the issue and given any real consideration to the due-process implications of the substantial empirical evidence suggesting that the party closest to the jury enjoys an advantage. | Why does the one country that promotes constitutional democracies above all others not have a judicial branch specifically for those matters? I know SCOTUS will hear these matters . . . I have had it mention that SCOTUS hears less than a hundred cases a year. Something which sounds incredibly low. A constitutional court profoundly limits the extent to which relief for violations of the constitution are judicially reviewable relative to the U.S. status quo. All courts from traffic court on up hear these matters and adjudicate constitutional issue in the status quo. It is also helpful to recognize that the U.S. Constitution regulates government conduct, not necessarily only though the device of determining that legislation is or is not constitutional. If a police officer stops you without having reasonable suspicion to do so, he has violated the U.S. Constitution, without regard to what the statutes of the state in question say. If evidence is seized without probable cause and this evidence is introduced in court over your objection in a criminal case, the government has violated the constitution and you are entitled (unless it was harmless error) to have your conviction vacated. If a tax collector seizes your property for unpaid taxes without first affording you due process to dispute their right to do so, the government has violated one of your constitutional rights. The Constitution imposes affirmative duties and obligations on the government, it does not merely invalidate laws enacted as unconstitutional. Most instances of constitutional adjudication involve government conduct and not the validity of government enacted statutes. |
Can you legally defend yourself against an attacking police officer? If a police officer physically attacks you, with or without intent to arrest, can you legally defend yourself? Assume that the police officer punches/kicks/grabs first, and you are not guilty of any crime before the attack. To what extend can you do so? | The General Rule In practice, the only time when self-defense against a police officer is legal is when you do not know and have no reasonable way that you could have known that the person attacking you is a police officer. (And arguably, a police officer acting in an official capacity in furtherance of his or her duties, rather than in a personal capacity as an individual.) For example, if the police do a no knock raid in the dark of night, and don't announce themselves, and you shoot police officers reasonably believing them to be home invasion burglars, you would not have criminal or civil liability for doing so. A similar valid self-defense claim might arise when someone has an objectively reasonable reason to think that someone claiming to be a police officer is really just a criminal impersonating a police officer, even if that belief is, in fact, mistaken. In almost all other circumstances, you need to submit to the officers, and you are pretty much required by law to bear the risk that excessive force by the officer will harm you. If you don't, you will probably be guilty of the crime of resisting arrest and will not be entitled to a self-defense defense. The fact that you are not actually guilty of a crime is irrelevant. This is often the case and police officers are not omniscient. If the officer lacked probable cause for an arrest (which there is often no way that the person being arrested or attacked can know at the time), the remedy is a civil rights suit after the fact, not self-defense. In theory, there might be other isolated circumstances where self-defense against a police officer is legal, but they involve fact patterns so quirky that they would almost never happen in real life, or would almost never be possible to prove in a manner that the courts would believe. Officer Liability For Harming Someone Legitimately Acting In Self Defense Whether the officers had civil liability to you if you were harmed by the officers while exercising your right to self-defense would depend upon their state of mind, even if you were rightfully using self-defense. For example, a U.S. Supreme Court case decided in January of 2017 (White v. Pauly) involved this fact pattern. In White v. Pauly an officer arrived late on the scene and had no reason to believe that the officers who arrived there before him and were being shot at by citizens in a house that they were approaching, lacked probable cause, or had not announced themselves. The court held that as a result, he had no civil liability to a citizen he shot, even if the person who the late arriving officer shot while that citizen was shooting back at the police officers on the scene was actually engaging in good faith self-defense. The citizen's self-defense in the case had a valid defense to criminal or civil liability for firing on the officers, because the citizen shooting back didn't actually know that the people approaching his house were police officers. But, because the late arriving officer reasonably believed under the circumstances that the citizen had no right to engage in self-defense, because he thought that the early arriving officers had probable cause and had announced themselves, the late arriving officer had no civil liability to the citizens he shot. | 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. | Are you required to comply with a police officer's order to put your baby down in an uncertain situation and allow yourself to be handcuffed? Of course. If holding a baby could immunize people against arrest, every criminal would have a baby around whenever possible. Similarly, suppose an officer legitimately fears for his or her life or safety, or the lives or safety of others, on the basis of a suspicion that someone carrying a baby is about to produce a weapon and use it against someone. Courts, at least in the US, give wide and explicit deference to police officers in stressful situations like that, and they recognize that even if, in hindsight, it is perfectly clear that there was no danger, the officer must be allowed the leeway to act on his or her suspicions in case they are correct. The officer will of course have some obligations to ensure the welfare of the child after separation from the adult, but the only immediate recourse the adult has is to appeal to the officer directly, or perhaps the officer's supervisor if he or she is available. Any other enforcement of the officer's obligation will have to take place in the courts after the fact. | Even if you had grounds for a lawsuit, you could not make it come out of the officer’s pocket. Under Chapter 4.64 of the Seattle Code, the City of Seattle is generally required to defend and indemnify city employees who are sued for doing their job. If you sue a police officer, the city pays his lawyer; if you win or if the city decides your claim is legitimate, the city pays whatever damages there were. The provision does not cover “claims and/or litigation arising from any dishonest, fraudulent, criminal or malicious acts or omissions of officers or employees of the City,” but that requires a lot more than “I wasn’t parked illegally,” and in any event you cannot force that issue -— only the city can. That’s between the officer and the city, and has nothing to do with you. This provision is pretty common in employment, including government employment. If I’m working for you and am acting in good faith, doing things for your benefit under your instructions, it’s only fair for you to shoulder the costs if I mess up. When it comes to government employees (whose job often makes people very angry at them), indemnification is extremely common. If police officers faced the risk of financial ruin for innocent mistakes, it’d be very hard to find anyone willing to do the job. | An act in self defense is legal (StGB §32): "(1) Whoever commits an act in self-defence does not act unlawfully". However, "(2)'Self-defence' means any defensive action which is necessary to avert a present unlawful attack on oneself or another" – removing a trespasser is not necessary to avert an unlawful attack. This does not apply to removing an annoying person. Under §223, physically assaulting a person is a punishable offense. Pushing a person is one form of assault (so is punching them or pummeling them, perhaps a more severe form depending on the physical damage done). However, the response is also criminal because it goes past that which is necessary to avert the assault (a push is not a license to commit mayhem). Under §§33-35 there are defenses for excessive self-defense ("Whoever exceeds the limits of self-defence due to confusion, fear or fright incurs no penalty"), which don't seem applicable in this situation (rage is not the same as fright). | Self-Defense is an active Defense for Homicide (note, this is the legal term for taking a life. Criminal Homicide and Justified Homicide are two subsets of Homicide and are denoted by illegal actions and legal actions. Homicide as a result of Self-Defense is a Justified Homicide, regardless of the weapon, so long as it was applied with the minimal amount of force required to stop the criminal harm to oneself). Suppose you use a taser and the current causes the attacker to go into cardiac arrest and die. Your intention in using the taser was to stop the criminal from injuring yourself, your property, or another person or their property (defense of others). Even though the Taser is non-leathal, it's more like less lethal. Death by Taser is uncommon, but not impossible or rare. It would be handled as a defensive use of a weapon (same as if the attacker was killed by a gun) and processed as such. Pennsylvania is a Stand Your Ground State, meaning that in a public place, you do not have a duty to flee if your attacker approaches you in a public place, you do not have to prove that you could not flee in order to claim self-defense. However, if you pull a weapon and your attacker decides to flee, you can not give chase and kill him upon capture. You also need to have a reasonable expectation that the attacker is about to use deadly force (this normally means having sight of the weapon or what would reasonably look like a weapon i.e. a realistic toy gun without the orange safety cap would be reasonable). You also cannot claim self-defense if you were engaged in another crime when the attacker approached you (i.e. If you rob the Krusty Krab and the Hash Slinging Slasher approaches you with a knife, sucks to be you cause you don't have a right to be in the Krusty Krab after closing.). | If A reasonably suspects that B committed a felony, A may arrest B, which means that A may also use reasonable force to detain B. They can also arrest for a misdemeanor committed in their presence, if it constituted a breach of peace. It is, of course, up to A to be correct that the act is a felony or a breach of peace, and to know what is reasonable force. If your arrest is in fact not lawful, you may be sued (battery or false imprisonment) or prosecuted (battery or unlawful imprisonment). Punching a person in the shoulder is the felony of battery, and direct observation creates highly reasonable suspicion. In such circumstances, anyone could have arrested the child. Unlike a police arrest, a citizen is not required to Mirandize an arrested suspect. This memo summarizes citizens arrest law including case law for Washington state. The right to perform citizen's arrest is statutorily recognized as a defense under RCW 9A.16.020 The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases: ...(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody | To provide an initial answer, without getting to the specific of the 51 statutory standards for self-defense in U.S. states and the exact Canadian standard, as applied to your examples, I'll make some general observations: Self-defense is a justification for doing something that would otherwise be illegal (intentionally using force against someone else). Self-defense justifications include a sense of proportionality. It isn't proper to use more force than is reasonably necessary to achieve the defensive objective. There are basically two levels of self-defensive force: Deadly Force and Non-Deadly Force. Preventing some crimes and harms is statutorily justified to do using deadly force (e.g. to prevent a murder). To prevent other crimes and harms statutes only justify the use of non-deadly force (e.g. to prevent shoplifting). The exact list of crimes in each category varies somewhat. Historically, for example, there have been some U.S. states that have authorized the use of deadly force to prevent a rape that does not put the life of the victim at risk, and others that have not authorized the use of deadly force for that purpose (I don't know if that is still the case). Typically, law enforcement officers are also authorized to use deadly force in some circumstances in which a non-deputized civilian could not. As a practical matter, a use of force that causes death is presumptively considered to be deadly force, even if the means used are not inherently deadly in all circumstances. Meanwhile, a use of force involving the use of a "deadly weapon" such as a firearm, is presumptively considered to be deadly force, even if it doesn't actually kill someone. But both of these "presumptions" (and I am using that term loosely in this answer, rather than with its precise legal meaning), can be overcome with relevant evidence. Mildly shoving someone with hemophilia (or tossing a dish full of peanuts in the face of someone with a severe peanut allergy), without knowing that this person suffers from this condition, is not a use of deadly force within the meaning of laws justifying self-defense, even if it actually ends up causing their death. Similarly, proving that you intended to and did, shoot out the tires of someone's car, or shot their foot, instead of shooting to kill, would not always constitute a use of deadly force for purposes of statutes justifying the use of force in self-defense. Getting to the specifics of the question, the majority rule would be that the use of deadly force is justified in most circumstances to prevent a home invasion burglar from harming you or other people in the residence, and to repel the home invasion burglar from the residence, although some jurisdictions would qualify this in one respect or another. The case that the use of deadly force is justified would be stronger if the home invasion burglar was armed than if he was not, and would be stronger if the homeowner was not physically competent enough to be confident of an ability to dispatch the invader in a non-deadly manner. If deadly force was justified in that circumstance, it wouldn't really matter how you killed him, nor would it matter that you intended to kill him to defense your home and the people in your home. If the law only authorized the use of non-deadly force in the circumstances, for example, because the burglar had seized an envelope full of cash and was fleeing the house, so you were really only using force to protect your property, rather than to protect your home or the safety of the people in it, at that point, then the analysis would get tougher. If you intended to kill the fleeing thief in circumstances when only non-deadly force was authorized, the weapon you used wouldn't matter. You intended to use deadly force, the force you used caused the intended death, and you did those things even though the law didn't authorize you to do so in those circumstances. If you didn't intend to kill the fleeing thief in circumstances when only non-deadly force was authorized, but you ended up killing him anyway (so that you didn't have a prohibited intent behind your actions), then the question would be whether your intent and belief that your actions would not kill him was reasonable under the circumstances. If you caused his death with your bare hands, or with a less lethal weapon (in truth, there is no such thing as a non-lethal weapon), your belief that the thief wouldn't die from your use of force would be more likely to be seen as reasonable. If you caused his death with a lethal weapon, your belief that the thief wouldn't die from your use of force would be less likely to be seen as reasonable. If the jury (or a judge in bench trial) didn't believe you were reasonable in your use of force which you didn't intend to be deadly, then the jury (or judge as the case might be) would not allow a self-defense argument to prevent them from convicting you of some kind of homicide crime. So you would probably be convicted of some form of homicide (perhaps heat of passion manslaughter), although you might still not have the requisite intent for first degree murder in circumstances like that (so that your self-defense argument might end up providing you with an incomplete defense). |
Does the Limitation Act 1980 apply to criminal acts before 1980? According to the Wikipedia page for the Limitation Act 1980, fraudulent breach of trust can be prosecuted any amount of time after the crime. However, I was wondering if this applies to crimes committed before the limitation act was passed. In other words, if I had committed a fraudulent breach of trust in 1975; could be taken to court in 2017? | The Limitations Act of 1980 and its predecessors apply to civil actions brought by private individuals. It is not a criminal statute of limitations. I will answer with regard to civil cases, rather than criminal ones. Section 40 of the Limitations Act of 1980 incorporates by reference a schedule of transition provisions that govern this question, and when a cause of action is not governed by the 1980 Act it usually defaults to the predecessor 1939 Act. The problem is both bigger than just the fraudulent breach of trust unlimited statute of limitations under Section 21 of the Act, since the deadline only runs from when an action accrues that can be long after the act giving rise to the claim actually happened, and smaller, because the act (and also its predecessor 1939 act) allow statutes of limitations to be extended for equitable reasons under certain circumstances. The 1881 Limitations Act, Section 27 had an exception to the general rule for concealed fraud tolling the statute so long as it was concealed, which probably carried over into the 1939 Act. Section 9 of the transition provisions states in the relevant part that: (1)Nothing in any provision of this Act shall— (a)enable any action to be brought which was barred by this Act or (as the case may be) by the Limitation Act 1939 before the relevant date; The 1939 Act limitations ran from when the act was committed, not when it was discovered, until the 1963 Act changes that. A full analysis of the breach of trust issue is found in this law review article. | 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. | The statute of limitations is quite relevant. A couple points to help explain why: First, there are a lot of different legal actions that could arise from someone stealing property. You could have criminal charges for theft, you could have a civil claim for conversion (to pay the value of the stolen property), you could have a civil claim for replevin (to return the stolen goods), and you could have a civil action to determine the true owner of the property. All those cases arise under different laws, and all of them could have different SOLs. The fact that time has run out for one doesn't necessarily mean that time has run out for all of them. Second, improperly obtaining title does not mean that you are not and never will be the true title holder. Take a look at the doctrine of "adverse possession," which basically allows you to become the true owner of real or personal property by simply acting like the owner for a long enough period of time -- ranging from 5 to 21 years, depending on the jurisdiction. Third, SOL is a restriction on when you can start a lawsuit. Sometimes, as Dale M said, it starts when you actually learn about the transfer, but it could also start when you would have learned about the transfer if you had exercised reasonable diligence. So the fact that a lawsuit is happening now regarding something that happened a long time ago doesn't necessarily mean the SOL was inoperative; it may just mean that the SOL didn't start until long after the transfer, or it majy just mean the litigation is dragging out. Fourth, the Facebook example is not a good one. That lawsuit is primarily focused not on the transfer of property, but on breaches of contract, for which the relevant statute of limitations is six years. Second, those breaches are focused on a contract reached in 2004. Because the lawsuit began in 2010, it was started within the statute of limitations. Had Ceglia waited until today to file it, he probably would time-barred. | Desuetude is the wrong concept. Desuetude relates to laws as a whole falling out of use; it doesn’t relate to individual cases. There is no question that the UK actively enforces their bail laws so they are not falling out of use. There is a statute of limitations that applies to non-major crimes within which the state must initiate prosecution. However, in this case the prosecution for bail violation has been initiated and Mr Assange is “on the run” so this is not relevant. Neither is the fact that the original charges that led to his arrest has been dropped- he is wanted for escaping lawful custody under English law for which the penalty is pretty stiff. I will also venture an opinion that the case against him is as open and shut as it comes. TL;DR When he dies. | There are a number of specific limitation on what can be made criminal in US law, derived from constitutional protection. Specific Rights Expressions of free speech, for example, cannot be made criminal, although there can be laws which regulate or impact speech to a degree. Similarly, the establishment clause of the First Amendment prohibits a law requiring people to attend a particular church, and he free Exercise clause prohibits any criminal penalties for any religious practice or lack of practice. Most of the other provisions of the Bill of right would impose similar limitations. The legislature cannot criminalize what people have a constitutional right to do. Thre are also specific limitations not in the bill of rights, such as the prohibition of Ex Post Facto laws, the right to trial by jury, and the constitutional limitation of Treason laws. Rational Basis Beyond that the Due Process clause of the 5th and the parallel clause of the 14th impose limits on criminal law generally. Criminal laws must have (at least) a rational basis. The legislature cannot just prohibit picking up papers because they felt like it, they must have articulated a problem and a plausible reason why a given law would address it. If they don't the law may be overturned as unconstitutional. If a law is challenged as being unconstitutional, it will currently either be subject to rational basis analysis, or to one of the stricter levels. However a law which cannot pass rational basis analysis will not survive intermediate scrutiny or strict scrutiny either. Laws which appear to invade one of the enumerated rights, or a right that the Court has deemed "fundamental" are normally tested under either strict or intermediate scrutiny. According to the the Wikipedia article: Courts applying rational basis review seek to determine whether a law is "rationally related" to a "legitimate" government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. ... laws implicating unenumerated rights that the Supreme Court has not recognized as fundamental receive rational basis review. ... In modern constitutional law, the rational basis test is applied to constitutional challenges of both federal law and state law (via the Fourteenth Amendment). This test also applies to both legislative and executive action whether those actions be of a substantive or procedural nature. The rational basis test prohibits the government from imposing restrictions on liberty that are irrational or arbitrary, or drawing distinctions between persons in a manner that serves no constitutionally legitimate end. ... A court applying rational basis review will virtually always uphold a challenged law unless every conceivable justification for it is a grossly illogical non sequitur. (See Killian, Johnny H., George A. Costello, & Kenneth R. Thomas, co-eds., The Constitution of the United States of America: Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, by Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session) and specifically Romer v. Evans, 517 U.S. 620 (1996) at 635) Rational Basis analysis became accepted after the demise of "substantive Due Process", mostly in a civil, rather than criminal context. A version of it was suggested in Lochner v. New York 198 U.S. 45 (1905), in the dissent by Justice Holmes. It was adopted as governing in [*Nebbia v. New York * In United States Department of Agriculture v. Moreno 413 U.S. 528 (1973) The Court overturned, on a rational basis scrutiny, a law excluding households consisting of unrelated people from the Federal Food Stamp program, writing: [A] bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. Specific cases In Eisenstadt v. Baird 405 U.S. 438 (1972) a law that criminalized the distribution of contraceptives to unmarried persons was overturned on a rational basis review. Similar cases are now generally treated with intermediate scrutiny. In James v. Strange 407 U.S. 128 (1972). a Kansas law reclaiming payments for public defenders was overturens on rational basis review as “an impermissible burden on the right to counsel established in Gideon v. Wainwright." In Bowers v. Hardwick 478 U.S. 186 (1986), rational basis analysis was employed to sustain a statute criminalizing homosexual activity. However, this was later overturned.. Vagueness Also under Due Process, vague laws are prohibited. If a reasonable person cannot tell from the law what is or is not illegal, the law can be overturned for vagueness. Procedural protections Then there are procedural limits, also largely derived from the Due Process clause(s). A law cannot automatically convict people without a genuine hearing, in which a person can present a defense to an independent, impartial judge or jury. A law cannot impose duties which are flatly impossible to perform. A law cannot impose punishments which are considered unreasonable for the seriousness of the crime (as evaluated by judges). Other Limits There are other limits as well, it would take a book to list them all in detail. But those are some of the more frequently applied ones. | A statutory instrument that exceeds the limits of the enabling Act is void. For example, an Act that enables the executive to make regulations about companies would not support a regulation that purported to affect companies and partnerships. There are two controls in place: regulations must be tabled in Parliament and any MP can call for the regulation to be debated and voted down. anyone affected by the regulation can go to court to oppose it - there are lots of things they can argue including that the regulation overreaches its enabling Act. | 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. | This is a developing area within the law. In the United States, 18 U.S.C. § 1030 (Computer Fraud and Abuse Act) governs. However, the law is broadly written. This means creative prosecutors can and do win federal criminal cases by arguing the law should apply. Whether violating a website's terms of service should be considered a federal crime subject to the Act has been a subject of hot debate. In United States v. Nosal, 676 F.3d 854 (9th Cir. 2012), the 9th Circuit decided violations of use should be considered breaches rather than crimes. However, the district court refused to dismiss some charges against Nosal when the case was returned, and a jury conviction resulted in a prison sentence. At least three different circuits have arrived at other interpretations of the CFAA. Draft legislation (H.R. 2454 and S. 1196) would limit the scope of the CFAA by excluding TOS violations, however, it hasn't been adopted as of this writing. That CAPTCHA breaking violates website terms of service isn't really in question. For example, see U.S. v. Lowson, 10-cr-114, U.S. District Court, District of New Jersey (Newark) in which the judge brought a criminal case to which two defendants plead guilty to wire fraud, one plead guilty to misdemeanor computer crimes, and a fourth went on the lam. But does for-profit CAPTCHA solving violate U.S. law? Given the state of the law, one could make a case either way. Given the industry's reputation, serious questions about intended use, and questionable labor practices, that's a significant risk. |
Is it illegal to own DNA? Is there a law against owning someone else's DNA without their consent/knowledge ? I've googled it but I'm a bit confused. It says here that in California the police can compile a database of DNA without people being convicted or charged. It also seems like the 4th Amendment could be used to secure your DNA but the ruling mentioned there states "your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason." Otherwise, not much has come up aside from third-party gene testers. The results on this site seem to say (at least, to my uneducated eye) that you can't "protect" your DNA by copyright or patent if you abandon it (cuz trash is public property). Does that mean that police can go through your trash once it's out of your curtilage ? This site says you can file a motion to suppress any trash evidence (if within your right of privacy ?) but is there a case where the police can't get a warrant to obtain your DNA directly but can instead wait for your trash and then get it from there ? Or is every case where a warrant isn't obtainable also a case where trash evidence isn't allowed ? And what about anyone ? I can think of a few queasy things someone can do with your DNA like finding out details about you that you don't want them to know. In 2006, the UK made it illegal to sequence another person's DNA without permission. But it says here that it should be a felony theft in USA but isn't ? Yet ? Are there any other countries like the UK ? Does it instead matter much more what I do with the DNA I collect or is simply intentionally owning it enough to constitute a crime ? Let's say I follow someone into a barber shop and leave with some clippings of their hair, am I doing something illegal ? I'd expect this to vary from state to state, right ? | I don't know what you mean by "own a person's DNA", but analogous to owning a car or picture, you can't own a person, which is what would be required to have complete ownership of all of a person's DNA. You can legally own a sample of a person's DNA, for example by buying or bartering tissue, or if you are given tissue. If you grab a handful of hair from a person and pull it out, it is not legally yours, and you can be required to return it. If you lose, misplace or abandon tissue (or a knife), then the finder could end up owning it, depending on the circumstances. Tissue in the trash is more complicated since there may be municipal laws preventing dumpster-diving. Setting aside any such municipal codes, if you abandon your property, someone else can claim it. Hair on the floor of a barbershop, or in the trash, is a good example abandonment: it could also be an example of trespassing, in case the barber objects to you gathering samples from his floor. The 4th Amendment cannot be used to secure your DNA: it could be used to prevent securing DNA, if the intended application is compelled blood drawing. The ruling in Maryland v. King did not say that "your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason", since that was an objection to the majority ruling given in the dissent, not part of the actual ruling. Maybe that will end up being true, but that hasn't been determined to be the law yet. With a warrant, the police can take a tissue sample, and not wait for you to throw a tissue sample in the trash. They can also take a cheek swab from an arrestee just like they can take a photo or fingerprints (that's what Maryland v. King says). Once we've settled the matter of obtaining a DNA sample, the concept of ownership might be relevant if a party could restrict others from using that DNA pattern. But DNA is not subject to patent or copyright, so once I know your DNA pattern, you cannot legally prevent me from using that information. However, you might, if I gave you a sample as part of a contract, and there is a clause in that contract that prevents the other party from ever using that information. | I think haveibeenpwned would be legal in the EU because it carries out a task in the public interest (Art. 6(1)(e)), and it shares no more data then necessary, for example you can search for a password, but it would not show you the emailaddress which belongs to that password. It would also be legal for you to hold a copy of a leaked database, but only if you have a legitimate interest (Art. 6(1)(f)) to have it. Being a security company does not change that, but finding a legitimate interest might be easier. If you have a legitimate interest to hold a copy of a leaked database, it does not mean you can use it in any way you like. For example testing if the password still works, is very likely illegal everywhere in the EU. But I'm not familiar with the UK laws. | 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. | You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right. | The green card should always be at hand Yeah, he can't do that. He needs a green card in his possession anytime he's not on private property. Obviously for instance leaving it in the gym locker while you're at the gym is ok, but no, you can't dash off to the grocery store without it, on the logic that it's "just in town". Just like I can't make a milk run without my driver's license. So this idea of dashing off on a 400 mile adventure, is Right Out. He should have absolutely refused to travel without the documents in hand. If they say "get off the property or we'll call the cops", then tell the cops "I can't leave without my passport/green card" which the cops will back up, because they know the law and they know how trafficking works. The right to strut around the USA without any ID at all is reserved for US citizens only, and even that is being stripped away by ever-changing laws. Those documents are someone else's property The Green Card is the property of the USA and is not hers to steal. The passport is the property of the Philippine government and is not hers to steal. She didn't take your stuff, she took theirs. So she is guilty of a Federal crime, and the long arm of Philippine law may have an "opinion" on the matter also. Of course, most people don't think of it that way. They think your ID is your property so they think they're only messing with you. I would absolutely, positively report theft of the passport to the Philippine consulate. (Or rather, just report a missing passport, and be free about explaining the circumstances). One might hope that a phone call to consular staff might scare her straight, and get her to send it along. Most likely the green card would be in there also. Or, he could pay the fees to have a replacement passport issued. However the important one is the Green Card, since that establishes your right to be in the USA. On that one, you must consult an immigration lawyer and find out what you need to do. You certainly can get replacement green cards (not cheap), but admitting you don't have yours could cause you problems. People often seize documents for a reason And what makes me think that is, the uncle is a grown adult and the daughter's elder, and I thought that meant something in the Philippines. He is supposed to be more adult and more responsible. As such, he should be responsible for his own documents. Yet, this seems to be in the daughter's hands; this raises red flags. Maybe what she did was a harmless prank. But usually, taking an immigrant's documents is done for an entirely evil reason. Either they are forcing them into indentured servitude (also called "trafficking") - so if he is now in a situation where he is being extorted to do work in a worse situation or worse wage than he'd take willingly, then he is a trafficking victim, and the taking documents is part of the plot. The US has some legal protections for trafficking victims. Or they are "setting him up" for failure in some other way - for instance, out of idle malice, the niece might be planning to call immigration and report him as being illegal, hoping he'd be found with no green card, and deported for not having it. | 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. | GDPR killing genealogy websites? I could see GDPR totally killing genealogy websites if they follow the rules strictly, but would they really want to do that. Seems to me genealogy has an important historical role. Treat living persons with anonymization I assume you don't have data to identify a person or contact the living person. How would you contact to get consent to show personal information if you only have a name, impossible right? GDPR tries to stop abuse of personal data, yes, and your family tree certainly is personal data. However those who come to your website would mostly want to search and edit the non-living, search back in the history, thus the current generation follows the family tree and are not the point of entry. You can provide certain anonymization to those alive by not displaying the first names in full, maybe just the first letter. You may want to hide address, spouse, children for current generation. You could make those available for view/edit first by going through a secondary login, "not a robot". Further you may remove living people from search results and hide from search engines so they do not have ability to index the current generation. That would make it harder to abuse if you're going after an individual, but at the same time doesn't lock out the people providing information. | Generating a list of all possible numbers doesn't sound like it would constitute personal data any more than listing all dates for the last hundred years as a "possible date of birth" would. However, the moment anyone linked even one of the numbers with any other personal data - for example a name - they would be bound by GDPR and would need to show a Lawful Basis for processing the data. [If you linked your own name you could presumably argue Consent, but anyone else's would need to have an associated Lawful Basis.] |
How can anyone own land without theft? People are said to own land when they purchase it from the previous owner, but if you follow the chain of ownership back far enough, there must have been a point where there was no previous owner and someone simply claimed that land by force (or threat of force). This means that all subsequent "owners" are "handling stolen goods". How is this situation resolved legally? Is it by use of the "statute of limitations" or was there some government decree saying "never mind previous thefts, all is forgiven" or something else?... or is is just unresolved? I'm most interested in the case of the UK, but answers for any country would be interesting. | There is no "theft" without a law that defines what "property" is and what "theft" is. Laws derive from the state that has the power to enforce them. A state may issue the laws and decrees and stablish who owns the lands. It can later make changes to that ownership. When the Normans invaded England, Willian I became the legal authority and with that he could award, confiscate and keep lands as he saw fit, without that being considered "theft" in any legal sense of the word. The English government (and all others) still have the authority to take away, redistribute and otherwise change the ownership of lands as they see fit, and nothing of it would be theft. Internally most of them have chosen to stablish some procedures to ensure that this is only done when needed by meeting some tests (eminent domain), but even if they didn't have those (again, self-imposed) restrictions they still would be able to change ownership as they saw fit. That does not mean that a government using that power to punish political opponents or ethnic minorities would not face internal and external protests. | This is not theft, this is a contract dispute. You gave them money, they promised to do certain things, the contract says what that is. I surmise that they wanted a deposit to cover their costs in further dealing with you (moving is more complicated and costly than buying a loaf of bread), so in walking away from the deal, you've economically damaged them to some amount. The deposit is "liquidated damages". Your recourse is to sue them for that amount, because... Perhaps you didn't understand why you were giving them this deposit (an act that constitute some level of agreement), but any time you hand over a deposit, there is a circumstance under which you will not get that money back, and you have to understand what that circumstance is. | This is common law Larceny While some jurisdictions may have statutorily redefined larceny; it is a very old common-law crime. For example, the common-law definition is still in use in new-south-wales (even though the punishment is statutorily specified in the Crimes Act 1900) and the first element of the crime is that "the property must belong to someone other than the accused". The suggested jury direction from the Criminal Trial Courts Bench Book says: The law differentiates in a number of contexts between possession, control and ownership. Each of those concepts can become quite involved and complex. Fortunately, in the circumstances of the present case, it is neither necessary for me to seek to explain all their refinements to you, nor for you to understand all of those refinements. However, to give you but the broadest of examples: if you were to buy, say, an expensive diamond from a jeweller, assuming that it was legally [his/hers] to sell to you in the first place, then, the moment you took physical delivery of it you would own it, have the control of it, and be in possession of it. If, however, you proceeded to place it in a bank security box for safe keeping, you would, for some legal purposes anyway, cease to possess it, although you would still own it and be in control of it. If a robber broke into the bank and took your diamond, the robber would then be in possession of it, even though you would, in law, continue to be its owner. When I direct you that the property must belong to someone other than the accused, all that is required is that, at the time of the taking, it must be owned, controlled or possessed by someone other than the accused. Thus in this context, the law uses the concept of belonging in the widest possible sense. The overzealous shopper both controls and possesses the toilet rolls even though they are owned by the supermarket. | The owner of IP owns the abstract thing that is protected by law (the intellectual property), and not the concrete product that relied on (illegally) using that abstraction. The person who made the thing, or to whom he sold it, owns the object. If you buy a disk with pirated or non-pirated software, you own the disk, and if you bought it legally, you probably bought a license to use the software. Using "pirated" to refer to the class of things legally manufactured (not stolen, not using stolen components) but in violation of IP law, pirated goods might be subject to seizure by the government (it would be slated for destruction), but the goods would not be the subject of a prosecution for theft. While infringement of IP rights is often called "theft", it doesn't have all of the elements of theft: you do not deprive the owner of the thing that they own. | Every lot on the subdivision is and always will be acquired “through the Developer” Unless the developer still owns it. Somebody is the heir or assignee of the Developer - that’s who you need to seek approval from. Even if the Developer was at some point a company that got liquidated, the right of being the Developer would transfer to the creditors of that company. | We have made a complaint about this decision to the local administrative and highest courts of Finland. Both of these courts rejected our complaint (the highest court rejected our right to even file a complaint!) without even looking into the details of the matter at hand. Did you hire a lawyer? If the court rejected your complaint without even considering it, it may have been procedurally improper. Generally speaking, once your complaint is rejected by a court with proper jurisdiction, the matter is resolved and you lost. End of story, too bad. You have no recourse but to accept the action of the local government as lawful even though you believe that your case was wrongfully decided. In any case, I doubt that the local government's action in your context is illegal. This is an issue of "condemnation" and not zoning. Generally speaking, the government has a power of eminent domain to seize property for a public use so long as a process is in place for the owner to obtain compensation for the seizure. A government owned recreation center would generally be considered a public use. Certainly, nothing you have described would violate the Charter of Fundamental Rights of the European Union, 2010/C 83/02, Article 17. As you note: No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. This is a case where the deprivation is in the public interest, in which the Finnish courts have decided that the conditions provided by law for doing so have been met, and in which you acknowledge that you have a right to compensation. Since it appears that the compensation has not yet been determined, it is premature to say that the compensation you receive will not be fair or paid in good time, and you need to participate actively and vigorously in the compensation process to make sure that you do make the best case you can for fair compensation. Also, as you note, this has happened many times in Finland. This strongly support the conclusion that this action is legal under Finnish law, even if you would prefer to interpret its laws in another manner. Of course the compulsory purchase will not be paid with a fair market price but with a much lower price, which is technically a legalized robbery as it has many times occurred in similar cases in Finland. My next step is to file a complaint to the European Union Fundamental Rights commission in hopes that they can help me. An appeal to the European Union sounds futile to me, as everything you have said suggests that your rights under the E.U. Charter have not been violated. Call it robbery if you will from a moral perspective, but as you note, it is legalized robbery in much the same way that taxes are "legalized theft." Your efforts would be better sent hiring a lawyer to help you negotiate with the local government over the price. If you make a strong evidentiary case that the land is worth more than you have been offered, you have a decent chance of getting more than you have been offered, even if it is less than what you believe it is worth. You also have a better case of winning on appeal on the issue of an unfair price in a second instance court in Finland, than you would on the issue of whether the condemnation was legal, on which the settled law in Finland and under international law is that it generally is legal in your circumstances. | I'll assume a real question here and not one about a fan film on YouTube. Take the trash from a trash deposit container outside my neighbor's house, without asking permission? All depends on the locality; and sometimes the law is not settled, either. Some cities have passed laws that deem trash to be city's property as soon as it is placed in a city-supplied trash bin, because the city (or a private contractor) hauls to and owns the landfill. Other cities claim legal ownership of recyclables when placed on the curb, for the obvious reason that they are worth money. The law can be not settled if objects are in alleys and not in trash bins, or simply placed on the curb. For the sake of discussion, there are numerous examples of cities looking the other way with scavengers and pickers; it all depends on the location and the enforcement. (And, there are examples of the police being able to legally pull evidence from trash; but that's not the question here.) Go to the landfill, load some trash into my truck, then drive away? Think about it: you're obviously not going to be able to do this in a location with a managed landfill with employees that check you in and take your tipping fee. If it's a private trash contractor, it's private property; for a city, it's probably against the contract you signed when you paid to dump and probably against city law to salvage from the landfill, for liability reasons. (That doesn't mean the employees at the landfill can't salvage themselves; that's up to them.) But like anything, at an unmanaged landfill in a rural area, you could probably get away with it. | Yes The child owns what they own - it would be illegal for the parent to take the item and dispose of it or otherwise permanently keep if from the child (once they became an adult). However, parents are their children’s legal guardians and are responsible for the raising of their children including matters of discipline. It is both legal and appropriate for a parent to limit access of a child to their possessions. |
Title IX and the "Dear colleague" letter According to this article in the New York Post: the Obama administration, which in 2011 issued a “Dear Colleague” letter that detailed certain disciplinary processes universities must use to adjudicate sexual assault complaints. These processes lowered the standard for finding a student guilty. They encouraged colleges to keep students who hadn’t been found guilty away from their accusers. They made it harder for accusers to defend themselves by banning direct cross-examination of accusers and they allowed accusers to appeal not-guilty decisions. Emphasis mine This surprised me (I let out an audible "what the...") because what is described above seems like a clear breach of due process, guaranteed by the Fifth Amendment. This prompted me to read the actual letter, found here; however, I could not find any mention of appealing a not-guilty verdict, which—I think—is not allowed by the Double Jeopardy clause, also in the Fifth Amendment. Where are the laws that affirm what is bolded in the quote above? Edit This is the actual letter: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf | The Fifth and Sixth Amendments are about civil and criminal court proceedings. They do not apply to a university's internal disciplinary procedures, which are the subject of the Dear Colleague letter. Note for example the text of the Fifth Amendment: ... or be deprived of life, liberty, or property, without due process of law. A university's disciplinary procedures do not deprive anyone of their life, liberty, or property. Typically, they only decide whether to suspend or expel the person as a student at the university, or apply other academic punishments (failing grades, marks on transcript, etc). I don't think there needs to be any law "affirming" this. Rather, there is simply no law that requires universities to use Fifth / Sixth amendment standards in their internal disciplinary procedures. | Double jeopardy in its usual sense wouldn't attach because impeachment is not a criminal proceeding, which is the only thing double jeopardy applies to (esoteric estoppel matters not withstanding). You might recall that OJ Simpson was tried and acquitted of murder in a criminal court, and then subsequently tried and found liable in a civil court for those murders. There was no double jeopardy protections of which he could avail himself. But the constitution says that the Senate shall have the sole power to try impeachments, so for the most part we can expect that whatever they say goes. So they can dismiss for any reason they desire, in principle. The impeachment of Senator Blount is one example: the House impeached him, and on the same day the Senate expelled him under their constitutional power to do so, and then dismissed the impeachment for lack of jurisdiction (arguing that Congress members cannot be impeached; the impeachment was otherwise still relevant after his expulsion because it could result in preventing him from gaining office again). The costs here are political: in your hypothetical situation with very strong evidence, if popular opinion turns too strongly in favor of conviction then refusal to do so may cost the Senators and their party in subsequent elections. Attempts to argue arcane technicalities might not save you at the ballot box. Under existing impeachment precedent (as well as Congressional rules precedents), the courts would be loathe to get involved by default. Though if the action was sufficiently egregious (not even superficially resembling what a judge might call a trial, say) maybe they would feel judicial intervention and action was warranted and justified. But that's purely speculative. | I understand that by "civil law systems" the OP means to refer to civil (vs criminal) cases, not to the civil law (vs common law) systems. The standard for proof of "guilt" (which is not actually called "guilt") is indeed "much lower" in civil cases, but the reason for that is not that it has to be so, but that the standard of proof in criminal cases has to be much higher. In civil cases none of the parties face criminal conviction. One party will just lose some money or property, will have to perform some work, will lose some opportunities etc. So, initially, both parties play the same game and each of them is in to lose it down to a similar level of peril. What follows is that, at the baseline, neither of the two parties should be in more advantageous position to prove their rightness than the other. In other words, if any of them proves that they are more than 50% likely to be right than the other, they should win. Indeed, why would one party have to prove their rightness beyond reasonable doubt? If it was so, it would mean that the other party would effectively have to prove their rightness to only a small degree, which would be utterly unjust. lot of guarentees like right avainst self incrimination are also not available in civil law systems. what is the reason behind this ? False. If saying something from a witness stand would risk you being prosecuted, you can refuse to say it regardless of whether you are giving evidence in a civil or a criminal case. | 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. | Probably Not In general, the law gives a school significant discretion on how to run its courses and grade its exams. And it is unlikely that getting into a lawsuit over a grade will be a good way to proceed. You could explain more fully to your instructor why you feel unfairly treated, and if not satisfied by the response, go to the department chair or other higher authority as the structure of the school may provide. I would suppose that the instructor had permission to require the 3rd party software, or that school policy gives an instructor that option. It might be worth confirming that, however. For future tests you might be able to shutdown or suspend all popups to avoid the problem happening again. A "game mode" sometimes will do that. | The answer isn't clear, but Justice Kavanaugh's concurrence in Dobbs suggests that such a prosecution would be unconstitutional: May a State retroactively impose liability or punishment for an abortion that occurred before today’s decision takes effect? In my view, the answer is no based on the Due Process Clause or the Ex Post Facto Clause. Dobbs. v. Jackson Women's Health Org., 597 U. S. ____ (2022). Kavanaguh relied largely on the Supreme Court's decision in Bouie v. City of Columbia, 378 U. S. 347 (1964). There, black protesters were charged for trespass because they staged a sit-in at a diner and refused to leave when police told them to. They argued they couldn't be convicted because the state's trespass statute only prohibited entering land after being told not to, but the courts convicted them anyway, holding that the statute also outlawed remaining on land after being asked to leave, even though the statute said nothing like that. The Supreme Court reversed the convictions, holding that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids." By applying such a construction of the statute to affirm their convictions in this case, the State has punished them for conduct that was not criminal at the time they committed it, and hence has violated the requirement of the Due Process Clause that a criminal statute give fair warning of the conduct which it prohibits. Bouie v. City of Columbia, 378 U.S. 347, 350 (1964). But Kavanaugh's opinion isn't controlling, and Bouie isn't exactly on point, so the question remains open. The defendant probably has the more straightforward argument -- the abortion was legal up until Dobbs was decided -- but there's a pretty good argument for the state, as well: When Roe was still good law, abortion law was quite fuzzy, so it was never entirely clear whether new restrictions on abortion were or were not unconstitutional. Given those conditions, the state laws outlawing abortions were clear enough to provide fair warining, even if there were legitimate questions as to the constitutionality of those laws; if a woman wanted to do something contrary to the law, she should have petitioned the courts to invalidate it, rather than simply breaking it. So there's no real way to say what the answer is at this point, but I suspect we'll get a real answer before too long. | You're asking about what is generally referred to as the "joint-participant exception." In the United States, the answer varies from jurisdiction to jurisdiction, as each state sets its own rules on which communications are privileged and which are not. Even in the federal courts, where the law should be relatively consistent, there is some disagreement on this question. After the Tenth Circuit recognized the exception in Trammel v. United States, 445 U.S. 40, (1980), the Supreme Court gave a vague statement suggesting that the exception does not exist, but it was not clear enough to settle the question. Since then, the Seventh Circuit has said the exception applies, but the First, Second, Third, and Ninth circuits have said it does not. So until the Supreme Court weighs in again, the answer is "it depends where you live." Keep in mind also that what is often referred to as "spousal privilege" actually encompasses two very distinct privileges: (1) the spousal communications privilege, which is a defendant's right to block testimony about his statements to his spouse; and (2) the spousal testimonial privilege, which is a witness's right to refuse to testify against his spouse. It may be that in some jurisdictions, the joint-participant exception applies to one but not the other. | This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer. |
(Re-)formatting and displaying of software licenses/privacy policy/impressum I'm currently trying to include and render all the software licenses of products which are used by my software, a privacy policy and an impressum (necessary by German law; stating contact information). Now I've got some questions regarding the indentation and whitespace formatting as well as the displaying in general. Often legal texts are already kind of preformatted. They are having a fixed width and word-wrapped paragraphs. If I would display them in my software for several display devices (mobile phones/tablets/desktop pcs), the text field would word-wrap them again and lead to strange formatting (underful lines and too many line breaks). Am I allowed to undo the word-wrapping of all the texts and unindent them, as well as performing a new word-wrap on them? Do I have to make sure that it is readable for everyone on every device, and do I have to make sure that accessibility interfaces are used (e.g. for blind persons, which aren't even the target group of my software)? Do I have to make sure, that if my application wouldn't even start correctly on a device, that the user is able to start the application in an impossible, absurd, magic or religious way to ensure that he can read the legal texts or is it enough to state it on the website then? Do I have to make sure that the rendering of the licenses/privacy policy/impressum is performant (e.g. text rendering and refresh after scrolling takes less than a second)? I already have to include two external libraries with my software to display the texts, otherwise it would not be possible to display texts at all. My location/nationality: Germany/German. My distribution targets: Germany, UK, USA, maybe even some more but mainly countries with English as main language. Kind regards, Daniel | I cannot speak for civil law systems (Germany) but in Common Law (UK, USA) systems the law looks at substance rather than form. So: Am I allowed to undo the word-wrapping of all the texts and unindent them, as well as performing a new word-wrap on them? Yes Do I have to make sure that it is readable for everyone on every device, and do I have to make sure that accessibility interfaces are used (e.g. for blind persons, which aren't even the target group of my software)? If they are licences (rather than contracts) they must simply be available; this does not mean universally available. Do I have to make sure, that if my application wouldn't even start correctly on a device, that the user is able to start the application in an impossible, absurd, magic or religious way to ensure that he can read the legal texts or is it enough to state it on the website then? It depends if you want the licences to be enforceable by you on the users or if you are simply complying with your disclosure obligations. See What if the user disagreed with the Terms of Service, but still registered on a website?. Do I have to make sure that the rendering of the licenses/privacy policy/impressum is performant (e.g. text rendering and refresh after scrolling takes less than a second)? I already have to include two external libraries with my software to display the texts, otherwise it would not be possible to display texts at all. No - make them wait if you want. | Generally, no, this will not violate copyright. Your end user might violate copyright, but that is their problem not yours. Your program is a tool, just like a word processor is. If I copy a Harry Potter book into a word processor that does not make the word processor maker liable. There is a concept of "contributory infringement", which I think is what you are concerned about. I don't know about Danish law in particular, but most countries would require evidence that you had reasonable knowledge that actual copyright violation was occuring, rather than just being aware that it might happen in theory. This is normally applied to file sharing services who have to have "notice and takedown" measures, file filters and the like. This isn't your concern as you never have any access to the files created by your users. You can also be found liable if you induce anyone to commit copyright violations. Don't draw your customers attention to the custom monster feature as a workaround for those copyrighted monsters, as that could be considered to be inducement. Also don't provide any "wizards" or similar tools which make it noticeably easier to duplicate the custom monsters (e.g. if you notice that the copyrighted custom dragon stats are all on a linear scale with dragon size, don't create a "dragon creation wizard" embodying that fact.) This assumes that your program runs entirely on the end user computer. Its different if you provide any kind of cloud storage for generated characters. | "Pastiche" is a literary, not a legal term, and as a professional coder, I would not use it to describe code that to some extent imitated other code. The legal question here is: is your code a derivative work of the code it is based on, and if it is, did you have permission to make that work. Copyright, in an Berne Convention country, which includes the EU, does not protect ideas and concepts, it protects expression. It protects the choices of words and symbols, and other forms of expression. If all you did was study example code, presented for educational purposes, and then write code that performs a similar function, using the same general techniques, then I don't think you have infringed copyright. That, after all, is why people post code to Stack Overflow and similar sites, to allow them to learn how to use specific coding techniques, including in commercial projects. I have used techniques posted to SO to do coding as part of my paid job. The usual test for copying under US law is "substantial similarity". This takes into account cases where there is essentially only one way to say or code something. I don't know the exact tests under the various laws of various EU countries, and they will not all be the same. But I suspect that on this point they are, well, substantially similar :). I can't advise on your specific situation. But if it is as described, I don't think you have a problem. | Similar to this question and this one, the Uniform Commercial Code requires that exclusion of warranty be conspicuous. While it does not specify the manner in which text should be made conspicuous, putting it in all caps certainly has that effect if the surrounding text is in sentence case. The meaning is that all products come with implied warranties of merchantability (it is good enough to be sold to you) and fitness for purpose (it will do what it's meant to, and what you've been told it will do). This text excludes this product from those warranties (that is, those warranties do not apply). It also disclaims liability for claims and damages, which means that if this software causes you harm or damage, you can't file a suit to recover any loss. Whether this is enforceable would be decided by a court. | Each directives page on eur-lex has a "national transposition" page. For example, directive 2009/65/EC, concerning UCITS, is available at https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:32009L0065. There is a navigation box at the top left with several relevant pages: Text Document information Procedure National transposition Summary of legislation (Before the recent site redesign, these were shown as tabs across the top of the page, so for the lack of a better term, I will call these "tabs.") The Document information tab shows, among other metadata, relationships with other EU acts. One useful section on this page is the All consolidated versions section, which is a set of links to consolidated versions of the document, indicated by date. The answer to your question is the National transposition tab, which shows "National transposition measures communicated by the Member States." It is worth noting the disclaimer: The member states bear sole responsibility for all information on this site provided by them on the transposition of EU law into national law. This does not, however, prejudice the results of the verification by the Commission of the completeness and correctness of the transposition of EU law into national law as formally notified to it by the member states. The collection National transposition measures is updated weekly. The list of national acts is in the form of links, which lead to pages that seem designed to present the text of the national legislation, but in the examples I have checked say nothing more than "Text is not available." Perhaps there are some instances, or will be in the future, where these contain links to national legal information sites. As it is, there is enough information to enable one to search the national sites to find the relevant legislation. | Yes A software license is just a contract and parties to a contract are free to agree whatever terms they wish under the doctrine of freedom to contract. Government can restrict what terms can be used in a contract either in general (e.g. for being against public policy) or specifically (e.g. by requiring wages be paid in money). None of the terms you mention fall foul of any restrictions I know of. | The audio book would probably be an infringing derivative work because the client could redistribute it once the client received it. It sounds very much like a product that is regularly sold by merchants relying on copyrights. Conceivably, simply reading a book aloud to a client in some sort of streaming context that could't be shared with others or replayed would merely be fair use, much like hiring a baby sitter to read a book aloud to your children would be clearly fair use. If there were an automatic text to sound converter as opposed to an individualized performance, it might not be considered infringing. There are people with programs that do this who haven't been sued, but the boundaries haven't been explored very thoroughly. Honestly, there isn't a lot of guidance in this area from statutory language, and the questions would often not be guided by much case law involving similar facts. Your intuition living in the modern world is probably almost as good as a lawyer's in this situation. | Ok here is my go at answering my own question: (see comments above & below for links) Depending on what you want to do, GPL can be a bit complicated, with multiple versions, version numbers, and added exceptions over the years. it can be a headache. However, for this purposes of app development incorporating GPL/LGPL libraries, it is fairly straightforward. Keep in mind to check version numbers on all relevant documents, although they are most likely v3.0. As far as I know linking to a GPL library binds you to also releasing your code under GPL. So that is a no-go for closed source, but that brings me to my 1st question. is it legal for me to remain closed source while incorporating external libs that are both BSD and LGPL? and I think the answer to that is yes provided that I dynamically link to said component (.so .dll .dylib .framework). Permission of this is granted under section 4d of LGPL v3.0. d) Do one of the following: 0) Convey the Minimal Corresponding Source under the terms of this License, and the Corresponding Application Code in a form suitable for, and under terms that permit, the user to recombine or relink the Application with a modified version of the Linked Version to produce a modified Combined Work, in the manner specified by section 6 of the GNU GPL for conveying Corresponding Source. 1) Use a suitable shared library mechanism for linking with the Library. A suitable mechanism is one that (a) uses at run time a copy of the Library already present on the user's computer system, and (b) will operate properly with a modified version of the Library that is interface-compatible with the Linked Version. My 2nd question Would it change the ability for me to stay closed source if i were to use an altered version of one of these libraries? It is my interpretation that in this case the only source you would need to provide is that of the modified library, and that the application itself can remain closed source. I'm basing this on grounds that nothing has changed from the situation for my 1st question other than the fact that the modified component library is now a derivative work under standard GPL v3.0. finally my 3rd question what is the legal effect on static vs dynamic linking? This seams to be a bit iffy. Again see section 4d of the LGPL v3.0. By this wording dynamic linking is much preferable, and there are basically no requirements. If you choose to link statically though(in other words as part of the project build) things get complicated. To fully understand see LGPL definition of "Corresponding Application Code", and then see sections 4 5 and 6 of the GPL document. Full source is not required, but as far as i can tell you are required to provide all necessary materials for someone to build the project from scratch, so they can use a different version of the library if they so choose. This, in my opinion, would not be closed source. I hope that is clear enough? I did quite a bit of looking around the internet in coming up with this answer, and in the end even some reading of the license, though I'm not sure I've actually read them through in there entirety. Keep in mind that there are multiple version of each license, and you should check version numbers for each LGPL library you use. There is a lot of good information on on opensource.stackexchange, although much more than one can process in a single sitting, and with occasional disagreement on finer points. Below are some related links. gnu.org/licenses/gpl-3.0.txt gnu.org/licenses/lgpl-3.0.txt copyfree.org/content/standard/licenses/2bsd/license.txt opensource.stackexchange.com/questions/1700/are-derivative-works-a-subset... opensource.stackexchange.com/questions/2772/can-this-nvidia-licence-be-us... opensource.stackexchange.com/questions/2488/do-i-need-to-host-qt-source-w... opensource.stackexchange.com/questions/1431/are-there-examples-of-proprie... opensource.stackexchange.com/questions/5162/are-the-terms-of-lgpl-3-0-alr... |
Why would a Canadian Crown Prosecutor continue with a proceeding with no evidence? If a proceeding has only conflicting witness testimony for the Crown, but forensic evidence that proves the defense s case, why would the Crown proceed? | Once a case has been commenced, you can definitely lose, or you can probably lose. If you decline to proceed, you definitely lose. If you proceed, the jury (or judge as the case might be), might find some witnesses more believable than others and might find that the forensic evidence is not as convincing as it seems. Empirical evidence suggests that criminal trials reach the correct conclusion in about 90% of cases that aren't resolved on an uncontested basis. Generally speaking, the Crown is only going to press a case where the prosecutor subjectively believes that they are correct that the defendant is, at least, guilty of something. So, a Crown prosecutor can also justify "rolling the dice" in a case with a low probability of winning, because at a minimum, a factually guilty defendant (whether it can be proven beyond a reasonable doubt or not in a particular trial with a particular finder of fact) has to suffer through a trial which is a form of punishment (particularly if the defendant can't secure pre-trial release). Also, while the Crown prosecutor ultimately represents the state and not the victim, the victim of a crime is a quasi-client and sometimes a victim who often has personal knowledge of a defendant's factual guilt, really wants to have their "day in court" and a chance to present their case to the public for all to hear. Law enforcement officers working on the case may want it to go to trial for similar reasons. Strategically, bringing even weak cases to trial also makes a Crown prosecutors threat to go forward with a trial even in a seemingly weak case more credible and that can increase the prosecutor's negotiating power. Also, a trial always reveals information, and sometimes the information revealed in a trial that is lost can provide value in future law enforcement efforts. Finally, prosecutors are humans and people, in general, don't like to admit their own mistakes. So, they may go forward even when their case is weak because they don't want to admit that they were mistaken and would prefer to have somebody else say they were wrong than to admit error. The personality type that doesn't admit mistakes is pretty common in this area. | 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 | where does the prosecution occur? Prosecutions generally occur where a crime is committed. The area where a crime or other wrongdoing is committed is considered the proper "forum" for adjudicating the case. With respect to the law you cited, you should take note of the statutory limitations imposed upon the Attorney General in pursuing such a case (called a § 1119 prosecution). When considering the limitations, it is unlikely a trial of an American who killed an American in Canada would be tried in the United States. Those limitations begin with a prosecutor seeking written permission by the AG. This permission cannot be granted if the other country has already prosecuted the individual for the same conduct. Also, the AG can only give that permission if, after consulting the Secretary of State, he or she determines that the killing occurred in a jurisdiction where the suspect is "no longer present" and that the country is unable to "lawfully secure the person's return." and I'm wondering what that process actually looks like. This would be a consultation between Justice Department attorneys and the Assistant Secretary(ies) of State whose portfolio contains the foreign country in question. From the DOJ in particular, the Assistant AG for the Criminal Division is in charge of considering the above criteria and granting approvals. The Human Rights and Special Prosecutions Section handles these issues within the Criminal Division. Does the Attorney General have to petition the other government for permission to prosecute them in the home country? No. The statutory limitations listed above necessitate that the suspect has already left that country and part of the AG's determination must be that it is unlikely that country will be able to secure the person's return. That said, might that country petition the United States that it wants the suspect to be returned to stand trial there? Potentially. Does it make a difference if the key witnesses are also all Americans, therefore arguing that chances of conviction are more likely if tried within the U.S. where all participants reside and are available to testify? This is, of course, a general consideration when determining which jurisdiction should handle a matter. It isn't clear to what degree it comes into consideration in this type of prosecution. does anyone know any famous/well known examples of this happening? Famous/well-known? I can't be sure, but see, e.g., United States v White, 51 F. Supp. 2d 1008 (E.D. Cal. 1997), United States v. Nipper, 198 F. Supp. 2d 818 (W.D. La. 2002), United States v. Wharton, 320 F.3d 526 (5th Cir. 2003), and United States v. Brimager, 123 F.Supp.3d 1246 (S.D. Cal 2015). Interestingly, the statute gets substantial discussion and review in this Department of Justice White Paper entitled, Legality of a Lethal Operation by the Central Intelligene Agency Against a U.S. Citizen, in the context of whether the CIA could kill an American citizen in Yemen who has been reasonably determined to be a senior leader of al-Qaida. | england-and-wales Scenario 1: If a person is acquitted of an offence, and evidence later shows that someone else committed it instead then there's nothing in law preventing that second person being prosecuted - assuming all the relevant conditions are met. Scenario 2: If a person has been convicted of an offence, but evidence later shows that someone else may have committed it (independently and in isolation rather than as a co-conspiritor), then in all likelihood the former defendant may have grounds for an appeal on the basis that they have suffered a miscarriage of justice. One option is for their case to be reviewed by the Criminal Cases Review Commission who may refer the case back to the court to determine whether the conviction should be quashed in light of new and compelling evidence. Scenario 3: "Infinite" indictments are theoretically possible (in as much as infinity is possible) but only if there is enough evidence against each and every person to justify them being indicted. If prior indictments resulted in convictions, then loop back to Scenario 2. | This wouldn't be customary and is probably improper, but the judge may have been trying to do you a favor. In the absence of being under oath, the judge could not consider anything said in your closing statement as evidence. If you are under oath, the judge can weigh something you say in your closing statement against the other evidence when making a ruling. | 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. | Yes - all evidence needs to undergo evaluation If there is ground for a Retrial or New Trial on the lower court level, that starts everything in the trial from 0. The whole matter is looked at de novo, which means as if there had never been any trial before. 1 All evidence is put on the record (again), motions to suppress or exclude evidence are evaluated (again), and then the whole trial happens once again. New Evidence just as much as evidence from the old trial will both be scrutinized the same. This means, witnesses will need to enter the stand once more, especially since the questions might be different from the first time. 1 - Note that Courts of Appeal might look at things de novo but not admit new evidence - they don't offer a retrial but evaluate the lower court was following the correct procedures in those cases. | Is an attorney permitted to ask questions like those in either paragraphs two and three? Yes. That does not mean that they will be considered relevant or even appropriate, though. Is the witness allowed to decline to answer such questions for reason of irrelevance, or other grounds? Yes. In general, though, it would be safer for the witness to state an objection (be it on the basis of irrelevance, confrontational, asked & answered, as to form, etc.) and answer the question nonetheless, rather than simply refusing to answer it. By simply declining to answer a question regardless of the basis for refusal, the witness risks affording a crooked lawyer the opportunity to falsely generalize that the witness was uncooperative. One exception to the idea of "object-and-then-answer" is where some privilege is the alleged basis for the objection, since the substance of the answer could be such that it amounts to waiving the privilege even where that privilege is legitimate. The witness may also opt to answer the lawyer's irrelevant questions even without stating an objection. Some questions are so obviously irrelevant, dull, or stupid that a failure to raise an objection will be inconsequential. In such scenarios, raising objections can only lengthen the deposition transcript and make it harder to read. For a real-life example of deposition with plenty of dull questions, take a look at the transcript (which I split in parts one, two and three) of the 4-hour deposition where I myself was the witness (you can download the case file, almost in its entirety, from this page). You will notice that I did not raise objections during the deposition, the main reason being what I explained above: To avoid giving the opposing counsel an opportunity to falsely accuse me in court of being uncooperative during deposition. Furthermore, addressing the crook's futile questions (1) projects transparency and helps on the witness's part, and (2) precludes a false & misleading impression as if the witness had something to hide. After all, wrongdoers are the ones most interested in eluding testimony in ways very similar to this other deposition. The reason of being of objections is precisely that the law "is aware" that, as a matter of fact, lawyers indulge in all kinds of abusive questions when taking sworn testimony --be it in trial or at deposition-- of a witness. |
What kind of a legal action a man needs to take prior to having sex with a woman in order to make sure she can't accuse him of rape? A marriage contract? I have been told the wife can claim that her husband has raped her. A signed document stating that she is having sex willingly? I have been told she can claim later that she asked the man to stop. | A woman can always accuse you of rape. In the U.S., at least theoretically, you are presumed innocent until proven guilty, so unless there is actual evidence you raped her, odds are you won't be convicted. If you are wrongly and maliciously accused, you can probably win a defamation suit as well. There is nothing you can legally do to prevent being accused - only principles which protect the innocent against conviction (e.g., presumption of innocence) and means for being made whole (e.g., civil suits). | The liability shield is the big one, and it can't be achieved with a contract. Just because the contract says you're not liable, that doesn't make it true. If I sign a contract with my friend that says "Nate Eldredge is hereby the King of France", that won't make me the king, nor will it force anyone except maybe my friend to acknowledge me as the king. By its nature, a contract can only bind the parties to the contract, and has no effect on the rights of anyone else. Suppose, then, that Alice and Bob agree to start a pizza delivery business, using a contract like you suggest. Their delivery car crashes, injuring Carol, a bystander, who incurs medical bills that exceed the assets of the business. Carol decides to sue Alice and Bob personally. Sure, Alice and Bob have a contract, and maybe it prevents them from suing each other, but it certainly doesn't prevent Carol from suing them; Carol never signed it. So Carol can still go after Alice and Bob's personal assets. Thus contract law cannot give them a liability shield. However, the government can, since it makes the laws about who can sue whom under what circumstances. And it has made laws saying that Alice and Bob can be protected from such suits, but only if they form a company according to the process that the law sets forth. So that's what they have to do. | The question didn't mention marital status, but since states formally recognize that relationship it's helpful to start there. tl;dr: The Supreme Court decided state laws that required a woman to notify her spouse were unconstitutional. Thus it's unlikely there'd be grounds for suit. Background The central mechanism of Roe v. Wade (U.S. 1973) was a balancing act between what it decided was a 14th amendment right to privacy and the state's interest in both the health of the woman and the potentiality of life. Because Roe explicitly recognized a state interest, Pennsylvania passed a statute in 1982 that required informed consent and a 24-hour waiting period. It also mandated parental consent for minors (with some exceptions) and spousal notification. This reached the Supreme Court in Planned Parenthood of SE Penn. v. Casey (U.S. 1992). There, the court upheld most of the Pennsylvania law (reinforcing its statement in Roe that a state does have an interest) but struck down the spousal notification portion. To do that, it determined the appropriate test was whether a state was placing an undue burden---a significant obstacle---in the path of a woman seeking an abortion prior to fetal viability. It reasoned that: state regulation impacts a female's liberty more than male's during pregnancy (by way of biology) if a man and woman disagree, only one can prevail not all women are equally impacted by a notification mandate (for reasons of domestic violence, etc.) Combining this with the notion that women do not lose any constitutionally protected liberty upon marriage, it decided spousal notification would be a significant obstacle and thus an undue burden. In other words, unmarried women don't have spouses to notify, so placing a notification requirement on married women creates an additional burden that the court found undue. To get back to the question, the father certainly has a right to file a suit against the female (...and it happens from time to time). However, it likely wouldn't go far. Since unmarried women were the baseline in Casey, it's unlikely there'd be grounds for either married or unmarried fathers to sue their female partners. This comes up frequently under the moniker of "Father's Rights," which has gained less traction in the U.S. than in other countries. That said, Wisconsin recently introduced a bill that would allow fathers to proceed against abortion providers. | canada The law "The [Criminal] Code requires 'ongoing, conscious consent' to 'each and every sexual act' and can be revoked at any time." See R. v. Sweet, 2018 BCSC 1696, citing R. v. J.A., 2011 SCC 28. "The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance." R. v. J.A., para. 66. The Supreme Court has explicitly declined to decide "whether or in which circumstances individuals may consent to bodily harm during sexual activity" (R. v. J.A., para. 21). However, in the context of a non-sport fist fight or brawl, one cannot consent to another intentionally applying force that causes serious hurt or non-trivial bodily harm: R. v. Jobidon, [1991] 2 S.C.R. 714.1 And at the provincial appellate level, it has been held that "consent is not a defence to a charge of sexual assault causing bodily harm in circumstances where the accused has deliberately inflicted pain or injury upon a person that gave rise to bodily harm" (R. v. Quashie (2005), 198 C.C.C. (3d) 337 (Ont. C.A.)). Consent would be irrelevant in a charge of criminal negligence or manslaughter, if the activities were to escalate this far (R. c. Deschatelets, 2013 QCCQ 1948, para. 175-77). The content of advance negotiations is not relevant to whether the complainant was consenting to the impugned conduct, however, it may be relevant as evidence of expectations about how consent would be communicated between the parties throughout the conduct. See R. v. Barton, 2019 SCC 33, para. 93 (citations omitted): For example, in some cases, prior sexual activities may establish legitimate expectations about how consent is communicated between the parties, thereby shaping the accused’s perception of communicated consent to the sexual activity in question at the time it occurred. American scholar Michelle Anderson puts it this way: “… prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. These negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question.” These “negotiations” would not, however, include an agreement involving broad advance consent to any and all manner of sexual activity. As I will explain, a belief that the complainant gave broad advance consent to sexual activity of an undefined scope will afford the accused no defence, as that belief is premised on a mistake of law, not fact. See also R. v. Sweet, 2018 BCSC 1696, para. 141: ... consenting adults may enjoy the personal autonomy to establish rules such as “no means yes”. If so, in my view, this passage suggests a corollary requirement to establish an alternative “safe word” or other mechanism to ensure that each party is also able to maintain their personal autonomy to put an end to unwanted sexual activity. Application A contract cannot provide advance consent, therefore it is irrelevant as to proof of consent during the acts. However, advance agreements can (and several courts suggests should) set out the expectations about how consent will be communicated. Any evidence of such agreements would be relevant to establishing the defence of "mistaken belief in communicated consent." None of this would assist an accused in the circumstance where a court finds that any consent was vitiated because the accused deliberately inflicted pain or injury that gave rise to bodily harm (this position has not been confirmed by the Supreme Court). If you are simply asking how to prove a fact in litigation, see this Q&A. 1. Since this is a judicially-developed limit, the conception of "bodily harm" used here does not necessarily have to match that codified in the Criminal Code. But: "The common law definition of 'bodily harm' has been substantially incorporated in s. 245.1(2) of the Criminal Code, and means 'any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling'" (R. v. Martineau, [1990] 2 S.C.R. 633). | The legal term for premarital sex, as a crime, is fornication. I found a paper that gives an extensive and well-referenced history and analysis of such laws: Sweeny, JoAnne. Undead Statutes: The Rise, Fall and Continuing Uses of Adultery and Fornication Criminal Laws. Loyola University Chicago Law Journal 46 (2014), 127–173. http://www.luc.edu/media/lucedu/law/students/publications/llj/pdfs/vol46/Sweeny.pdf Sweeny finds that many states (or even most) had such laws. As of 2014, six states still do: Idaho, Utah, North Dakota, Illinois, Mississippi and South Carolina (see map on page 156 of the above paper). However, they are likely unconstitutional under Lawrence v. Texas. Virginia and North Carolina also have laws that have already been found unconstitutional, but have not been repealed. | A party to a civil suit in a US court generally has wide latitude on discovery. If it is not completely implausible that one of those text messages might contain something helpful to the other side, then they might well be able to demand and obtain them. This would be true even if Jan has no plans to use any of them. If Jane thinks that there is something in some of those messages which should not be disclosed, she could, normally with the advice of hr lawyer, file a motion to limit discovery in some way. Whether there is good grounds for such a motion will depend on very specific details of the facts, and is beyond the scope of an answer at this forum. It is true that Jane is only required to produce the messages if the judge in the case has in fact ordered this. It would be highly unethical for Jane's lawyer Arnold to lie to here about this. If he did so and got caught, it might cost him his license to practice law, plus additional penalties. If Jane seriously suspects that he is outright lying to her, and colluding with the opposing party, she needs to take steps to confirm or disprove this, or if she can do neither, to obtain a different lawyer. | The simple answer is: if the law says marital rape is not a crime, it is not punishable by the criminal justice system. If there were a loophole, one of the lawyers representing one of the many rape victims who have been seeking justice in India would have found it. There more than likely isn't one. Some Indian marital rape victims have tried prosecutions under the domestic violence laws, but as I understand it -- and I'm no expert -- those laws are fairly toothless. The solution is for India to pass better laws. The majority of Indian judges and legislators want marital rape to be allowed, and as long as that's the case, unfortunately, no clever workaround is going to fix anything. | This is not a true defense. It would only go to the credibility of the defendant's account claiming that he was not the perpetrator. Nothing prevents someone who is homosexual or asexual from sexually assaulting someone of the opposite sex within the meaning of the law. Sexual assault is often motivated by reasons other than sexual attraction in any case. Also, some people who publicly hold themselves out as being homosexual are actually bisexual. It is probably relevant evidence, but ultimately, it is up to the jury to decide who to believe and what happened based upon all of the facts and circumstances. |
Accidentally hit someone's car with a branch, made minor dent, unable to pay damages, what can he do to me? I am a 15 year old student. While walking with my friends, an event transpired that resulted in a branch hitting a car (it was not a malicious act) and leaving a minor to medium sized dent. After I was confronted by the owner I immediately was honest and gave him my name and my phone number (First name only) and said I would try to pay damages, however, I believe I am unable to do so, and telling my parents would be out of the question. Provided he has my first name and my number, and he knows the school that I go to, what could he do to me? Am I under any legal obligation, being a minor? What do I have to do? note: I was well mannered and did apologise profusely. | Tell your parents Given the circumstances it is a near certainty that the least he will do if you do not pay for the damage is make contact with them. It will be far, far better for you if they learn it from you rather than him. What could he do? He (or his insurance company) can contact your parents - he will almost certainly do this. He (or his insurance company) can sue you for negligence. Children are responsible for their own torts providing they have the capacity to recognize and avoid risk and harm - based on your question I have (and a court would have) no doubt that that you are. If you lose the case, and don't pay, he can have the government seize whatever you own in order to sell it to pay the debt you owe. If this happened in British Columbia or Manitoba he can sue your parents. He could report you to the police - they may or may not choose to prosecute if what you did was criminal: it probably wasn't but the police may investigate to determine this. If he is insured he may be required to notify the police. | This is related to Can a store sell merchandise I've left in the store? The phone in question has been mislaid and anyone who finds it has a duty to deliver it to the owner of the bench for safekeeping pending the true owner's return: if the owner does not return within a reasonable time the phone becomes the property of the bench owner (e.g. the city that owns the park). However, the specific question here is: Where the owner has returned within a reasonable time but the possessor of the phone is now clearly attempting to steal it. Most jurisdictions recognise that a person is entitled to use reasonable force to defend their life or property. For example, the law in Australia1, is generally case law for which the authority is the High Court's decision in Zecevic v DPP (1987) 162 CLR 645: The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. Stated in this form, the question is one of general application and is not limited to cases of homicide. So, you are entitled to do "what you believe upon reasonable grounds that it was necessary to do" to defend your property. This would include using physical force to stop their flight and return your property to your possession: it would not include force that posed real and foreseeable risk of inflicting death or grievous bodily harm upon them. In addition, because you have reasonable grounds to believe that they have committed a crime, you are allowed to arrest them and deliver them to lawful custody (i.e. a police officer). Naturally, if you do not have reasonable grounds them you have just kidnapped them. The consequences if you do injure them is that you can be charged with a crime (battery, grievous bodily harm, manslaughter, murder etc.) and/or be sued for damages (medical bills, lost wages etc.) in both cases you could use self-defence as a defence. The difference between self-defence and vigilante justice is one is legal and the other isn't | He is mistaken. The statute of limitations for suing someone for a car accident, and for enforcing an oral promise, are both far longer than 3-4 months. You could get an estimate of the damages, report it to his insurance company, and, if the insurance company does not cooperate promptly, bring suit in a court of limited jurisdiction or a small claims court. Even if you don't retain a lawyer to take on the case for you fully, if you need to sue, you should hire a lawyer to coach you on the high points of how to represent yourself in this case, particularly with regard to how to fill out the Complaint, how to serve the other driver with process, and what evidence you need to present in what manner a trial. | You can't sue her for not having insurance. You sue for the damage you suffered. You can name her as a defendant alongside her son on the theory that she contributed to the accident by letting her son use the car, and then let the judge sort out who gets landed with the liability. Depending on the rules in your jurisdiction you might have to pay her travel expenses and/or lost wages if the judge decides she wasn't to blame (and the same for her son, but that sounds like a slam-dunk). However you might be better off going for victim restitution. That way the order gets made as part of the criminal case against the son. Less hassle for you, and the state authorities are responsible for actually getting the money out of them. Edit: It turns out that Idaho has the Family Car Doctrine in its law, so the mother is legally liable for her son's accident (thanks to ohwilleke for the pointer). | According to Rule 286 of the Highway Code then the actual legal requirement doesn't mention an exchange of insurance details. If you are involved in a collision which causes damage or injury to any other person, vehicle, animal or property, you MUST ... 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 While you clearly can't provide the registration number of a bicycle, the other details still appear to be legally required. Note that the section on Rules for cyclists specifically states that These rules are in addition to those in the following sections, which apply to all vehicles (except the motorway section). | Barring any specific statute the relevant law is the tort of negligence. To succeed Alice must prove Bob: had a duty to Alice, breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable person), the negligent conduct was, in law, the cause of the harm to Alice, and Alice was, in fact, harmed or damaged. She will probably succeed on 1, 3 and 4 where she will struggle is with 2. It seems that Bob did everything a reasonable person could do to avoid the accident. The only possible hope is that not knowing that bridges freeze first might be something a qualified NZ driver should know and that he breached his duty by not knowing if that is something the judge considers reasonable. The traffic warning is irrelevant and untested (and untestable) hearsay and should be excluded from evidence. | Agreement You say: my landlord added a clause stating: "All moving must be done in rear of driveway or pay $250 (near basement door)" Was this addition made at the time you signed the lease or subsequently? This matters because the terms of a contract cannot be changed unilaterally, they must be agreed. If the change happened after the lease was signed then , unless you agreed to it, it has no effect whatsoever. Since that resolution is boring; I will assume that it was always there. Enforcability Is this actually enforceable, since I did park in a public space and not necessarily on his property? Yes, it is enforceable. People can agree in a contract to do (or not do) anything so long as that thing is not illegal - that is what a contract is; a legally enforceable agreement for two people to do certain things. You agreed "All moving must be done in rear of driveway ... (near basement door)" and you didn't do what you agreed to do. Therefore you broke a term of the contract. It doesn't matter that you don't know why he wanted you to do this or if it was reasonable or if it meant that you couldn't use your parent's truck - if these were issues for you they should have been raised before you agreed to do it. If the clause said "When moving out you will wear a blue double breasted suit with a yellow and purple bow tie" then that is what you must do. Consequences There are a number of options open to the wronged party when the other party breaches a term of a contract. The most relevant in these circumstances is to sue for damages. So how much are damages? Well, they are an amount to restore the wronged party to the position they would have been in if you hadn't broken the agreement. In situations where damages can be hard to calculate, contracts can make a provision for liquidated damages; a pre-agreed amount of what the damage will be: in this case "$250". However: In the United States, Section 2-718(1) of the Uniform Commercial Code provides that, in contracts for the sale of goods: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. This largely mirrors the common law rule, which applies to other types of contracts under the law of most US states. On the face of it, it would appear that $250 may be "unreasonably large" given the nature of the breach where it appears that the landlord has actually suffered no damage. | What do I do? Contact the police, and henceforth make sure that all your interactions with the business owner are in writing. That evidence will facilitate the police investigation in this fact-intensive matter. Can I actually be arrested? Yes, you are at risk of getting arrested regardless of whether you eventually prove the business owner is the one who broke the law. Hence the importance of contacting the police before it proceeds on the basis of his fraudulent accusations. The business owner has committed crimes including --but not limited to-- forgery, larceny, and attempted extortion (People v. Ramos, 34 Misc.3d 914, 920 (2012) and Matter of Spargo, 68 A.D.3d 1242 (2009) reflect that also the attempt of extortion leads to being charges and convicted, respectively). The timing of events could be indicative of the extent to which the business owner's criminal conduct was premeditated. For instance, it is unclear whose idea was keep the vehicle in his company's name notwithstanding that you had not acquired the company yet. If it was his idea, this will tend to weaken his denials of mens rea (given his subsequent course of action). Likewise, it is unclear what dissuaded you from purchasing the business. You need to assess whether he lured you in order to get your money for the car, and thereafter cause you to change your mind about the business. |
Does this section of my NDA state that my company could take legal action against me if I were compelled to testify against them? My companies NDA has this line Individuals shall not, directly or indirectly, disseminate, make available, disclose, or use any reason other than performance of their job with the Company, any confidential information or proprietary data of the Company, unless and only to the extent such release or disclosure is required by any court or administrative agency (and then only after prompt notice to the Company to permit the Company to seek a protective order). I can't help but think what that part in parenthesis means. If I were to for whatever reason be in court as a witness testifying against my employer, based on the NDA it sounds like any time a lawyer asked a question I'd have to defer to the my company to object to the question per the wording of the NDA. Similarly if I were subpoenaed for information regarding my company, I'd have to bring my employers lawyer along. Is this a correct interpretation? (It should be noted, this scenarios are theoretical, I don't know of anything I might get subpoenaed about) | The parenthesized part means that if you are being compelled by law to disclose some confidential information, you must promptly notify the company of that fact. They could they respond by trying to get you excluded as a witness, or to limit your testimony, but you don't have to care what they do once they've been notified that you were subpoenaed. It may well be that every time the opposing side asks you a question, "your" side will object, and the judge will decide whether to sustain or overrule the objection. The only way in which you would defer to the company lawyer is by not answering the question before the question is finished (i.e. give the attorney 2 seconds to voice an objection). You would not have to "bring" the employer's lawyer along to a deposition, but that lawyer would probably be present and would similarly raise objections, if he felt like it. Your duty is simply to tell the company that you are being compelled to testify. In case the police or a detective agency are investigating the matter and they come to interview you, you are not compelled by law to answer (or to hand over documents), therefore you are supposed to decline to answer (and you are not obligated to inform the company that someone asked a question). As for an administrative subpoena, the perhaps tricky part will be knowing whether you are being compelled to testify, or invited to testify. The wording of the paperwork should inform you whether this is compulsory. | Attorney-Client privilege is a one-way duty: The Attorney has to maintain protected information in confidence. It's a professional duty supported in law. There is no corresponding duty for the Client to maintain anything in confidence. The client can waive the privilege at will. Some sample limitations to waivers are governed by Federal Rule Evidence 502. (Granted, in this scenario the concerned board member may be bound by some confidentiality agreement or fiduciary obligation as a consequence of service on the board, or membership in the association, but that's a different matter.) The ABA points out , in its article "How to Lose Attorney-Client Privilege" that: Either voluntary or inadvertent disclosure to outside or non-covered recipients, professional advisors outside the privilege, and experts and consultants, can result in waiver as a matter of law. In this "Ten Things" article the author points out: Business advice, however, is never privileged and – for in-house counsel in particular – the line between the two can appear blurry. ... If a document that is otherwise privileged is shared with third parties, then the privilege is lost. ... A common misperception among the business is that all confidential information is privileged or if they label the communication as privileged they can keep the documents out of the hands of third parties. As we’ve seen, this is not correct and the fact that there is a non-disclosure agreement or other type of confidentiality agreement in place will not make a document privileged nor will it preserve the privilege if it is disclosed to a third party. | Depends on the specific terms in the NDA, but the short answer is that the News Services didn't sign the NDA, and have no contractual obligation to keep mum. Most NDA's I've signed or had others sign are very clear about the personal liability, and the conditions under which the proprietary intellectual property can be discussed. In the case of leaks, the injured party would have to identify the leaker, and that person would be liable. (Still a difficult proposition b/c most reporters won't give up sources unless you drag them in front of a Grand Jury, and often not even then.) | The real question isn't whether there is a law, but whether you want to keep your job. If you want to do something that you believe will affect your company negatively, and you ask whether it's legal or not, the question alone should show you it's a bad idea. And another question is whether you can be sued, and what it will cost you even if you can win a case, and the answers to that are "yes" and "a lot". | 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. | Depends on the NDA Just like any other contract, it does what it says it does. You could draft the NDA either way. | It sounds like you've read about two party consent and public spaces. But while anyone can sue, it's winning a case that's relevant. "My client respects the applicant's beliefs, but choosing to express beliefs in such a way during a job interview indicated sufficiently questionable judgement that my client was unable to consider the applicant further for the advertised position." "It has also become apparent that the plaintiff was not acting in good faith in making an application for employment." Court finds for the defendant and orders the plaintiff to pay costs. | It is any law protecting me from the people that distrubute a video of me falling the stairs and shared without my permision? No. Your permission is not necessary for distributing or watching that video. The recording was from your workplace, where your entitlement to privacy is quite limited unlike few settings such as (1) your attorney's office in the course of obtaining legal advice for which the disclosure was needed, or (2) your home. Even if such an entitlement existed, your decision to share that recording with the person who was with you generally constitutes a waiver of your right to privacy regarding that incident. The waiver would apply even if California had some legislation akin to the EU's GDPR. Your description nowhere indicates that that person had a statutory or equitable duty of confidentiality. It is also highly doubtful that you would wish to block the distribution of the video if people instead of mocking you expressed something pleasant or encouraging to you. people who I don't even know their names come to me to comment about the video and joke about not falling again. That is not unlawful in and of itself. Since the matter does not involve a protected category such as sex, race, religion, or disability, pursuing a claim of hostile work environment would be quite a stretch. It would also be futile because any relief would not cover outsiders who watch the video and feel like joking about it. The notion of harassment entails a pattern of conduct (meaning that a person engages twice or more in that conduct) that causes a reasonable person to feel annoyed or concerned for his safety. Even if someone engages makes a few jokes that cause you to get annoyed, any petition for restraining orders seems unlikely to succeed. Sooner rather than later, the jokes will get old and people will move on. |
German legal prostitution and sexual harassment laws? How do laws against sexual harassment look like in places like Germany where prostitution was not only decriminalized, but legalized, and brought to a level of a professional occupation? could a job opening be for secretary with sporadic sexual services? could they ask a potential employee to send naked pictures of herself, or even to strip naked at a job interview? could a business owner require that all female employees wear revealing attire? How can both things (legal prostitution and protecting women against sexual harassment) be compatible at all? | "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. | Adding m/w/d in a job posting is not explicitly required by any German law. It is however the established way to implement the requirements of the AGG (~ general equal treatment act) which in turn implements various EU directives. Protected classes under the AGG are race, ethnic origin, gender, religion or belief system, disability, age, and sexual identity. Of these, only gender manifests itself in the German language, making workarounds necessary that indicate that no gender is preferred. Within certain bounds, the German language can use gender-neutral terms, for example a job called “Lehrer/-in” or “Lehrer*in” could also be called “Lehrkraft”. If you are able to use gender-neutral language in English but are still subject to German law, adding “m/f/d” is probably not necessary but still a very sensible idea as it corresponds to German best practices. If you fail to add some explicit note that applicants of all genders are welcome, nothing bad will happen automatically. However, a person with a not-explicitly listed gender may apply for the job, get denied, and then sue with the argument that they were denied because of their gender. The employer would have the obligation to prove that their job postings are non-discriminatory. | It is not illegal to treat the employees differently. As long as nobody is being paid for less than the time worked, this is legal. Treating employees differently because of protected characteristics is unlawful discrimination. However, the duration you have worked there is not a protected characteristic. It is perfectly legal for the employer not to mandate new employees clock in and out. It would even be legal (if not a great idea) to hire new employees for twice as much. | Germany There is a group of civil servants called Beamte. They are expected to show special loyalty to the state, and in turn the state is expected to show special loyalty to them. Different pension rules from regular workers, different healthcare rules, they can only be fired for gross misconduct, but in turn they are not allowed to go on strike and the state has more leeway on simply reassigning them to a different office. Then there is a group of civil servants called Angestellte im öffentlichen Dienst, whose contract is much closer to a private sector employee contract in Germany. They are allowed to go on strike for better salary or better working conditions. Some teachers are Beamte, some are Angestellte. It differs from state to state, and also by the date when they entered the profession. So some teachers in Germany can go on strike and some cannot. Both types may be mixed in the same school. | No The argument is vacuous in any event because AFAIK all jurisdictions that enforce sex discrimination laws have parental leave (paid or unpaid), not maternity leave so a man is just as likely to need it as a woman. This, of course, raises the issue of discrimination by marital status (on the basis that unmarried people are arguably less likely to have children) or age (on the basis that people outside 'childbearing' age are less likely to have children; fortunately these types of discrimination are also illegal. Notwithstanding, the loopholess you think there are in the laws are simply not there. For example s14 "Discrimination in employment or in superannuation" of australia Sex Discrimination Act 1984 starts with: (1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: Later in s30 "Certain discrimination on ground of sex not unlawful" it says: (2) (a) the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of a different sex from the relevant sex; If the job requires excessive strength or stamina, then you test your recruits for the level of strength or stamina the job requires. | Belgium enacted an implementing law, the Act of 30th July 2018 on the protection of natural persons with regard to the processing of personal data. This, along with the GDPR, are the key legislative references that relate to your question. On 5th September 2017 the ECHR judged that it "considers that States should ensure that, when an employer takes measures to monitor employees' communications, these measures are accompanied by adequate and sufficient safeguards against abuse". This case set a precedent relevant to employee monitoring in Belgium. This is most definitely a data protection or privacy law matter and the DPO should be consulted. If they have to do research, that shouldn't be your concern as that is their job. The company must support the DPO in what they need to do that job, as such is literally written into the GDPR. Furthermore, in this case it would, by my evaluation, be necessary to conduct a Data Protection Impact Assessment (DPIA) for the monitoring activity, and if one has been done, it should document the recommendations and requirements or what is already in place. You as an individual may also ask a question of the Data Protection Authority: (NL) https://www.gegevensbeschermingsautoriteit.be/verzoek-klacht-indienen (FR) https://www.autoriteprotectiondonnees.be/introduire-une-requete-une-plainte You might ask them about your position and liability as an employee, but I would be more concerned, if I were you, with verifying that your actions are above board rather than trying to cover your ass just in case they aren't. Do the right thing, even if that means questioning the direction you've been given. AD logons still identify the person logging on, and may include source IP, which is specifically listed in the GDPR as within the scope of 'personal data'. So while there may be a legitimate need to process such data, it needs to be gone about in the right way. Actions taken by an employee are taken by the organisation in terms of processing personal data, so whatever you are asked or ordered to do, will be done by the company. If you are being offered no legal justification for doing so, you might document the direction you are given and question it respectfully, pointing out that if found to be unlawful, it is the company that would be in trouble, all while knowing that should there be for example an unfair dismissal, you have a record of who asked you to do what, how you challenged or questioned it, and what was the outcome. | In england-and-wales there is no legal requirement, in the private sector, to advertise vacancies and employers can recruit whoever they choose as long as they do not commit unlawful direct or indirect discrimination and follow their own internal HR policies. Re: In the western hemisphere is it quite legal for employers to do things like... Exclude close family/marital relations of existing employees? YES Exclude internal applicants from consideration for jobs for which they have relevant qualifications? YES Hire non-local (here defined as those who can commute to work from their existing home) candidates in preference to local ones similarly qualified? YES Hire foreigners where they have suitable work permits? YES Summarily hire members of the business owner's family? YES as long as they are not "phantom" employees only put on the books soley to evade tax liabilities by, for example, paying a salary when they don't do any actual work. | In 1945? Not a chance. Basically, the only sexual crime that existed then was rape. In 2019? In New York, it appears the answer is still no. All sexual crimes require “sexual contact”: 3. “Sexual contact” means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed. While lips may be considered “intimate parts”, there would appear to be no intention “of gratifying sexual desire”. |
Is it legal for a company to offer a different insurance rate based on spouse's employer's offerings? Is it legal for a company to offer a different insurance rate based on the spouse's employer's offerings? My employer wants me to indicate to them whether my spouse can have insurance under her employer. If my spouse does have some kind of insurance offering at her company, they want to charge us $50 extra a month for health insurance based on this information. This is a similar burden that some employers have attached to smokers, where if you admit to being a smoker your insurance gets an automatic fee. In this case, when the employee (me) chooses to include his/her family or spouse under his/her insurance, the employee is charged differently based on whether or not the spouse can have (not has, but can have) insurance under the spouse's employer What right do they have to this information? What other legal means do they have to find out this information? Does this constitute illegal discrimination? I am aware of similar policies regarding smoking which are similarly controversial. What conclusions can we draw from that precedent? | Is it legal for a company to offer a different insurance rate based on the spouse's employer's offerings? Given the scenario you describe, your employer is not charging you a different rate if your spouse is eligible for insurance from your spouse's employer. Under the Affordable Care Act, when an employer decides to provide health coverage to their employees there is no requirement to provide insurance to the employee's spouse. Extending coverage to an employee's spouse carries additional cost to the employer. Many employers implement surcharges for those employee's spouses if coverage is otherwise available to the spouse. Essentially, when coverage is available to a spouse through their employer and they choose to be covered by their spouse's employer they are making a choice, one would presume, for better coverage. In this case, the employer is seeking to recover some of their cost for covering someone who would otherwise have coverage. From this article dated January, 2014, you can see that many employers are moving in this direction. That article references an article regarding UPS. UPS is excluding any spouses from coverage if they would otherwise have coverage from elsewhere. You ask what right do they have to this information [that your spouse has coverage available elsewhere]? You are asking your employer to extend health coverage to your spouse, a benefit that your employer apparently provides. Your employer has the right to ask you information regarding that benefit extension you have requested. If you don't have a spouse or you aren't seeking to have your employer increase their benefit cost by extending coverage to your spouse then there is no reason for them to know if your spouse is covered. What other legal means do they have to find out this information? They should only be seeking this information because you've decided to ask them to provide a benefit to your spouse. If you were to lie about this information then they would have the same facilities available for any other fraudulent act to gain a benefit contrary to the employer's policy. Does this constitute illegal discrimination? Based on what? The employer is not required to extend the benefit to your spouse. The employer's policy for extending that benefit is to charge $50 for any spouse who could otherwise be covered by their employer. If you want the benefit then answer the question truthfully and, if your spouse is otherwise eligible for coverage, then pay the $50. If you don't want to answer the question then don't request the benefit. I am aware of similar policies regarding smoking which are similarly controversial. What conclusions can we draw from that precedent? What precedent, that it is legal to charge smokers more for health insurance? The Affordable Care Act allows insurance providers to charge up to 50% higher premiums for smokers. Here's an article from the Society for Human Resource Management: Most employers using a spousal surcharge require an employee who enrolls a spouse in the plan to pay the surcharge unless the employee can verify that the spouse is not eligible to enroll in his or her plan, is eligible but not allowed to participate for a particular reason, or is not employed. | Can an employer be required to provide an escort from office to vehicle? No, at least, not on the theory articulated in the question. I can imagine some circumstances where it is conceivable that there might be a duty arising from some other source, like an OSHA regulation applied to a firing range business, or an express contract with the employee (some employers provide an escort as a matter of right in the evenings or at other high risk times, as an employee benefit, especially college and university employers, in part, because they have worker's compensation liability while an employee is still on a large campus, in part because it helps attract employees who may feel vulnerable, and in part because of an attitude that the employer wants its employees to be safe at dangerous times of day and this shows that the employer cares about them), or a court injunction related to a labor-management dispute where the employee is a scab. There is no such employer duty, but an employer does have strict liability in almost every case (there are some minor exceptions for very small employers and criminal conduct by an employee who is injured when the criminal conduct is clearly outside the scope of duty of the employee) for injuries and death in the course of employment from any cause whatsoever pretty much (including criminal actions of third-parties) which is generally fully insured by worker's compensation insurance. The exact details of when someone ceases to be at work for worker's compensation/employer liability is buried in case law and regulations (for overtime and minimum wage purposes, the standard is "portal to portal" but workers compensation/employer liability need not be identical, although once you are clearly no longer on the employer's premises and commuting after a day's work is done or before a day's work starts, you are clearly not covered). But, any place where there is employer liability at all, it would be worker's compensation covered. Usually, if the employer is required to have worker's compensation but doesn't, the employer likewise has strict liability for the same harms, but the damages that may be awarded are not limited to those that worker's compensation policies would cover. This leaves the employee with at risk travel between the office and the vehicle. It seems reasonable as well that as the employer prohibits the employees self defence, they would be responsible for the employees defence between office and some safe location (i.e. vehicle). This theory pretty much always loses. An employee walking in an ordinary, non-wartime environment without a firearm is not "at risk" in a meaningful sense, any more than someone who didn't choose to carry a firearm who goes about their daily life (or is prohibited from carrying one due to past conduct such as a felony or a domestic violence protection order or a domestic violence misdemeanor or a condition of parole, probation or bond pending criminal charges). Also, the employee is not being prohibited from engaging in any kind of self-defense or protective action whatsoever (or from asserting self-defense rights if a firearm is carried contrary to an employer rule) just from carrying a firearm at that particular moment (on pain of losing a job, not forfeiting a legal affirmative defense under criminal statutes), which is one of many means by which a person can protect themselves from crimes. | It depends to a large degree on local employment laws. Depending on how the counteroffer was worded, it might have constituted anything from a binding legal contract for employment for some reasonable minimum term, or a totally non-binding suggestion that was worth less than the air breathed while pronouncing it. Some things to consider would include: What are local employment laws like? Do they require that termination be for cause? If so, what are causes for termination? Does termination require any kind of remediation beforehand? Note that in an at-will, right-to-work state in the US, odds are that the employee can be fired for any time and for any reason, supposing the employer hasn't accidentally entered into a contract by extending the counteroffer. What did the counteroffer say? Did it stipulate that the offer was not for a definite term and that the company reserved the right to terminate the employee for any reason, or no reason at all? Odds are any sufficiently serious business in an at- will, right-to-work state would use standard legal language in any offer or counteroffer to ensure that they are on the right side of this, so odds are the counteroffer was accepted with no obligations at all on the company. Does the termination affect eligibility for unemployment benefits? I would say most likely not, as the termination would probably be recorded as being for no reason legally speaking (if they admitted to terminating the employee for seeking other employment, interested government officials could take a dim view of the company's actions). You'd probably have at least some unemployment compensation coming your way. Some professional - not legal - advice. Never accept a counteroffer. Only get another offer in the first place if you are committed to leaving your current employer no matter what. If your company really insists, you should insist on a minimum definite term of employment written into a legal contract which is signed by an executive and notarized. No company will agree to this (unless the term is shorter than you'd want as a full-time W-2 anyway) but if they do, hey, you have some security (if the company agrees to this, have your own lawyer - whom you pay with your own money - review the document). Even then, I would be very, very careful about staying at a company after getting a counteroffer. Don't do it. Ever. Never accept a counteroffer. One comment asks why I recommend never accepting a counteroffer. There are at least two reasons: The reason you are looking for a new job should be that there is something about your current job that isn't completely satisfactory and that you haven't been able to fix. Either you have grown out of the position, don't like the work, feel you're underpaid, don't get along with somebody, etc. If you were unable or unwilling to fix any of these issues without having another job on the table, having another job on the table shouldn't be what makes you willing and able to fix them. Why work somewhere that you'd constantly need to go job hunting to address workplace issues? Unless the company makes firm agreements about how long they're going to keep you around, you have no guarantee that they'll keep you. Presumably, you didn't have one before, and you don't have one at the new job, but the fact that you are currently employed might support the assumption that your employment would be continued at your current employer and the offer might support the assumption the new employer plans to employ you indefinitely. When you put in your notice, it makes the company more aware of the fact that you could leave at any time; while a perfectly rational actor would realize that this doesn't change the situation at all, companies are run by people and people often act irrationally. Perhaps your manager is vindictive, perhaps your manager is scared that you will still leave after accepting the counteroffer. Maybe your manager knows there are layoffs coming but needs you for the busy season. Hiring replacements can be time-consuming and expensive - and employees who are getting offers of employment elsewhere and putting in notice might be seen as risks. I'm not saying that accepting a counteroffer has always turned out badly. Falling coconuts kill 150 people every year. Still, I am not going to add a coconut rider to my insurance policy and I am not going to accept a counteroffer. | You can't sue for false promise per se, but it might enter into a suit for something else. It sounds like your employer offered you a choice between coming in to work (extremely difficult), termination or furlough (extremely undesirable), versus working at home (the preferable option), and the latter was contingent on you doing things that relate to being able to work at home (get a computer and so on). Relying on that promise, you purchased a computer: but then they decided that you had to come in to work. Based just on that, you could sue them for damages (maybe the computer, maybe the added cost of finding a new babysitter, possibly loss of wages). They might want to argue that they don't owe you anything, but your lawyer would (legally) prevent them from making that argument, using what is known as promissory estoppel. You took certain actions based on their promise, so you are entitled to rely on that promise. Their counter-argument would probably be that you didn't do what you were supposed to do, and your attorney would respond that the company obstructed you from doing what had to be done, or had not taken reasonable steps to say in advance what was required of you. | Here's a bit of Georgia law that is relevant. By law, your apartment shall have installed an approved battery operated smoke detector which shall be maintained in good working order unless any such building is otherwise required to have a smoke detector system pursuant to Code Section 25-2-13. Also, "Detectors shall be listed and meet the installation requirements of NFPA 72". Furthermore, Any occupant who fails to maintain a smoke detector in a dwelling, dwelling unit, or other facility, other than a nursing home, listed in subsection (a) of this Code section in good working order as required in this Code section shall be subject to a maximum fine of $25.00, provided that a warning shall be issued for a first violation. (note that there is a burden on the occupant, not just the landlord). However, Failure to maintain a smoke detector in good working order in a dwelling, dwelling unit, or other facility listed in subsection (a) of this Code section in violation of this Code section shall not be considered evidence of negligence, shall not be considered by the court on any question of liability of any person, corporation, or insurer, shall not be any basis for cancellation of coverage or increase in insurance rates, and shall not diminish any recovery for damages arising out of the ownership, maintenance, or occupancy of such dwelling, dwelling unit, or other facility listed in subsection (a) of this Code section. Whether or not a photoelectric smoke detector is NFPA-compliant is not a legal question, but you could read NFPA's comparison of ionizing and photoelectric detectors here. If we assume (as is reasonable to do) that you install an approved device, then there is no code violation by picking your own device, does not change liability, and can have no effect on insurance rate / cancellation. OTOH, it is conceivable that the lease is written to prohibit any monkeying around with the smoke detector. | The "less wealthy" spouse can spend as much as they want on legal fees. The article is oversimplifying, though. It's not just about wealth, and the order won't necessarily be for all of the legal fees. Look at California's Family Code §2030-2034: 2032 (a) The court may make an award of attorney's fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. 2032 (b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. Further reading: Maiden, Jan (2001) "Winning By Financial Attrition: A Study of Attorney Fees Under California Family Code Sections 2030 and 2032," California Western Law Review: Vol. 38: No. 1, Article 9. Available at: http://scholarlycommons.law.cwsl.edu/cwlr/vol38/iss1/9 It leads with an example where a party's fees were $115,000 but the party was only awarded $45,000. It also gives an example where a court found that "[e]ven where need is established, if the other spouse does not have the ability to pay, it is an abuse of discretion for a court to impose such an obligation upon one of the destitute parties which will hang as a sword over the obligor". | could they make a realistic claim that I had voluntarily terminated my contract before the year was over? The employer's act would forfeit its entitlement to reimbursement of bonus. The clause clearly indicates that the triggering event is termination, not the anticipatory notification thereof. Furthermore, the employer's act would be a breach of the [contract law] covenant of good faith and fair dealing. That would be in stark contrast with your compliance with, and/or kindness in, giving a two-week notice. The employer's termination of your employment seems improper in equity insofar as it was aware of your notice and thus took advantage thereof. | It would depend on your contract. Clearly, if I was selling timber and you ordered some with the agreement that I'll try to deliver at date X with no extra penalties, it would cost some amount. If we had a contract where I deliver at date X and pay for all your cost if the timber doesn't arrive at that date, then I'll either refuse to take the contract or charge you more. Maybe substantially more. |
When is imputed income not reasonable? Mary and Joe had a child. Mary owns a fast food franchise. Joe works as a service manager. Mary has residential custody of the child (New York). Joe sought to have child support reduced, arguing that Mary should have made more from the fast food franchise. Figures shown in court were that a typical franchise made $600,000/yr, and Mary's made $40,000. Joe sought to have Mary's contribution upped to $600K/yr. Note that Mary had the franchise prior to their having a child, and during the 7 year history, the franchise never exceeded $60,000 in net proceeds to Mary. The court has temporarily granted Joe's request, and the net effect is that Mary now receives about $300/yr in child support. She cannot support her child on her existing income and the reduced child support. What is the practical application of imputed income in New York? Is it appropriately applied when there is no earning history to back it up? What options in support court, should Mary be considering? | Imputed income is a legitimate concept, but it is hard to prove, particularly when there is an earning history to back up the claim that there is no malingering. Ultimately, the question is what that particular individual could earn and whether that particular individual was intentionally being lazy in order to influence child support. At a minimum an earnings history and testimony from Mary would be strong evidence disproving the claim, and it would probably take expert testimony to make any kind of credible claim that more income should be imputed that would still be unlikely to succeed. If more money were at stake, a battle of the experts with experts on each side with one testifying that Mary could earn more and the other debunking that expert's testimony, would be appropriate. But, for $300 a month at issue, it probably doesn't make economic sense for either party to hire any kind of expert. And, a judge is usually going to take some random statistical study much less seriously than a history of earnings and testimony from the franchise owner about why it earned more or less than average. | It's basically a question about the rules of court. While I can't say for sure about this case, a scheduled court date that isn't canceled, even in a stayed proceeding, is to be held. Non-appearance of a party or their representing lawyer is a bad idea as it might incur contempt of court. Such a court date can be used to (once more) inform the court and other parties of the stay. Paperwork that might have been delayed in postal service is then given over under the eyes of the judge, pretty much ensuring that the other parties did get them and nobody may cry foul play. Possibly the meeting can be used by the attorney to reschedule other court dates or depositions if the stay has a specific time length. Also note, that not all stays are for the whole case but might only rule to stay parts of it: a divorce case that includes a case for visitation of a child might stay the visitation part till a related case about where the child will live in the future is solved, but continue on the parts that try to sort out the divorce itself. Such non-stayed proceedings do proceed even under the stay of some others. | 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. | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | What you have heard is not exactly correct (and also depends, in part, on the Chapter under which the bankruptcy is filed). I will address the simplest case, a Chapter 7 liquidation of an individual, which is simpler, because a Chapter 7 liquidation is determined as of a point of time, while Chapter 11 and Chapter 13 reorganizations are conceptually more complex and don't just transfer rights to a trustee at a single point in time. When you file a Chapter 7, all of your property, including you rights to sue people that had accrued as of that date, are transferred to the bankruptcy trustee as an asset of the bankruptcy estate, and the right of anyone to sue you is stayed automatically until the bankruptcy court either authorizes the lawsuit, or discharges the debt associated with the lawsuit (there are actually a few cases where the automatic stay expires on its own after a certain amount of time). Rights to bring lawsuits that arise after the bankruptcy is filed, or can be brought at any time, like a divorce/custody suit, are not barred, although property and enforcement of economic rights in those cases may be stayed until the bankruptcy court takes action. Custody issues other than child support, and termination of marital status are not affected. For example, if you file for bankruptcy on Monday and are hit by a bus on Friday, your personal injury suit claim is probably yours and not the bankruptcy estate's and can be brought by you. But, if you are hit by a bus on Monday and then file for bankruptcy on Friday, your personal injury suit claim is probably property of the bankruptcy estate. (It is a bit more complicated than this, because your right to sue for a personal injury might be exempt property, at least in part, but this example conveys the gist of the concept.) There is a further complication in the analysis which is that domestic relations actions and probate court actions are normally considered to be outside of the jurisdiction of the federal courts (bankruptcy court is a federal court), even when there is diversity of citizenship, which doesn't change the basic conclusions above. | If the question is: "Did she call you and talk about two business contracts? " then this is not hearsay. We have a witness, standing in court, saying that exactly these things happened - that she called, and that she talked about those deals. If the question is: "Did the company sign two business deals that day? " then it is hearsay. We know that she said two deals were signed, because we have a witness for that, but that doesn't mean she said the truth. She could have lied about that. We don't have a witness standing in court saying that the deals were signed. We have a witness in court saying that he heard someone say the deals were signed. In a libel case where Jim sues Joe for libel, a witness says "Joe told me that Jim is a lying thief". That's absolutely not hearsay in a libel case about Joe spreading false rumours. The exact same statement by the exact same witness would be hearsay if someone tried to convict Jim for theft. | Sarah, thanks for your question. You have asked this on the Legal forum; and whilst there might be many moral or ethical considerations surrounding your situation - I'll try to deal with the legal principles here - which are distinct from what people consider 'fair' in the common sense of the word - simply discussing the legal basis of what you are asking. The relevant law here is 'Gifting' under the Law of Property - here A gift, in the law of property, is the voluntary transfer of property from one person (the donor or grantor) to another (the donee or grantee) without full valuable consideration. In order for a gift to be legally effective, three requirements must be met: Intention of donor to give the gift to the donee (donative intent) Delivery of gift to donee. Acceptance of gift by donee. Gifts are generally considered by the court to be either 'outright, remunerative or onerous' - so there can be conditions placed on the acceptance/receipt of a gift. However, it doesn't sound like these apply and that you have given this gift, free of conditions to the donee. There are special legal considerations with respect to engagement rings between would-be spouses where the donee actually typically keeps an engagement ring even if they fail to get married. This is under revocation. Unfortunately, from a strict legal point of view - a gift, is a gift - which broadly speaking means that if the person is not willing to return the gift, they are under no strict duty to do so. One can sue for return of the gift if undue influence was exerted over the donor by the donee: There are two main forms of conduct that are unacceptable: Acts of improper pressure or coercion such as unlawful threats. In the case of Etridge the judge made it clear that the court will intervene to set aside a transaction which is the product of “excessive pressure, emotional blackmail or bullying”. Failure to perform an equitable duty; g. where A trusts B and B takes unfair advantage of A. see here It would ultimately be for first, your solicitor and secondarily a court (or similar) to decide whether you had a legal case based on any undue influence you may have been under, based on the situation which you did not know that she had other items of your mother, leading you to gift her the ring. This is very context dependent. This legal process would be under a civil action against the donee. Of interest, the supreme court have limited the scope of 'undue influence'; the technical details can be seen here. I hope this is helpful. | In practice this is rarely done in the US. There have been cases of employment contracts with automatic increases tied to the CPI (Consumer Price Index) or some other measure of inflation -- I believe at one time a number of union contracts specified this. Employer and employee could certainly agree on any such formula. But in the absence of any explicit provision for such a link, and an agreed formula for the resulting salary, I think a stated salary would be interpreted as a fixed sum, not subject to change until an explicit change is made. Fixed wages are the almost invariable custom, and in the absence of any explicit provision for an automatic inflationary change, I think a court would assume a fixed amount, if it came to a court case. |
Why is court approval necessary to liquidate? I found this article in the news, claiming that Sears Canada will ask court for permission to liquidate all remaining stores. I can't see why approval would be necessary. Why would it be illegal to close your own stores without approval? In what cases would it be possible for permission to be denied? | When a company is under court-supervised protection against creditors (bankruptcy), you can't just do stuff like closing stores, as you might if you were operating free and clear. Here is an overview of Canadian bankruptcy law. It basically comes down to the fact that they sought protection by the government against their creditors, and if you do that, the government requires you to follow broad rules (and the courts will make sure you do). | The statement "you don't need to put it in writing" is not an instruction, and should not be interpreted as on in lieu of other evidence (e.g. the follow-up question "you don't want to get fired, do you?"). It is, at best, a recognition that your concerns have already been noted (and at worst, a ham-handed threat). In the context of an at-will non-union position, it is legal for a boss to directly demand "take it or leave it, no back-talk allowed". The reduction in salary can't go below the statutory minimum, or otherwise circumvent any laws, but assuming that the new salary is per se legal, they can demand that you accept it and not argue. If this were a government position, there is a potential (but not guaranteed) First Amendment issue. | Generally, the bids are the offer which the auctioneer may, but is not bound to, accept. (Chitty on Contracts, § 4-025). Many Sale of Goods Acts specify that the "sale is complete when the auctioneer announces its completion by the fall of a hammer" (see Ontario's Sale of Goods Act; see also Chitty on Contracts, § 4-025). If the auctioneer is not going to accept the bid, the auctioneer may withdraw the lot. If the property is put up for auction subject to a reserve price, no contract is formed if the auctioneer mistakingly purports to accept a bid lower than the reserve price (Chitty on Contract, § 4-026). Any after-the-fact declaration of the existence of a reserve bid has no bearing on the formation of the contract. The only thing that matters is whether the property is put to auction subject to a reserve price. If it is not put up subject to a reserve price, then the contract for sale is formed with the highest bidder when the auctioneer announces the completion of the auction. If the property is put up subject to a reserve price, then no contract is formed, even where there is purported acceptance by the auctioneer. | This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification. | Because you are on their premises and they get to decide what people can or can't do while on their property. This has nothing to do with if recording is legal or not, it has to do with basic property rights and trespass. Let's assume that recording is perfectly legal: so is eating ice cream. However, if its my shop, I can require that you do not make recordings just as I can require that you do not eat ice cream. If I make this requirement known you have three options: you can comply, you can leave or you can stay and do the thing I have prohibited. The first two are legal, the last one isn't; its trespass which is both a tort for which I can sue you and a crime for which you can be arrested and prosecuted. | These offer letters typically state explicitly that the offer is contingent on approval by the relevant governing board. This is sufficient to thwart promissory estoppel. Such highest-level overturning are frequent enough in the US that a reasonable person would know that the principal (for instance) does not have final authority to make a contract. There is no requirement that the board justify their decision to you. If you file a lawsuit alleging racial or religious discrimination, and if you can make a prima facie case for discrimination,you might survive the motion for dismissal, and the board might be required to say why they didn't hire you. | 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. | You can try, however, a US court when considering if it has jurisdiction will doubtless ask you to explain why a Canadian business wants to sue a Canadian company for an unpaid debt in Canadian dollars for services provided in Canada in a US court. If you can satisfy them that a US court is the appropriate venue (which I doubt) they will hear the case. |
What rights do I have if my apartment neighbor is smoking marijuana and the smell is entering my apartment? To preface this, I'm looking specifically for California Law. I'm aware that medical marijuana is legal in the state of California, and am wondering if any other laws apply, similarly to tobacco laws. One of my neighbors, although I don't know which one, smokes marijuana on a regular basis. Almost every night, I can smell it. I've identified that the smell appears to be coming down through my kitchen vent, as the smell always originates from the kitchen area, and is strongest near the vent. There does not appear to be any smell in the hallway, so my guess is that a downstairs neighbor is smoking and attempting to ventilate their apartment via their kitchen vent. I've contacted my landlord already, who has informed me that there is not much he can do aside from sending out a notice to everyone "reminding everyone that smoking of any kind is a violation of the lease agreement," and that he cannot identify who is smoking, or where the smoke is coming from. He told me that he especially cannot do anything because medical marijuana is legal. So, my question is: is there anything I can do short of moving out (I don't really want to move out)? I've read a little on tobacco laws, and, although tobacco is legal, allowing tobacco smoke to travel between apartment units may breach the habitability requirements. Is there any such precedent for marijuana cases? | There are nuisance lawsuits and constructive eviction arguments--you can check with your local attorneys and perhaps tenants' rights organizations for detailed information. Just because marijuana is legal under state law (if certain steps were followed) does not mean that your landlord or another tenant can interfere with your use and enjoyment of your home. Civil consequences--such as a court order to the smoker to stop smoking, money damages, or a partial abatement of your rent until the smoking stops--may be achievable. It is important to follow the rules for your jurisdiction closely when starting a legal action, so you should talk to an expert in your jurisdiction if you want to pursue legal action. But where possible, most people deal with this kind of thing by moving. | Is this illegal? YES Is there any specific law for this? YES: Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 says, inter alia, this: Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,-- [...] (b) ... possesses ... or uses cannabis, [...] shall be punishable,-- (ii) where such contravention relates to sub-clause (b),-- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both... Note that these are maximum sentences, and that Section 2 includes ganja in its definition of cannabis. | 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". | england-and-wales Usually, and assuming the smoker is aged 18 or over and there are no aggravating features, an arrest is not always necessary as what's referred to as "simple possession" is dealt with proportionately either by a: Cannabis Warning Which is: a non-statutory disposal. It can be used as a proportionate response to dealing with offenders found in possession of small amounts of cannabis. It is an informal warning, administered by a police officer, to adults found in possession of small amounts of Cannabis, consistent with personal use. ... First offence, no aggravating factors - Cannabis Warning; Second offence, no aggravating factors – PND (see below); Third offence – arrest. Or, a: Penalty Notices for Disorder (PND): You’ll be asked to sign the penalty notice ticket. You won’t get a criminal conviction if you pay the penalty (usually £60, but may be £90) You can ask for a trial if you disagree with the penalty notice. You’ll get a bigger fine if you don’t ask for a trial but don’t pay the fine. | Is entry into the yard subject to 24 hour notice? Most likely it is. Note that section § 47-8-3 defines both dwelling unit and premises. The latter encompasses the term "appurtenances", which the Black's Law Dictionary defines, inter alia, as "an adjunct; an appendage; [...] garden [...]". At least in the context of fenced backyard, the fact that § 47-8-3 defines dwelling unit and premises separately does not exclude "premises" from the scope of § 47-8-15. That is because the fence is "a structure [...] or part of a structure [...] that is used as a home, residence". Indeed, the existence of the fence suggests that the backyard is intended for only that tenant's exclusive use/enjoyment, with the implications it has on tenant's privacy. | While I don't like agreeing with a landlord, you are in the right here. Your tenants do not have the right to access the property now they have moved out. If they were still living there things would be different and it would be reasonable for them to fix minor damage (to preserve their deposit). They did not do so. Get the damage fixed professionally, keep all reciepts, and take it out of the deposit. | 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). | The issue is more likely that there is no law or regulation allowing the use of dogs to sniff passengers in the US for matters not related to crime, whereas Dubai, a monarchy, has a different political system. In general, you have the constitutional right to move about in the U and the right not to be unreasonably seized, a right which may not exist in some other jurisdictions. That right can be restricted in accordance with law, but there has to be some such law. It is not a crime to have covid, or to travel while infected (it is a crime to carry bombs and drugs on a plane). One area where there is some restriction is where there always has been a restriction, namely entry into the US. There is (was) covid screening at certain airports for flights from certain countries. This directive indicates the airport restrictions, but does not explain what screening will take place. The above DHS site says that "the passenger will be asked about their medical history, current condition, and asked for contact information for local health authorities. Passengers will then be given written guidance about COVID-19 and directed to their final destination, and immediately home-quarantine in accordance with CDC best practices". It is not clear whether a mandatory temperature check without even reasonable suspicion of a crime would constitute an unreasonable search (body searches are subject to higher standards than property searches, it seems), and constitutional law surrounding searches has emphasized the primacy of privacy in search law, not the fact of physically entering property of the body. Some airlines and airports offer voluntary temperature checking, so it might be possible if someone has a covid-sniffing dog to offer voluntary sniff testing, especially if it is offered by a private concern and does not have the appearance of government mandate (which would require a law). |
Legality of mass email situation I am launching a business directed towards college campuses. I know the email address format of the first college I will be launching at is [email protected] . Basically, I would not have these emails because people signed up to hear from me, I would be taking a list of possible first names and last names and combining them in the email format of [email protected] and sending out an email to all, whichever emails happen to actually exist the message would be delivered to. Is this illegal in anyway? I do not know much about spam or the legality of it so I apologize if this seems like a rookie question. | I assume based on your reference to .edu and your can-spam-act-of-2003 tag that you are interested in United States law. The scheme you describe is illegal under the CAN-SPAM Act. 15 USC 7704 (b) (1) (a) (ii) (b) Aggravated violations relating to commercial electronic mail (1) Address harvesting and dictionary attacks (A) In general It is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message that is unlawful under subsection (a), or to assist in the origination of such message through the provision or selection of addresses to which the message will be transmitted, if such person had actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that— (i) the electronic mail address of the recipient was obtained using an automated means from an Internet website or proprietary online service operated by another person, and such website or online service included, at the time the address was obtained, a notice stating that the operator of such website or online service will not give, sell, or otherwise transfer addresses maintained by such website or online service to any other party for the purposes of initiating, or enabling others to initiate, electronic mail messages; or (ii) the electronic mail address of the recipient was obtained using an automated means that generates possible electronic mail addresses by combining names, letters, or numbers into numerous permutations. The last part (ii) specifically forbids what you propose ("combining names... into various permutations). Under 15 USC 7706 you may be liable for statutory damages of up to $250 per email. In addition to being illegal, I suspect your plan will also be ineffective: this sort of spam attack would be really easy for the university to detect and block. | First of all, a contract is valid without a signature and even without being in writing; all that is needed is consent by the parties. Therefore, the signature is merely evidence of that consent and is only relevant if a dispute arises over the general consent or the particular terms that were consented to. A digital signature would make it harder for Bob to argue that those were not the terms he signed but if I have Bob's signature on them then the onus of proving he didn't sign rests with Bob, I don't have to prove he did. All of the methods you suggest are valid as would an email saying "Got the contract. I agree. Bob." | You're misreading the law. You need to keep reading the section you referenced (emphasis added): The disclosure...shall be made in writing and delivered through the consumer’s account with the business, if the consumer maintains an account with the business, or by mail or electronically at the consumer’s option if the consumer does not maintain an account with the business Thus, the option to have the disclosure sent by mail only applies to consumers who do not have an account with the business. Since presumably a large number of sites only maintain personal information for users with accounts, such sites need not provide a mail option. Further, it doesn't say there needs to be a button: you just need the ability to say you'd like it mailed to you in the request somehow, and then they need to comply when you do. | Much of your ability to sue the email company for damages depends on local and Estonian laws, but the most important aspect is the TOS and user agreement you agreed to when you originally signed up for the service. Read it (though if the portal is now off-line, it may not be accessible). You may have agreed to hold the company not liable for any damages from loss or stolen data, and you may have also agreed to arbitration and to not pursue them in court. It all depends on what is (was) in that agreement, so find a copy of it; though it's possible that some local or Estonian laws may supersede any contractual agreement with the company. And FYI, the email you received concerning the video and demanding payment in Bitcoin is a common scam right now, and the threat may indeed be meaningless. | According to my knowledge I am not allowed to share other people's full name nor phone number nor email address without their permission. That is not correct. According to GDPR Article 2: 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. 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 Recital 18 states in relevant part: (2) Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. Personal data that is not processed by "automated means", for example data which is transmitted verbally, by hand writing, or by manually sent email, is not covered by the GDPR. Data which is used by a natural person for "personal activities" is also not covered. Consulting one's personal lawyer might well be a personal activity unless it is a business matter. Even if such a transfer of data were in scope for the GDPR, consent of the data subject (DS) is not the only available lawful basis. GDPR article 6 permits any of several possible lawful bases to be used, particularly paragraph 1 point (f) which reads: (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Also possibly relevant is point (c) which reads: processing is necessary for compliance with a legal obligation to which the controller is subject; In short, providing one's personal lawyer with the names and addresses of relevant people in connection with a legal issue is not at all likely to be prohibited by the GDPR, nor to require the consent of the people whose names and contact info are provided. However, a comment by user PMF reads: The Data Protection laws are mostly for companies, not for individuals. This is an overstatement. The laws do apply to natural persons as DCs, although enforcement is largely targeted at businesses, particularly large, for-profit businesses. | it would violate law? It would be very dependent of what your jurisdiction is and what the software does. I would expect most software that would be lawful to install at your home would be lawful to install at your company, but there may be exceptions. To put an hyperbolic example, if you work at the CIA and you install some remote access software that allows you to access your workstation from a non-secure PC through non-secure methods, I am pretty sure that would be illegal, even if you had the best of intentions. A recent scenario taken from real life involves some members an organization who are required to use official e-mail servers for FOIA purposes setting up their own private mail servers. Of course, YMMV. can I purchase it for myself, and then use at workplace Even if the software is legal it does not mean that it is ok to use it at the workplace. Most business have rules about what software may be installed in the PCs, who may install it and how to manage it. Your software could introduce security vulnerabilities that your IT team may need to be aware of, or incompatibilities with other software. It may introduce legal liabilities (you install a "home edition" licence in a corporate environment where that licence is invalid). Your company may discipline you if you breaking those guidelines and install software without authorization, even if there is no harm for them for this action. On top of that, if your actions cause some damage to the company, it can sue you to get you to pay for those damages. Before taking any action you should inquiry about your company's IT policy and, if your company does not have one or if the policy is not clear about allowing you to install the software, ask the people in charge (preferably in writting). | If you are Donald Trump posting under an assumed name then it is illegal, because he is currently president of the USA and not supposed to run any businesses. If you are not Donald Trump, then be aware that Donald Trump owns a trademark for "Donald Trump" according to this site https://onlinetrademarkattorneys.com/donald-trump-trademarks/ so you will be infringing on his trademark. | An email would be enough. As would an SMS. “Designated in writing” is pretty straightforward. |
Can the Whanganui river be prosecuted for corporate manslaughter? On March 15th, 2017, a law was approved in New Zealand recognising the Whanganui River as a legal person. In accompanying media articles it wasn't clear whether this meant a living entity, a person or a human; the article author says "human", the Whanganui representative is quoted as saying "living entity" and Finlayson is quoted as saying "person". I recognise that these are three different (although overlapping) legal definitions carrying different liabilities. And while I would agree that the net ecosystem services of a river clearly outweight its costs even before you consider the social and religious significance, as far as I am aware the law on corporate personhood does not recognise this. If/when you cause harm, you can be sued. Assuming that a direct quote from the minister responsible for the law (Chris Finlayson) can be taken at face value: Te Awa Tupua will have its own legal identity with all the corresponding rights, duties and liabilities of a legal person ... I assume (and it would be sensible if) we're actually talking about legal personhood here. In which case, if the river floods, it is personally (and criminally) liable for the damage? If someone drowns, the river will be prosecuted for murder? What happens if a river goes bankrupt? The Economist article mentions that some NZers have been 'joking' about whether the river can be prosecuted if someone drowns, but doesn't attempt to answer that. I assume it's implying that it's ludicrous, but that's not obvious to me from the information provided. I am interested to know whether this decision potentially creates significant legal liabilities for the river which may not be obvious to those who think this is a straightforward environmental 'win' for the Whanganui. | In context, the answer is clearly not. The precise reason that this is the case, requires a somewhat more sophisticated theory of what is going on than the Economist article cited seems to provide. The most useful analogy to apply to a situation when a river or forest or some other non-sentient being is given legal personality would be the relationship of a guardian and ward. A guardian for a ward can be appointed by a court or other person with a special relationship to the ward (e.g. a parent or deceased parent for a child, or a spouse for an older person, or an indigenous tribe for a river), to look out for the best interests of a ward (sometimes at public expense). A ward could be a minor, or a person with advanced dementia, or otherwise unable to personally take legal action on their own behalf. In this case, the ward is a river. You couldn't prosecute a river criminally or for most civil obligations (e.g., breach of contract and torts) for its own actions for the same sorts of reasons that you couldn't prosecute a six months old, or an individual in a coma, on that basis. A person such as that could neither have capacity to contract nor form the intent necessary to commit a tort and be legally responsible for that tort. In the same way, the river doesn't actually walk into court, or sign affidavits, or sign contracts, or anything like that. Instead, it acts through a fiduciary appointed to act on its behalf in its best interests (in the environmental law context (also here), such a guardian is often called a "Lorax" after the character in the Dr. Seuss book, "The Lorax" who says "I am the Lorax. I speak for the trees. I speak for the trees for the trees have no tongues."). It merely has the capacity to sue, much like a corporation or a trust or a probate estate or a guardianship estate, through a fiduciary appointed on its behalf, and is granted legal standing in cases related to it. If the river enters into contracts through its guardian, however, for example, to provide irrigation water to a company in exchange for the company ceasing to pollute it, that contract would probably be enforceable by specific performance, at least (the river is probably judgment proof, so a suit for money damages would be futile anyway), in a suit to which the guardian would be made a party and have standing to raise defenses. | You are courting seduction by the sovereign citizen doctrine. This is a crackpot legal theory that will get you nowhere. Run away as fast as you can. See, for example, Can a natural US person hold citizenship while remaining non-juridical?. See also "Mercedes-Benz Financial (DCFS Canada Corp.) v. Kovacevic, 2009", CanLII. This person fared particularly poorly because his argument relied in part on the UCC, which is a United States model code, but he was arguing in a Canadian court. Still, even in a US court, he would have lost. See What are "freemen of the land" or "sovereign citizen" theories and do they hold any water?. | It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing, unless the lawyer has some basis for asking those questions. This is not true. A lawyer is allowed to guess and ask such a question, although if it assumes a fact not in evidence it could be objected to for lack of foundation. For example, the opposing counsel could object if the lawyer asked, "After you drank twelve beers at BigTown Sports Bar, isn't it true that you got into a car and drove away?", because there would be no evidence in the record at that point that he drank twelve beers at BigTown Sports Bar. For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash. Sure he could. He could ask, "Isn't it true that you were drunk at the time of the crash?" There is nothing objectionable about that question. If the answer was "no", however, and the lawyer had nothing else to back up that suggestion, the question might not help the case, but the question is proper. Sometimes a lawyer just has a hunch and goes with it, and sometimes the hunch is right. Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here with civil cases than criminal, where a defendant's Sixth Amendment rights might be complicate the question. It isn't codified because such a rule does not exist. There are some special rules that apply to prosecutors, who are ethically required to bring criminal cases only when they believe that the cases are supported by probable cause. But, that rule applies at the case level and not at the question by question level. Lawyers are also prohibited, especially in criminal cases, from making statements asserting personal knowledge of the credibility of a defendant or witness. This is because this transforms the lawyer from an advocate to a credibility witness. But, the lawyer can ask a judge or jury to find that someone is not credible in closing argument based upon X, Y and Z evidence presented at trial. | It depends... It could be an offence under section 5 Public Order Act 1986: (1) A person is guilty of an offence if he— (a) uses [...] disorderly behaviour ... [...] within the hearing or sight of a person1 likely to be caused harassment, alarm or distress thereby. Then there's Causation to consider, which is: whether the defendant's conduct (or omission) caused ... harm or damage. And also recklessness, which can be described as: unjustified risk-taking. In R v G [2004] 1 A.C. 1034 two boys set a fire which caused significant damage. They were charged, and convicted, for reckless arson contrary to section 1 of the Criminal Damage Act 1971: (1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. ... (3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson. This conviction was quashed by the House of Lords who determined that test of recklessness for criminal damage is subjective and should take account of, for example the defendant's age (in R v G they were 11 and 12). The court determination was: A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk. But compare this with DPP v Newbury and Jones [1976] AC 500 if someone were to die as a result of being hit by a brick: The defendants, both teenage boys, had thrown a piece of paving stone from a railway bridge onto a train which had been passing beneath them. The object struck and killed the guard who had been sitting in the driver’s compartment. The defendants were convicted of manslaughter, and unsuccessfully appealed, on the ground that they had not foreseen that their actions might cause harm to any other person. Lord Salmon explained that a defendant was guilty of manslaughter if it was proved that he intentionally did an act which was unlawful and dangerous and that act caused death, and that it was unnecessary that the defendant had known that the act in question was unlawful or dangerous. 1Note that there has to be such a person, not a hypothetical one, to be guilty of this offence. | 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. | It can (and has) been argued that some of the post-bellum trials of Germans and Japanese (but no Italians because they were Allies now) proceeded on shaky legal grounds. However, the arguments of your friend are wrong. In addition, many of the cases proceeded on solid legal foundations based on war crimes (e.g. the Commando Order) and treatment of prisoners-of-war (e.g. the Stalag-Luft III murders). Citizens and non-citizens are protected by the law and were even in Nazi Germany, albeit not equally. The Nuremberg Laws did not classify Jews as non-humans, merely as non-citizens (which is not to trivialise their awfulness). Superior orders has never been a recognised defence for criminal acts under civil or common law. The first recorded rejection of this defence was in the trial of Peter von Hagenbach in 1474. The roots of modern International Law can be traced to the 16th century and were definitely well advanced by the 19th, let alone the mid-20th. Nations accepted that international treaties and diplomacy were supported by international law and these included the Geneva Conventions of 1864, 1906 and 1929, since updated in 1949 (of which Germany was a signatory) among many others. In addition, since the Enabling Act (which instituted Hitler's dictatorship) was quite probably illegal, it can be reasonably argued that all actions that flowed from it (i.e. basically everything that the Nazi's were tried for) was illegal under German law. | It appears you would need to contact the Calgary courts directly to discover more about the case(s) as any case files will likely be held with them. It's possible that the case was dropped, or that they were found "not guilty" which would explain the lack of further news on them. I searched the Canadian Legal Information Institute's website for you but wasn't able to find any criminal cases involving them — only some civil cases around bankruptcy and creditor claims. | Is it true that there has never been a single case It is tough to prove a negative. I am not going to completely parse the quote but please notice that the quote states "we couldn't find" and concludes that "it doesn't happen." Given these two pieces of information I do not conclude that there has never been a single case. Rather I conclude that the speaker in your quote could not find a case therefore he concluded that there has never been a single case. It's largely impossible to determine that there has never been a single such case. We can search published opinions but that barely scratches the surface of lawsuits that are filed. It is entirely possible that someone filed a suit which was quickly dismissed. The Act provides a defense, it does not bar lawsuits. Someone might get sick from food and not know where the food came from so they sue the provider. If this happens the provider may raise the Emerson Act as a defense and escape liability to the extent applicable. But again, we will never know because it's impossible to examine every lawsuit filed in this country. |
Do my wife and I need to update our marriage certificate if she changed her name 3 years after we married? My wife recently legally changed her name after becoming a U.S. citizen. We've been married for 3 years already. How can we update our old marriage certificate from a different state? I'm assuming there might be some point in the future where we need to present a marriage certificate for something, but we don't urgently need it. | No. Separate documentation of change of name, taken together with the original marriage certificate, should suffice. | She never said that She said: When I joined that family, that was the last time, until we came here, that I saw my passport, my driver's licence, my keys. All that gets turned over With respect to my adult children and their passports, the same is true in my house. I ask them for their passports when they aren’t needed, they give them to me, I store them in a safe place and I give them back to them when they need them. That’s just a sensible precaution against them being lost and in no way illegal. Now if I took their passports without permission and withheld them when they wanted them, that would be illegal as it would for anyone else including the Queen (who, I’m sure, had absolutely nothing to do with it - that’s the job of the Keeper of the Royal Passports or some such). Similarly, if you came to my house and I offered to take your coat and you gave it to me and I gave it back when you left, that would be perfectly legal. When I pull up in my car, I put my keys in a bowl in the laundry (unless I forget and then I can’t find them and it’s really annoying). I would prefer instead to have an employee jump into the car, park it and put the keys in their bowl so that when I want the car latter, it’s their job to remember where they left the keys. But I can’t afford that. | 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. | In dealing with financial, medical, insurance and basically any other forms found in the U.S. do I have a legal responsibility to identify myself as Divorced? Or in other words, could identifying myself as Single as opposed to a divorcee incur any type of liability of which I should be aware? Since you specified the financial and medical contexts, yes, sometimes it is mandatory to disclose that you are divorced. Any time your signature is involved, be as accurate as the form allows. The worst consequence I can think of is actually pretty bad ("penalty of perjury" is no joke, and whether or not it should, divorce does impact a surprising number of especially financial considerations.) If possible, it would be better to simply not answer at all than to sign off on something other than the most accurate option available. In these contexts, the designation as having been divorced is often an archaic throwback predating no-fault. For example, divorce adversely impacts your credit (more than the loss of a partner's presumed earning power, the reasoning here is basically that marriage was a long-term commitment you entered into willingly that was not fulfilled.) Jobs or employment opportunities demanding a very high degree of personal integrity may be negatively impacted by having, or having had a divorce, by the same reasoning (the examples that pop to mind are officers the military, depending on the career field.) Divorce can be interpreted as an indication that the individual in question is currently not as stable in their personal life and affairs (moving, figuring out joint custody, jealous/vindictive ex, etc.) as a prospective lender or employer requires. As far as healthcare is concerned, it can have an impact on health care services and how providers interact with you, your ex, etc. (for example, your child's pediatrician.) Having had a divorce can be a flag to health care provider to screen for depression, anxiety, blood pressure, and so forth; likewise, insurance companies consider divorce a "major life event" that qualifies you to change your coverage out-of-season (I don't know, but wouldn't be surprised if divorce somehow impacted your rates because of statistical increased risk of specific ailments.) Furthermore, there can be far-reaching implications for others - how long you were married determines whether or not social security benefits are conferred to a surviving spouse, for example, or calculating your kid's FAFSA in five or ten or fifteen years. | First, it is quite unlikely that a US court would take on the case. Someone will have more details, but for example in EU law if you move away from the place you last lived together, you can only file for divorce in the country where your partner is living (in this case, India). Annullment is a much more serious matter than divorce, so I doubt any American court would take this case: Annulment would mean that a US court would have to decide that an Indian registry office didn't do its job right. Second, A needs convincing evidence. Frankly, "masculine appearance" and "typical masculine voice" are just opinions and therefore not evidence. Even if the court were convinced that B has a "masculine appearance" that's not evidence for being a male. A has to show the evidence, and as half of us know and the other half learned in their biology lessons, there is some pretty convincing evidence that someone is a man which A didnt' mention. And I'd ask anyone not to edit this out, because it is quite essential to the case. B doesn't have to visit a doctor and get a statement that she is a woman (which would destroy any case immediately), because based on the available evidence, A will lose the case anyway. On the other hand, after that court case has finished, B can at any time (after appropriate waiting times according to US law) come to the USA and file for divorce. | Each state, each local government, and each government agency can make their own rules on this question (if it was another U.S. state, a provision called the "full faith and credit clause" requires all other states to honor it). Usually, the Turkish name change document will be honored by any U.S, state or local government agency or institution if (1) the name change document or a copy of it, is certified or notarized, (2) there is an apostille from the appropriate Turkish national government official stating that the certification or notarization is valid, and (3) there is a translation of the document into English that accompanies the original document or certified copy of the document that is supported by a sworn certification from a foreign language translator that the translator is qualified to translate the document and that the translation of the document is true and correct. Sometimes, an agency or institution will also reserve the right to not honor a document if the relevant civil servant has a reasonable belief based upon some relevant fact, that the document is a fake. But, some agencies or institutions could have more relaxed, or more cumbersome, requirements by adopting regulations that say so. For example, many states have laws that allow you to do a name change for purposes of a driver's license from a pre-marital name without any other proof other than simply by declaring under oath that you got married on a particular day and changed your name, since that situation is rarely suspicious and covers the vast majority of cases. An alternative option would be to bring a name change petition to a U.S. court and to have it declare the the Turkish name change is valid, usually with essentially the same kind of evidence, but sometimes with the court allowing you to explain why you can't comply with some formality, because, for example, your country is at war and isn't issuing apostilles or your country doesn't have the concept of notarizing or certifying this particular kind of document, or because you would face persecution in that country if you had to go back to it in order to get that paperwork. Once this was done, all U.S. government, state, and local agencies and institutions would have to obey that court order, and if there are lots of agencies or institutions that have different or onerous requirements, this may be easier to do. There are also some states that recognize the concept of a common law name change. In these states, any name (and sometimes all names) that you voluntarily go by, or answer to, are legally your name, even if you don't have any paperwork to back it up. | The legislation simply provides a novel conversion process for same-sex couples to convert their civil partnership to a marriage, with a date retroactive to the commencement of their civil partnership. See the regulations and the provision of the legislation allowing for this process to be created. There are no restrictions on access to marriage based on the sex of the couple. Any couple can still get married outside of the conversion process, even while in a civil partnership. | It is illegal to marry while you are already married This is the crime of bigamy in all 50 states. A marriage ends with the death of one of the couple, a divorce or (in some very limited circumstances) an annulment. The US will recognise any of these wherever they happen so it’s your choice whether you get divorced in your home country or the US. By the way, don’t cause the death of your husband, that’s also illegal. |
Is it legally binding to have a racist clause in a software license? If I have a software license and somewhere in it states something to the effect of "Only white people can use this software", is it legally binding in the United States? | A software license is a form of giving permission to a person to make a copy of copyrighted material. In this case, the license would be a contract, not a bare license (an open source license may be a bare license, assuming it grants all rights without assigning those rights). The problem is that copyright infringement is governed by federal law, and breach of contract is a state matter. The author gets two cracks at the matter, as copyright infringement, and as breach. There are federal laws against racial discrimination, passed under PL. 88-352. The prohibition of racial discrimination is an enumerated prohibition: you can't, when it comes to voter registration, "public accommodations", schools, labor, and things about the government, but this doesn't extend to absolutely everything. The concept of "public accommodation" comes closest to being an applicable basis for saying "no, it would be illegal", but such an accommodation has to be provided in a physical establishment. The interpretation of "public accommodation" is discussed in this article, which predates internet sales by decades. One might then think that Title II is irrelevant. If the software is sold in a store, that location is plainly a public accommodation, and Title II would render that clause illegal. So to continue the discussion, we have to assume that this was an internet sale. National Federation of the Blind v. Scribd Inc., 97 F. Supp. 3d 565 is a case of interest, involving discrimination for an internet-only business. Citing a wealth of prior cases that don't clearly decide the matter, that court found that the text of the law is insufficient, and other means must be called on to make the determination: While no circuit court has directly addressed whether a website with no physical retail outlet or building open to the public can be a place of public accommodation under Title III, clearly there is more than one reasonable interpretation of the language at issue here. Therefore, the Court may go beyond the text and context of the text to understand the statute's meaning. Canons of construction don't yield clarity either. The court found that legislative intent resolves the matter. The exact reasons are way too long and involved to summarize, but it comes down to distinguishing legislative intent in the case of the Civil Rights Act, versus the later ADA. Citing congressional committee reports, the court found that It was "critical" to define places of public accommodation more broadly than the Civil Rights Act of 1964 because "discrimination against people with disabilities is not limited to specific categories of public accommodations." "Public accommodation" has two different definitions, one (Civil Rights Act) pertaining to discrimination based on race, color, religion, or national origin, and the other (ADA) based on disability. There does not seem to be case law establishing that an internet-only sale is subject to the anti-discrimination provisions of the Civil Rights Act, and some evidence that it is not. The case of Noah v AOL Time Warner, involving alleged religious discrimination in an online chat site, was dismissed for many reasons, one being: Even assuming, arguendo, that plaintiff's Title II claim is not barred by § 230, it must nonetheless be dismissed for failure to state a claim because AOL's chat rooms and other online services do not constitute a "place of public accommodation" under Title II. ... Yet, as the relevant case law and an examination the statute's exhaustive definition make clear, "places of public accommodation" are limited to actual, physical places and structures, and thus cannot include chat rooms, which are not actual physical facilities but instead are virtual forums for communication provided by AOL to its members. A website where one could download software is even less of a public accommodation. So since there is no clear federal bar to racial discrimination in a software license, it is plausible that an infringement case could survive. It is not clear how the case would fare in state courts, since states often have even stricter anti-discrimination laws which could render that condition in the contract unenforceable. The clause might be deemed illegal on general "public policy" grounds. If the contract (license) has a severability clause, the overall license should survive, just omitting the racial restriction. Without such a clause... if the contract is held to be void, the customer does not have permission to copy (which comes from the contract), and thus has infringed copyright law. Insofar as there is no serious question that the courts would find such a license to be repugnant, it is hard to imagine the courts saying "but, by the letter of the law, this is allowed". The most likely path for reaching that end is for a higher court to disregard a part of Noah and discover that internet sales fall within the category of public accommodation. This issue has not been clearly decided to the best of my knowledge, and it's not at all easy to compute the federal outcome based on statutory and case law. | Is this legal? Generally yes, unless it unlawfully exceeds the scope of the license. Also, if it is, how can I check if it's permitted by the original store's EULA? Read the whole EULA, focusing on terms related to resale, assignment, and transferability. | 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. | The legal issues are too black and white to have any meaningful impact on an ethics discussion. The IP belongs to A and B can't use it. A's not planning to build a product around the patent is irrelevant to the law and I do not see it bring up any ethical issue, but some people who do not understand patent law might. There might be ethics issues if A hired Josh with the specific plan to fire him as soon as the application was filed and intentionally misled him about these plans. Another issue might be Josh's duty to not disclose A's confidential information (the application does not become public right away), and Josh's duty to not draw B into developing an infringing product. | It is entirely legal to discriminate on arbitrary grounds. What is not legal is to discriminate on the basis of a protected category, for example race. The law say that you cannot favor or disfavor a customer because of their race. Federal law specifically prohibits discrimination on the basis of race, color, religion, or national origin, but not age or gender (disability is more complicated). Moreover, the grounds are not arbitrary. The establishment is at legal risk if a customer does not wear eye-protection, and you have no right to compel them to assume that risk: it's a perfectly normal business decision. The law states that "Customers are not allowed to use a tanning device unless the customer uses protective eyewear", and verifying that you have such eyewear is the minimal way of assuring compliance with the law. | You seem to assume that copyrights require paperwork such as registration. This is wrong, copyright is automatic. And it prevents the downloader from making the sort of change that you suggest. In fact, it prevents the downloader from using your template at all. The only reason the downloader can use that template is because you've granted him a specific license to ignore some copyright rules, but the default remains. And you did not grant the right to alter the template to free users. | The creator of the software doesn't provide any warranty. If you feel confident in the quality of the software, nothing stops you from providing a warranty. If the software doesn't meet your guarantees, you will have to pay out because you provided the warranty, depending on the terms. Not the creator of the software because they explicitly didn't provide any warranty. If that's what you want to do, go ahead. I wouldn't. You don't have to republish under the BSD license, which you wouldn't. You must attach the license terms, which clarifies the role of the original creators, and that they don't give a warranty. Doing this allows you to copy the software. It doesn't mean you can't provide a warranty. | You probably can. There are a few questions here. First, is the message protected by copyright? In general, it probably is, but there are many exceptions that might allow you to use it without permission. Unfortunately, these exceptions vary from jurisdiction to jurisdiction. The exceptions tend to allow the use of small excerpts of a work for various sorts of purposes that don't undermine the copyright holder's ability to profit. That leads to the second question, which is why you are using that message. If you're including it in your source code so you can test whether a message generated at run time is in fact that message, that's one thing, and it's probably okay. On the other hand, if the owner of the copyright sells a database of all its message strings, and you're compiling a similar database that you also intend to sell, that's probably not okay. A third question concerns the Firefox license terms. It's entirely possible that they allow you explicitly to do what you're considering, in which case it doesn't matter what copyright law says about it. On the other hand, Firefox is open source software, and under some open source licenses, if you incorporate any of the source code in your own product, you are required to release your product's source code under the same license. If you're not already planning to do that, you should consider carefully whether including that error message would trigger that provision (if there is one) of Firefox's open source license. |
Can you be arrested for something you say while bound by a confidentiality agreement? It seems odd to me that a confidentiality agreement could actually increase your odds of being arrested, but it happened. I was once arrested and sent to jail overnight for public intoxication while bound by a written doctor/patient confidentiality in that doctor's private office. The reason, according to the doctor, was for answering "yes" to the question she had asked me without provocation: "Would you normally proceed to drive home in this state?". Shortly after that I was feeling ill and went to the restroom and threw up. I came back into the doctor's office to find two policemen waiting for me. I never understood why that was legal and never got much of a chance to defend myself but it definitely felt like entrapment. I went to try to get help and the counselor sends me to jail? Does not compute. But I am not a lawyer. | California Penal Code 647f states that being intoxicated in public is prohibited. When the police arrived, they were confronted with probable cause for an arrest. They (presumably) became aware of the matter because the doctor called the police, since she believe that you would drive drunk. (We can inquire into whether that was a reasonable belief, but it doesn't matter, what matters is that she had the belief and acted on it). Now the question is whether the doctor acting on the belief (making the call) was legal. A negative answer does not affect the legality of the arrest. There is also a law imposing on medical professionals a duty to report, which is fairly wordy, but does not seem to directly require reporting the fact that a person is publicly intoxicated. However, attending circumstances could have suggested one of the triggering causes for mandatory reporting (wounds, for example). Again, it does not matter (to a point) if, in the light of close scrutiny, the doctor's conclusions were mistaken. When doctors are required to report facts to the police, reasonable over-reporting is not penalized. There is also no law against calling 911 to report a potential DUI (the usual public-campaign focus is on those actually driving). So calling the police under the circumstances falls between "allowed" and "required". The HIPAA privacy rule could be relevant because that theoretically could block the doctor from making the call. (Note that the doctor, and not the patient, is bound by the confidentiality requirements). §160.203 allows exceptions to the confidentiality requirement if "necessary... For purposes of serving a compelling need related to public health, safety, or welfare", so an exception may have been granted. If this was done within the scope of a mandatory reporting law, it is legal to disclose PHI; under §164.512 it is allowed, "to prevent or lessen a serious and imminent threat to the health or safety of a person or the public". A confidentiality agreement would not increase your chances of being arrested. If the doctor's confidentiality statement were less restrictive than HIPAA, HIPAA prevails (the law trumps contract terms). If it is the same as HIPAA, it has no effect (and simply states what HIPAA says – the normal case). If the agreement were more restrictive, it is possible that the doctor calling the police would be a breach of contract, unless the call was required by law. You would have to see what in the agreement would have prohibited calling the police. But that would not affect the validity of the arrest. To re-phrase the matter: the arrest was because you were found to be intoxicated in public. The police were there and could judge your state (probable cause). They were there by permission of the property owner, so the arrest was not unlawful for lack of a warrant. That is as far as one can go in searching for an illegality to the arrest itself. One might go further and ask whether the doctor has committed an actionable wrong by calling the police with her suspicions. This could go either way: it really depends on the full set of details, regarding your condition. If the doctor suspected that your actions fell under one of the mandatory reporting categories, she had to report, and otherwise it is not prohibited under HIPAA. If a person is intoxicated and answers the question "Would you normally proceed to drive home in this state?" in the affirmative, then it is a reasonable inference that the person will do so. An answer "No, absolutely not", on the other hand would work against the "public danger" inference: that has no effect on the arrest, but could have an effect in a suit against the doctor (violation of the privacy rule). In such a suit, the doctor's defense would presumably be that despite the answer, she still had a reasonable belief that you were a public danger. Then the matter would reduce to what other facts she knew of that would support a public danger conclusion. | A related post is here. Are police required to record in car dashcam video for traffic tickets in NJ, USA? Probably not. Is there any way to find out if they aren’t telling the truth? Ask and hope you are not lied to. Can I contact the police chief, mayor, or municipal judge? You can contact the police chief or mayor if you can get through to them. They are not required to answer you unless you make a formal discovery request or public records request. You cannot make ex parte contact with a judge when the other side's lawyer (in this case, the city's lawyer) is not present. How can I defend myself in court trial if the judge always believes highly credible police officers over defendants if I don’t have video? You can tell your side of the story under oath with any details that makes your story believable. You are correct that the judge will usually believe the police officer and not you. So, usually you will lose. This is one reason that most people try to plea bargain their traffic tickets, rather than going to trial. Due process rights give you an opportunity to tell your side of the story when contesting a ticket, but it doesn't give you a right to win (even if you are actually in the right) if the judge or other trier of fact doesn't believe what you have to say. It does not appear that you have a right to a jury trial in a traffic case in New Jersey, although this depends to some extent on the kind of violation being charged, so you are probably stuck with the beliefs of the municipal court judge about who is the more credible witness. | There is a world of legal difference between a doctor or counselor "pressing" you to consider meds and even suggesting several and them actually writing a prescription. The line to cross is a non-doctor writing you a prescription for prescription meds; this has not yet happened. And 99.99% of the time, it won't happen. The counselor is licensed by the state and will clearly know their legal limits, which are an important part of their education and licensing; they are not going to risk their license or a lawsuit by doing something illegal. If the counselor is a doctor and is able to write prescription, then they will ask you about medical history and other meds during a formal clinical visit in order to write the prescription. If you feel the counselor may be pressing you too hard to consider meds, he may be crossing an ethical line, but that's entirely different than breaking the law. Determining if he crossed an ethical line is for his licensing board to consider, not you. You can ask the licensing board how to proceed. Ask the counselor for their license number; they will freely give it and tell you who to contact. | This negotiation tactic is not a crime, but it does implicate an ethical rule for attorneys, Rule of Professional Conduct 4.5, which exists in some states, but has been dropped from the national model rules promulgated by the American Bar Association and is a controversial matter from state to state with several variant forms in different states. In Colorado, the relevant rule of professional conduct for lawyers (Rule 4.5 Threatening Prosecution) states: (a) A lawyer shall not threaten criminal, administrative or disciplinary charges to obtain an advantage in a civil matter nor shall a lawyer present or participate in presenting criminal, administrative or disciplinary charges solely to obtain an advantage in a civil matter. (b) It shall not be a violation of Rule 4.5 for a lawyer to notify another person in a civil matter that the lawyer reasonably believes that the other's conduct may violate criminal, administrative or disciplinary rules or statutes. The concern about the statement in the question is that mentioning that certain allegations would be put in a publicly filed complaint is an implicit threat to expose criminal acts of the other party if the other party doesn't cooperate, but to refrain from doing so if the other party cooperates. This violates Rule of Professional Conduct 4.5(a) above, and goes beyond Rule 4.5(b) above which states that it is not improper to simply tell someone that it may have been illegal and a crime to do the things that he did. The critical distinction is the implied promise not to disclose these crimes publicly if the other party cooperates by not filing the proposed complaint. Under Rule 4.5, a lawyer can tell someone that certain conduct is probably illegal, and can unilaterally report illegal conduct, but can't hold open the possibility of not reporting illegal conduct to gain a civil advantage. The theory is that it is contrary to public policy for a lawyer to put himself or his client in a position where he is promising to help cover up a crime or other violation of the law. This is controversial, and is not adopted in all states, because it makes some very subtle distinctions that often hinge on strongly implied concepts, and that it provides benefit when applied in many cases to someone who has broken the law, instead of making their violation of the law something that makes them worse off in civil cases as well as in other contexts. There is not a counterpart to Colorado Rule of Professional Conduct 4.5 in the Rules of Professional Conduct of New York State, New Jersey, or Florida. So, to the extent that this conduct is subject to ethical rules in any of these states, it would only be indirectly through, for example, through Rule of Professional Conduct 8.4 in each of these states, which is a general catch all clause prohibiting lawyers from committing culpable crimes or that is dishonest or that is prejudicial to the administration of justice. Rule 8.4 is the counterpart for lawyers of the substantive offense in military justice that a military officer has failed to comport himself as an officer and a gentleman. The history of the decision to remove an express prohibition on threatening prosecution from the ethical rules for lawyers is explained in a 2008 ABA article that also discusses how liability might arise under Rule 8.4. In general, there is nothing wrong with making threats in a negotiation. Often that is precisely what negotiations are about. What is (arguably) wrong is making criminal, administrative or disciplinary charge threats in a civil lawsuit to gain advantage in a civil lawsuit. A prosecutor is perfectly free to make those threats in a criminal case, for example. Similarly, it is perfectly acceptable to make a threat of civil legal action, such as filing a lawsuit, in a civil matter, so long as it doesn't imply a threat to bring criminal, administrative or disciplinary charges if the other side doesn't cooperate. Whether it is proper for an attorney to do this depends heavily upon the state in which this negotiation is taking place, which is not identified in the question. | If you consent, the evidence can almost certainly be used against you. Florida v. Bostick, 501 U.S. 429 (1991) ("Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, and request consent to search.") If you refuse consent, it is not clear whether the evidence can be used against you, as we don't know why the officer is asking to frisk you. A stop-and-frisk must be supported by a reasonable and articulable suspicion that you have just committed or are about to commit a crime, and that you are at that moment armed and dangerous. If they reasonably suspect you have just committed a crime but do not reasonably suspect you are armed and dangerous, the police may stop you, but they may not search you. That point is worth emphasizing because several other answers are incorrectly assuming otherwise. For one example, in Thomas v. Dillard, 818 F.3d 864 (9th Cir. 2016), the police responded to a report of domestic violence. Based on their reasonable and articulable suspicion that the suspect had committed that crime, the police stopped and frisked him. Because they had could reasonably explain why they thought he had committed a crime, but could not reasonably explain why they thought he was armed and dangerous, the court said the stop was legal, but the frisk was not: Whereas the purpose of a Terry stop is to further the interests of crime prevention and detection, a Terry frisk is justified by the concern for the safety of the officer and others in proximity. Accordingly, whereas a Terry stop is justified by reasonable suspicion that criminal activity may be afoot, a frisk of a person for weapons requires reasonable suspicion that a suspect is armed and presently dangerous to the officer or to others. A lawful frisk does not always flow from a justified stop. Rather, each element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined. Even then, the search is basically limited to a minimally intrusive patdown to ensure you don't have any weapons on you, and the officer is generally not permitted to actually search inside pockets or the like, though the search may escalate based on what the officer is able to feel during the patdown. Minnesota v. Dickerson, 508 U.S. 366, 375–76 (1993) ("If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, ... its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.") The refusal to respond generally operates as a refusal to consent. The police are therefore free to conduct whatever search they could have conducted without your consent. If they have a reasonable, articulable suspicion that you're carrying a gun, they can probably frisk you to see if that's the case. If they have a warrant to search your pockets, they can search your pockets. If they don't have any of that, they need to keep their hands to themselves. | Generally... There are important caveats to the general "two-party" consent rule in the State of California; I will attempt to generally describe some of them. "To violate the PC section 632 rule the communication must be "confidential" - this means that recordings taken in places where the other party should have reasonably expected the communication might be overheard or recorded are not covered." (Wilkins v. NBC, Inc. (1999) 71 Cal.App.4th 1066, 1079.) "[A] conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded." (Flanagan v. Flanagan, 27 Cal.4th 766, 768 (2002)) Accordingly, if one as a complaining party tries to prove that one had a reasonable expectation of privacy it is not enough that one proves that one reasonably thought it was possible or even probable that the conversation was not overheard, monitored or recorded; one must be able to establish that a reasonable person in the same circumstances as one would objectively, that is based on the sum of factual circumstances, assumed a conversation was confidential. This shows well through the following authorities: "A conversation is deemed “confidential” under § 632 of CIPA only if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. Flanagan v. Flanagan(2002) 27 Cal.4th 766, 768, 774–776; Vera v. O'Keefe (S.D.Cal.2011) 791 F.Supp.2d 959; 1396;. Whether there exists a reasonable expectation that no one is secretly recording or listening to a phone conversation is generally a question of fact. (See Kight v. CashCall, Inc. (4th Dist. 2011) 200 Cal.App.4th 1377, 1396-97; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 169.) However, where the facts are undisputed, the court may decide the issue as a matter of law. (See Weiner v. ARS Services, Inc. (S.D. Cal. 2012) 2012 WL 3632025 (finding circumstances of call, including its short duration, indicated no expectation of privacy).” An important point is made here: No one assert an objectively reasonable exception if the time to evaluate the circumstances of a conversation or the intention, manner and other factors of the other party to engage in a conversation within an objectively insufficient time. Therefore, the duration, and even more so, the shortness of a conversation can very well be determinative of the reasonableness of a party to complain about their expectation to a part or the entirety (for e.g. in an extremely short exchange) of a conversation. This should come as no surprise: If we ever wondered as to how one may overcome the catch 22 of being accused to have begun recording a conversation if one notifies the other party of the recording just prior to beginning the recording since the notice would not be recorded or being accused for invasion of privacy under California Penal Code § 632 for the part of the conversation recorded just before the lawful indication of the lack of objectively reasonable expectation towards confidentiality in the conversation (for e.g. announcing the fact it is not a confidential call or that it may be recorded), is resolved in this. Again, it is, because the criminal threshold to be met, there must be an objectively reasonable expectation to privacy. If one by act or word calls that into question sufficiently that a reasonable person would not be able to objectively expect that the conversation is private or confidential, it no longer is: It implies that private conversations are the exception, and not the rule although the general perception may differ. This, will now be clear through the definition of confidential communicate in the state, too: “Penal Code § 632(c) defines “confidential communication” as including: any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made . . . in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. To me, through this excerpted quote of the statute, it does appear as to leave an in-between grey area since it does not exclude communications in any other circumstance where circumstances do not reasonably indicate that no party desires it to be confidential, but only in those circumstances in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. Which indicates toward the general reading of the statute that confidentiality is the rule, and public communications are the exception. However, authority has consistently reenforced the more restrictive approach. Returning to the previous point, due to the above standard test of confidentiality per, among others, Frio that requires a reasonably objective expectation to privacy, it will be clear as to why it is generally sufficient also to announce a call may be recorded or a call may be monitored — this latter announced solely is fairly rare. (See, e.g., Kight, supra, 200 Cal.App.4th at 1396-1397) Since such announcements in themselves call anyone's reasonably objective expectation to privacy into question, that is, an average person at least contemplates the very real possibility of overhearing or monitoring. Also another consequence which may seem obvious at this point is that since it is not really "consent" that is a prerequisite, but a reasonably objective expectation, and though a fairly low bar, it is effectively imposed on the complaining party, and not the party wishing to record therefore "for purposes of section 632, the privacy rights affected are the same regardless of whether a conversation is secretly recorded by a machine or monitored by a human being” (See, e.g., Kight, supra, 200 Cal.App.4th at 1396-1397) since the threshold is reasonably objective expectation to privacy and effectively not presence or absence of consent; however, if consent is express, than there is, clearly, no reasonably objective expectation to privacy. "Two-party consent" not all party consent? This also leads to the hypothetical: What if in a group one asks another if one can record the conversation, and the other answers in the affirmative, and one begins recording: Would that allow for the recording when the other parties to the conversation haven’t answered? My reading of these interpretations would be that if everyone else in the group made heard the question would no longer have an objectively reasonable expectation of privacy furthermore, their consent would also be implied by not objecting and/or proceeding with the communication. So multiple defenses could be used in a case like this — non-confidential communications as well as consent. An even more extreme, and to many, hardly fathomable scenario would be if one party explicitly objects to recording — however, only after an announcement objectively defying any reasonably objective expectations of confidentiality — what would then happen? Recording, absent any reasonable expectation to confidentiality, let alone one such that is objective, without a problem, should be able to be made. An example of this is typical to situations of domestic violence and/or divorce attorneys where they teach a longer disclaimer something along the line: “I will begin recording hence if you continue you will be deemed to have consented to bring recorded” etc., where they typically proceed even against objections. Although this may be much more than what’s minimally required to lawfully record, these disclaimers will probably have a better deterring effect to stop an assault or other aggression than a beep-tone warning that another party may simply disregard. Beep-tone warnings An important, and fairly obscure and unknown consequence of the above espoused interpretations is the so-called beep-tone warnings for recordings or monitoring of calls. In Air Transportation Association of America v. Public Utilities Common of State of California the California Appeal Court for the 9th Circuit found that if "[a] person wishing to listen in on a conversation without violating the regulation can provide notice by using a beep-tone warning device audible to all parties to the conversation[...]". The rationale follows the previously analyses and is based on the following facts: A reasonable person would have an objective expectation that an ordinarily operating telephone or other customary audio-transmitting devices would cause no beep-tone in order to operate hence being made heard a beep-tone should call a reasonable persons expectation to the ordinary and/or customary operation of any such remote communication device to the extent that it could not maintain a reasonably objective expectation to his or her communication. In a fresh, though unpublished opinion in Smith v. LoanMe, Inc. (2021), an Appeal Court did not vitiate this specific interpretation as it would likely have called the rationale behind it into question as well. "Admissibility" of unlawfully obtained audio recordings Generally, due to the "Right to Truth-in-Evidence" provisions of the California Constitution, a previous statute, Pen. Code § 632(d) was repealed and such evidence became admissible for the purposes of combatting perjury though the person creating such record would still face criminal prosecution for the unlawful recording under § 632; however, I'm less versed in this corner of the statute hence it is highly ill-advised. “[E]vidence of confidential conversations obtained by eavesdropping or recording in violation of Penal Code Section 632 is generally inadmissible in any proceeding…but can be used to impeach inconsistent testimony by those seeking to exclude the evidence.” (People vs. Crow (1994) 28 Cal.App.4th 440; Frio vs. Superior Court (1988) 203 Cal.App.3d 1480.) To answer your questions more specifically... If you have a good faith duty as a result of a contractual relationship between yourself and those you wish to record, you could potentially be sued for damages for a breach of the covenant of good faith duty and fair dealing if you somehow manage to lawfully notify the other party, but he could prove that you had a bad faith intention and intentionally chose a manner to mislead them. It does not seem plausible to me how they could prove this, but it certainly is within the realm of possibilities. As you can see: California's ban, as it is similar with probably other states, is not a ban for recording, per se, it is a ban of recording or monitoring of confidential conversations. Therefore, simply allowing someone else to eavesdrop on the conversation would implicate the same criminal consequences absent objective indications that would call the to-be-recorded party's reasonable expectation to privacy as you could probably thought so by now. Conclusion As you can see, many of the caveats to the statute are such that the general public would not know, and if you were to record someone, knowing that simply announcing that a call may be overheard or that someone may hear it who will not be part of the conversation or using a beep-tone warning device audible to all parties may each call the reasonably objective expectation of a to-be-recorded party into question which may be useful. | Probably not. It appears that in the case in question, your lawyers, while they were representing you, agreed to a protective order that kept certain information including settlement offers made to them by the opposing parties' lawyers (even if those offers were rejected) confidential. You are bound by the agreements made by your lawyers if they are your lawyers at the time, even they later cease to be your lawyers. So, if you were to make the disclosure of this information subject to a protective order, the court involved could hold you in contempt of court and issue sanctions (including fines and incarceration) for failing to honor the court order to seal the case, because this protective order was binding upon you, because you agreed to it through your lawyers who were acting as your agents at the time. The fact that you are no longer represented by those lawyers doesn't vacate the protective order. CAVEAT: This is an interpretation of the facts made with incomplete information. A truly reliable answer would require review of the exact documents in the case filed with the court which is beyond the scope of Law.SE. | Confidential is simply a less "forceful" name than "privilege". If something is "confidential", this means that the recipient won't voluntarily blab it. This covers a multitude of sins. The rubric I was taught in law school is that even the front page headline of the New York Times if it relates to your case, it is confidential, because you don't want to tip off an adversary who may not have read that paper that day for some reason to the disadvantage of your client. If something is privileged, you can't be compelled to do so involuntarily. A "privilege" is a more "forceful" word. In practice, most stuff that you have a legitimate need to keep secret in the face of compulsory evidence gathering tools are privileged, and confidential matters not covered by a privilege are kept that way because it is best practice not to be source of an opponent's discovery of information and not because it can't be found any other way from something that someone has a legitimate reason to keep secret from someone in a lawsuit or criminal case (which is the main circumstance when privileges are invoked). |
Chain of Custody So chain of custody is obviously important, but why? I have seen many articles referring to drugs and one where the murder weapon was handled without gloves. But what about other types of evidence being mishandled. For example if a weapon believed used in a crime was in evidence and it was revealed at the time it was taken and stored before forensics in a evidence room that was unsecured, unguarded and other evidence was definitively tampered with. Would that mean the evidence regardless of the follow on forensics has a broken chain of custody? i.e. that department mishandled evidence in general as a practice and that resulted in a blanket dismissal for the time period. Due to bad paperwork practices the case for that evidence was filed (The evidence was sent somewhere else for forensic testing and the paper trail started there). The question is basically if evidence was mishandled, regardless of the evidence type, is that a broken chain of custody and if so does that mean the evidence will be excluded? | Physical evidence must be authenticated to be admissible as evidence in court. In other words, the person seeking to introduce it as evidence must show that it is what it claims to be by some means (there are many legitimate ways to authenticate evidence). A chain of custody is used to authenticate physical evidence. Even if physical evidence can be authenticated sufficiently to be admissible as evidence, evidence that there was a break in a chain of custody could create a reasonable doubt that physical evidence which is key to obtaining a conviction is really evidence that was collected, for example, from a particular crime scene at a particular time. This doubt could provide a basis for an acquittal of a defendant in a criminal trial if that piece of evidence was an important part of the case to show that the defendant was guilty. | 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. | This wouldn't be customary and is probably improper, but the judge may have been trying to do you a favor. In the absence of being under oath, the judge could not consider anything said in your closing statement as evidence. If you are under oath, the judge can weigh something you say in your closing statement against the other evidence when making a ruling. | 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.) | Those seeking to work with children should1 have an Enhanced with Barred Lists DBS check which will show (in addition to any unspent convictions, conditional cautions, reprimands, final warnings, and whether they are barred from working with children) any information held by local police that’s considered relevant to the role. Whether the police consider an arrest that did not progress to a charge being made to be relevant or not is fact-dependant based on (for example) the nature of the allegation, any evidence or information supporting or negating it, what a suspect said in interview and any other information available to them. 1One can check the actual level of check required here | “Anything you say can be used against you in court.” Is what the police say in the USA. “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?” is what they say in New South Wales. “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.” is what they say in England and Wales. And so on. Whether Mark wants to mention that he was robbing a bank on the far side of town at the time is entirely up to him. If he does, and that can be verified it’s likely the murder charges will be dropped and armed robbery charges will be brought instead. Note that in many jurisdictions, if the defence intends to use an alibi defence, the prosecution must be told about it at a very early stage or it can’t be used at all. | 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. | The evidence will almost certainly be inadmissible And, of course, you will be disbarred and never work as a lawyer again, you might also go to jail for attempting to pervert the course of justice. Whether the person is convicted or not will depend on the strength of the other evidence the state has. In the notorious case of Lawyer X, Nicola Gobbo was acting as a barrister for a number of Melbourne underworld figures while simultaneously acting as a police informer. A number of those convicted have successfully appealed their convictions on the basis that they didn’t get a fair trial. In their judgement on AB (a pseudonym) v. CD (a pseudonym); EF (a pseudonym) v. CD (a pseudonym) [2018] HCA 58 the High Court said: But where, as here, the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield. EF's actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF's obligations as counsel to her clients and of EF's duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. |
If I do a program in C # with the SharpDevelop........? If I do a program in C # with the SharpDevelop 5.1 IDE under what license would the program be submitted? can I sell it or use it in a private company? | If you develop a program yourself and it wasn't a work made for hire, then the program is yours to do with as you please. You hold the copyright to it. Many developers choose existing licencing arrangements or they can choose to create a license on their own, or using an attorney. And sometimes they choose to release their programs into the public domain. If you release it into the public domain, you are essentially giving up your copyright. The IDE (Integrated Development Environment) you used to develop your program does not dictate what licenses you can use. There are some existing licenses that others use (which you are free to use or NOT to use) give varying protections to you regarding what you are allowing others to do; right of others to copy, right of others to modify, right of others to distribute, rights to sub-licence, and so on. One of the licensing schemes is the GNU General Public License (GPL). But there are many others, too many to list here. | In the US, code that you write in the course of employment is the property of your employer. Otherwise, anything that you create is your property. The gray area is things that you write during your employment but not in the course of your employment (hence the terms of the employment contract are vital). Something that you write before becoming an employee is not "in the course of employment". However, if you use that code in the in the course of employment, you invite the argument that in fact the code was written in the course of employment. That argument can be squelched if you have an agreement with the employer that acknowledges that you are licensing your code to the employer in exchange for ... some consideration. It could be $1, or a similar unit of currency. | My understanding is that here "derived from the program" means "created by modifying the source code of the program" and not "created by running the program". Certainly that is the way all users that I have heard of treat the matter. Note that a commercial program, such as a word processor, will be fully protected by copyright, but the maker does not claim to have any rights over documents written using it. "Derived" here seems pretty clearly to mean "derivative work" in the sense in which that term is used in copyright law. In copyright law "derived work" is a term of art with a definition specific to that field. | Check your license! By operating the original client, you might have agreed to a license, the EULA. Check that license for what it says about you being allowed to do with the product. In a recent case of Bungie vs. Elite Boss Tech, a US court found in a default judgment that a certain cheat software that would interact with both the game's client and the company's servers among other things did... constitute copyright infringement [as a derivative work] was a breach of contract [formed by the EULA and agreeing to the Terms of Service for the game] was interference with Contractual allegations [of other users that obtained the software] However, not all internet games or experiences are locked down like that. Other companies do offer an open API set or terms under which a client's software may be modified. As a very generous example, LindenLabs does for its SecondLife Virtual World, for which they provide not just the framework, but also the terms under which you are allowed to make a third party Viewer Sometimes, the Terms of service are rather hidden. For example, the Chinese Go platform Fox Weiqi operates in china. To get to the terms of service, you need to download the free client, go to Settings (via the cog), then choose 野狐围棋用户协议, which is Chinese for Wild Fox Go User Agreement. This links to https://edu.foxwq.com/complex/useragreement.html. The user agreement is of course in Chinese, but Google Translate manages to get that to English. It contains the following clause: 7.2 Unless permitted by law or with the written permission of Yehu, you shall not engage in the following acts during the use of this software: ( 1 ) Delete the copyright information on the software and its copies; ( 2 ) Reverse engineer, reverse assemble, reverse compile the software, or try to find the source code of the software in other ways; ( 6 ) Log in or use Yehu Go and its services through third-party software, plug-ins, plug-ins, systems not authorized by Yehu, or make, publish, and disseminate the above tools; ( 7 ) Interfering with the software and its components, modules, and data by itself or authorizing others or third-party software While it takes a court to see if the terms hold water and are actually enforceable because of how the EULA is offered, the face value of those clauses is, that it is forbidden unless you have a specific law that allows such or you obtain written permission. With that kind of possible liability that might cost millions, there might be serious legal problems. Read your license agreement and terms of service and consult a lawyer. | Why do you think Oracle have not been protecting their trade mark? Using a trade mark to describe the product (“Written in JavaScript”, “Seeking JavaScript developer”) is not an infringement and the trade mark owner is under no obligation to, indeed, cannot stop this. Where they are required to defend their trade mark is when it is being used in such a way that there is the risk of confusion that the goods or services could be confused with the trade mark owner’s goods or services. Further, they are not required to defend all breaches, only enough to show that they are actively doing so. Also it is not important that the trade mark be associated with the trade mark’s owner. Do you know who owns the trade mark “Ben & Jerry’s”? | Strictly speaking, yes, Microsoft owns the copyright for all that stuff. But they grant users a license. So it's a matter of knowing what they let us do with it. I grabbed the EULA for Excel 2013. You'll want to check your version. My reading of this is that you can do the thing that you want to do. M. ADDITIONAL LICENSING REQUIREMENTS AND/OR USE RIGHTS ... Media Elements. Microsoft grants you a license to copy, distribute, perform and display media elements (images, clip art, animations, sounds, music, video clips, templates and other forms of content) included with the software in projects and documents, except that you may not: (i) sell, license or distribute copies of any media elements by themselves or as a product if the primary value of the product is the media elements; (ii) grant your customers rights to further license or distribute the media elements; (iii) license or distribute for commercial purposes media elements that include the representation of identifiable individuals, governments, logos, trademarks, or emblems or use these types of images in ways that could imply an endorsement or association with your product, entity or activity; or (iv) create obscene or scandalous works using the media elements. Other media elements, which are accessible on Office.com or on other websites through features of the software, are governed by the terms on those websites. | How can you get in trouble? If they see any code you wrote for them show up in your open source project. They own the code you write on company time. Even if your code goes into an open source project owned by the company, you still don't own that code. The only way you can own it is if they directly tell you that you may put it into your open source project. If you make your open source project private so nobody else can see the source code, but they see your side business has the same features you wrote for them. You can try to get around problem #1 by hiding your open source project. But if they see the same features in it that they told you to write for them, they can become suspicious. They might force you to reveal the source to them in court. If you don't want them to see it, they may force you to share it with a third party who is bound by an NDA. The third party can compare your code to theirs and report if you copied any code. Even if your work is not directly related to the company products, your work for them can be a company secret. You reveal that, and you are in trouble. You say your work improves internal procedures, but is not directly related the company products. If a company can reduce its cost, it can lower its prices and still make more money than their competition. That gives them a competitive edge over other businesses. By revealing how your employer does its internal work, you give that competitive edge to their competition. Although you say your open source project does not violate rule #4 - "does not reveal company secrets" - all three explanations mentioned above say it does. What can you do? Quit and start your own company based on your open source project. If you quit, you should do it before you write any code related to your project for your employer. Ask your company to fund your project. Talk to your boss and anybody else there who might be a stakeholder. Tell them what you can do. Make a deal with them that you get to work on your project during work hours. Maybe they could turn it into an additional source of revenue for the company. That changes you from a potential loss into a valuable asset. Their competitors might end up buying products based on your code. Many companies would love for their competition to pay them. Ask your employer to allow you to turn your work into your open source project. Some companies require employees who work on open source projects to give their employers a royalty-free license to use and modify the work as they wish. Ask your employer if they would use a product based on your project. You can start a side business (with your employer's blessing), and turn them into your first customer. They get access to a beta product before their competitors do. Promise them they get it free or at a hefty discount for a year or two before the competition even knows what you have. The first option is win/lose. You win and your employer loses. The other three options are win/win. Good luck! | You can read it, you can examine it to the point where you understand it, and then you can get inspired by the code and write your own code, without copying the code on the website, which does the same thing. If there is no license, then you can do what copyright law allows you to do. You are not allowed to copy the code, or create derived works by taking the code and modifying it. |
What is considered appropriate dress for a magisterial district court? I have made a civil complaint in my local magisterial district court and received a notice to defend from the defendant, so I will need to go to court at the end of this week. I have lost some weight due to exercise recently and my suit no longer fits comfortably (nor looks very good). I'm also not sure where my tie is. Unfortunately, the notice to defend was lost in the mail and I just found out five minutes ago that I will need to show up for court. Is it appropriate to show up to court in slacks and a golf-T, or slacks and a button down shirt, instead of a suit? Or should I wear the suit and try to make it look as best I can? My first instinct was that magisterial courts may be more lax than county courts, but my second instinct was that magisterial judges may be more sensitive to dress due to that very presumption. I am looking for a practical answer to this question. While I know that there likely isn't any absolutely enforced dress code, dressing too casually will surely bias the judge against me. I would like to know where the line is likely to fall for most judges. | You should definitely wear a tie with a button down dress shirt appropriate to wear a tie with (I am assuming you have male gender identity based upon your question). Slacks and a sports coat would probably be acceptable in lieu of a suit if you are pro se rather than a lawyer. Many judges expect at least a jacket and tie from men. Another approach, if this involves your profession or business, is to wear what would would wear to work, e.g., a work uniform. But, local custom varies considerably, and you didn't state where you are located. If you really want to be sure, go to the court on a day before your appearance date early in the morning when court opens and observe what other people are wearing for ten minutes. This will also prevent you from being late to court on the day you are set to appear because you get lost or have trouble locating a parking lot or didn't realize how long it would take to get past security. | If there is a divorce case and through the process of declaring a parties financial position it comes out that one of the parties has dodged a bit of tax can that evidence be held against them? Generally speaking yes, unless the relevant prosecutor's office provides a grant of immunity from prosecution for the matters disclosed, which basically never happens in a divorce case or ordinary civil case. This is why it is sometimes necessary to invoke the 5th Amendment in the context of a civil case. Does a judge have the duty to report any law-breaking that arises in civil cases No. It isn't improper for a judge to report law-breaking that is observed in the course of litigation before that judge, but the judge has no duty to do so (absent some very specialized exceptions like treason), and, in practice, rarely does report law-breaking not directly before the judge to evaluate. In contrast, in criminal cases, during the pre-trial phase of a case (and especially in the pre-arrest phase of a case), a judge often has a duty to keep knowledge of crimes obtained in that way secret until it is disclosed by the prosecution (unless the prosecution improperly fails to disclose something that it is required to disclose). This is so that criminals aren't "tipped off" by a judge of an impending arrest. A judge in Colorado was recently prosecuted and removed from the bench for a disclosure of that kind. or is a civil case confidential between the two parties? A judge can seal a civil case, or limit public access to certain documents, but that is the exception and not the norm and has to overcome constitutional protections of the public's right to public trials that media organizations frequently enforce successfully. Confidentiality between the parties can only be imposed for "good cause." Hiding the fact that you cheated on your taxes from tax collection agencies does not constitute good cause. Footnote Most U.S. jurisdictions have an ethical rule for lawyers that prohibits them from threatening to take administrative or criminal actions to gain advantage in a civil case, although the exact details vary quite a bit from jurisdiction to jurisdiction. This does not apply to clients of lawyers acting unilaterally and without guidance from their lawyers. | Someone has pulled a sample motion of this type off of PACER (the public access Internet portal to civil filings in federal court). The example is more formal and structured than a lot of state court motion practice would be, however (e.g. few state court's require or encourage motions with a table of contents and a table of authorities). This example is 36 pages long, and many states don't even allow motions to run for more than 10-15 pages without leave of the court to do so in advance. There is a New Jersey federal court example here which is also on the formal and fussy side (although, in part, because the motion isn't just an arbitration motion and is also raising several additional unrelated issues which if omitted would cut it in half). See also one here. Another example, from a California state court, is closer to the mark for a typical state court filing. A court that handles residential landlord-tenant matters is probably even more "casual" and probably expects motions to get to the point more quickly. The core content is probably solid, although it would have to be customized to reference the state law statutory and procedural rules rather than the federal rules of civil procedure, and to analyze and set forth the facts of your case rather than those of some random person whose pleading is linked. This would also have to be adopted to state court practice standard, which typically uses different formatting for captions, signature blocks, whether or not line numbering is required, etc., and is often subject to other requirements. Some require that a certificate of service be filed as a separate document, while others routinely incorporate it in the main document. Many state courts require that a proposed order be submitted with a motion as a matter of state or local court rules, a few states require a cover sheet to be filed with motions, many states require you to confer with the other side in the case and to recite their position opposing or supporting the motion, or something in between, before filing it, and some courts require you to notify them once the deadline for a response has passed, regarding whether an opposition has been filed to the motion's request for relief or not. Similarly, some states courts require that motions be "verified" (i.e. have their allegations confirmed under oath) or supported by an affidavit setting forth the factual matters alleged in them. New York State structures a lot of motions as "orders to show cause" in which the court preliminarily reviews the relief requested and issues an order telling the other side that it will do something if they don't file an objection showing good cause for the court not to rule in that way by a given day, which must be formally delivered (i.e. "served") upon the other side by a deadline. I don't know if New Jersey local motion practice is similar. Many court systems also charge a "new case" filing fee for motions to compel arbitration that does not apply to other kinds of motions. Ideally, you'd want to review some motions (about pretty much anything) to get a feel for how this is usually done in New Jersey. | 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. | "Why" someone did something is potentially off-topic, but in regards to your hierarchical image - it lacks provenance so cannot be tested, however according to the official judiciary website: The Master of the Rolls is second in judicial importance to the Lord Chief Justice. | The most innocent of your scenarios is "against the rules", so less innocent acts fair worse. The idea behind researching legal theory and precedent (presumably not presidents) is that surely it is good for a juror to know what the law is. But that thinking is wrong. The judge will instruct you as to what the law is, and will also instruct you that "the law" is limited to what he says it is. I will draw on the instructions for an antitrust case, Best Buy v. Toshiba, HannStar. The core instruction is: It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. The preliminary instructions (the pattern instructions for California civil trials) say the same basic thing: At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law. The judge instructs the jury that: When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. Your research might find alternative statements of the law out there, which seem entirely plausible. That doesn't matter: you have to set aside whatever ideas (about the law) that you've gotten from anybody besides the judge. In fact, if the judge makes a (serious) mistake and rules against a party in a manner that is contrary to established law, and you know this (it doesn't matter how), you are supposed to apply the law (including rulings during trial as to admissibility) as given to you by the judge. As for a case of a juror knowing that the judge was mistaken (specifically, knowing based on his pre-existing knowledge of statutes and case law – not based on forbidden research during a trial), we can get the "should" from the absolute instruction to follow the judges instructions. Additionally, if you read transcripts of voir dire (not a trivial task), you can observe judges probing attorneys who happen to be in the prospective pool, asking questions to determine whether that person can just do as they are told. But it would be difficult to establish a "hard rule". There never will be an instruction that says "You must follow my orders even if you know for a fact that my orders are wrong" – jury instructions never admit the possibility of judicial error. | The alternative is the same whether just one lower court or many lower courts ignore SCOTUS precedent. An aggrieved parts will appeal the lower court ruling, and the matter will work its way up the ladder until SCOTUS directly rules on this application of the law. This sort of happens all the time, when lower courts don't apply the ostensive "final ruling" because they find that there is some other overriding consideration ("that rule only applies to businesses employing more than 50 people"). Where the case to be remanded to lower courts for further proceedings consistent with SCOTUS opinion and still the lower courts refuse to comply, i.e open rebellion, SCOTUS could rule that non-compliance by lower courts constitutes contempt, and an order could be issued for the removal (in some form) of offending parties (we may presume, the justices of the lower court). The statute outlining court power allows on order of imprisonment for "disobedience or resistance to its lawful writ, process, order, rule, decree, or command". Federal marshals would then arrest non-compliant judges, unless the marshals too are in open rebellion. If the judges in question were federal judges, the marshals would have to decide whether to obey the order of SCOTUS vs. the order of the district or circuit court. Since under the US Constitution states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish", it is objectively established that SCOTUS rulings are superior, so provided that the marshals elect to uphold their oath of office, they will enforce the SCOTUS ruling. However, citizen action becomes irrelevant once SCOTUS has made its ruling, and the matter has moved from legal determination of fact to enforcement of established fact. | The Equality Act (2010) lists the following protected classes (emphasis mine): age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation. It is unlawful for businesses to discriminate against anyone, in the goods or services (or physical access) that they offer, based on any of those characteristics. Some disabilities may prevent people from wearing masks, and those people cannot be discriminated against. I couldn't find a source in the law that says this explicitly, but according to the Equality and Human Rights Commission there is no legal requirement for people who have disabilities to be able to prove that they are disabled in order to receive accommodations for their disabilities. While you could, theoretically, ask people to prove that they have a disability if you don't believe them, you'd basically just be setting yourself up to have to pay a bunch of money in compensation when you eventually run in to somebody who actually does have such a disability, and doesn't have proof with them, who then takes you to court for discrimination and wins. |
Can behaviour of a witness in a witness box affect the outcome of the proceedings? I'm getting myself ready for the court hearing and I need to verify factual accuracy of the following statements. The Judge takes account not just of what is said, but also of how it is said, of what is not said, and of the body language and demeanour of the witness in the witness box. (...) This type of evidence is opinion evidence, rather than factual evidence, although sometimes an expert will need to give evidence about what they have seen or observed as well as what their view is; I admit that in my behaviour I was hyper-rational and put too much emphasis towards factual accuracy rather than feelings and emotions of another person. Before I start investing time and energy into acting classes I would like to either confirm or debunk the body language part, as well as the other parts. | Witness demeanor is absolutely relevant, both to evaluate the credibility of a witness and in a matter such as a child custody case, to evaluate the merits of what constitutes the "best interests of the child" which hinges, in part, on the interpersonal social skills of a parent in dealing with the parent's children. Before I start investing time and energy into acting classes . . . Generally speaking, I would not encourage you to take acting classes. There is nothing that you can learn in a few weeks or months that will fool a judge. Instead, your inept acting effort will only make you look dishonest because, you are being dishonest. If you are "hyper-rational and put too much emphasis towards factual accuracy rather than feelings and emotions of another person", you are better advised to focus on how your personality can have positive aspects, rather than trying to hide who you are in reality. For example, you can emphasize how you have a detailed child care plan, are on top of the children's medical and educational needs, are stable in your work life, and may be able to interact productively with any of the children who share your tendencies in a way that a more neurotypical person might not. In a family law case, the marriage itself, if the couple was married, is assumed to be a lost cause. And, pretty much nobody in a family law court has exemplary interpersonal skills. If they did, their relationships wouldn't have fallen apart, or at least, they would have worked out mutually agreeable parenting arrangements without court assistance. You are better off acknowledging that you are not perfect and showing the court that you have good coping mechanisms than to fake being the person that you believe that the court wants you to be. Someone who has personality and temperament issues who doesn't admit that those are issues is a much bigger concern than someone who has issues but is aware of those issues and demonstrates a conscious attempt to work around or cope with those issues. | On an issue of pure law, an appellate court decides if the trial judge got it right or wrong from scratch, and if there is a case that is a better match than the one that the judge used that leads to a different outcome in the case, then an appellate court is likely to find that the trial court's ruling is a reversible error. On an issue of mixed fact and law, or on a legal issue where a judge has more discretion in how the law is applied (like many evidentiary issues), a judge is given more deference, and the judge will generally only be reversed if no reasonable judge could have applied the correct law to the facts viewed in the light in which the judge saw them, and then, only if an application of the correct law to the facts viewed in the light in which the judge saw them would have changed the outcome of the case. There are a couple of ways that this standard of review is described, one of which is called "abuse of discretion" review. | 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). | The appellate court reviews based upon the trial court record. To the extent that it turns on questions of law, including interpretations of written documents whose authenticity is not in question, this review is de novo. Likewise, decisions on this issue made on a paper record and argument of counsel, without an evidentiary hearing that resolved material disputes of fact between the parties, are reviewed de novo. So are procedural question, like whether an evidentiary hearing should have been held. But, in cases where there is a mixed issue of fact and law, the appellate court defers to all findings of fact made in the trial court from an evidentiary hearing held in the trial court that are supported by admissible evidence in the trial court record. Since the material facts relating to the enforceability of arbitration are frequently not in dispute in a case like this and arbitration rulings are often made without evidentiary hearings, as for example, in this case and in this case, an appellate court often does engage in de novo review. But, the appellate court is not permitted to re-weigh the credibility of witnesses, for example, in a manner contrary to the trial court's findings of fact supported by admissible evidence in the record, if an evidentiary hearing was held and this was necessary to resolve disputed issues of fact that were material to the question of whether arbitration could be compelled. While what I have said above is somewhat different than the standards, for example, in New Jersey as stated in this document quoted below, this is to some extent a function of the facts of the referenced cases. None of which involve a refusal to compel arbitration following an evidentiary hearing involving disputed findings of fact. Appellate courts "review de novo the trial court's judgment dismissing the complaint and compelling arbitration." Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020). See Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020). "Under N.J.S.A. 2A:24-7, either party may move to confirm an award within three months of the date of its delivery. Once confirmed, the award is as conclusive as a court judgment. N.J.S.A. 2A:24-10." Policeman's Benevolent Ass'n, Loc. 292 v. Borough of N. Haledon, 158 N.J. 392, 398 (1999). N.J.S.A. 2A:24-8 provides a court may vacate an arbitration award for: 1) corruption, fraud or undue means; 2) evident partiality or corruption in the arbitrators; 3) misconduct in refusing to postpone the hearing, upon sufficient cause being shown, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party; or 4) the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made. "Judicial review of an arbitration award is very limited." Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 276 (2010)). "To foster finality and 'secure arbitration's speedy and inexpensive nature,' reviewing courts must give arbitration awards 'considerable deference.'" Borough of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67, 247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 201-02 (2013)). "[A]n arbitrator's award resolving a public sector dispute will be accepted so long as the award is 'reasonably debatable.'" Borough of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67, 247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 201 (2013)). "An arbitrator's award is not to be cast aside lightly. It is subject to being vacated only when it has been shown that a statutory basis justifies that action." Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Kearny PBA Loc. # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979)). Certain statutes, including the Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30, set "strict limits on the appeal of an arbitration award." Riverside Chiropractic Grp. v. Mercury Ins. Co., 404 N.J. Super. 228, 235 (App. Div. 2008). In support of a contrary view that even the findings of fact of the trial court are subject to de novo review are statements like this one (from this case): The existence of a valid and enforceable arbitration agreement poses a question of law, and as such, our standard of review of an order denying a motion to compel arbitration is de novo. Hirsch v. Amper Fin. Servs., L.L.C., 215 N.J. 174, 186 (2013); Frumer v. Nat'l Home Ins. Co., 420 N.J. Super. 7, 13 (App. Div. 2011). But, the cited cases don't mean precisely what they are purported to say in the rare case where the decision rests, for example, on resolved a disputed credibility decision between two witnesses over whether the purported arbitration document is authentic in an evidentiary hearing. Those cases are merely dicta as applied to that fact pattern. The case containing this quote was decided at the trial court level on the pleadings alone without receiving any testimony or documents in an evidentiary hearing (see footnote 1 at page 2). Hirsch was decided in motion practice without an evidentiary hearing (see page 184) and the case itself says (at page 186): Orders compelling arbitration are deemed final for purposes of appeal. R. 2:2–3(a); GMAC v. Pittella, 205 N.J. 572, 587, 17 A.3d 177 (2011). We review those legal determinations de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995) (“A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.”). The decision in Frummer was similarly qualified and also relied upon interpretation of written instruments whose execution was undisputed that was resolved in motion practice without any mention of an evidentiary hearing. The Court in Frummer said at page 13: We review the denial of a request for arbitration de novo. See Alfano v. BDO Seidman, LLP, 393 N.J.Super. 560, 572-73, 925 A.2d 22 (App.Div. 2007). "A `trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Id. at 573, 925 A.2d 22 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995)). See also this case stating that: The existence of a valid and enforceable arbitration agreement poses a question of law, and as such, our standard of review of an order denying a motion to compel arbitration is de novo. Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013); Frumer v. Nat'l Home Ins. Co., 420 N.J. Super. 7, 13 (App. Div. 2011). Again, however, I would question whether this holding is dicta because it involves the interpretation of written instruments whose authenticity is in doubt, and not, for example, a dispute over whether the person who signed the documents is the same person who is a party to this litigation and not someone else with a very similar name that was resolved in an evidentiary hearing. | Depositions must always be attended by a court reporter in every jurisdiction I have ever encountered (including Colorado, New York, California, Wyoming and Florida). Alaska may be an exception. Its state constitution creates a right to participate in many kinds of legal and legislative proceedings remotely because the distances involved are often so great. The court reporter administers an oath to the witness, keeps track of exhibits, impartially records what happens (usually stenographically and with an audiotape) and then reduces it to a transcript later, a process assisted by having been there when the testimony was given (and allowing for the court reporter, for example, to request spellings of words during breaks). A videotape can be used in addition to the court reporter and sometimes this is done when it would be helpful for understanding a highly visual topic (e.g. in a patent case where someone is explaining a 3D object) or when a witness is expected to behave badly or is known for problematic voice character or body language. Court proceedings in a courtroom are often audiotaped with a judge present but without a live court reporter present. Appellate court arguments are frequently live streamed over the Internet. There may be some jurisdictions where it is possible to have an oath administered by a notary and simply audiotape or videotape the deposition, but that would be very rare in every jurisdiction of which I am aware. | The old saying: Being your own lawyer means you have a fool as the lawyer and a fool as the client. If one fool calls the other fool as a witness, that's even more foolish. And the worst crime is annoying the judge with your antics. Opposing council will just take note of every question you ask and your replies, and then call you as witness themself. And assuming they are a proper lawyer, everything they ask will be hurting you. No need to accuse you as "leading" or "badgering" the witness. | Generally not With very few exceptions, documents do not need to be witnessed to be valid even where there is a space for a witness to sign. When you knowingly signed it you were making a legal declaration that you had read it, that you understood it and that you agreed to be bound by it. If you didn’t “pay attention to the content” then more fool you. As to being “tricked”, you would need to elaborate on this (in another question) it for this to have any effect it would need to ride to the level of misrepresentation or fraud - like substituting a different document for the one you had agreed to sign. You would also need evidence of the “trick”. | The parties can be required under oath to explain what they understand the plain meaning of the words to be. Where they disagree about the plain meaning of the words, they can use expert witnesses to give weight to their interpretation. Once the judge determines the plain meaning of the words (either by agreement between the parties or by reference to expert witnesses or other evidence), it is a matter of standard contract interpretation. Even in the case of an idioticon, where no expert witnesses are available, if the disagreement between the parties surrounds only a few words, the judge could find that there is no actual ambiguity because the context. Also, the judge could refer to parole evidence if needed. The purpose of the written contract is to provide evidence of your agreement. It is a bad idea to create evidence that you both may want to rely upon at some point if nobody else can understand it. |
The N. word and reverse discrimination I hear black people using the N. word when referring to other people quite often on the internet and on YouTube and it seems to be legal or at least there are no complaints. Would it be legal if a caucasion used this term? If not there would appear to be some injustice and surely the white person would be entitled to claim reverse discrimination. Can you shed some clarity on this issue? | U.S. answer. It's perfectly legal for anyone at all to say and write the word, "nigger". Its use by a white person related to an action against a black person may be interpreted as evidence of a hate crime or unlawful discrimination. Using it publicly to describe a black person might have a number of negative consequences, but none of them from the law. | 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. | There is no internationally-enforceable mechanism regarding how other people call something, or what alphabet can be uses to write a word. I can legally call that country between Bangladesh and Thailand "Burma" or "Myanmar", I can call Україна Ukraine, The Ukraine, or Ukrainia (the latter seems to be old-fashioned, but it's still legal). As a diplomatic matter, the US government seems to have settled on certain designations so that it uses the version "Myanmar" for official purposes although it includes "(Burma)" in popular communications (State Department travel advisories). If it wanted to, the US could call The Republic of North Macedonia by the name "Macedonia", though there would be political protests. The EU, NATO, UN etc. can likewise set its own rules regarding names of countries. There are many additional complications in the case of countries that are not universally / widely recognized, such as Trasnistria and the Republic of Somaliland. If the president of the Republic of Somaliland sought to address the UN, his problem would not be what people would call his country, it is that the Republic of Somaliland is not "recognized" by the UN (it has no official status), or anyone else. The question of "sameness" of language is a prominent feature of nationalist movements. Claims are made that Flemish and Dutch are "the same" or "different", likewise Bosnian, Serbian, Croatian, Montenegrin; Dari, Farsi and Tajik. Thus there is no real chance of litigating the matter of whether Moldovan and Romanian are the "same language" and which name should be used. But if the EU parliament wants to, it could rule that the language of Moldova is to be called "Romanian", or "Moldovan". | It may be discrimination, but it is not discrimination based upon any reason that the company is prohibited from engaging in. This conduct is legal in pretty much all U.S. jurisdictions. | Sometimes In general, intentionally false speech gets less protection than other speech, and in some cases it is unprotected. The classic example of speech that is unprotected is "Falsely shouting FIRE in a crowded theater". Note that this is both intentionally false and highly likely to be seriously harmful to multiple uninvolved people. On the other hand, the classic case of New York Times vs Sullivan said that, at least when the subjects were public officials (later broadened to public figures) it was not enough to prove simple falsehood in a defamation case, one must prove "actual malice" (an unfortunate term) which in this context means statements that are either knowingly false or are made with reckless disregard for the truth. The court in that case said, in effect, that if a newspaper had to be sure that its every statement could be proved true in every detail, it would be unwilling to vigorously report on matters of significant public concern (this is a paraphrase, I'll add a quote later). Opinions are considered legally not to be either false or true. "President Jone is the worst leader the US has ever had" Is a statement of opinion, and so is not defamation. Moreover, in political contexts, attempts to punish false statements of fact that are not defamatory have been held unconstitutional. One example was the "Stolen Valor" act, which punished falsely claiming to have been awarded a medal by the US armed forces. This was held to be against the First Amendment. In general, regulation of speech (which here includes writing and other forms of communication) must be fairly narrowly drawn and must have good reasons behind them to survive a court challenge. How much so depends on the nature of the law, and particularly whether it is "content-neutral" or not. Details and cites to come when i have a little more time. | A company can charge each of its customers a different price if it wishes. Providing this discrimination is not on the basis of a prohibited reason (race, sex etc.) this is not illegal. | 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. | Even if you're a white guy, you could get a report from 23andMe and you'll probably find out that you have at least 1/100 "African American" heritage. The way America is now (and especially the university system) it is more relevant what you "identify as" than what you are. What exactly is the wording on the scholarship application form? If it says "Do you identify as African American?" then feel free to say you do. In this case, the contract is clear that what you identify as is what is important. If the application says "Do you have at least 50% African DNA?" and you lied about it then they could sue you, but I doubt that's what it says. So check the wording and if you answer truthfully, they can't sue you. What you "identify as" is completely up to you. |
Why is there an apparent legal bias against digital services? Over the years, many websites - mostly file-sharing websites - have been taken down due to the users using the service for less-than-legal activities. Most of these websites posted well-visible disclaimers on their website that such use goes against the intent of the website. Often the scope of operations went well beyond reasonably moderated on a user level. At the same time, if someone were to use any other service or product for illegal ends, it is the individual rather than the company that is punished (whether it is guns, chemicals, or anything else). Why does this apparent bias against digital services exist - and is it actually codified? | This involves interaction between legal liability, the nature of online services, and copyright law. If a person does something that causes damage, they may be liable and required to pay for damage. Given the right protected by copyright law, damage results in making unauthorized copies of a work, and the copier can be made to pay. A person who contributes to bringing about damage can also be held responsible, depending on their exact relationship to the damage (copyright infringement in relevant cases), so in Gershwin Publishing v. Columbia Artists, Columbia organized a musical event where various artists did the infringing performances, knowing very well that there was no permission as required by law. The court held that "one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a 'contributory' infringer". There are various nuances regarding how a potential enabler might or might not be held liable. In MGM v. Grokster, Grokster knew that their software was primarily used to disseminate protected material, and encouraged infringement. Similarly (and earlier), Napster was found to be contributorily liable in A&M v. Napster. On the other hand, in Sony v. Universal, it was found that Sony was not liable for selling VCRs which allowed people to infringe copyright, primarily because Sony did not sell the VCR with the intent of aiding copyright infringement. Such "codification" as exists regarding contributory infringement and liability is due to case law. Congress could, if it wanted to (it does not), pass a law saying that no online service can be held liable for copyright infringement. This would require changes in copyright law, since online services do copy content (taking it from a contributor involves copying, delivering it to a customer does to), and they obviously distribute the material (usually by automated means, but that is still distribution). Any use of digital content in fact involves making many copies, almost all of them automatic (copying from an input port to a data buffer; copying from the buffer to disk storage; copying from disk storage to RAM; from RAM to computer registers; etc. where derivatives are "copied" to the speaker or computer screen). This fact makes digital services particularly vulnerable, since virtually everything that they do involves "making a copy". Congress passed the Online Copyright Infringement Liability Limitation Act as part of the Digital Millennium Copyright Act, which provided a way for online providers to be protected from liability, as long as they have "clean hands" and follow certain rules. The essence of this law is that if you provide a means for copyright owners to inform you of violations, and you respond expeditiously to proper notices by taking down infringing material, you may be protected. Simply posting a notice that says "we do not condone breaking the law" does not eliminate liability. If one takes reasonable steps to prevent infringement, you would not be liable. Apart from copyright infringement, websites can also be engaged in distributing child pornography, which also is against the law (even more so). And once you go outside the US, and are in a country with limited free speech protection, making forbidden statements can get you shut down. Getting "shut down" can come in multiple forms: one, where the company goes out of business because the damages that they have to pay are substantial, and also because the government can directly order a web site shut down (as in the Napster case). If online services are more susceptible to being shut down compared to other businesses, it is probably due to the mistaken feeling of anonymity and failure to understand copyright law. | You can't, in general, know whether a distributor of a work has permission to distribute, or is a pirate site. I verified that they have posted an illegal copy of a work that I created, and I know that I did not grant permission to them (or anyone) to infringe my copyright. Both hosting and downloading works without permission is a violation of copyright law, so both parties are liable. Downloaders may erroneously rely on the "I didn't know!" defense, which in the US carries no legal weight. Even so, if you download my book, it will probably cost me vastly more to sue you for infringement than the damages that I might be awarded over your infringement. Usually, copyright holders go after the pirate sites, and only rarely go after particularly egregious serial downloaders. | You may at your peril. The safe harbor provision in 17 USC 512 does not provide absolute immunity to service providers, that immunity is only available (c)(1) if the service provider—(A)...(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent Given your question, which reasonably assumes that the material is infringing, infringement is apparent. The DMCA provisions were written not to protect service providers, but to protect innocent service providers who are not aware of the infringing activities of their users. So it depends on what you know. | Apparently Such Files May be Distributes or Sold Section 5.e of the Google APIs Terms of Service reads: e. Prohibitions on Content Unless expressly permitted by the content owner or by applicable law, you will not, and will not permit your end users or others acting on your behalf to, do the following with content returned from the APIs: Scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header; Copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense to any third party; Misrepresent the source or ownership; or Remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material It might seem that 5.e.2 prohibits the suggested use. But if the text is in fact in the public domain,"applicable law" (that is, copyright law) permits you, or anyone, to "Copy, translate, modify, create a derivative work of" or otherwise use the content. Thus 5.e.2 does not apply. Points 3 and 4 would seem to indicate that the source, including title and author information, must be included or preserved in the output files, but seems to be the only relevant restriction that applies. Response to Comment A comment by user Brian Drake questions the theory of this answer, stating: The most you can say is that copyright law does not prohibit certain conduct (and even that is not clear: just because the text is in the public domain does not necessarily mean that the audio is in the public domain); this does not mean that copyright law expressly permits that conduct. US Copyright law does not define what constitutes the public domain. Rather it defines what is protected by copyright, and specifies some cases in whch a work is not protected. (For nexample, 17 USC 105 provides tht works of the US Federal Government are not protected.) Anything not included in the protection of copyright is in the public domain. This has been confirmed by many cour cases and legal writings. Law generally follows the rule "Anything not forbidden is allowed." Audio as Derivitive Work An audio recording of a person reading a text aloud would be a derivative work of that text, and would normally have its own copyright, if created lawfully. (If the recording was of a text protected by copyright, made without permission and outside of fair use, it was not made lawfully and the infringer has no copyright in the recording at all.) But US courts have held that a work created by a mechanical or automatic process, including many computer programs, is not an "original work of authorship" and thus is not protected by copyright at all, and is thus in the Public Domain. The case of the "Monkey Selfie" is on point. ("Compendium of U.S. Copyright Office Practices, § 313.2" (PDF). United States Copyright Office. 22 December 2014. p. 22. "To qualify as a work of 'authorship' a work must be created by a human being.... Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants." Moreover, if the audio were protected by copyright, it would presumably be owned by the person who ran the program, and 17 USC 106 specifically grants the copyright owner permission to distribute copies. Sources The Wikipedia article "Public Domain" reads in relevant part (citations omitted): The public domain consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired,[1] been forfeited, expressly waived, or may be inapplicable. ... As rights vary by country and jurisdiction, a work may be subject to rights in one country and be in the public domain in another. Some rights depend on registrations on a country-by-country basis, and the absence of registration in a particular country, if required, gives rise to public-domain status for a work in that country. ... Definitions of the boundaries of the public domain in relation to copyright, or intellectual property more generally, regard the public domain as a negative space; that is, it consists of works that are no longer in copyright term or were never protected by copyright law. According to James Boyle this definition underlines common usage of the term public domain and equates the public domain to public property and works in copyright to private property. However, the usage of the term public domain can be more granular, including for example uses of works in copyright permitted by copyright exceptions. Such a definition regards work in copyright as private property subject to fair-use rights and limitation on ownership *"How Can I Use Copyright-Free Works (in the Public Domain)?" by Nolo Press reads: Copyright law gives creators certain exclusive rights. These rights include the exclusive ability to copy, distribute, and perform the copyrighted work. But copyright is not infinite. Rather, it provides copyright holders with protections for a limited duration. When a work becomes available for use without permission from a copyright owner, it is said to be "in the public domain." Most works enter the public domain because their copyrights have expired. The Legal Information Institute (LII) article "public domain" reads: The public domain includes every creative work that is no longer protected by a copyright, trademark, or patent. Creative works that are no longer protected are owned by the general public rather than the original creator. As such, the work is free to be copied, performed, or otherwise used by anyone. "Copyright and Scholarship: Public Domain" from Boston College Libraries reads in relevant part: "Public domain" works are not protected by copyright. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it. An important caveat regarding public domain material is that collections, new editions, and derivative works of public domain material may all be protected by copyright. With collections, an author could collect public domain works in a book or display them on a website, and the collection as a whole could be protected by copyright, even though individual works within it are not. *"Welcome to the Public Domain" (Stanford libraries) reads in relevant part: The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it. Wikipedia article "Monkey selfie copyright dispute" *"A macaque monkey who took now-famous selfie photographs cannot be declared the copyright owner of the photos" (AP) reads in relevant part: A macaque monkey who took now-famous selfie photographs cannot be declared the copyright owner of the photos, a federal judge said Wednesday. U.S. District Judge William Orrick said in federal court in San Francisco that "while Congress and the president can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act." *NARUTO, a Crested Macaque, by and through his Next Friends, People forthe Ethical Treatment of Animals, Inc., v. DAVID JOHN SLATER; BLURB, INC., ; WILDLIFE PERSONALITIES, LTD." (Ninth Circuit full opinion April 23, 2018 No. 16-15469, D.C. No. 3:15-cv-04324-WHO) reads in part: We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act. We therefore affirm the judgment of the district court | It could be. Accessing any web page is subject to whatever the terms of use are for the page, and if those terms state that the page may only be accessed from within the US, then accessing the page from outside the US is a violation of the TOS (hence use is infringing): see 2.4(h) of the Netflix EULA. There are EU rules that override such terms, within the EU. The usual way to circumvent technological location-restrictions (where the web page says "I'm sorry, I can't let you do that") is to use a VPN and pretend to be somewhere else. Use of a VPN is not per se illegal in most countries (there are exceptions), but using it to circumvent geo-blocking may be. Again returning to the point that the TOS may itself say "No you may not", the interesting question is what to conclude if there is no such statement, for example I did not see anything in the PBS TOS that restricts access to the US (I didn't look very deeply). Terms of service can't be secret: you can't be held to following rules that you cannot reasonably know of. If you attempt to access a page that uses un-announced geo-blocking technology and it informs you that you can't use the page because of your location, then you have effectively been put on notice that there is a rule. If you happen to be using a VPN and access an un-announced, (reasonably) undetectable geo-blocked site, that would not be a breach of the terms (because you have not been put on notice that location is a term of use). | Is it possible to forbid linking to a site? No. It would be quite childish and out of touch to aspire to that level of control. Publishing a website/page for permanent, wide open access is inconsistent with prohibiting accessing it from certain venues, such as hypertext links. The prohibition of linking to a site is an attempt to enforce a certain degree of selective privacy. As such, it would not be enforced by U.S. courts, and it would be laughable if other jurisdictions proceeded differently. In United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008), the court wrote that e-mail and Internet users have no expectation of privacy in the to/from addresses of their messages or the IP addresses of the websites they visit because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information. That rationale is equally --or perhaps even more-- applicable to a publisher, since in this case browsers and/or the publisher himself post(s) his URL (the equivalent of a "from" address of emails) "for the specific purpose of directing the routing of information". A hyperlink is an address, so it would be similar, I believe, to disallowing someone to list an address (on a map for instance). That analogy is inadequate because it overlooks essential differences between a web address and a physical (be it home, office, etc.) address. A web address is used for obtaining information which the initial publisher deliberately makes available to the public. By contrast, the act of having one's physical address registered somewhere else serves no such purpose whatsoever. Another important difference between a hyperlink and a physical address is that "consuming" a hyperlink simply cannot annoy or harm the initial publisher (except in the extreme scenario of Denial-of-Service attacks), whereas a common knowledge of a person's address may make that person vulnerable to harassment, trespassing, larceny, and other unlawful acts. A better analogy with hypertext links would be bibliographical references, since both are types of text strings for directing the consumer to a (or "the") source of information. Neither text string causes detriment to the author/source of that information. Can you imagine if bibliographical references were forbidden by statute or by the author of that information? The mere difference that a bibliographical reference needs to be copied/pasted, whereas it suffices to click on a hypertext link, cannot permit treating the permissibility of hypertext links any differently than the permissibility of bibliographical references. | "Personal use only" does not excuse copyright infringement under US law. The uploader does not hold copyright, and neither gives nor denies permission to copy his creation. The law does not require a copyright holder to deny permission, it requires the user to actually obtain permission. So no matter how you slice it (even as fair use) it is infringement for you to copy that video. | Forget about copyright or EULAs. In the UK this would be illegal under the Computer Misuse Act (1998) and you could be jailed for up to a year - specifically Unauthorised access to computer material. (1)A person is guilty of an offence if— (a)he causes a computer to perform any function with intent to secure access to any program or data held in any computer, or to enable any such access to be secured; (b)the access he intends to secure, or to enable to be secured, is unauthorised; and (c)he knows at the time when he causes the computer to perform the function that that is the case. This law has been applied even to simply altering parameters in a GET request to a website, so it is incredibly broad. Other jurisdictions have similar wording, so be aware! |
Does filing for bankruptcy preclude pursuing all other legal proceedings? I have heard that if you file for bankruptcy you cannot file any other legal proceeding (in the state of Georgia, USA) until the bankruptcy filing is resolved. Is that so? If so, does the ban on other legal proceedings extend only to financial matters, or does the ban cover (non-financial) divorce/custody matters as well. Thanks. | What you have heard is not exactly correct (and also depends, in part, on the Chapter under which the bankruptcy is filed). I will address the simplest case, a Chapter 7 liquidation of an individual, which is simpler, because a Chapter 7 liquidation is determined as of a point of time, while Chapter 11 and Chapter 13 reorganizations are conceptually more complex and don't just transfer rights to a trustee at a single point in time. When you file a Chapter 7, all of your property, including you rights to sue people that had accrued as of that date, are transferred to the bankruptcy trustee as an asset of the bankruptcy estate, and the right of anyone to sue you is stayed automatically until the bankruptcy court either authorizes the lawsuit, or discharges the debt associated with the lawsuit (there are actually a few cases where the automatic stay expires on its own after a certain amount of time). Rights to bring lawsuits that arise after the bankruptcy is filed, or can be brought at any time, like a divorce/custody suit, are not barred, although property and enforcement of economic rights in those cases may be stayed until the bankruptcy court takes action. Custody issues other than child support, and termination of marital status are not affected. For example, if you file for bankruptcy on Monday and are hit by a bus on Friday, your personal injury suit claim is probably yours and not the bankruptcy estate's and can be brought by you. But, if you are hit by a bus on Monday and then file for bankruptcy on Friday, your personal injury suit claim is probably property of the bankruptcy estate. (It is a bit more complicated than this, because your right to sue for a personal injury might be exempt property, at least in part, but this example conveys the gist of the concept.) There is a further complication in the analysis which is that domestic relations actions and probate court actions are normally considered to be outside of the jurisdiction of the federal courts (bankruptcy court is a federal court), even when there is diversity of citizenship, which doesn't change the basic conclusions above. | 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. | 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. | Nope. Say I sue you successfully, and the court delivers a judgement that awards $1000 in damages. It is not the responsibility of the small claims court to ensure that the judgement is fulfilled. In fact, the debtor (person who lost) can outright refuse to pay the creditor (or the person who won). They are not in violation of any law at this point. However, the creditor can ask the court for options on enforcing their judgement, and these can include, but are not limited to: Garnishing wages Providing a court order Seizure of assets (through court sheriff, don't use this yourself or you end up getting into criminal matters) and others to enforce the judgement. The debtor isn't liable for refusing, unless when they are in violation of a court order. Violating a court order is a criminal matter, and the debtor could possibly be found guilty of contempt of court. Oh, and the case wouldn't move on to a higher court. Cases go to a higher court when an appeal is made, generally when there has been an error in enforcing the law. You also need to be provided leave to make an appeal. | Often, evictions are bifurcated. An initial hearing determines all evidence necessary to determine if there is a default existing sufficient to justify an eviction, and if so, the eviction goes forward immediately despite the fact that not all issues in the case have been resolved. A later hearing resolved the precise dollar amount of any damages claim. If the grounds for eviction is non-payment of rent, and the amount of payments or the amount of obligations of the landlord that can be setoff against the rent due exceeds the amount of rent found to have not be paid, then it is a defense to an eviction in the initial possession phase. If the counterclaim is smaller than the amount of rent owed (or cannot for some reason be set off against the amount owed) then it is only at most, a setoff against a damages award in favor of the landlord. I'm have not researched, in particular, how this is handled in New Jersey, but I am providing this answer on the theory that some insight is better than nothing. For the purpose of this question assume the landlord does not dispute the tenants underlying claim. His only argument is that the tenant should counter sue and that it should not be raised as a defense for non payment / stop the eviction. If this is true, it is both an affirmative defense to the eviction claim and a basis for a counterclaim in most cases. The better practice would be to raise it both ways in the same lawsuit. But, if the counterclaim is not sufficient to overcome the claim that rent is owed and not paid in full, or triggers some other different alternative ground for an eviction (e.g., maybe the lease provides that application of a security deposit against rent owed is itself an event of default), then that wouldn't prevent an eviction. | Ultimately, if they force you into bankruptcy, everything, except: tools of your trade household items (clothing, furniture), however, if these are worth significantly more than a replacement then they can be sold and you get given a replacement. Short of this they can: garnishee bank accounts garnishee wages and other income seize and sell personal property acquire liens over real property The cannot force you to borrow money pay them, however, this may be a better option than any of the above, particularly bankruptcy. If you are in such a situation you should seek advice on how to best deal with it. Most creditors are willing to negotiate over amounts and timing: something latter on is better than nothing ever. | Every state requires at least two witnesses to a will unless it is entirely written in your own handwriting. A lawyer as a witness is fine. A spouse as a witness is not ideal as she would be an interested party if there was a dispute over whether it was executed. It may not be prohibited, but I would never do that in my practice ever. I discontinued a will signing just last week because we only had a lawyer and a spouse and not other witnesses. I would be somewhat concerned. | Yes. The European Enforcement Order is an explicit procedure for uncontested claims like this. That means no German court is involved (unlike Dale M's answer suggests). The Greek Court files an EEO, and this can be enforced directly in Germany without going through German courts again. That means you can face wage garrisons, bank account freezes etcetera. |
(UK) Holiday entitlement during first 3 months aka. "probation period" I've been working for a company in UK for 3 months (exactly 29.06 to 29.09) after which the company has been sold. (edit: actually my contract says that I started on 2.07 which isn't true, but that hopefully doesn't change anything) With the last pay we were supposed to receive our accrued holiday entitlement paid in lieu. ..and most of us (employees) did but I didn't. When asked about that my ex-boss aruges that I didn't finish my probation period of 3 months and therefore am not entitled to any holiday. (She also claims that had I worked more than 3 months I'd get 7 days of holiday for the whole probation period) Now as far as I found online - there's no such thing in work law as 'probation period' and that for each month I worked I should get 1/12th of my annual holiday. Is that true? | Your boss is totally wrong. Legally, there is no such thing as a "probation period" in the UK. You have the right to your holiday payment, according to the days that you worked. What can happen: The legal minimum is I think 28 days per year including bank holidays, but most companies give 23 or 24 days PLUS eight days bank holiday. Your contract may say that the first three months are called probation period, and during that time you only get the legal minimum, and after that the much more common higher amount. That would be legal. But even so, you would be entitled to seven days, minus any bank holidays where you didn't work. | Jurisdiction has not been provided, so I've written a general answer: Not necessarily; often, such provisions clauses will have their own expiration dates, for example "for five years after signing, X", with X still being valid after cancellation up to 5 years(so if you cancel after 3 years, X is still valid for 2 more years), or "for two years after cancellations, Y"(especially common with non-compete clauses) where the time-limit of Y starts when the contract is cancelled. Other clauses are meant to indeed be enforced forever, such as some non-disclosure, non-disparagement, or indemnity clauses. For example, an indemnity clause in a contract that prevents a party from suing the counter-party for work done under the contract would be pointless if it could be bypassed by a party terminating the agreement. There are lots of legal limits, based on the terms of the provision, and its nature, all governed by the contract law of the jurisdiction under which the contract was drafted under and/or is governed by (this is generally obvious, except for some cross-border contracts, which generally will have a declaration as to whose laws apply). It is not inherently abusive, but can certainly be abused. What is considered abusive often varies from jurisdiction to jurisdiction (not only on this issue, but on legal issues in general). It depends on the jurisdiction, and generally on the terms of the provision itself. If the court asked to enforce the terms of the agreement feels that the provision is illegal or abusive, they won't be enforced (and possibly the entire document declared null and void, depending on the central-ness of the illegal or abusive provision; some provisions specifically state that invaliding the provision doesn't invalidate the whole contract to try to prevent this). If they don't feel the provision is illegal or abusive, they will generally enforce it. | If your friend was a salaried W2 full time exempt employee hired by the company to, among other things, write software like this, then the fact that it was developed "off the clock" with the employee's own resources means nothing once he gives it to the company. I mean if I give you a present and it blows up and breaks your arm, I'm still liable even if we didn't have a "contract" - especially if I knew it would blow up. Your friend's position is even worse since the relationship entails the employee's having the employer's best interests in mind. If I were your friend, I'd either figure out how to fix this or take gnasher729's advice from the comments and find a country where it's easy to hide from parties public and private. Maybe buy a bunch of canned food and go live on a boat? | If you want to protect yourself or any property interests you may have in this circumstance you have to talk to a lawyer. You cannot get (or trust) legal advice from the internet. I will, however, make the following personal observations: I only provide a W-9 to people who are paying me money, and who request it as a condition of paying me. I don't know of a legal requirement to supply it after the fact. However, not providing it to someone who did pay you more than $600 in a tax year could certainly make it difficult for them to comply with their tax filing obligations. I do not sign any agreements, assignments, or contracts, without what I consider to be fair consideration. E.g., if on leaving a job (as has happened) I am asked by a former employer to sign something that I am not already obligated to sign due to some prior contract, then I negotiate what is commonly called a "severance package." They pay me and/or extend benefits, and I sign something that limits their liability. | It depends to a large degree on local employment laws. Depending on how the counteroffer was worded, it might have constituted anything from a binding legal contract for employment for some reasonable minimum term, or a totally non-binding suggestion that was worth less than the air breathed while pronouncing it. Some things to consider would include: What are local employment laws like? Do they require that termination be for cause? If so, what are causes for termination? Does termination require any kind of remediation beforehand? Note that in an at-will, right-to-work state in the US, odds are that the employee can be fired for any time and for any reason, supposing the employer hasn't accidentally entered into a contract by extending the counteroffer. What did the counteroffer say? Did it stipulate that the offer was not for a definite term and that the company reserved the right to terminate the employee for any reason, or no reason at all? Odds are any sufficiently serious business in an at- will, right-to-work state would use standard legal language in any offer or counteroffer to ensure that they are on the right side of this, so odds are the counteroffer was accepted with no obligations at all on the company. Does the termination affect eligibility for unemployment benefits? I would say most likely not, as the termination would probably be recorded as being for no reason legally speaking (if they admitted to terminating the employee for seeking other employment, interested government officials could take a dim view of the company's actions). You'd probably have at least some unemployment compensation coming your way. Some professional - not legal - advice. Never accept a counteroffer. Only get another offer in the first place if you are committed to leaving your current employer no matter what. If your company really insists, you should insist on a minimum definite term of employment written into a legal contract which is signed by an executive and notarized. No company will agree to this (unless the term is shorter than you'd want as a full-time W-2 anyway) but if they do, hey, you have some security (if the company agrees to this, have your own lawyer - whom you pay with your own money - review the document). Even then, I would be very, very careful about staying at a company after getting a counteroffer. Don't do it. Ever. Never accept a counteroffer. One comment asks why I recommend never accepting a counteroffer. There are at least two reasons: The reason you are looking for a new job should be that there is something about your current job that isn't completely satisfactory and that you haven't been able to fix. Either you have grown out of the position, don't like the work, feel you're underpaid, don't get along with somebody, etc. If you were unable or unwilling to fix any of these issues without having another job on the table, having another job on the table shouldn't be what makes you willing and able to fix them. Why work somewhere that you'd constantly need to go job hunting to address workplace issues? Unless the company makes firm agreements about how long they're going to keep you around, you have no guarantee that they'll keep you. Presumably, you didn't have one before, and you don't have one at the new job, but the fact that you are currently employed might support the assumption that your employment would be continued at your current employer and the offer might support the assumption the new employer plans to employ you indefinitely. When you put in your notice, it makes the company more aware of the fact that you could leave at any time; while a perfectly rational actor would realize that this doesn't change the situation at all, companies are run by people and people often act irrationally. Perhaps your manager is vindictive, perhaps your manager is scared that you will still leave after accepting the counteroffer. Maybe your manager knows there are layoffs coming but needs you for the busy season. Hiring replacements can be time-consuming and expensive - and employees who are getting offers of employment elsewhere and putting in notice might be seen as risks. I'm not saying that accepting a counteroffer has always turned out badly. Falling coconuts kill 150 people every year. Still, I am not going to add a coconut rider to my insurance policy and I am not going to accept a counteroffer. | I have the same line in a contract that was just sent to me. So I did some quick research into this. However, I AM NEW TO THE SYSTEM AND DO NOT KNOW IT WELL!!, so please do not act on this information without seeking further advice from the relevant professionals. From what I can gather, the "Arbeitszeitgesetz (ArbZG)" is the law that governs working hours in Germany. Here is a link: http://www.gesetze-im-internet.de/bundesrecht/arbzg/gesamt.pdf I used Google Translate to translate this information and found that in §3 it states that "The default daily working time must not exceed eight hours. It can only be extended up to ten hours if within six calendar months or 24 weeks an average of eight hours working day is not exceeded." This would lead me to believe that even if overtime is not paid as extra on top of your salary, they must give you the time off at another time to keep the average working day to 8 hours. **However, as the working week is Monday - Sat, the average working hours per week may be calculated as 48 hours per week, and not 40! Once again, I am not fully sure of my information, so use at your own risk!! | I don't wish to gainsay or contradict a "professional adviser", especially as I have no idea on what information they based their suggestion. All I can do is direct the OP to the relevant extracts from the section headed "II ACCELERATED POSSESSION CLAIMS OF PROPERTY LET ON AN ASSURED SHORTHOLD TENANCY" in the Civil Procedure Rules, especially my emboldened text at the end of Rule 55.15. Rule 55.14 (1) A defendant who wishes to – (a) oppose the claim; or (b) seek a postponement of possession in accordance with rule 55.18, must file his defence within 14 days after service of the claim form. (2) The defence should be in the form set out in Practice Direction 55A. Rule 55.15 (1) On receipt of the defence the court will – (a) send a copy to the claimant; and (b) refer the claim and defence to a judge. (2) Where the period set out in rule 55.14 has expired without the defendant filing a defence – (a) the claimant may file a written request for an order for possession; and (b) the court will refer that request to a judge. (3) Where the defence is received after the period set out in rule 55.14 has expired but before a request is filed in accordance with paragraph (2), paragraph (1) will still apply. (4) Where – (a) the period set out in rule 55.14 has expired without the defendant filing a defence; and (b) the claimant has not made a request for an order for possession under paragraph (2) within 3 months after the expiry of the period set out in rule 55.14, the claim will be stayed. | Am I right to assume that once the notice has been issued to the other party, me and the client still work on the project for 14 days until the notice period expires and that the client is required to pay for the work that has been done in those 14 days In the absence of any other wording to the contrary, a contract continues as normal up until the day of termination. The fact that a party has given notice to terminate merely establishes the termination date, unless the notice clause says something different. Note that there is nothing to stop you drafting a clause which explicitly states this. Indeed, it is often useful to explicitly state things which are already implied as it helps to avoid any dispute from arising in the first place. |
How copyright laws apply for commonly public things? I'm developing a website that displays quotes, similar to brainyquote.com All the quotes (around 10,000) are also displayed on different websites. So how do copyright laws affect me in this situation? | It depends on the nature of the quote. Quotes from Buddha, Aristotle and Lincoln are out of copyright. Otherwise, the two basic questions are: who put that quote in fixed form, and is copying it "fair use"? If for example you happen to be at a political rally where a politician makes a noteworthy extemporaneous quote, you could be the copyright holder, because copyright law protects the person who first puts the work into fixed form. (If he's reading from prepared text, the speech writer or his employer would hold copyright). You can also quote small bits from any source, such as "Don't think about your errors or failures; otherwise, you'll never do a thing". It would not be "fair use" to chop up a novel into a sequence of 2-3 sentence quotes. This assumes that you manually assemble the quotes from legal sources, such as a print copy of "The Martian". Whether or not you can legally pull the data from an online source depends on the terms of service for that site. That lets out brainyquote as a source, so check the TOS for whatever source you get the material from. | There are a number of existing legal sites that do this, for free or for pay. The main concern for a website operator pertains to the DMCA "safe harbor" provisions, which protect against vicarious liability for infringement. A "report piracy" option is not sufficient; see this answer to a related question. | There is no such thing, legally, as "an attack on someone's writing". The only way in which any use of one person's writing by another could be the subject of legal action would be if it infringed copyright. But individual words, short phrases, and individual numbers are not subject to copyright protection. In theory such things might be protected as trademarks, but that would give protection only if they were being used "in trade", that is, to sell or advertise something, and then only if it is in the same industry or market. But a license plate is not selling anything. You may have assigned code meanings to particular numbers. Many people have done this before, using many different schemes or codes. It would be hard to demonstrate that a license plate is referring to your coded meaning and not to some other code. But even if the user admitted an intent to reference your use of a particular number, you have no legal cause of action. You might as well ignore such references, because you cannot do anything to prevent them. Plagiarism is not a crime, nor a tort when there is not copyright or trademark infringement, even if it is openly admitted. If you could prove harassment or some sort of stalking you might have a case, but nothing you have described (in the question or associated comments) comes close to that. If a police car actually hit yours intentionally or negligently you would clearly have a case, but the plate numbers would be no part of it. Response to recent comment: The source of authority (which is not the same thing as jurisdiction) to place license plate numbers on police cars is state MV laws and regulations. To the best of my understanding, such numbers are assigned automatically and sequentially, and have no reference whatever to anyone's blog or political statements. No evidence seems to be cited to show otherwise. The question asks What jurisdiction authorizes these reappropriations of my work/writing/speech? But no one authorizes tjhings that did not happen, and as far as i can see no appropriation occured. Jurisdictions, by the way, do not authorize things, people and organizations do. The question asserts: For my writing I coined "317" and "037" but no one can "coin" a number, and people use numbers in many ways. Use of a similar number on a license plate need not be a reference of any sort to a particular blog or writing. | While the 12th century original is in the public domain, that translation was, if I am correct, published in 1996 and is protected by copyright. You will not be able to use extensive quotations without permission from the copyright holders. If you are in the US, you could probably use limited quotations under Fair Use. Exactly how much could be used depends on the specific facts -- there is no general rule. If your use would be likely to harm the market for the translation or to replace it, that would weigh against a finding of Fair Use, but there are four factors and they must all be considered. Note that fair use is a very specifically US concept, and will not apply elsewhere. | Under United States law, copyright is normally held by the creator of a work. There is one major exception to this rule: the "work for hire." If something is considered a "work for hire" under the copyright statutes, the copyright is held by the employer. Whether something qualifies as a work for hire is a complex analysis: here is a Copyright Office circular covering some of the basics. To be clear, I'm not giving an opinion (and I don't have enough information to give an opinion) on whether any specific works you or your fiance may create or commission qualify as "works for hire." It's a narrower test than you probably think it is. If the work is not a work for hire, the copyright holder owns the copyright, and anyone else can use it only with a license from the copyright holder. A license can be implied by the parties' behavior and communications--but it shouldn't be. If you're in a situation where you need to know, for example: That you are allowed to use the artwork forever, and the artist can't ask you to stop later; That you are allowed to change the artwork if you need to, even a simple change like cropping or adding a filter or text; or That, if your product is successful, the artist won't be able to sell another license to someone else to compete with you; then you need a written contract spelling out who owns the copyright and what the rights of the other party are. A lawyer can draw up a simple, re-usable form contract for you cheaply that will prevent the problems you're worried about. Remember: even if this is a work-for-hire situation, if you need to prove that down the road, it may require a trial, or at least preliminary motion practice, to do so. That's a lot more expensive than getting your ducks in a row now will be. tl;dr: Get a lawyer. If you're in a major city, there may be a local arts law organization that will provide you with free help for a simple job like this one. (Volunteer Lawyers for the Arts operate in several East Coast cities, and I know many top commercial lawyers who do pro bono for them). | 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. | More generally, can anyone just copy an existing website (without copying the code or images)? Yes. Could I make a website that lets people post pictures like Instagram but call it MyPics? Yes. In general, copyright protects particular expressions of ideas, not higher level ideas or concepts. | The copyright holder has the rights in whatever he created. If you have created something new based on his idea, the law will generally not be interested; but if your expression is recognisably a copy with a few changes, he can prevent publication or demand royalties. If you are uncertain which side of the line you fall, you should ask a lawyer (or, more cheaply, write to the author and ask if he objects). |
Fence with no signs in Germany Is it legal to trespass the fence (with little passage in it) with no signs, if there's no buildings behind it (for example, construction site)? Update: the picture of a passage. No signs at all, only the fence. It is just empty construction site. If its illegal, what is the punishment for the trespassing of such a thing? | Is it legal to trespass the fence (with little passage in it) with no signs, if there's no buildings behind it (for example, construction site)? As usual, it depends, but probably not. By entering the property you would probably commit Hausfriedensbruch (trespass). According to German law, Hausfriedensbruch applies not only to a building, but any "enclosed property" ("befriedetes Besitztum"). So in this case the question is whether the site qualifies as a "befriedetes Besitztum" in the legal sense. There is no complete list of criteria for that, but the general rule is that the property is physically protected from access. For example, a fenced-in lawn would count (even if the fence is easy to step over), while a temporary barrier (such as a plastic chain) in an otherwise public passage would not. There is no requirement for there to be a building, thus it does not matter that the construction site is empty. So in your case, you would likely commit Hausfriedensbruch by entering the property, unless the passage is obviously intende to allow access to anyone (and is not just an accidental opening). The penalty for Hausfriedensbruch is up to one year of prison (though in many cases you'll probably get away with a fine). | 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. | Damaging someone else's property is not protected free speech in the US. Nor is using someone else's property without permission and against the owner's wishes. Scenario 3 would surely be vandalism or "Malicious Mischief" or some similar offense, even if the paint can be fairly easily removed. The same would be petty surely true of scenario 2, as it would take at least some effort to remove the sticker, and it could be a safety hazard until it is removed (obstructed vision). Scenario 1 would probably not be even a minor crime, unless perhaps the person trespassed to attach the string. But the person has no right to insist that the car's owner not remove the sign. I am assuming that the car is owned by someone else, and the the person placing the sign, sticker or paint acted without permission from the owner or any authorized person. | Trespass to land in most instances is a civil matter, and as such the police do not have the power to assist. Initially, the landowner should ask the trespasser to leave the land and if he/she does then all is well. If he/she refuses to leave the land then you will need to consider taking civil action. It could be dangerous for the landowner to try to remove the trespasser themselves. The owner of the land could commit several criminal offences if he forcibly removes the trespasser and his/her property from the land. The best and safest course of action is to obtain a court order, which, if breached, can then become a criminal matter. If the police do attend an incident such as this, they are merely there as observers for any possible criminal offences committed by either party. The police cannot assist in the removal of the trespassers or their property from the land in question. Emphasis mine. https://www.askthe.police.uk/content/Q56.htm | The nuisance of potentially waiting for all the traffic on the main road is a notion alien to the law. Seeing the red light, y correctly does not enter the intersection, because it would block the intersection, § 11 Ⅰ StVO. Keeping intersections clear is a general consideration, say for emergency services. Nevertheless, if safely stopping required entering the intersection, it’s not an issue here, § 4 Ⅰ 2 StVO. Stopping before entering the intersection is not a hard requirement, because the traffic lights do not regulate the intersection but an “isolated” pedestrian crossing. § 37 Ⅱ StVO concerns traffic lights at intersections. x has to yield traffic as indicated by the sign, § 8 Ⅰ StVO. Making a U‑turn or right-hand turn would be no issue, since this would not interfere with traffic (assuming properly dimensioned streets). Going straight is permissible if done with caution, § 8 Ⅱ StVO, but I would not recommend that. y might decide any moment “Eff it! I’m taking B street [Am Falkplatz].” and boom! Going left, however, is not allowed, since x had to stop short of the traffic light, which is frowned upon (blocking the intersection), but moreover it would take y’s right of way. | Is it normal under German law to just assume the accused will never go after a witness? This is not a question that can be answered here, or probably anywhere with any degree of certainty. The form seems to allow giving a different address (like a work address), but this seems to require a "good reason". What are acceptable reasons? These include an imminent risk of serious detriment to her well-being and a well-founded reason to fear she (or anyone else) might be improperly influenced if she gives here address. Staying anonymous; She is asked to provide a written statement. SHORT ANSWER A witness is not obligated to give the material witness statement to the police. Instead, a witness is only obligated to appear before and make a statement to the German public prosecutor (Staatsanwalt). AND... every (potential) witness is obligated to give their particulars at the hearing, including full names, maiden name, age, occupation and place of residence. Some or all of these details may be omitted, however, if there is a specific risk. In those cases, the identity of the witness may be kept undisclosed. LONG ANSWER Book1, Chapter 6 of the German Code of Criminal Procedure, Strafprozeßordnung (StPO), gives the rules for examining, and protecting, witnesses. Section 48 (Obligations on witnesses; summons): (1) Witnesses shall be obliged to appear before the judge on the date set down for their examination. They shall have the duty to testify if no exception admissible by statute applies. (2) ... (3)... An examination shall, in particular, be made as to whether an imminent risk of serious detriment to the witness’s well-being requires measures to be taken pursuant to section 168e or section 247a, as to whether any of the witness’s overriding interests meriting protection require that the public be excluded pursuant to section 171b (1) of the Courts Constitution Act and as to what extent it is possible to refrain from asking non-essential questions concerning the witness’s personal sphere of life pursuant to section 68a (1) [see below] Account is, further, to be taken of the witness’s personal situation and the nature and circumstances of the offence. Section 68 (Examination as to witness’s identity; limitation of information, victim protection): (1) The examination shall begin with the witness being asked to state his first name, last name, name at birth, age, occupation and place of residence... (2) A witness shall, furthermore, be permitted to state his business address or place of work or another address at which documents can be served instead of stating his place of residence if there is well-founded reason to fear that legally protected interests of the witness or of another person might be endangered or that witnesses or another person might be improperly influenced if the witness states his place of residence. If the conditions of sentence 1 obtain at the main hearing, the presiding judge shall permit the witness not to state his place of residence. (3) If there is well-founded reason to fear that revealing the identity or the place of residence or whereabouts of the witness would endanger the witness’s or another person’s life, limb or liberty, the witness may be permitted not to provide personal identification data or to provide such data only in respect of an earlier identity. However, if so asked at the main hearing, he shall be required to state in what capacity the facts he is indicating became known to him. (4) ... (5) Subsections (2) to (4) shall also apply after conclusion of the examination of the witness. Insofar as the witness was permitted not to provide data, it must be ensured in the course of the provision of information from or inspection of the files that these data are not made known to other persons, unless a danger within the meaning of subsections (2) and (3) appears to be ruled out. Section 68a (Limitation of right to ask questions to protect privacy): (1) Questions concerning facts which might dishonour the witness ... or which concern their personal sphere of life are to be asked only if they cannot be dispensed with. Section 168e (Separate examination of witnesses): If there is an imminent risk of serious detriment to a witness’s well-being in the event of his being examined in the presence of persons entitled to be present and if that risk cannot be averted in some other way, the judge shall examine the witness separately from those entitled to be present. There shall be simultaneous audio-visual transmission of the examination to the latter. The rights of participation of those entitled to be present shall otherwise remain unaffected. Sections 58a and 241a shall apply accordingly. The decision referred to in sentence 1 shall not be contestable. Section 247a (Order for witness examination via audio-visual means): (1) If there is an imminent risk of serious detriment to the well-being of the witness were he to be examined in the presence of those attending the main hearing, the court may order that the witness remain in another place during the examination; such an order shall also be admissible under the conditions of section 251 (2) insofar as this is necessary to establish the truth. The decision shall not be contestable. Simultaneous audio-visual transmission of the testimony shall be provided in the courtroom. The testimony shall be recorded if there is a concern that the witness will not be available for examination at a future main hearing and the recording is necessary to establish the truth. Section 58a (2) shall apply accordingly. | 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. | 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. |
Multiple duplication of CDs I own Like all other guys, I have my own collections of CDs, all legal, from official distributors, paid by money, and all belong to me. I keep them in my room together with my computer. I have ripped some of them, stored them in the laptop my company gave me. I have burned some copies of them and put them in my car. I have burned some other copies and put them in my parents house, just for myself. Today I suddenly start to think -- which copies are legal and which copies are not? Especially for those copies that in my parents house. I live in California. | You may be allowed to make a single backup copy, pursuant to 17 USC 117 it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:... (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful Congress defined "computer program" as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. At most, you could make one copy of a given CD, as long as you don't use it except to restore the original if it is damaged. Although data is not typically thought of as a "computer program", the definition of "computer program" given by congress is compatible with the nature of music CDs. It's a somewhat open question whether the courts would decide that the insides of a CD player is a "computer" (it is, with extremely limited abilities), and Congress did not define "computer" for purposes of copyright. There does not appear to be any clear case law testing whether it is legal to make a single backup copy of a music CD, so it is possible that a music CD does not meet the conditions of a "computer program". The RIAA position on the matter about 10 years ago, based on the statement of the RIAA president, was It’s OK to copy music onto an analog cassette (not for commercial purposes), it’s OK to copy music onto special audio CD-Rs, minidisks and digital tapes (but again not for commercial purposes). Beyond that there’s no legal “right” to copy the copyrighted music on a CD onto a CD-R, but burning a copy onto a CD-R or transferring a copy onto a computer hard drive or portable music player won’t usually raise concerns so long as the copy is made from an authorized original CD that you legitimately own and the copy is just for your personal use. However, this does not constitute giving permission by the copyright holder, even if the company distributing the work in question is a member of RIAA. Along these lines, in a document filed with the copyright office on behalf of the industry, pertaining to DMCA rule-making, it is maintained (p. 39) that "The making of back up copies for personal use has never been held to be a per se noninfringing use", and "As the Register made clear in her 2003 Recommendation, “it is not permissible to classify a work by reference to the type of user or use.”" (you can't just say "backup" and gain a fair-use defense). In other words, it's not clearly legal, and it's not clearly illegal. Clarity would come if a person was sued for making a backup copy of music CDs (with no muddying of the issue, such as "and then selling it"). For non-legal reasons, it is unlikely that a case law test will emerge. | There is also the part that says "except as expressly permitted by law". In the USA, you are allowed to run the software. This means the operating system making the copy that transfers the software from your hard drive to the RAM of the computer, and all necessary changes there. And this includes modifications to relocate the software, or to protect it against certain attacks by hackers, and I'm confident that Apple checked that it includes translating x86 machine code to ARM machine code and store the translated copy together with the original. Similar things have been done already around 2000 or so, and no software manufacturer has ever complained. | Yes Playing recorded music in public is unlawful without permission (licence) from the copyright holder. Many jurisdictions allow automatic licensing by signing up with and paying for it through the authorised music organisation. | 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. | 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. | Copyright is automatic - it starts to exist when you create a work of a type protected by law. Lyrics are such a work, and thus your lyrics are protected. Even the fact that the lyrics go with an existing (public domain) melody is protected. In addition, your recording is protected. However, the melody is probably not copyrighted, and does not become copyrighted merely because you re-used it. (Probably, because you didn't indicate how old, so I assumed old enough that nobody remembers the origin) | 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. | It's still under copyright, so you'd need to contact the publisher for permission, although if the artist (or in this case the executor of the estate Lynn Caponera) still retains the rights to the work sometimes going straight to the them can be a better option, especially in this case as it's for a non-profit and for a library in particular. The library also might have certain rights for reproduction, they generally pay a bulk fee to publishers but outside lending I'm not sure what that covers, so I'd check with the library manager (either branch or regional depending on who handles legal and licensing) as well. |
Is being a masked vigilante who fights crime legal? My client has disclosed to me that he is secretly a masked vigilante in a major metropolitan city in the state of New Jersey, United States. Under this identity, he stops crimes in progress and turns the perpetrators over to the local police.1 We are trying to determine whether or not these actions are illegal (there are concerns of corruption in the city's police department, so we cannot rely on their tacit approval of his behavior). Furthermore, we would like to make sure that the individuals that my client turns over to the police will not be able to escape justice due to the manner in which they were captured, so we would like to know if there are any major limitations to what he can do that he should be aware of. 1 We will neither confirm nor deny rumors of other activities, including property damage, fighting other costumed individuals over personal vendettas, or driving an unregistered car without a license. | There isn't a general answer to this question. It needs to be evaluated incident and sub-incident act by sub-incident act. The use of force is legally permitted to prevent harm to others and to the property of others under some circumstances. Citizens arrests are permitted under some circumstances, but generally, the person making the arrest must have personal knowledge of the crime while it is in the process of being committed. Some laws prohibit wearing masks under some circumstances, but usually not in all circumstances. Your client's "business model" is not consistent with being able to testify in court, so the criminal justice system will only be able to convict someone whom your client delivers to police if they can do so without your testimony. As a general rule, the 4th Amendment exclusionary rule does not apply to evidence collected by private parties or to statements obtained by private parties that are not made under duress that are not Mirandized. But, if your client is effectively "deputized" or becomes a "de facto" agent of the state who is called up to be a member of a posse for the police, for example, by using an agreed symbol such as shining a light with a symbol on it on some clouds, at that point, with respect to that matter, the 4th Amendment exclusionary rule and Miranda probably do apply to evidence that your client obtains, and exclusion of that kind of evidence could make prosecution much more difficult, unless the prosecution can successfully make an argument that the other evidence that the illegally obtained evidence leads them to is not "fruit of the poisonous tree" because it would have inevitably been discovered in due course using only the legally obtained evidence. Even if your client does violate the law, law enforcement is not obligated to investigate his alleged crimes even if the victims complain, and prosecutors are not obligated to prosecute those crimes, even if they have overwhelming evidence of guilt which they could use to secure a conviction. Prosecutorial discretion is basically absolute. Your client might be sued civilly for operating a corrupt enterprise under RICO, for various intentional torts, and for negligence, by people who think that they have been harmed by his conduct, but someone can only sue your client if they can figure out who he is and serve him with civil process. If you are helping your client conduct on ongoing criminal enterprise, whether or not the crimes are prosecuted by the criminal justice system, the attorney-client privilege you have with your client is probably forfeit should you be placed under a subpoena and your may be violating other ethical rules. But, of course, somebody has to figure out that you are part of this criminal enterprise before you suffer any consequences for being involved. | https://bchumanrights.ca/mask-poster/ Technically speaking is wearing masks a law, a health order or the store policy as a result of the health order? Technically speaking it's a Ministerial Order made under the power delegated to the Minister by the Emergency Program Act R.S.B.C. 1996, c. 111, s. 10. Can a customer be denied service or entry for not wearing a mask even if they claim they have a medical exception? No, they cannot. If they claim they have an exemption, then as far as you are concerned, they have an exemption. Refusing service would be illegal discrimination on the basis of disability. Must they prove it with some sort of certificate? No. Some people have claimed that they do not need to show proof. Those people are right. If the customer is acting in a dishonest manner, for example if I see them wearing a mask before entering the store, does that make a difference? No. Does the quality of mask or the material it is made of make a difference? Yes. They must wear a face covering. "face covering" means either of the following that covers the nose and mouth of a person: (a) a medical or non-medical mask; (b) a tightly woven fabric; Some customers pull their shirt over their face and my coworkers tell them that is alright. Depends on the shirt: if it is made of "a tightly woven fabric" then it is alright. | california It's legal, because the pentester doesn't have the intent to defraud. California Penal Code Section 470 governs forging documents, signatures, handwriting, etc. All of its provisions making actions illegal begin with "Every person who, with the intent to defraud..." Because the company itself is aware of and has authorized their actions, the pentester isn't attempting to defraud the company whose premises they are attempting to enter. They are providing forged documents to the guard (who isn't aware of the test), but a real attacker doing that would be attempting to defraud the company, not the guard. Of course, as with any otherwise-illegal action taken during a penetration test, this assumes that the agreement with the company granted the pentester permission to take that action (i.e., that it was in scope for the test). | One answer is that you should say "yes", because it is a federal felony (5 years prison term) to say "no", because it is untrue, and you know it is untrue. This assumes that the question simply asks "Have you ever been convicted or arrested; please explain", with no qualifiers like "as an adult". If you are absolutely positive that the record was sealed, an alternative answer is "no", based on a law like RCW 13.50.260(6)(a), which say you can legally "act as if it didn't happen": If the court enters a written order sealing the juvenile court record pursuant to this section, it shall, subject to RCW 13.50.050(13), order sealed the official juvenile court record, the social file, and other records relating to the case as are named in the order. Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are sealed. California has a similar law. The problem here is that this is state law, so a valid defense for a state charge of lying, but you need to comply with federal law, and states cannot tell the FBI what to do. It is variously rumoured that the FBI does not report sealed records, but it is unwise to count on rumours, and even if it is general discretionary policy for them to delete information about sealed records when reported from the state, it is not guaranteed that the policy is absolutely always followed. You can request an Identity History Summary Check from the FBI. So the safest path is to get an informed opinion, tailored to your facts, from your attorney. | The General Rule In practice, the only time when self-defense against a police officer is legal is when you do not know and have no reasonable way that you could have known that the person attacking you is a police officer. (And arguably, a police officer acting in an official capacity in furtherance of his or her duties, rather than in a personal capacity as an individual.) For example, if the police do a no knock raid in the dark of night, and don't announce themselves, and you shoot police officers reasonably believing them to be home invasion burglars, you would not have criminal or civil liability for doing so. A similar valid self-defense claim might arise when someone has an objectively reasonable reason to think that someone claiming to be a police officer is really just a criminal impersonating a police officer, even if that belief is, in fact, mistaken. In almost all other circumstances, you need to submit to the officers, and you are pretty much required by law to bear the risk that excessive force by the officer will harm you. If you don't, you will probably be guilty of the crime of resisting arrest and will not be entitled to a self-defense defense. The fact that you are not actually guilty of a crime is irrelevant. This is often the case and police officers are not omniscient. If the officer lacked probable cause for an arrest (which there is often no way that the person being arrested or attacked can know at the time), the remedy is a civil rights suit after the fact, not self-defense. In theory, there might be other isolated circumstances where self-defense against a police officer is legal, but they involve fact patterns so quirky that they would almost never happen in real life, or would almost never be possible to prove in a manner that the courts would believe. Officer Liability For Harming Someone Legitimately Acting In Self Defense Whether the officers had civil liability to you if you were harmed by the officers while exercising your right to self-defense would depend upon their state of mind, even if you were rightfully using self-defense. For example, a U.S. Supreme Court case decided in January of 2017 (White v. Pauly) involved this fact pattern. In White v. Pauly an officer arrived late on the scene and had no reason to believe that the officers who arrived there before him and were being shot at by citizens in a house that they were approaching, lacked probable cause, or had not announced themselves. The court held that as a result, he had no civil liability to a citizen he shot, even if the person who the late arriving officer shot while that citizen was shooting back at the police officers on the scene was actually engaging in good faith self-defense. The citizen's self-defense in the case had a valid defense to criminal or civil liability for firing on the officers, because the citizen shooting back didn't actually know that the people approaching his house were police officers. But, because the late arriving officer reasonably believed under the circumstances that the citizen had no right to engage in self-defense, because he thought that the early arriving officers had probable cause and had announced themselves, the late arriving officer had no civil liability to the citizens he shot. | A "police car" doesn't necessarily have a special legal status, so a police officer can theoretically drive a beat-up pickup truck and "be legal" (but not in Washington, see below). What matters is whether others have to give special attention to the vehicle. The pertinent question is, what are the requirements for being an authorized emergency vehicle. I'll give you Washington state law, and you can apply this to other states fairly easily. RCW 46.37.190(1) mandates that Every authorized emergency vehicle shall, in addition to any other equipment and distinctive marking required by this chapter, be equipped with at least one lamp capable of displaying a red light visible from at least five hundred feet in normal sunlight and a siren capable of giving an audible signal. (3) Vehicles operated by public agencies whose law enforcement duties include the authority to stop and detain motor vehicles on the public highways of the state may be equipped with a siren and lights of a color and type designated by the state patrol for that purpose. The state patrol may prohibit the use of these sirens and lights on vehicles other than the vehicles described in this subsection. Given these restrictions, a driver knows whether they must get out of the way, and whether they have to "pull over" (stop driving and get ready for a brief traffic detention). The manner of attachment of "stuff" on the outside of the vehicle falls under general state patrol safety rules, whereby for example you can't balance a rocking chair on the roof and speed down the highway. The state patrol has reasonable discretion to deem that a particular mode of attachment is "unsafe" – this won't be like building-code minutia. Duck tape would probably be deemed to be an insecure means of attachment. There can be some statutory provisions regarding use of private vehicles, for example RCW 46.37.185 allows green lights on firefighter's private care: Firefighters, when approved by the chief of their respective service, shall be authorized to use a green light on the front of their private cars when on emergency duty only. Such green light shall be visible for a distance of two hundred feet under normal atmospheric conditions and shall be of a type and mounting approved by the Washington state patrol. The use of the green light shall only be for the purpose of identification and the operator of a vehicle so equipped shall not be entitled to any of the privileges provided in RCW 46.61.035 for the operators of authorized emergency vehicles. Flashing blue lights are prohibited by WAC 204-21-230(c)(4) "other than a law enforcement vehicle as defined in WAC 204-21-020", which is "a publicly owned or leased vehicle operated by a law enforcement agency and which is used for the law enforcement functions of the agency". That means that in Washington, the town sheriff cannot use his personal car as a law enforcement vehicle. I expect there to be some variation on that point across the US. The lights-and-sirens law is what keeps ordinary people from putting lights and sirens on their vehicles. | 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. | Of course a city can enforce their own laws. The possible laws that LA (or any other city) could enforce against the video producers and vbloggers are many: zoning laws (enforcing laws against operating a commercial film set or business in a residentially zoned area); the requirement for an open burning permit, either all year or during times of fire danger; excessive noise ordinances, either 24hr or in a time span from late evening until morning; ordinances regarding excessive traffic and street parking; ID age checks for drinking, if police can get access to the property through warrant or other means; and investigations of criminal behavior shown in the videos. "Basically, after today, if we film in this house we could face up to six months in prison because we need permits," https://www.popbuzz.com/internet/social-media/jake-paul-banned-from-vlogging-in-house/ He could be talking about filming permits, traffic permits, burn permits, occupancy permits, etc. Cities and municipalities can quickly enact new ordinances that criminalize behavior that impacts the neighborhood as a whole after taking into account complaints from neighbors and advice from police regarding activities of the problem residents. Another aspect of the story is that it appears that Jake Paul is a renter. That means the city and neighbors can put pressure on the landlord to encourage Paul to obey the law; failing that, the landlord could possibly evict Paul in a very short amount of time due to possible damage and other clauses in the lease regarding illegal activity, if the lease stipulates anything like that. |
Can a school be sued for getting rid of spring break? (Is scheduling classes on Passover or other religious holidays discrimination?) In most schools in the US, there's a "spring break" or "spring recess" that coincides with Passover. It is my understanding that under Jewish law, Jews can't attend classes during Passover or certain other holidays. However, there seems to be a trend towards eliminating spring recess from school schedules, and I can't shake the feeling that this is discriminatory and illegal as it would put Jewish students at a disadvantage. Under United States federal law, would requiring students to attend classes during religious holidays constitute discrimination, exposing the school to liability under civil rights laws? What if the school provided make-up work for students who cannot attend classes but otherwise held classes during such holidays? (Answers that cover this from a federal standpoint are preferred, but if a state is required for an answer, assume New York.) | A school district has been sued for something like that. In Church of God, Etc. v. Amarillo Indep. Sch., 511 F. Supp. 613, plaintiffs successfully sued the school district "to enjoin the enforcement of the Amarillo School District's absence policy which limits the number of excused absences for religious holidays to two days each school year", where "A fundamental tenet of the Church of God is that members must abstain from secular activity on seven annual holy days". The school district imposed an absence polity where "School work missed may be made up whether an absence is excused or unexcused", and "Excused absences shall be granted to students for a maximum of 2 days for religious holidays in each school year". The court concluded that "This policy poses an unquestionable burden on the Plaintiffs' religious belief", and "This burden is not ameliorated by the make-up work provision. The provision does not require a teacher to evaluate the work made up. It in fact directs the teacher to enter a zero for that work". In this case "Summary judgment is granted and judgment rendered enjoining the enforcement of the Amarillo Independent School District's excused absence policy insofar as it limits the number of excused absences for religious holidays". This is not a matter of religious discrimination, this is a First Amendment issue. The policy is in violation of the Free Exercise clause. Eliminating spring break per se is not a problem: doing so and providing no excused absences is the problem. In the above case, there was clear a religious principle of the church to the effect that one must be off the clock on the holiday. As far as I know, there is no requirement to abstain from work or school on Shrove Tuesday, Ash Wednesday or Good Friday. Nevertheless, in recognition of New Jersey state law which allows any student to take off a religious holiday – including Shrove Tuesday and Ash Wednesday, and dozens more – the Board of Education has prepared a list of such holidays, which includes Wiccan, Hindu, Baha'i, Jewish, Zoroastrian, Church of Scientology (and so on) religious holidays. | Federally, in places of public accommodation, discrimination based on race, color, religion, or national origin is prohibited by the Civil Rights Act of 1964. This was upheld in Heart of Atlanta Motel, Inc. v. United States 379 U.S. 241. As summarized in that case, "Public Accommodations" cover: any inn, hotel, motel, or other establishment which provides lodging to transient guests, other than an establishment located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence any restaurant, cafeteria . . . any motion picture house . . . any establishment . . . which is physically located within the premises of any establishment otherwise covered by this subsection, or . . . within the premises of which is physically located any such covered establishment . . . In Oregon, there are additional restrictions imposed by the Equality Act of 2007: Except as provided in subsection (2) of this section, all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age if the individual is 18 years of age or older. In Oregon, a "place of public accommodation" includes: Any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise. Other states may not have these extra prohibitions or different prohibitions. They may also have statutory exceptions for peoples' sincerely held religious beliefs. Why the legislature chose to specifically protect these classes is a policy question better asked on Politics.SE. | 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. | Under 42 USC 2000a(a): All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. So a business may be generally prohibited from discriminating against you on the basis of your religion, but I don't know of any law that requires stores to accommodate whatever aversion or hostility you may feel toward gay people or their allies. On the contrary, such businesses have a First Amendment right to display such decor. So legislation that required them to stop speaking out in support of nice gay people would be struck down as unconstitutional. | There are no feasible legal actions that you can take. The implausible action is to sue the state on some constitutional grounds and have the order overturned in part. The order contains no appeals process, so you would have to attack the order itself. There are, here and there, lawsuits on Free Expression Clause grounds regarding the shuttering of churches, which stand the greatest chance of prevailing at the level of SCOTUS. Even if the court were to rule that under these circumstances the right to attend mass church meetings cannot be restricted, it is significantly less likely that application of the emergency powers acts to weddings would be found to violate a fundamental right. | Almost no constitutional right, for the most part, applies or gives rise to an all-encompassing right at all times. Schools can determine that certain times are off limits as activity during those times may interrupt the environment most conducive to learning, or for other articulable reasons; this is fine so long as it is applied evenly. Schools may say you may not hand out literature at certain times, only before or after classes, weekends, or put limits on the place or manner of distribution. There are examples of this premise that exist, pertaining to nearly every right, otherwise considered absolute. This is no different than the principle that while Americans enjoy the right to free speech, not all speech is protected at all times, or that the right to bear arms does not apply to all people, places, or environs. | No, given McGowan v. Maryland, 366 U.S. 420, Braunfeld v. Brown, 366 U.S. 599 and In Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582. The principle is that laws with religious origins are constitutional if they have a secular purpose. In Braunfeld, the defendants who were Orthodox Jews could not operate their business from sunfall to sunfall on Friday-Saturday, and sought to operate on Sunday contrary to a Pennsylvanis law prohibiting retail sales of their commodities on Sunday. The court rules that the law "does not violate the Equal Protection Clause of the Fourteenth Amendment, nor constitute a law respecting an establishment of religion, and it does not prohibit the free exercise of appellants' religion, within the meaning of the First Amendment, made applicable to the States by the Fourteenth Amendment". Their argument was based on the fact that to comply with the requirements of their religion plus the statutes of Pennsylvania, they would suffer economic loss. The court historically reviewed blue laws and concluded that the requirement to be closed on Sunday is not necessarily tied to religion, noting for example that in 1776 Virginia seemed that "all men are equally entitled to the free exercise of religion" and repealed laws penalizing expression and observations of religions, but also maintained laws prohibiting Sunday labor. Restrictions are possible on "people's actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one's religion". The matter has not come before SCOTUS since then (the constitutionality of blue laws is now "established law", until these rulings are overturned, analogous to Dobbs overturning Roe). | Discrimination is legal except on the basis of a protected class U.S. federal law protects individuals from discrimination or harassment based on the following nine protected classes: sex, race, age, disability, color, creed, national origin, religion, or genetic information Absent from that list is “occupation”. State law may add additional classes including sexual orientation and marital status. Private organisations are also free to add additional classes for their operations. |
Facebook disabled my account; can I legally force them to restore it? I was trying to sell adult goods on facebook as I sold other kind of products as usual to multiple facebook communities. I happened to forget nudity was forbidden on facebook. But the package contained a naked woman. I made a mistake unintentionally. But I got my account disabled instantly. I am not able to login to my account. I tried to appeal to FB many time to recover my account. But they refused to do so. This has made a huge loss to me as I have got so many personal data (including pictures and videos), so many friends' connection, and so many chat records(including some business details) in the server. I lost everything by their single act. Is there any legal way to force facebook return my person data? Thanks for any advice in advance. | You violated Facebook's Terms of Service, and it's entirely within your contractual agreement with them for them to close your account. You agreed to abide by the contract you "clicked through" when you signed up and opened a Facebook account. They didn't break any laws when you broke your contract with them. You clearly broke the contract by violating the TOS. They are not breaking any laws by not restoring your account. What you see as the value of your personal or business data doesn't really mean anything; it was your choice to use Facebook in the first place, and your mistake to break the TOS. You could try hiring a lawyer to make a case that you see a difference between the personal data you want to retrieve and the business data that caused the violation, but that's up to you; Facebook is under no legal obligation (this could be different, according to your jurisdiction and national laws) to restore any or all access to your account or data, but it's possible they could be persuaded. | That post is probably illegal. Because she is making false assertions about you (that are presumably damaging your reputation), she is likely liable for defamation. Because she has copied a picture of you without authorization, she is likely liable for violating the copyright of whomever owns that picture. Commenters have suggested she might invoke a fair-use defense, but I would expect it to fail. The four fair-use factors are: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: Both Plaintiff and Defendant are using using the photograph to identify the holder of an account -- a Facebook account in P's case, a business account in D's. D is using the photograph in connection with a profit-making enterprise, not for educational purposes, and her use is not transformative. The nature of the copyrighted work: Photography is a creative art at the core of copyright's purposes, generally entitled to thick protection. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1074 (9th Cir. 2000) ("[P]hotography entails creative expression warranting copyright protection.") The amount and substantiality of the portion used in relation to the copyrighted work as a whole: There is no indication that D took anything less than the entire photograph. The effect of the use upon the potential market for or value of the copyrighted work: The question is not only whether the defendant's use affected the actual market for the protected work, but whether many people doing the same thing would depress the potential market for the work. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (Courts must consider "whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market.") The potential market for the image is probably very small, but widespread unauthorized copies, publicly displayed, would undoubtedly depress whatever market exists. So all four factors cut against the defendant. Fair use is a loser defense here. | What SE can do is controlled primarily by the Terms of Service. What most matters is the section on Subscriber Content, which says: You agree that any and all content, including without limitation any and all text, graphics, logos, tools, photographs, images, illustrations, software or source code, audio and video, animations, and product feedback (collectively, “Content”) that you provide to the public Network (collectively, “Subscriber Content”), is perpetually and irrevocably licensed to Stack Overflow on a worldwide, royalty-free, non-exclusive basis pursuant to Creative Commons licensing terms (CC-BY-SA), and you grant Stack Overflow the perpetual and irrevocable right and license to access, use, process, copy, distribute, export, display and to commercially exploit such Subscriber Content, even if such Subscriber Content has been contributed and subsequently removed by you... This means that you cannot revoke permission for Stack Overflow to publish, distribute, store and use such content and to allow others to have derivative rights to publish, distribute, store and use such content. The CC-BY-SA Creative Commons license terms are explained in further detail by Creative Commons, but you should be aware that all Public Content you contribute is available for public copy and redistribution, and all such Public Content must have appropriate attribution. This part has not changed: the purported license is still "CC-BY-SA", and the TOS does not explicitly specify a version. What apparently has changed in the relevant section is one "helpful information" link, which now points to https://creativecommons.org/licenses/by-sa/4.0/. So the interesting question arises whether that would constitute an unpermitted post-hoc change in the terms by which SE has license to my older stuff. This matter came up in a reviled Meta question; as I pointed out, the TOS also included a merger clause that This Agreement (including the Privacy Policy), as modified from time to time, constitutes the entire agreement between You, the Network and Stack Exchange with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. Because of that, the TOS is self-contained and stuff found on other web pages are not part of the agreement. This in itself is a bit of a problem because you can't both say "we're not bound by stuff outside of this page" and say "the specific terms of the license are outside this page". That particular clause is gone, but there is an analog in the current TOS: These Public Network Terms represent the entire agreement between you and Stack Overflow and supersede all prior or contemporaneous oral or written communications, proposals, and representations with respect to the public Network or Services or Products contemplated hereunder. Furthermore, the TOS contains the following "we can change it" clause: Stack Overflow reserves the right, in its sole discretion, to modify or replace these Public Network Terms, as our business evolves over time and to better provide Services and Products to the Stack Overflow community, or to change, suspend, or discontinue the public Network and/or any Services or Products at any time by posting a notice on the public Network or by sending you notice via e-mail or by another appropriate means of electronic communication. I assume but do not know for a fact that a similar clause existed in prior versions of the TOS. So I conclude that the change is legal. | Can a moderation team in a game extend a ban that you have just because they want to TL;DR Yes and no. It's their platform and you broke the rules that you agreed to. Therefore, you forfeited your right to use the service for as long as they deem appropriate up to and including forever. In exercising this power they must act reasonably which, in the absence of anything in the contract (and I can't see anything) means that their response must be proportionate and offer you procedural fairness. It's possible that they haven't done this - it may even be likely. However, in order to have this overturned, clause 24 of the EULA requires you to take the dispute to arbitration. Clause 24.4 sets out how to initiate this. | There is nothing illegal about the child asking for nude images, but, depending on jurisdiction and circumstances, there is quite likely to be a serious legal problem with the adult providing such nudes. The exact laws that might be violated would depend a lot on the jurisdiction. The detailed facts would also be significant. But such a situation is fraught with danger, for the adult. Even if there is no ill-intent, such actions could easily be misinterpreted, and might be technically unlawful regardless of intent. Of course, not all nudes are obscene, or even "inappropriate for children". Which are so classified depends on the laws of the particular jurisdiction. | Why isn't forcing users to accept new Terms of Service by threatening financial loss, (like denying access to purchased content, or inhibiting or prohibiting the ability to earn an income), considered extortion and therefore illegal? Usually this is not illegal, and even if it is, it usually doesn't constitute extortion (or extortion's civil counterpart, which is called "duress", which is an affirmative defense to contract enforcement). Generally speaking, exercising a legal right someone already has, for a purpose that is not improper, does not constitute extortion. A TOS Rarely Creates A Reasonable Expectation That It Won't Change Most importantly, in the case of terms of service governed information technology services, the firm that creates the terms of service reserves, at the outset, the right to change them at any time. So, the user has no reasonable expectation that the terms of service won't change in a manner that they dislike. There is no implied promise to never change anything material about the service. Terms of service are usually specifically drafted from the outset to avoid creating something that looks like a property interest on the part of the user in having the service continue to work in a particular manner. TOS Terms May Not Be Unconscionable Both the original terms of service and any subsequent amendment of them, is not permitted to be "unconscionable" (e.g. it can't make the life of your first born child a liquidated damages provision that applies if the terms of service are breached). But, there isn't much of a legally protected reliance interest in not having the terms of service changed in this situation (although almost every general rule could conceivably have some exception to it, probably far more factually extreme than the fact patterns identified in the question). If a term is unconscionable, it may not be enforced as contrary to public policy, without regard to what prior versions of the same agreement may have stated. TOS Changes Are Usually Prospective Only On the other hand, a terms of service amendment is generally only effective prospectively and does not generally change rights that have fully accrued and vested prior to their amendment, at least until the user takes some act to affirmatively continue to use the service going forward. When there are vested rights under old versions, the remedy is not to characterize the change as extortion, however. It is to not apply the amendment to the terms of service retroactively to the already vested rights. For example, if the old terms of service did not contain an arbitration clause, and litigation was in progress under the old terms based upon old transactions, and then a new terms of service were adopted that mandated arbitration, this amendment would not generally be applied to require the pending lawsuit in court to be stayed and transferred to an arbitration forum. The right to litigated vested when the lawsuit was filed. | No. In the United States, lying is not a crime. Unless it is done: under oath (in which case it's called perjury) or to a law enforcement agent conducting an investigation (in which case it's called obstruction). There are also the civil torts of slander (oral) and libel (written) if someone lies and damages the reputation or business interests of a person or company. Collectively, and without distinction, these are called defamation. Lying also has a close cousin — the civil tort of fraud — which usually applies to inducement into a transaction or a contract. There are also consumer protection statutes (federal and state) that deal with truth in advertising, truth in lending, lemon laws, etc. But those are primarily civil statutes and the last two are pretty far afield from your question. But none of that applies to the Facebook case you described. So, no. | Is the their username alone, without any attached profile (like their email address or real Name) still considered personal data that has to be deleted? For something to be ‘personal data’ it must information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly. In other words: If the natural person can be indirectly identified from the username, it is personal data. If he cannot, it is not personal data. This obviously depends on the circumstances. If the user used something very similar to his real name, or his email address or uses the same nickname on a lot of different systems, then it probably is personal data. If it is an unique pseudonym that is not used elsewhere, it is less likely. If you want to make sure you comply with the right to erasure, you may want to scrub your wiki database, replacing all the username of the deleted user with "anonymous" (or something like that). If you want to be able to treat these as separate users, your scrubbing process may use unique anonymous identifiers ("anon-1", "anon-2", and so on). |
Marrying a family member so they can become a British Citizen I have a family member currently studying in the UK, who is not a British Citizen (Non-EU Citizen). They were going to become a British citizen through more conventional methods, however there has been a surprise in that it seems those conventional methods are no longer available. I am told that those methods have vanished due to tightening immigration laws. In order to circumvent this, some of my other family members are requesting me to marry this family member. They would marry me, gaining a 1-year visa, and they would stay married to me until they acquired an indefinite visa, after 1 year of marriage, then divorce me. The marriage would be totally superficial. We would not be living together. The only thing we would share would be a bank account. I do know this family member fairly well and we have holidayed together from time to time. What I want to know: How legal is this? What do I need to be wary of? How could this ruin my life, if something goes wrong? Additional details: I am a full British citizen, from birth. Our blood-root family member is a grandparent (Non-EU). | A sham marriage or civil partnership is one where the relationship is not genuine but one party hopes to gain an immigration advantage from it. There is no subsisting relationship, dependency, or intent to live as husband and wife or civil partners. Under sections 24 and 24A of the Immigration and Asylum Act 1999, as amended by section 55 of the Immigration Act 2014, a sham marriage or civil partnership is one in which: One or both of the parties is not a British citizen or an EEA or Swiss national There is no genuine relationship between the parties Either or both of the parties enter into the marriage or civil partnership for the purposeof circumventing (avoiding) UK immigration Controls, including under the Immigration Rules or the Immigration (EEA) Regulations 2006 Entering into a sham marriage does not entitle migrants any right to remain or reside in the UK. Sham marriages typically occur when a non-European Economic Area (non-EEA) national marries someone as a means of attempting to gain long term residency and the right to work. It is a criminal activity under UK immigration law, and if you got caught, you will end up behind the bars, unless you can prove yourself innocent. For more details about outcomes read this document carefully. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/488521/Sham_Marriages_v1.0_EXT_clean.pdf Read it carefully, just try to stay away from troubles. | Your children may have automatically become US citizens at birth, depending on how long their mother lived in the US before they were born. US law says that any child born abroad to an unmarried US citizen mother is automatically a US citizen, as long as their mother had lived in the US continuously for at least one year before the child was born. There is a clear discussion of the legal requirements in Chapter 3 of the USICS Policy Manual: US Citizens at Birth . Your specific situation is covered by § C.2: Child of a US Citizen Mother (also at the bottom of the page!). (The underlying statute, §1409 of the Immigration and Nationality Act, is here. Like most of the INA, §1409 is not reader friendly.) | Claiming to be independent is probably not a crime: the family that say they have set up the Principality of Sealand have never been prosecuted (though that may have something to do with the difficulty of arresting them). It does not, however, excuse a British subject from the ordinary duties of paying taxes and the like; anyone in a more accessible (and more clearly British) part of the country would be subject to the normal forms of law enforcement, including imprisonment for contempt of court if they refused to obey court orders. Despite the more eccentric theories of the 'sovereign citizen' movement (who do exist in the UK), the fact that somebody living in Britain is subject to British laws is not open to negotiation. Resisting this law enforcement by force would not be a good idea: as well as the fact that the Government has access to bigger and better armed forces than you do, it would probably render you guilty of treason. The Treason Act 1351 (as amended and translated) makes it illegal to "levy war against our lord the King in his realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere"; the good news is that the death penalty for treason was abolished in 1998 (some time after that for murder). | It's not a matter of funding, it's a matter of eligibility for asylum in the UK which appears to be highly unlikely according to reports where 45 recent applications from US citizens were rejected.1 One option is to apply for a Skilled Worker Visa for one of the eligible occupations. The Skilled Worker route enables you to live and work in the UK for up to five years. You can apply for Indefinite Leave to Remain, a form of settled status, after you have lived in the UK for five years under the Skilled Worker Visa. Source As for "Can he legally work such a job with or without permission?", working in the UK without "leave to remain" (i.e. permission) is an offence contrary to section 24B of the Immigration Act 1971 1That said, if the UK and USA governments did come to an arrangement whereby "at least for the short run, they allow his claim to start in the UK" it is impossible to foretell the future and say with any degree of certainty what conditions, requirements, liabilities and demands each side would impose. | Alice would not be entitled to a visa at the expiry of her student visa as she falls outside of the rules to obtain one (unless she makes a successful application for an extension or for another category). Instead, she may be entitled to Discretionary Leave to Remain. Discretionary Leave (DL) must not be granted where an individual qualifies for leave under the Immigration Rules or for Leave outside the Rules (LOTR) for Article 8 reasons. It only applies to those who provide evidence of exceptional compassionate circumstances or there are other compelling reasons to grant leave on a discretionary basis. One of these "compelling reasons" is covered by the Home Office circular 2 / 2006, which: ...provides guidance on the procedures for dealing with persons who are subject to immigration control and required to give evidence at criminal prosecutions in the UK... [...] Persons already in the UK If a person required to give evidence is already in the UK, IND [Immigration and Nationality Directorate] should be contacted at an early stage of court preparations, so that the person’s immigration status can be established. A person who meets the requirements of the Immigration Rules may be granted a short extension of stay. All applications to IND for an extension of stay will be subject to the appropriate fee1 and supporting evidence produced from the Crown Prosecution Service. Application Form FLR (O) should be used... This has since been withdrawn and replaced by form FLR(HTO) [...] A person already present in the UK but who is subject to removal action (for example as an illegal entrant), may be allowed to remain either in order to assist with investigations of serious crime or to be a witness for the Crown in a criminal prosecution. It is imperative that their immigration status is clarified and resolved at an early stage in order that the possibility of any allegation of inducement or favour regarding their immigration status is addressed. I have not been able to find any publicly available sources on the internet, but I am led to believe that she would be issued with an "Immigration Document" within the meaning of section 7(1)(a), Identity Documents Act 2010. This document may, depending on the particular circumstances, be a letter, a plastic "Residence Permit" card or some by other means to confirm Alice's temporary and discretionary leave to remain, and any restrictions that may be imposed. 1Depending on the particular circumstances any fees may be sourced from central funds, or she could apply for a fee waiver. | 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. | Your caveat about not being a national of either country is a bit puzzling, because your question is about acquiring the countries' nationality, which implies as a matter of course that you do not presently have either nationality. After acquiring each country's nationality, of course, you will be a national of that country, so by the time you are a dual citizen of Italy and the US, it will no longer be true that you are not a national of either country. In other words, it's analogous to asking "Will I be able to get a driver's license after I learn how to drive? The problem is that I don't have a driver's license." US law does not require you to renounce Italian citizenship if you naturalize as a US citizen. I don't know Italian law on the matter very well, but the relevant section in Wikipedia says, without citations, that naturalizing elsewhere does not cause loss of Italian citizenship. Assuming that is true, and that neither country makes any relevant changes in its nationality law, then the answer to your question is yes: you can be a dual citizen of both Italy and the United States. (In fact, you may at that point hold three or more citizenships if your current country or countries of citizenship does not or do not have laws causing you to lose citizenship when you naturalize in Italy or the US.) | 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. |
Does charging one with premeditated murder weaken the case if the murder was not premeditated? This and this are articles about an Indian Engineer being shot dead in a Kansas Bar. According to these - The suspected gunman, US Navy veteran Adam Purinton, 51, has been charged with the premeditated murder in Olathe, just outside Kansas City... and Adam Purinton, 51, is the man Johnson County prosecutors charged on Thursday with one count of premeditated first-degree murder and two counts of premeditated attempted murder related to the shooting of three men Wednesday night at Austins Bar & Grill, 2103 East 151st Street, in Olathe. Does this weaken or dismisses the case against Adam Purinton if he had not entered the bar with a plan to commit murder? | There are many cases where it is quite obvious that A has illegally killed B, but where it is much less obvious whether this was first degree murder, second degree murder, or manslaughter. The usual approach is to charge A with all three, and then convict for the highest that the jury agrees with (for example, the jury might agree that it was at least second degree murder, but not agree that it was first degree murder beyond reasonable ground). A prosecutor who wants a first degree murder conviction might charge with first degree murder only, hoping that the jury will agree with the charge rather than letting a proven killer go free. This may fatally backfire. If a proven killer is only charged with first degree murder, and there is insufficient evidence for first degree murder, then yes, with a responsible jury that killer will go free. If the only charge requires proof of premeditation, and there is no proof, then that charge will not succeed. | It depends. If the tip is that there are pictures proving that a minor consumed alcohol 10 years ago, probably not. If the tip is that there's a kidnapped child being tortured inside, more likely. In either event, they would probably seek to build up some independently obtained evidence to enable them to obtain a warrant based on probable cause. An anonymous tip might be enough, depending on how detailed it was and whether there were any objective indicators of reliability, but it's not a sure thing. | This is going to vary based on jurisdiction. In Wisconsin, the attempt statute covers all felonies, but it doesn't cover all misdemeanors. The statute says: Whoever attempts to commit a felony or a crime specified in s. 940.19, 940.195, 943.20, or 943.74 may be fined or imprisoned or both as provided under sub. (1g), 943.20 is in that list, and it just so happens to be the theft statute, which includes theft via fraud. So Eve is out of luck - her attempted theft is a crime, even if she doesn't try to steal the $2500.01 needed to trigger a felony. The penalty listed for attempts is half the sentence you'd get for the completed crime. But even if this wasn't covered by the attempt statute, once the police start investigating Eve, they'll likely find a victim, or some other crime to charge her with. People who do this sort of thing tend to have a pattern of doing this sort of thing. And I notice she's using the Internet to commit the crime; that means she's involved in systems affecting interstate commerce, and she may be breaking all manner of federal laws in addition to state laws. | There is commonly a law like RCW 69.50.309 which says that A person to whom or for whose use any controlled substance has been prescribed, sold, or dispensed by a practitioner, and the owner of any animal for which such controlled substance has been prescribed, sold, or dispensed may lawfully possess it only in the container in which it was delivered to him or her by the person selling or dispensing the same. A controlled substance is "a drug, substance, or immediate precursor included in Schedules I through V as set forth in federal or state laws, or federal or commission rules". Schedule V includes some opiates with low potential for abuse and dependency. It does not include prescription antibiotics, and does not include Ibuprofen and other OTC NSAIDs. The cop may be right about keeping your narcotics in the original container, but wrong about anything less. I can't presently locate the Oklahoma analog of this law. After diligent searching, I even suspect that Oklahoma does not have such an "original container" law. It would count as a "counterfeit substance" if it is a controlled substance and is in a container with labeling that is not that of the original distributor, but if the contain is completely blank, it is not legally a "counterfeit substance". And again, that only applies to controlled substances. | Given that a murder and an involuntary manslaughter are two different offenses, could a jury be asked to adjudicate on both counts? This happens routinely. Could it find the defendant guilty of both? Only for certain offenses. See lesser included offense. Could the DA even accuse the defendant of both during the same trial? Yes, which is how juries are asked to adjudicate multiple offenses as noted above. What about in different trials? All the crimes associated with a given act have to be tried at once. If you've been acquitted of murder in connection with one act, you can't subsequently be tried for involuntary manslaughter for the same act, nor vice versa. And what about murder and attempted murder? I don't think it's possible to be tried for an attempt when the crime has been successful; certainly, the opposite is true. But again, if the charges are based on the same act (i.e., we know you tried to kill the victim, and we know someone succeeded, but we don't know whether it was you) then the charges would have to be tried at the same time. | So I'm fascinated with the OJ trial and I've read a ton about it. I'll try to answer your question both accepting your premise as true, and then also going into what actually happened. First of all, jury nullification cannot be overturned in the US. The double jeopardy clause forbids it. This is such a powerful tool, in fact, that there are strict rules that prevent defense lawyers from mentioning or even hinting at jury nullification, in front of the jury, in almost all circumstances. It doesn't mean D is safe from all legal liability. OJ, obviously, was found liable in the civil trial. Sometimes other jurisdictions can prosecute. For example, after the officers in the Rodney King beating were acquitted in state court, the federal government got them for violating federal hate crime statutes. Second, looking at your premise. If jurors think D is guilty, but also being framed, that's not necessarily jury nullification. Remember, a criminal defendant must be proved guilty beyond a reasonable doubt. That means that 'probably guilty' means 'not guilty.' That said, there may be times when a jury is convinced beyond a reasonable doubt of a defendant's guilt, but is so disgusted by the police tactics used in the case that they acquit. This would be jury nullification. What actually happened in the OJ case: Mark Fuhrman perjured himself on the stand. He lied and said he'd never said the N word, and the defense produced tapes of him saying it a ton. The defense recalled him to the stand. Because perjury is a serious crime, this time he came in with his own defense lawyer, and did nothing but take the fifth on the stand. In a genius move, OJ's defense team asked him whether he planted any evidence in the OJ case. He didn't deny it, instead he took the fifth (again, as he was doing to every question). This was enough to sow reasonable doubt about OJ's guilt based on the evidence in that trial (there's obviously no actual doubt, in real life, that he's guilty). So, what actually happened wasn't jury nullification. | 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. | These charges aren't the same offense. They are three different offenses, all of which arise from the same conduct. Imagine throwing a grenade in a building because you saw a police officer about to discover evidence connecting you to a crime. I think most people would agree that there's no reason you could not be charged with murder, arson, and tampering with evidence under those circumstances. Likewise, Chauvin committed multiple distinct offenses when he kneeled on George Floyd's neck -- for instance, murder charges are based on the act of causing a death, while manslaughter charges are based on the act of creating a risk of death -- and the state is free to seek punishment for all of those offenses. Double jeopardy doesn't have any application to the case at this point. The Double Jeopardy Clause doesn't say you can't face multiple charges for the same conduct; it says you can't face multiple trials for the same charges. |
Contract change after both parties sign Over the summer I signed a contract with a public school corporation. This is my first year with this school corporation. In the contract it stated my salary. We're now 1.5 months into the school year, and the school notified me that my salary was being reduced because they finished the employment verification, and one of the years they counted as experience does not actually count. I thought they would have done employment verification before signing the contract, and that once the contract was signed, that was my salary, period. I'm a little baffled that they can come back now and change my salary. I actually declined another offer based on signing the contract with the school in question. Without going into the details, reducing the salary of this position may have made me reconsider the position that I declined. It is also worth noting that I did not misrepresent anything during the hiring process. They asked me for my experience, and I gave it to them. They never put any qualifications on what kind experience counted. Also, they never told me that the salary is pending employment verification or anything. We just signed the contract--I thought the salary was "locked in". When they notified my of this, I wrote back explaining my frustration, and I let them know that my decision to accept this position was made based on the terms of the contract, and obviously the salary is one of the most important terms. I kindly asked them to attempt to keep my salary in line with the contract. They said the are "obligated" to correct the salary and issue a "corrected contract". Furthermore, they are adjusting my next pay to make up for over-payment the first few pay periods. Part of me wants to just drop it and move on. But I am curious. If I were so inclined, would there be any legal recourse? Can they legally change the contract on me after both parties have signed and I'm 1.5 months into the school year? | Off the top of my head, unless there's a provision that says otherwise, no, they cannot do that. Obviously, I can't tell you if there's a provision that says otherwise. Consult a lawyer for more specific advice. | No All parties must agree to change a contract. On the face of it, the New Tenant has to be “acceptable to both the Landlord and the remaining individual or individuals comprising the Tenant (the Remaining Tenant)”. It goes on to describe what the landlord may consider in making this assessment; there is no such imposition on the Remaining Tenant. However, there is implicit in a contract a requirement that the parties must act reasonably when using discretion. If Remaining Tenant repeatedly rejects every proposed New Tenant then this raises the question of if they are acting reasonably. Have you clearly articulated why the proposed replacements are unacceptable and are those reasonable reasons? | This aspect (and many others) of contract law is applicable in the US and various countries of the EU. can they renege after the candidate has begun their journey, thus saddling the candidate with the travel cost? No. The company would incur breach of contract. There is no need for a formal contract. The candidate only needs to prove that the company agreed (in writing, orally or clearly through its conduct) to cover or reimburse those expenses and that this elicited a meeting of the minds. The agreement would be void if the candidate incurred the expenses despite knowing (via timely notice) that the company changed its mind. Likewise, if the candidate lied on his CV, the contract (here, the company's agreement to cover the expenses) would be voidable by the company, since the candidate's intentional misrepresentations preclude the aforementioned condition of meeting of the minds. --Edited on 1/18/2019 to add ...-- Per suggestion by @KRyan, the aspect of void or voidable contract is expanded. But first, two disclaimers are pertinent: We need to be mindful that many of the follow-up concerns are either premised on or inspired by the situation described in the underlying Workplace SE post. These are somewhat beyond the scope of this Law SE question but addressed nonetheless, given their relevance as well as the OP's & audience's interest. The follow-up hypotheticals [in this Law SE question] and clarifications thereto neither speculate nor pass judgment on the stranded candidate who asked on Workplace SE. The Workplace SE post reflects a company's breach of contract. The subsequent comments here about fraud hypotheticals are mostly derivative inquiries beyond what is described in Workplace SE. In particular, we do not assume whatsoever that the stranded candidate committed fraud. The_Sympathizer commented: can the contract be voided on the spot like that without first proving in court? As it seems like it grants a rather "vigilante" justice power that is open to abuse, since effectively the "punishment" (cancellation of the flight and thus inducing a rather serious physical situation) is administered before any due process has been afforded the one accused. Yes, it can be voided on the spot (aka sua sponte). "Vigilante" justice denotes a self-attribution of punitive powers that exclusively belong to the state/government/court, whereas a party's voiding of a contract is the act of foreclosing his losses/exposures with respect to a contract that de facto never existed (such as when that contract was induced by fraud). I agree that unfortunately that is open to abuse: As a pretext to actually incur breach of contract, a company might allege that the contract was void. That is why (if taken to court) it will be the company's burden to prove that (1) it reasonably relied upon a candidate's representations (2) which were significant and blatantly false (3) given the candidate's knowledge that his lies contravened the job's core requirements. That can be quite burdensome. For instance, is the company handing out airfares without first conducting some competent corroborations about the candidate's credentials/skills? If so, one can hardly concede the company's allegation of reasonable reliance. The resulting finding would be that the contract was not voidable by the company, and thus that it is liable for breach of contract. Also, belatedly "informing" the stranded candidate that the company "is going in a different direction" falls short of evidencing that the contract was voidable. That applies even if the candidate performed very poorly in the interview or screening process. Given the hardship imposed on a stranded candidate, a company has to be morally and legally very judicious about its method and timing for "going in a different direction". But absent any representations or [company's] bylaws to the contrary, a company generally does not have the obligation to afford due process to a candidate. The court is the entity with an obligation to enforce due process as provided by law (although many of us in the U.S. have repeatedly experienced the courts' disavowal of due process). --End of edit on 1/19/2019-- a binding agreement requires both sides to give something Here, the candidate's consideration is his time and effort to accommodate the company's interest in assessing the candidate's profile at a location that is convenient to the company. | If everyone hired after date X has a different contract from anyone hired before that date it is not discriminatory. (As long as they do nothing naughty like changing the contract, hiring three black people, changing the contract back). | Does this mistake make the agreement invalid? No. Having worked at that company for six years already, it will be extremely easy for the company to prove that you clearly knew with which entity you were entering the contract. That is what matters in contract law. Thus, the discrepancy of name in te contract is inconsequential. This is similar to what I explained in this other answer. Are employment agreements for employees valid for share holders and officers of the company or should there have been a different one. In the U.S., there is no prohibition to that effect. What matters is that the parties' rights and obligations are stated and accepted with reasonable clarity. | Contracts are generally assignable, meaning that one company can assign their rights, duties and obligations under the contract. Assignment may be specifically barred by the contract, or it may have certain terms (prior written consent, etc.) attached, but if not, a contract is likely freely assignable. Though a contract is not necessarily "automatically transferred" the reason Company C buys Company A is for its ability to earn Company C over time, which includes the contract between A & B. So unless the original contract has a "no assignments clause" or if an assignment is otherwise impossible or illegal, it is likely that A can freely assign the contract to C. | What legal options do I have here? It depends on how much you are owed. If it is less than $5000 (in a city court) you can sue them in small claims. If it is more than that, you'll have to sue them in a different court. Do I have a claim to salary if I quit? Yes, absolutely. You quitting does not relieve the business of its obligation to pay you for work you have already performed. In some states, they may also be required to pay you for accrued leave (sick/vacation time). You should not have to work for a company that does not pay you, we got rid of slavery a long time ago. I'm nearly positive I would not have a claim to the 100% discretionary bonus. Maybe, maybe not. This depends on your contract and what you've been told. If you were told (in writing) that you would be given $X amount for a bonus for work performed in 2018, the bonus may no longer be discretionary because the company obligated themselves to pay it via a promise. Bonuses may be harder to argue in court, but if you have sufficient documentation that you were promised this bonus then you may have a claim to it. If you do decide to go to court with this, gather up as much documentation as you can before quitting, print it out and save it to bring to court or to your lawyer. Make sure to get as much as possible, for example if it is an email, get the whole chain, as much of the headers as possible, etc. If you have voicemails, see if you can save them or record them for later. Do not wait too long, have a lawyer draft up a demand letter the moment you quit outlining exactly everything you are owed, including the bonus, vacation, sick days, etc. Deliver this via certified mail. Don't let them say "well we'll get you taken care of next week/month/pay day". There are statutes of limitations (I don't know what they are for NYC) but you should be making an effort to collect, not waiting on them. After you quit, they don't have an incentive to pay you anymore (even though they are legally obligated to). | Can a district rescind an offer of employment? Yes. Any contractural offer can be withdrawn so long as it has not been accepted. You did not accept it, so the withdrawal is legal. Can they hire someone who is not qualified ... That depends on the particular law that mandates the qualification. As a general principle, anyone is allowed to work at anything unless there is a law that says “you cant do job X unless you have qualification/licence/accreditation/whatever Y.” So you need to actually read that law. Some allow a grace period for a person to do X while they get Y and some are outright prohibitions. And there are some things that people think require a specific qualification because everybody has one but there is actually no legal requirement. For example, I’m a qualified arbitrator, adjudicator and mediator. I need the qualification to work as the first one in australia and I it to work as the second in queensland but not new-south-wales but I don’t need it anywhere to work as the last one - most mediators have qualifications but they are not legally required. I am not a qualified lawyer because I don’t need to be to work as any of the above and, indeed, merely being a lawyer does not allow you to work as an arbitrator. … and rescind my offer of employment? The eligibility of the person they chose to hire has no bearing on their decision not to hire you. If they have hired an unqualified person then that is for the relevant regulator to deal with and has nothing to do with you. Are they not obligated to hire the most qualified applicant? No they are not. Employers have the discretion to choose the applicant they consider the “best”. And they can assess how your better qualifications weigh up against someone else’s past history with the organisation. Provided they do not consider things that they are not permitted to consider under discrimination law and that the process is not corrupt, they can weight the various factors how they wish. However, if an employer has stated that they will weight various applications is a specific way, then they have to do that. |
What does it mean for O.J. Simpson to be found "liable for their deaths"? In the "trial of the century", O.J. Simpson was found not guilty of murder of his ex-wife Nicole Brown and her husband Ron Goldman. However, he was later found in civil court to be "liable for their deaths" and still owes 60 million dollars (as of 2017) to the victims' families: [1] http://www.nytimes.com/1997/02/11/us/jury-decides-simpson-must-pay-25-million-in-punitive-award.html?mcubz=1 What does "liable for their deaths" mean here? Is it pretty much a conviction of murder, but done through the civil courts, since one cannot be found guilty in criminal court, due to "double jeopardy"? | When a person unlawfully kills someone else they have committed a crime against the state (murder, manslaughter etc.) and a civil wrong (a tort) against the victim (specifically, the tort of wrongful death). The state responds with charging the perpetrator with a crime and attempting to prove that they did the deed "beyond reasonable doubt". If convicted the criminal is "punished" by incarceration or death or a fine or community service etc. The victim (through their estate) or other affected people (family, dependents etc.) can respond by suing the perpetrator for compensation (money) for the damage they caused. If the plaintiff proves their case "on the balance of probabilities" the perpetrator will owe the plaintiffs whatever damages the court awards. There are many crime/tort mirrors (many have the same name): theft and conversion, trespass and trespass, fraud and fraud, kidnapping and false imprisonment etc. Because of the different threshold of proof between criminal and civil liability, it is much easier to win a civil case. | Will Bob be dismissed per res judicata when he files? No. His claim is different from Rob's. These are two separate contracts, involving different parties, and the company's torts are different in each matter. Your description reflects that only Rob's claim(s) has(have) been adjudged. Will Bob get to seek punitive damages even if Rob is already awarded some? Section 1974(c)(1) of the California Civil Code entitles Bob to "a civil penalty which shall not exceed two times the amount of actual damages" if Bob proves that the company's noncompliance was willful. These remedies do not depend on whether Rob was awarded damages (punitive or otherwise) as a result of his claim against the company. There is no indication in your description that Bob's suit is a class action or that he is bringing an action of behalf of others in addition to himself. Therefore, the exception in the latter statement of section 1974(c)(1) is inapplicable. | "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. | In the US, it depends on the jurisdiction because each state has its own homicide statutes: but, the defining elements don't differ a lot. Drawing on Washington state law, the first question is whether you intended to kill a person (it doesn't have to be a specific person). If you did, you have committed first-degree murder. It is first-degree murder, because it requires a certain amount of advance planning to kill with a drone. It does not matter that the drone houses the gun that killed the person and a program determines when the gun fires (the "it was the drone, not me" defense gets you nowhere: otherwise, you could always claim "It wasn't me, it was my gun / knife / fist".) If instead this is a badly-designed pig-slaughtering drone, then it could be manslaughter in the first degree, if the act was reckless, or manslaughter in the second degree, if the act was with criminal negligence. To determine which it is, you look at the definitions: A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act may occur and his or her disregard of such substantial risk is a gross deviation from conduct that a reasonable person would exercise in the same situation. versus A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation. So it would depend on whether you decided that safeguards which would prevent shooting people were too much bother (you know there is a risk and set aside that concern), or it didn't occur to you that a flying gun might hurt a person. | Short answer, yes, jurors will typically render a decision of guilt vs. innocence. This is pretty common in nations where the legal system is derived from British Common Law (about 2 billion people world wide live in a Common Law nation). The U.S. is unique in that it uses juries for Civil Trials as well as Criminal Trials. The right to a trial by jury is guaranteed in the U.S. Constitution in which the 6th amendment guarantees the right to trial by impartial jury (contrary to popular opinion, it is not a jury of peers, as this alludes to the Peerage systems, which the U.S. never adopted). That line is from the Magna Carta which was influential in the drafting of the U.S. Constitution and Bill of Rights. A jury usually consists of a panel of 12 people pulled from the locality of the crime, unless a change of venue has been granted because the alleged crime is so well known an impartial jury cannot be seated from the population. The jury will hear all the evidence from both sides, as well as opening and closing arguments. They will be provided "jury instructions" by the judge and must find if the evidence presented (The Facts) meet the criteria for a conviction of a charged crime (The Law). In all Jury Trials, a Jury fills the role of "Trier of Fact" while the Judge fills the role of "Trier of Law." While the judge has the education background to understand what the law says constitutes a crime and how to find that law as well as how to make sure the defense and plaintiff/prosecution make fair arguments, any random group of 12 people can understand facts and put together whose story they believe, the defense's or the prosecution's. In the case of an innocent person being convicted due to inept defense, this does happen and is horrible, but there are recourses in the form of appeals courts, which can overturn a trial and order that a new one be held (a mistrial, essentially, the original trial never happened and the person is legally innocent. Try again and do it proper this time.) Ineffective assistance of counsel is a valid grounds for appeal of a conviction and does happen. In the other scenario, an inept prosecution, this does happen as well and it's not the fault of the jury that the guilty person went free, but for the prosecution. The prosecutor is at a disadvantage in every criminal case to balance out the fact that their office has more resources to bring to bear then most defendants. Among these handicaps is that their "story" about what happened must not have any "plot holes" in it (beyond a reasonable doubt evidentiary standard of proof) and that the prosecution has to convince 12 people that their story is the only way this could happen (try convincing 12 random people to agree to anything more complicated than "the sky is blue and grass is green") and they only have one shot to do it (Double Jeopardy essentially bars the prosecutor's office from initiating the appeals process... and blocks someone who is declared innocent from doing it because why the hell would you want to?!). Here, the problem is that the Prosecutor doesn't have to charge the accused right away and has a bit of generous time to investigate (depends on statute of limitations on particular crimes) ... but the right to a speedy trial means that once charges are filed, the clock starts on how long the prosecution has to bring the case. Delay to long and the judge will give a directed verdict that the person is innocent because the prosecution wasn't ready. The importance of this fact that is a staple belief of Common Law is in the "Blackstone Ratio" which states: Better that 10 guilty people go free than a single innocent person suffers So the jury finding the prosecution inept is certainly the prosecutor's problem, not the jury's problem. It's a feature not a bug. If an innocent person does suffer, then we have a bug and we must see that it is corrected. As a final note, the jury also has the power of Jury Nullification of the Law. In the U.S. it's not really certain if Jury Nullification invalidates the law completely but in effect, it allows the Jury to declare a person innocent because, while they believe the prosecution's story that the defendant did what they were accused of, they don't believe this person should be convicted because they believe the crime they're accused of should have never been a crime in the first place. | No. I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter. So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it. Civil suit for wrongful death Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him"). Reckless driving charge In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law: [In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit. http://manassascriminalattorney.com/2015/10/can-reckless-driving-in-virginia-be-a-felony-charge/ In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor. Misc links https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412 | In the U.S are judges, attorneys, physicians, teachers, professors, politicians, administrative officers liable for ordinary negligence? In the U.S., judges, prosecuting attorneys and legislators have absolute immunity from civil liability (but not from criminal liability) for legislative and judicial acts in their official capacity. Attorneys have absolute immunity from civil liability from some claims from some people (e.g. defamation claims from non-clients for statements made in connection with representing someone) and qualified immunity from civil liability from others (e.g. most claims of non-clients) for their acts as lawyers, but are liable to their clients for ordinary negligence. Physicians are liable to their patients for ordinary negligence in the nature of medical malpractice. Some acts taken by physicians that would otherwise constitute false imprisonment or assault or homicide are excluded from the definition of those crimes. Elected officials in the executive branch including mayors, law enforcement officers and the attorney general have qualified immunity from civil liability for their official non-judicial acts. This means that they are only liable for intentional violations of constitutional rights that are clearly established in the law. Subject to narrow exceptions (e.g. driving or medical malpractice) they are not liable for ordinary negligence. It is hard to know what kind of liability is contemplated for teachers and professors or administrative officers to answer. The answer would not be the same for all kinds of claims. Teachers of minors generally have the same immunities as a parent with respect to the use of physical force towards their students in order to maintain order in the educational process. The liability of teachers and professors also depends upon whether they are employed by public or private institutions. Those in public institutions often have more protections from liability, but also have exposure to civil rights claims that those in private institutions are not. Contractual waivers can also influence liability in these circumstances. Everyone has liability for ordinary negligence in their unofficial capacity and for many acts (e.g. driving a car) while on duty but not involving activities particular to their professional responsibilities. They are not employees or workers so that they could be reasonably absolved for ordinary negligence. We expect employees to be obedient so they have no moral responsibility, if we held them liable we would harm the market people would be reluctutant to enter a contract of employeement. In the private sector, employees are usually liable for ordinary negligence that they personally commit, even though the employer is also liable. Judges are employees and arguably workers as well. And, for their non-judicial acts, judges have the same liability as every other employee for their ordinary negligence. For example, if a judge gets in a car accident while driving from one courtroom to another, and harms another through negligence, the judge has personal liability for the judge's ordinary negligence and the judicial branch has vicarious liability for the negligence of its employee, the judge. In all these of judges etc cases they receive more than enough indenization for assuming responsibility. By freeing them from ordinary negligence we are making them negligent. Other than political economics why would the legislator free them from such responsibility? Analysis of why the law is the way it is, or what it should be, are really better suited for Politics.SE than for Law.SE. I discussion of the why's of judicial immunity is appropriate for Politics.SE. A discussion of "judges etc" is probably to broad for either forum. | I don't believe your premise is necessarily true. As the Supreme Court has held, a defendant can be prosecuted for perjury after being convicted for another offense at trial: The conviction of Williams, at a former trial, for beating certain victims is not former or double jeopardy. Obviously perjury at a former trial is not the same offense as the substantive offense, under 18 U.S.C. § 242, of depriving a person of constitutional rights under color of law. . . . It would be no service to the administration of justice to enlarge the conception of former jeopardy to afford a defendant immunity from prosecution for perjury while giving testimony in his own defense. United States v. Williams, 341 U.S. 58, 62 (1951) (emphasis added). Now as a practical matter, trying a convicted person for perjury is most likely rare, since the prosecutor has already obtained a conviction for the underlying offense. Starting another prosecution for perjury might be excessive or unnecessary. But that doesn't mean it's categorically prohibited. Note also that perjury by the defendant can be considered by the judge to enhance the defendant's sentence. United States v. Dunnigan, 507 U.S. 87, 96 (1993). |
Does musical satire really require permission from the copyright holder? I was reading this article on American art-rock/new-wave band Devo in The New Yorker and came across this claim that puzzles me: It’s a little unclear why Warner, once they learned that Devo wanted to include “Satisfaction” on their début album, demanded that Devo get it approved by Jagger’s people. Cover songs don’t need anyone’s approval: you can cover anything you want as long as you pay the original copyright holder and don’t change the words. (Gerald) Casale thinks Warner may have been worried that their cover was so different that it might have been considered satire—a separate legal entity for which one needs permission. (Devo had run into a similar issue covering “Secret Agent Man,” and ended up using a sneaky runaround to get permission from his Japanese publisher since Rivers himself refused.) Huh? So if Devo’s cover of The Rolling Stones “(I Can’t Get No) Satisfaction” was considered a satire it would have been a big legal mess? I understand there are all kinds of laws surrounding sampling and such, but I was always under the impression that satirical takes on pop music are protected under fair use and do not require any legal permission from the copyright holder. | You’re confusing satire with parody. Parody is when you use the protected work to comment on that work, while satire is when you use it to comment on something else. If you take R. Kelly’s “I Believe I Can Fly” and change the lyrics after the first verse to be about the singer jumping off a roof and having to spend the next three months in the ICU, that’s parody — you’re making fun of the song’s lyrics by exploring the consequences of an overly-literal interpretation. On the other hand, if you used the melody for a song with totally different lyrics about clubbing baby seals, that’d be satire. If you’re sued over “I Believe I Can Break My Spine,” you have a good excuse for why you used the copyrighted ”I Believe I Can Fly” you can’t exactly make fun of the lyrics without using substantial copyrighted elements of the song. On the other hand, for a satirical song about baby seals, you don’t need to use “I Believe I Can Fly.” You’re using it because it’s easier than coming up with your own melody, but if you just want to avoid extra work you need to get a license. The distinction can get fuzzy when a work is also clearly talking about other issues. Nader’s U.S. presidential campaign in 2000 featured this ad, which was clearly based off Mastercard’s “Priceless” ads. The ad was most directly criticizing his opponents as corrupt politicians, and that would be satire. However, when sued he argued that part of the subtext of the ad was commentary on Mastercard’s ultimate message of materialism (sure, there are “priceless” moments, but you can get them with things money does buy). In contrast, a book in the style of Dr. Seuss about the OJ Simpson trial was held to not be parody — it didn't make any point whatsoever about Seuss, just about the trial. Seuss’s style was just used to draw attention, not because they were giving commentary on Seuss. In any event, fair use is complicated. There are four statutory factors: The purpose and character of the use (specifically including whether or not it's commercial) The nature of the copyrighted work. How much of the original work was used The effect of the new work on the market for the old work. All four statutory factors have to be considered; none of them can automatically make something fair use or not fair use. Even a legitimate parody might not be fair use under the right circumstances. The only way to definitively know if something is fair use or not is if you’re actually sued for copyright infringement and convince a court that it was fair use. It’s fairly common for whoever’s backing your work to demand that you get a license even if it’d almost certainly be fair use, because they don’t want to have to go to court and argue that as a whole the four statutory factors suggest that your work was fair use. | If I draw something, having been inspired by looking at some other thing, you are not copying that thing. If you carefully copy something even if you are also deliberately changing features of the original, then you are copying. Copyright law gives the copyright holder the exclusive right to make copies. There is a difference between copying music and visual art in this respect, since music can be reduced to a small set of specific symbols, so "being inspired by" a musical work is often found to be infringement. The difficult part is legally distinguishing "making a copy" versus "being inspired by". The courts use a subjective test of "substantial similarity" to decide if there has been copying. the case of Mannion v. Coors. "Pose" is an element that is considered in assessing similarity: the question the court would ask (itself) is whether such a pose could ever have come from elsewhere (such as, your own creative efforts). | You're largely correct, though there's some vocabulary you're using that could go either way in terms of proper understanding. My comments on your understanding, presuming we're dealing with two Berne countries (UCC is largely irrelevant these days): My understanding of copyright is that it grants the author an exclusive right to distribute their work in whatever manner they'd like for some amount of time (determined by the copyright duration in a country). Generally correct though there can be many exceptions here (fair use, technical/temporary copying, first-sale doctrine, etc.). Can a person in Country A legally use the adapted work? I'm assuming no [...], Basically correct, whoever holds rights to the original work could theoretically still assert their rights in Country A on any portion of the derivative work that was part of the original. [...] does that mean that the author of the work created in Country B does not technically have all the rights to the work they created, since they have no control over whether their work can be distributed in Country A? This is splitting hairs, but while the derivative author has the rights given to them by copyright law, they aren't absolute. In particular in this case, regardless of which country, they still don't have any inherent exclusive rights over the original work. With respect to country B, those exclusive rights have expired so they don't bind the derivative author, but they haven't expired in country A. If that is the case, then would these rights be "granted" to the author of the adaptation when the copyright finally expires in Country A? Again splitting hairs, but its more helpful to express that no rights are actively granted by the expiration of copyright in Country A, it's just that no one holds those rights anymore (here there might be a language issue too, generally in copyright law "rights" refers to those exclusive actions that may be taken by the copyright holder, and not always to the "right" i.e. "freedom" for someone to do something). | Please Note: This was written before the title change of this question and may no longer be applicable According to the Harvard website: In Feist Publications, Inc. v. Rural Telephone Service Co. 499 US 340 (1991) the United States Supreme Court held that copyright does not extend to a mere compilation of facts. In this case, it was a telephone directory much the same as the one in ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996). Furthermore, the Court also ruled that something more than simple "sweat of the brow" labor was required before copyright protection would ensue, with some modicum of authorial originality necessary. Accordingly, it was held in Feist that copyright did not extend to a telephone directory, no matter how laborious a task its compilation was. The decision in ProCD v. Zeidenberg 86 F. 3d 1447 (7th Cir. 1996) is highly significant, therefore, in that it permits copyright or quasi-copyright protection to be extended to non-copyrightable material through the use of contract. One would have to consider each meta tag independently. For example, the "description" tag could by copyrightable since it is written for more than just the 'facts', such as a subtle advert for the site that is more than an objective description. However the 'og:type' would not be copyrightable since it would just be considered a fact. Now, if you are using it on another website and sourcing it properly, you could probably use it under "Fair Use" Uses That Are Generally Fair Uses Subject to some general limitations discussed later in this article, the following types of uses are usually deemed fair uses: Criticism and comment -- for example, quoting or excerpting a work in a review or criticism for purposes of illustration or comment. News reporting -- for example, summarizing an address or article, with brief quotations, in a news report. Research and scholarship -- for example, quoting a short passage in a scholarly, scientific, or technical work for illustration or clarification of the author's observations. Nonprofit educational uses -- for example, photocopying of limited portions of written works by teachers for classroom use. Parody -- that is, a work that ridicules another, usually well-known, work by imitating it in a comic way. A copyright would exist on the image. One would have to know what license currently applies to the image to know for sure, however, the "Fair Use" to copyright would still apply. With Fair Use, the entity type that uses the image is important. There is much more leniency when a non-profit uses copyrighted information than when the information is used in commercial activity. (With, of course, more exceptions.) | First I should point out that the Google question is about a different situation, the "snippet" issue where a tiny part of a web page is redistributed, where the issue of resolved in the US by appeal to the "fair use" defense. The proposed scenario as written here is broader since it would go beyond a couple of lines, and goes up to the limit of copy an entire web page. That is copyright infringement, with or without an associated link. Copyright protection is not just about attribution, it is about control. If you can limit your copying appropriately, you may survive under a fair use analysis; but you need to hire a lawyer with experience in copyright litigation to vet your notions of what is "a small amount" etc. | Online file converters are legal: there is no law that prohibits a person from making a program available and executing online, including creating output in the form of a file. It is possible that some person may illegally copy copyright-protected material then use a website to modify that material, in which case the question of vicarious liability for copyright infringement could arise, so we appeal to the DMCA safe harbor provisions to see what the website must do. First, the owner of copyright must submit a properly constructed takedown notice to the website. Crucially, the notice must contain sufficient information that the website operator can find and take down the item(s) in question. Assuming that the complainant can supply the "where is it" information, then there is a notice and counter-notice routine where the uploader is informed and can deny the accusation – the website operator doesn't evaluate the merits of the claim, he only sees that the formalities were observed. If the operator follows the rules, he cannot be held vicariously liable. If the link does not expire and if it is somehow promulgated, the technical potential for being a contributor to copyright infringement becomes very real, but it puts the operator in no worse a legal position than Youtube. So the question is not just related to OCILLA, it is entirely covered by that law. Questions of how users or website owners are "supposed to" act don't figure into this. If the website owner does not comply with those provisions, they have no access to the safe harbor provisions, and they can be sued. However, the website itself remains legally "permitted" (there never was a prohibition of such a website). | Generally, as the copyright holder, you can grant anyone a license to any or all of the copyright rights you have over your work (copying, distribution, derivative works, etc.). If you want to articulate unambiguously exactly what rights you are licensing, and optionally require attribution, you could use one of the Creative Commons licenses, which are designed for creative works. Some that would likely be a good fit for you are: Creative Commons Attribution license (CC BY) - Grants full rights to any recipient to use, modify, and distribute. Requires that all reuse mentions you somewhere in the work's credits. Creative Commons Attribution-ShareAlike license (CC BY-SA) - Grants the same full rights as the CC BY license except that any new derivative work made by a recipient must also be licensed under the CC BY-SA license. With the CC BY license, another person's modifications could be under a different license; under CC BY-SA, all modifications must be licensed under CC BY-SA when distributed, so the work and all its future transformations must be shared under the CC BY-SA license, forever (until your copyright expires, of course). This falls under the broad umbrella of copyleft licenses. CC0 - Functionally places your work in the public domain where it can be used by anyone with no restrictions (other than moral rights). CC0 allows you to renounce all claim to copyright on your work (to whatever extent possible in your jurisdiction), and/or freely license all the rights you hold in your work to the maximum extent possible (for jurisdictions where renouncing your copyright is not possible). There are also Creative Commons licenses that disallow commercial use and disallow the creation of derivative works, but you are probably not interested in those, since you want to grant full rights. One other factor to consider is whether you want to license the musical work itself or only the sound recording. By default, you might only be licensing the recording, which means other people cannot record a new cover of your music. (See Does a Creative Commons license allow me to record a cover of a song recording?) If you want to allow that, simply make a separate declaration when you license the work, saying something like, "In addition to the sound recording(s), I also license the underlying musical work under identical terms, to allow recipients to record their own covers based on this song." | Generally speaking, copyright flows from the end of a pen (or at the A/D converter of a digital recording device). However, owning the copyright to a specific artifact, such as a digital video clip, does not trump all the other rights and claims that may be made regarding the materials captured within that clip. Which means that there are several rights all in play at the same time, and those rights may conflict. The legal term for getting enough rights so that you can do what you want with the rights you own is called "clearance" by those in the industry, and "collective rights management" by Wikipedia (see https://en.wikipedia.org/wiki/Collective_rights_management). The long and short of it is that it is not enough for you to "own" your video clip if you want to use it somehow. Depending on how you want to use it, and your tolerance for risk, you need to get every party who might lay a claim to any copyrighted or trademarked material within your video clip to agree that they are OK with you using it in whatever way you say you want to use it. Sometimes you can ask for, and receive, a "worldwide, perpetual, royalty-free license to use XYZ material in any way, imagined or not yet imagined". Other times, you might have to settle for more limited rights "a performance of the video at the ABC Bar in New York City, on December 31, 2015 only, for a fee of $10,000 paid to XYZ Rights Holding Company," and agree to a whole bunch of other stipulations to boot. There are entire industries that make furniture and automobiles for Hollywood studios so that they don't have to ask for the rights to feature an IKEA kitchen table or a Ford station wagon in a movie. That's how bad/hard the clearance problem can be. If you are lucky (and risk-tolerant), you might only need permissions from the band and the film maker. If you are unlucky or not risk tolerant, you might need permission from every person captured on camera, and from every company that made every item that appear anywhere in the film. Good luck! |
Searching license to allow commercial use but not selling I'm currently distributing my software to create websites under the Creative Commons BY-SA 4.0 license. Now some people are selling my software as it is, which is allowed by this license. I don't like that users are paying for software to people who didn't made it and which is available for free. If I would switch to the non-commercial version of CC-BY-SA 4.0, this would also forbid companies to use my software for their business website, wouldn't it? I'd be happy about tips which license I could use for my software to allow commercial use but not selling it. Thanks for your answers! | The CC license scheme has a limited set of combinable menu items, where certain conditions are encoded with specific language in the license. In CC-BY-NC this involves a definition: NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange. Let's say that this is an accounting program, and businesses would use it to gain a commercial advantage (e.g. not having to spend capital on a fancy paid program, reduce expenses owing to the need to hire additional bookkeeping staff). Such a use could be considered "Commercial" (would not be NonCommercial). If I were to use the program for household bookkeeping, since I am not engaged in commerce, I do not gain compensation or commercial advantage. And even if I happen to run a craft side business with a couple of sales every year, my use is primarily intended to be for personal convenience. At the end, they modify NonCommercial more narrowly, saying that you can "sell" the software using not money, but other copyrighted material – so a program-for-program exchange is allowed. Then there is the License Grant: Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material to: reproduce and Share the Licensed Material, in whole or in part, for NonCommercial purposes only; and produce, reproduce, and Share Adapted Material for NonCommercial purposes only. There does not exist a CC license specifically tailored to allowing "use in business" but excluding "sale of copies". In order to do that, you would have to write your own license (or hire an attorney to do that), and then you would have to distribute the work with that license. Another approach is to model the license based on the StackExchange TOS. There is a superficial problem (in this q&a, which I expect will eventually disappear, and also raised here), that the SE TOS seems contradictory, by saying that material is licenses under CC-SA terms, but then the terms are made more restrictive (which contradicts the CC-SA license). The SE license containse in §13 a merger clause: This Agreement (including the Privacy Policy), as modified from time to time, constitutes the entire agreement between You, the Network and Stack Exchange with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof. When there is an apparent conflict, the SE terms win (as far as I can see). Therefore you might include an overriding provision in your license, which says something like "sale of the content is forbidden, but use in business is allowed" (don't use that literally). Your attorney (get one) could professionally advise you as to the most efficient way to get what you want. A remote third option is to explain to the CC people what you want, and maybe they would be willing to create a new license parameter. | The starting point is whether you infringe copyright by downloading or using the cracked software. The licence you purchase relates to a specific copy of the software. The licence almost certainly does not say 'You can use any copy of this software.' It will usually say something like 'You may install this software', surrounded by other language that makes it clear that 'software' refers to a specific copy. E.g. the Windows 7 EULA says 'you may install one copy of the software on one computer' and, in another place, says 'By using the software, you accept these terms. If you do not accept them, do not use the software. Instead, return it to the retailer for a refund or credit.' Nothing in that licence allows you to download an infringing copy of Windows from elsewhere and apply your licence to that copy. In the case of Windows, you don't have a licence to run 'Windows', you have a licence to run a specific copy of Windows. Therefore, even though you have purchased a licence, you would not have a licence for the cracked copy. Running a computer program inherently requires you to make copies of it in memory. In the absence of a copyright licence, this is copyright infringement: MAI Systems Corp v. Peak Computer Inc (1993) 991 F.2d 511 (defendant, who was not a licensee in relation to software, ran software and in doing so created copies of the software in memory; the person was purportedly authorised by a licensee to do so, but the licensee did not have the right to so authorise the defendant). In some jurisdictions, there is legislation to permit non-licensees to run software without infringing copyright, but these provisions (at least the ones in the US and Australia) don't apply to copies of the program which are themselves infringing copies. See 17 USC 117(a) and section 47B of the Copyright Act 1968 (Cth). Now, supposing you do infringe copyright, the question of whether that is a criminal act will depend on the jurisdiction and the other facts of the case. In Australia, downloading or using software is almost never a criminal act (offences under the Copyright Act require trade in infringing copies or commercial scale, etc). In the US, infringing copyright for commercial gain (e.g. if the software is for use in a business) or of particularly expensive software might be criminal under the No Electronic Theft Act. Furthermore, downloading the 'cracked' software may make one complicit in the distributor's offending, specifically by way of 'counselling and procuring' or 'conspiracy'. The distributor's offending may include the kind of commercial copyright infringement that is criminalised. | 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. | It is illegal to make copies of copyrighted materials without license. In the case of software, obviously it will be illegal to make copies by copying and installing the software without a license, but we are not talking about that. If I have a legitimate license of say Photoshop, and I start the application, parts or all of the code will be loaded into the RAM of my computer, which is a copy. According to copyright law, it is legal for me to make that copy. You are allowed to copy legitimately owned software into RAM to execute it. If your copy of Photoshop is illegal, and you start the application, the copy that is made into RAM is again copyright infringement. Having read the software license for the software that you get when you buy a Mac, it seems that if you steal my computer and just start the operating system, you are committing copyright infringement, and it seems that if you buy such a stolen computer and just start the operating system, you are committing copyright infringement as well, because the license that I received when I purchased the computer covers anyone using it with my permission, and covers anyone who legally buys the computer from me, but doesn't cover a thief. Now does this affect the work that you did? No, you have the full copyright on your work. Copyright law doesn't require that your tools are all used legitimately. | That is not really a "global license deal". You can try to attach strings to your US deal that makes you money when the US licensee sells out of the US. It is not typical and you may or may not have the leverage to get that agreement. Since you have no IP outside the US you can’t keep third parties from competing with them so it might not be good business for them. Also the SCOTUS has ruled that a contract licensing a U.S. patent can’t include royalties after the patent expires. In the past people negotiated deals where the royalties dropped in half (for example) after a patent expired. Although freely contracted and making business sense to the parties these royalties are not enforceable as a matter of public policy. It is possible that there may be a prohibition on contracted royalties where no IP exists. However you can license know-how, trademarks etc. independent of the term or existence of a patent. | The Stack Exchange "requirement" of a particular type of attribution is unlikely to be enforceable, given the terms of the CC BY-SA license. The actual Creative Commons license, the part that governs the relationship between the parties, is the "legal code" license agreement. The CC BY-SA agreement contains two clauses relevant to the form of attribution. One, as the question points out, is paragraph 4(c), which states that "credit may be implemented in any reasonable manner." This language is much less restrictive than the StackExchange blog post. The other relevant clause is the last clause of the agreement, paragraph 8(e), which is a standard integration clause: This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You. In other words, any changes to the license, which would include any additional restrictions on the nature of the attribution that may be given (besides the "reasonable manner" specified in the license) are effective only if both parties agree to do so in writing. The specific law applied from jurisdiction to jurisdiction is going to vary, but in general, in the United States, when you have a fully integrated agreement such as this license, a court will not look at anything outside the four corners of the agreement to determine the parties' rights and duties. If a court finds this to be a fully integrated agreement, and refuses to consider "parol evidence," meaning statements outside of the contract, then StackExchange can post a page asking people to attribute content in a particular way, but no, they cannot require it. | You can license the use of your IP only for certain uses, for example (most commonly) "non-commercial". The general template of permission is "You have permission to ___ as long as you ___". What the user is permitted to do, in your scheme, is something along the lines of "only distribute the output in this manner", or "not distribute code developed with this tool anywhere else". It's up to you to prove that someone violated that condition, if they did. | No, CC does not replace copyright. A creative commons license is one way to use the copyright that you already have the moment you make an original creative work. Without a copyright, a creative commons license does nothing. You don't need to do anything to get a copyright. However if you plan to exploit a work commercially, or want to be sure that it is well protected, you can gain additional protection in the US and some other countries by registering the copyright. US registration can be done online at this page. The benefits of US registration are described on this page. Nor do you need to "file for" a Creative Commons license. by publishing or distributing a work with an indication that it is subject to a creative commons license, you have released it under that license and anyone may thereafter use it subject to the terms of that license. This is done with a statement such as "Released under the Creative Commons CC-BY-SA 4.0 license." Such a statement is often placed near the (optional but strongly recommended) copyright notice, but that is not required. if you wish to specify the form of attribution (for example to a specified pseudonym) or a URL to use in providing attribution, that should ideally be placed near the license statement. If the work carries a list of credits, those may be placed nearby as well, but need not be. |
Is it trademark infringement if you put the word 'not' in front? If someone were to start using a trademarked company name with the word 'not' in front of it would it infringe their trademark? e.g. a company is called 'foo' and their name is trademarked and another company comes along and calls itself 'not foo'. | Possibly yes, in some circumstances. True, all trademark cases naturally hinge upon specific "circumstances". Here are some that may be relevant. The central question in trademark infringement is whether the junior user's brand "creates a likelihood of confusion" with the senior user's goods or services. There are numerous factors that may go into the legal analysis of a particular case, primarily the similarity of the brands and whether the goods or services are in "related" markets. Another factor is how distinctive the brand was prior to adding "not". Technically, however, each brand is "evaluated as a whole", and something with the word "not" added to it might be ruled clearly distinguishable from the one without. This may direct the inquiry toward other factors. In addition to "infringement" as "confusingly similar", you may also need to be aware of coat-tailing ("free-riding") on the fame or reputation of someone else's existing brands, even if there is no likelihood of confusion with the senior brand. In the EU, for instance, there are rules allowing Member States to enact laws allowing trademark owners to prevent others from using a similar brand where "use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark." EU Trademarks Directive 2008 at EUR-Lex Also worth noting that business names are regulated differently from trademarks and it may be normal to have a business name registered in one place while someone else has the identical name registered to them in a different place. | For your example of items with Marvel characters on them for sale by people and companies not licensed by Marvel, Redbubble clearly states that We ask, rather we beg, that you remember this when you are posting work on Redbubble. If you make sure that all the works you upload consist of your very own, original ideas and are not infringing on the intellectual property or publicity rights of another... (from https://help.redbubble.com/hc/en-us/articles/201579195 ) and further, Redbubble has full contact information for the submission of Notice and Takedown Reports by each real trademark owner. There are many individuals who upload products which use unlicensed artwork in violation of trademarks, and Redbubble acknowledges this and gives recourse to the license holder to inform them so they can remove the items. It's not a perfect system, but Redbubble it seems makes every effort to help police their market. ( Teepublic has a very clear policy statement, too: https://www.teepublic.com/copyright-policy ) Many companies - such as Marvel - employ agents to regularly check such websites and issue takedown demands to the sites; the sites in turn remove the products, and in some instances, ban the individual from using the site again. In the case of Amazon, there can be two types of products sold that use trademarked artwork and characters: items sold by legitimate businesses that have license agreements with the trademark owners and who have the products sold by Amazon itself; and items sold on the Amazon marketplace by individuals who open Amazon Marketplace accounts themselves and don't have licenses. Amazon will be sure to check the products they sell; they will have a takedown notices system for their marketplace vendors. eBay is somewhat the same way; there is a mix of individuals and businesses on eBay, but eBay doesn't operate an umbrella sell/ship by eBay, like Amazon. It's kind of a whack-a-mole situation on the Interwebs. How much time/money does a company spend to chase down trademark infringement? Is it worth going to court for persistent violators? (These are, for the most part, civil cases, not criminal). Violators can always open a new account on sites such as Redbubble and eBay under a different name. And it starts all over again. | 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. | 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. | Intellectual property law varies considerably by jurisdiction, and doesn't just involve copyright, but also trademarks, and patents. The first problem you are going to run into is that "Risko!" is probably protected as a commercial trademark rather than copyright. In the US at least, making minor changes to a trademark generally doesn't get you off the hook for unlicensed use. The owner of the "Risko!" trademark could bring suit against you for trademark infringement and it would be up to a judge or possibly a jury to decide whether "Risko" is different enough from "Risko!" that confusion would be unlikely. If they won the suit they could collect damages and their legal costs. There was a protracted and important trademark lawsuit in the US over the names "Monopoly" and "Anti-Monopoly" for board games. An economist, Ralph Anspach, had introduced a game he called "Anti-monopoly". He was sued by the Parker Brothers company for infringing on their trademark for "Monopoly". After 10 years the US Supreme Court ruled in Anspach's favor, finding that "Monopoly" had become a generic term for a type of board game and was no longer a valid trademark. You can't necessarily count on being "small potatoes" so that they'll simply ignore your possible infringement. In US law, failure to enforce their trademark rights can lead to the loss of trademark rights and remedies, so companies are less likely to let minor infringements slide. The situation in Italy may be different. Your artwork and graphical components are another potential problem. Those probably are covered by copyright. Again, the holder of the copyright for the "Risko!" artwork could sue you for violating their copyright on the artwork. A judge or jury would then evaluate whether your artwork was "derivative" of the "Risko!" artwork. If the court finds that your artwork is derivative, you might have to pay damages and legal costs. There are actually a ton of Risk inspired games already available online, but they seem to stay away from names that sounds anything like "Risk" and anything that looks like the Risk artwork. | "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. | This is likely not fair use. At first blush it appeared similar to things one might see in The Onion (parody print and online newspaper) or other parody publications or shows (SNL, Key and Peele, etc.). In this case, the context would have likely been deemed transformative. However, since they are selling coffee called "Dumb Starbucks" while using their trademark, they would be be found liable if sued. You can parody a trademark brand, so long as the work is transformative such that the use of the brand goes from selling coffee to making a commentary in which the brand itself is relevant. Amendment I don't think this would pass the test as a parody/commentary. Originally, I failed to notice that they are actually selling coffee. This takes it out of fair use and they would almost certainly lose if sued. If they never sold the coffee, but just had it open as a performance art (like I had originally read this) giving the coffee away to complete the parody, I think they'd be fine. However, they are literally using the Starbucks logo, and selling the same product. This is clearly an infringement of their copyright and not fair use. Sorry for the confusion. | You infringe a trademark when you use it in a way that allows confusion between your goods and services and their goods and services. Trademarks are limited by geography (although global brands are ... global) and industry. You can use the word “apple” to sell, say, apples or plumbing services, but not computers or consumer electronics. You can also use the trademark Apple to identify goods and services made by Apple - because that’s what a trademark is for. You can’t use it in a way that people could be confused that your goods and services are their goods and services or are related to or endorsed by them. |
Can a case get thrown out because of "jury nullification? With regard to this question, a patent lawyer told me that if one of the other jurors tried to teach the others his view of patent law, and they followed him, rather than the judge, that would be a form of "jury nullification." He said that that's why lawyers would often challenge "expert" jurors. And there was a possibility that the case might be overturned. Has a case ever been thrown out in the United States by a judge or on appeal because of "jury nullification?" If so, what were the circumstances? | The term "jury nullification" gets thrown around a lot, especially by non-lawyers. But your question doesn't really seem to be about jury nullification. There is a well-established procedure in the federal courts of the United States, and similar structures in all state systems I'm familiar with, that allows the judge to overrule a civil jury if it finds that no reasonable jury could have reached the verdict they did. In the federal system, this is formally known as a "renewed motion for judgment as a matter of law," and is governed by Fed. R. Civ. P. 50. It's universally called, by lawyers, a JNOV, or judgment notwithstanding the verdict. This is common and well-established in civil cases, such as most patent cases. It isn't commonly granted, but jury nullification--or, more frequently, jury screwups or misunderstandings severe enough to justify it--are not very common either. Jury nullification usually refers to criminal verdicts, and almost always to criminal verdicts of "not guilty." These the Court cannot correct by imposing a guilty verdict without the jury, and these are the only cases, in my opinion, properly considered as "jury nullification" cases. | This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer. | If this judge is truly biased, won't the litigants be all the more glad to have a jury of their peers? You are proposing to abandon your duty to others. At trial you serve the community, not the judge. Back on scope for Law SE: If you refuse to serve on a jury, that could be a separate offense or general criminal contempt, for which you (this all depends on your jurisdiction) could get 30-90 days in jail. Edit: like several others have pointed out, I would not expect much trouble if you politely told the court that you felt you would be biased b/c of past connections. Even if the judge doesn't dismiss you, one of the litigants is likely to strike you. P.S. In most states, no one except a prosecutor (sometimes another state employee) can "take someone" to a criminal court. Individuals can only take someone to civil trial, where one cannot be sentenced, only ordered to pay a judgement. | Appellate judges make holdings on matters of law, and generally defer to the fact-finder in a given case (the jury, or sometimes the judge) on factual matters relevant to a case. So in a case that involved certain mathematical arguments, they would generally leave it to the jury to decide whether those arguments were reliable. Put simply, Appeals courts don't make binding decisions on issues of fact, only issues of law. | The appellate court gets the trial transcript which includes all the testimony (and exhibits or descriptions/photos of them) and the trial court's rulings. Also, each side presents an appeal brief, which will generally include a statement of facts, pointing out ones it thinks favorable to its views. In civil cases a jury may be asked/instructed to give yes/no answers to a series of questions, but this is not normal in criminal cases. An appellate court can (and sometimes does) rule that there was not sufficient evidence to permit any reasonable jury to convict; to that extent it can rule on questions of fact. But, as the comment by ohwilleke mentions, an appellate court does not hear new evidence. It can overturn the conviction and send the case back for a new trial, and in such a new trial additional evidence may be introduce at the trial court level. | Your lawyer must act in your best interests; not follow your directions Lawyers are professionals and they are supposed to use professional judgement in how they run a case. While a client can suggest a course of action, the lawyer is not only not obliged to follow it, they would be committing malpractice if they unquestioningly did so. Just like a doctor would be if they unthinkingly implemented a patient suggested treatment plan. A panel of lawyers I was watching commentate on the hearing said it was a critical error and may have blown the case. So, a group of Monday-morning quarterbacks who weren’t chosen and don’t know all the facts would have done it differently? Perhaps it was a mistake. Or, perhaps the lawyer judged that there was nothing he could say that would help and considered that sounding desperate about the video would elevate its import in the minds of the jury. | If the patent lawyer "hears about" such failed patents from clients, and then uses the client's work and modifies them into successful patent filings, that would seem to be a clear conflict of interest, just as a business lawyer cannot use info learned from a client to make his own business deals, unless the client grants an OK. But if the patent lawyer just hears through shoptalk, or through communication by, perhaps, patent examiners that the lawyer works with, I don't see any conflict of interest, although as the comment by Eugene Styer suggests, there is likely to be enough prior art to make the patent invalid. | The details depend on jurisdiction, but all jurisdictions I know of will excuse jurors if they are medically unfit for jury duty. So the best option would be to try and obtain a medical/psychological certification that you are not fit for jury duty. Of course this assumes you have someone (such as your psychologist, your psychiatrist or your general practitioner) who is willing to write such a certification. Also, find out what it takes for this to be accepted by the court; for example, must it be from a physician, can it be from a psychologist? Finally, if you are honest with the authorities, you will hopefully be excluded. Keep in mind that the court system needs reliable jurors; if you have a nervous breakdown in court, that could cause a mistrial with significant cost, it's in the court's best interest to avoid that. |
Apartment requires that I consent to them using images of myself on social media I am signing a contract for an apartment. In it, there is a section stating that I agree to the apartment using images, video, and/or audio clips of me wherever they'd like (Facebook, their website, etc.) I'm not comfortable with this, but I want to live here. Can they really make me do this? | You could sue them for commercially exploiting your image without permission, so the waiver is necessary. It is entirely legal to require of tenants (even if weird) that they be part of an advertising campaign, in a specified way: it's also your right to refuse to sign. There is a minuscule chance that there is a local ordinance prohibiting such a clause. | Online conversations are generally allowed evidence. However, EVERYTHING in the chat should be considered, as well as any later actions. Were there later conversations that said something different? Did the lease you signed have different terms? One line in a WhatsApp does not make your case a "slam dunk". It may only be one piece of evidence in a much larger context. | It is the terms of the lease that govern what you may and may not do, so if pets are not disallowed, they are allowed. You are not a party to the contract between the landlord and the agent, so whatever the landlord may have told the agent is technically irrelevant to you. However, this may be an indication that the landlord plans to change policy; it might also mean that the agent misunderstood something. That is where you stand legally. | Typically the landlord will have a preexisting clause in the lease that says the landlord may choose to amend the lease at a later date. While that may be in contracts, I don't see that holding up in court. You can't unilaterally amend contracts to add new terms without acceptance on part of the lessee. Any clause in the contract like that will require notification of the lessee of the change and a chance for the lessee to terminate the contract without recourse on part of the lessor. Generally this must be done in the same format as the original lease (written). Most jurisdictions don't allow for a verbal amendment to a written lease. So in a way, yes, it is legal for a landlord to require payment via a certain method (like a direct debit from a bank account). They cannot however change the payment terms unilaterally without notification and acceptance. They can use language such as sending the notification (via registered mail) and then saying that a failure to respond is acceptance (because you are, by actions, accepting the terms by continuing to live there). | Can the HOA compel payment? Yes, at least from the standpoint of unjust enrichment or quantum meruit. That is because the resident obtains some benefit(s) from the HOA's activity & expenses, such as the maintenance of common areas and other items that advance the common good of the community. However, a drastic or arbitrary increase in invoices might not be enforceable, especially if these are unreasonable. The HOA would need to persuade in court that the resident accepted or would have knowingly and willfully accepted such drastic change. HOA bylaws: Are they enforceable absent a contract? If by bylaws you mean something other than bills, the question would depend on the substance & scope of those bylaws as well as the HOA's/resident's jurisdiction. It is noteworthy that a written & signed contract is oftentimes unnecessary. There is the notion of "implicit contract" to refer to rights and duties that can be inferred from the parties' conduct and the expectations that can be inferred therefrom. This notion of implicit contract is common in situations where there is no written document that reflects the parties' intent in the relation they willfully enter. | What the landlord is doing is forcing you to abide by the terms of your lease agreement. You most likely agreed to a 1 year lease on a signed document, which means you're pretty much screwed because if he wanted to, he could force you to fulfill the lease and pay him anyway. However, his remarks about when you can notify to terminate are wrong. See end of answer. About Terminating Your Lease Early However, there are a few loopholes you can exploit. The easiest one is to get him to increase your rent. Ask about it, tell him that you're considering staying but tell him you want to know if he's going to increase the rent by much. If he declares that he is going to increase the rent, perfect. Get him to send it to you in writing (which he is legally required to do). Just in case though, have him on speaker phone and record every conversation you have from now on without telling him. This is legal (see this answer) and is a powerful form of evidence, so exploit the hell out of it. If you can get him to tell you that he's going to increase your rent, then you can legally submit a notice to terminate tenancy on the grounds that you do not wish to pay the increase. In this case, the amount of notice that you have to give is capped to the day that the rent increase is to take place. If you try this, do everything you can to get it in writing. Don't feel proud of snaring him and immediately announce that you're leaving because of this as soon as he says it on the phone, because you're screwing yourself out of going through the proper channels to make sure you not only win, but you've made your case air tight. Also, feel free to let you landlord know that he owes you money. Landlords in Ontario have to repay you a capped interest rate on your last months' deposit every 12 months. This rate is decided annually and for 2015 is capped at 1.6%. If your landlord wants to be anal about the rules and stick the letter of the law to you, do it back. Becoming a pain your landlords ass is a great way to get them to either become more flexible, or make a mistake that will give you an out. Notice that if he does increase the rent, he can demand that you increase your last months deposit and force you to pay it. You could "accidently" make him aware of this right in a conversation where you are concerned about a rent increase immediately after letting him know that he owes you money for the interest. "I'm concerned about the rent increase because I have to increase my deposit by law too." This way, he'll hopefully have the thought "I can avoid having to give him any money by increasing his rent by the same interest rate, so he'll owe me what I owe him, therefore I owe nothing. I'm so smart!" Then he cheerfully gives you a notice to increase rent, at which time you invoke your right to terminate tenancy on short notice due to an increase in rent. Your Landlord Is Wrong All that aside, your landlord committed an illegal act when they refused your notice to terminate, because he's denying you your rights under the RTA. From the Residential Tenancies Act: A tenant may terminate a tenancy at the end of a period of the tenancy or at the end of the term of a tenancy for a fixed term by giving notice of termination to the landlord in accordance with section 44. 2006, c. 17, s. 47 The details adjust a little bit depending on your circumstances, but the conditions in section 44 are basically to ensure the following: You are giving 60 days notice. You are not giving 60 days notice where the termination date you provide is less than the previously agreed term, except in special cases like the one I mention about increased rent. There is nothing in section 44 that can be confused to mean that you must wait until you have passed the end of your term before you can decide to leave. I suspect your landlord is deliberately interpreting the use of wording like "may terminate at the end of" to imply you have to wait to give your notice. A notice of termination is not a termination. It is a notice that in the future, you are going to terminate. Let's remove the confusion by replacing the word "terminate" with "vacating the premises and not paying another cent". That should remove any ambiguity that could be abused. So frankly you can simply go straight to the board, file the appropriate form with them and just pack up and leave when you've reached the date specified in the notice to terminate. Your final month is covered by your deposit. File the form immediately, let them know about the conversation you had with your landlord, then go to your bank and cancel the cheques you've already written (except for your deposit cheque) and simply ignore the landlord, carrying on with your moving plans. You should ask the Board if this illegal act has any ramifications. Perhaps because he has done this, this gives you an immediate out or something else. Call the Board and tell them what happened and ask them. They have an obligation to inform you correctly. Sources: Landlord Tenant Board of Ontario FAQ Final Note The Board is there to serve you, free of charge. They have a duty, as it is their explicit directive, to assist you in all matters regarding being a tenant. Phone them, talk to them at length, demand assistance. They are to inform you of your rights and guide you on the appropriate action, forms and procedure to assist you in resolving any issues you have. Note that I wrote the whole bit about getting out of your lease early legally before I refreshed my memory on the fact that you can/should give your 60 days notice before the end of your lease period. That makes the case much simpler as a I note in my answer. I left the information I already wrote however because it could be applicable or at least be of some help to others. Also note that if you're saying that the landlord came to get more cheques on the basis of his lie that he used to refuse your attempt to legally leave, then you'll need to cancel those cheques. That costs money. That alone is enough of a case to take him before the Tribunal and force him to repay the cost of those cancelled cheques. You may even successfully claim further damages or the Tribunal may voluntarily award you money for the actions your landlord is deliberately taking to deprive you of your rights. Talk to the Board. | Landlord-tenant laws are state-specific, and given the number of states it's impractical to scan all of the laws, but based on a reading of a handful of such laws I doubt that there is any law requiring landlords to pay the oil for a rented house. (The matter would be different if there was a multi-unit building with no individual control over temperature, thus pooled fuel usage). It's not clear to me what you assumed the agreement means, where it says "N/A". Perhaps you believed at the time that the place had a different heating system, and you relied on that assumption. In that case, you might be able to go to court and have the contract voided, and you could pick another place to live. If the "options" are specified so that some things are assigned to tenant, some to landlord, and some are N/A, that would especially lead to the reasonable belief that there was no oil heat in the house. But if the only indications were "landlord" versus "n/a", then you could interpret "n/a" as meaning "not the responsibility of the landlord". Analogously, if the agreement only lists "tenant" and "n/a" then a reasonable interpretation would be that this means "the tenant pays" versus "the tenant does not pay". This reasoning would also have to survive the alternative interpretation that the tenant pays for everything, except that n/a means "there isn't one of these". In other words, the meaning of the term might be determinable from the overall context of what's in the agreement. Since the house does not come with a full tank (as with car rentals), the question of what to do with the residual oil at the end of the lease should also be specified. Unlike gas or electric, you're not just paying for actual consumption, you're paying for potential consumption, and you would have an interest in the remaining half-tank at the end of the lease. You could just walk away from that investment (pumping it out and taking it with you could be illegal, since the stuff is kind of a contaminant), or you could have an agreement where the landlord buys the oil back from you, but that should be specified in the agreement (and I assume it isn't). This kind of consideration could support a claim that you reasonably believed that there was no oil system (if there were, there would be some term relating to your interest in the residual oil), or even a belief that the landlord would pay the cost of the oil (since he ultimately gets the remaining oil at the end of the lease). You attorney (hint) should advise you how to approach this. | Yes, it triggers the GDPR obligations Considerations: Can you surely identify those residing in Europe? In that case you should ask them to sign up again and confirm the consent. A lot of mailing lists are doing just that. Did they previously give consent and you can document it? If so, then you can argue that you have the required consent. Do you have business in Europe? If not then I don't think they would bother to go after you. You could just walk away from the fine. What other personal informastion are you storing? If you know who reside in Europe then you already have more info than just the email. The email address itself wouldn't be much of a documentation issue, SAR or Portability task. |
German Rental Contract error. Can landlord back charge 18months? Berlin Landlord made an error in the contract, and now wants all tenants to correct the error by paying sum's going back 18months. Can they? A little more detail: A friend moved into a new apartment in Berlin 18months ago. Last week, they received a demand, to be paid within 15days, with back dated charges for all 18months. The contract he (and other tenants have) references the size of the apartment in sq meters, it references the total monthly rent to be paid, but does not reference a formula on how the total monthly rent was calculated. The reason for the demand is the landlord discovered they calculated using the wrong sqm cost. I believe the landlord might be able to increase rent going forward, but not back date 18months. True/false? Thanks | When a contract states a thing that you get for a stated price, that means you should get the thing described, and you pay the stated price. If the landlord makes a mistake and wishes he had charged more, he can wait until the end of the lease period and then increase the price as he desires. He cannot raise the price until the end of the contract, and cannot retroactively charge that increase. (It's impossible to imagine there being contract language that allows that outcome, but we will assume there is no such clause). If the stated area is not as stated, especially if the area is actually smaller, the landlord is in breach of the contract, and could be sued for damages. It would depends on how different the areas are, when it comes to assigning damages. For example, 4 sqm in a unit with 800 sqm is not likely to result in any loss to the tenant. If the unit is bigger than stated, the prospects for damages are even less, perhaps a bit for added heating cost. Either way, if the size is incorrectly described, that is the landlord's fault, though probably not worth bothering with a lawsuit. | I would presume that this is legal (without researching the laws in Cali. or Texas). Their contract is an offer to enter into an agreement. You accept that offer by signing. Their pre-requisite for that offer is that you pay the nonrefundable application fee. In other words, they are refusing to make you an offer until you pay a set fee. Now the degree of negotiability, among other factors, would go into determining whether the contract is fully enforceable. I did a little bit of research. (Please note that this is not legal advice. If this applies to a current situation, seek the advice of an attorney licensed to practice in your jurisdiction.) There does not seem to be any indication that the landlord needs to provide a sample lease to you before s/he decides that you are an eligible applicant. The application fee is not a contract to rent the premises; it is an application to be considered a tenant. Pro-Business Perspective: Why would I (the landlord) waste my time going over an application with someone and show them a model unit if they are not even eligible to rent from me? I have better things to do. Pro-Consumer Perspective: Why waste my time and money if I refuse non-negotiable terms in a lease? The application fee is capped in California and must be used to cover screening costs or refunded if not used. The likelihood of success in a claim regarding this might be indicated by the California Dept. of Consumer Affairs: "If you don't like the landlord's policy on application screening fees, you may want to look for another rental unit. If you decide to pay the application screening fee, any agreement regarding a refund should be in writing." It is important to note that you can always try to negotiate with the landlord. Personally, every lease I have had I have negotiated to get more favorable terms. You, as a tenant, have every right to try to negotiate, and should use that right. | Presumably the lease contains an automatic renewal provision that says unless you give notice 60 days in advance, you commit to another month (otherwise, you can just leave at the end of the month). The landlord may have made a math error, or they may be misinterpreting what the agreement says. Most likely it says that the duration of the lease is a month, meaning a whole month, which can have between 28 and 31 days. Unless otherwise stated in the agreement, that means "to the last day in any given month". A 60 day notice provision states the minimum number of days to stop automatic renewal, not the maximum or exact number of days. The language of the agreement will most likely say something to the effect that the duration of the lease is a month, and that is what the courts will enforce. | You asked the rep about how to change some details on your account, and asked him about the cost. It is clear from the recording that you are not changing anything right now. I can't see anything where you state that you want to enter a contract right now, I can not see anything where the rep indicates they want to enter a contract right now. In other words, no contract has been formed. The rep did tell you that a name change will not increase the phone plan price. That was a promise. It was a verbal promise, and you have evidence that the promise was made. Your contract will determine whether the company is bound by such a verbal promise. If you change the name on the contract, with nobody mentioning a price increase, and the price increases, you can surely complain that you were misled and wouldn't have changed the name if you had known about the price increase. However, if you get told that the price will increase before the name change, and you quote the previous promise, I don't think that will force the company to allow a name change without price increase, because your phone conversation didn't create a contract. | Typically the landlord will have a preexisting clause in the lease that says the landlord may choose to amend the lease at a later date. While that may be in contracts, I don't see that holding up in court. You can't unilaterally amend contracts to add new terms without acceptance on part of the lessee. Any clause in the contract like that will require notification of the lessee of the change and a chance for the lessee to terminate the contract without recourse on part of the lessor. Generally this must be done in the same format as the original lease (written). Most jurisdictions don't allow for a verbal amendment to a written lease. So in a way, yes, it is legal for a landlord to require payment via a certain method (like a direct debit from a bank account). They cannot however change the payment terms unilaterally without notification and acceptance. They can use language such as sending the notification (via registered mail) and then saying that a failure to respond is acceptance (because you are, by actions, accepting the terms by continuing to live there). | What does the contract say? I write that so often I should get a stamp made. If the contract is silent, then it is implied that payment in US currency is acceptable, as is any other method of payment the parties agree to. As you have correctly quoted, there is no limit to the number of US coins that are valid for payments, unlike in many other jurisdictions where there is such a limit. Accept the coins, make the tenant wait while you count them one by one and then give them a receipt. Oh, and change your lease when you can to nominate sensible forms of payment like electronic transfer. | Your rights and responsibilities in this realm are a matter of local law, sometimes down to the level of the city, plus whatever is stipulated in the lease. In San Francisco, for example, No Person shall have upon any premises or real property owned, occupied or controlled by him, or her, or it any public nuisance [which includes] Any visible or otherwise demonstrable mold or mildew in the interiors of any buildings or facilities This does not say whether the owner or the occupant is liable for remediating the situation. Shower mold is gross but not a health hazard (the SF ordinance just lumps all mold into one category). Since you have no written lease, there is no automatic clean-up requirement. There might be a law requiring a tenant to clean the premise to its original condition, for instance in Washington, tenant must Upon termination and vacation, restore the premises to their initial condition except for reasonable wear and tear or conditions caused by failure of the landlord to comply with his or her obligations under this chapter. Landlord duties are here: there is no duty to provide ventilation. However, the bathtub appears to be in a common area and not your particular unit. The landlord duties also require the landlord to Keep any shared or common areas reasonably clean, sanitary, and safe from defects increasing the hazards of fire or accident so in Washington, it's his problem and not yours. In general, even if a tenant is responsible for some form of cleanup, that does not constitute legal license for a facility upgrade. It might cost a couple hundred dollars to hire a person to wash ordinary mold accumulation, and does not justify getting a $5,000 new tub. Since this is in a common area, you would not be solely liable for whatever the damage was. The part where you say "crack in a common bath tub" is a large red flag: it suggests to me that somebody negligently broke the bathtub, and then caused behind-the-wall damage by letting water infiltrate without notifying the landlord. If you broke the tub and let it rot, you could be liable. If the tub was broken already and the landlord didn't bother to do anything about it, that is his negligence. The three questions that you should try to answer are: (1) what are the duties of landlord and tenant in my jurisdiction, (2) what was the actual harm done, and who did it, (3) what is the ordinary cost of whatever repair was done. | Generally speaking, you signature and delivery of the lease to the landlord makes it possible for the landlord to enforce. Particularly when, as in the question, the landlord presented the lease to you as an "offer" which you accepted without modification, it is probably binding upon the landlord even if the landlord does not sign it or return a copy with the landlord's signature. In jurisdictions that have a statute of frauds, your part performance by sending checks in the lease period consistent with the lease, and the landlord's part performance by continuing to allow you to occupy the premises without objection, would probably make the statute of frauds (which generally requires a signed writing by the party against whom a lease is enforced) to be inapplicable. On the other hand, if you materially changed a version provided by the landlord, there is a real question over whether there has been an offer and acceptance, or a meeting of the minds, agreeing to the new lease. Materially here meaning changes that are more than updating your contact details and go to the heart of the lease contract. |
Is it legal for an apartment manager to give my personal info to a renter without my permission I live in an apartment in New Jersey and I received an email from someone I don't know today. He said he lives in the same building and asked if I work from home and am interested in being his dog walker. My friend who also lives here but doesn't work from home did not receive this email. So obviously the sender knows who works from home. But how did he get my email address and exactly know my status. Is it legal for an apartment manager to give him my personal contact and work status without my permission. I am starting to worry about the information I have put on my rental application form. | In general, there are few laws in the US that restrict a person's freedom to disclose a fact known about another person. Examples of such limits are HIPAA which restricts health-professionals disclosure of medical information, and FERPA which restricts an educational institution's disclosure of student records. There are laws that restrict government disclosure of information about individuals. Confidentiality might be guaranteed via a contract, if there is a non-disclosure clause in the contract. A number of (major) businesses do have privacy policies where they promise not to disclose your information, or do so only in a specified way: such things generally exist for internet businesses. Some states like California have mandatory privacy policy laws. In New Jersey, there is simply the traditional tort claims of intrusion upon solitude, unreasonable publicity of private life, false light, and appropriation of name or likeness. Passing along general information about a person or a way to contact them would not be seen as an unreasonable intrusion. | If it's not in the lease agreement, then you did not agree to it. Even in the absence of the law prohibiting the late fee, the landlord would not be able to impose it because it is not in the lease. It is of course up to you whether you want to test it. It may be more trouble than it is worth. Then again, it's probably not worth the landlord's trouble to begin eviction proceedings over a late fee. Paying late and refusing to pay the fee would probably sour your relationship with the landlord, which is usually something you want to avoid. If you do pay late at some point, you may want to point out to the landlord the relevant provision of Massachusetts law. The matter would probably end there: either the landlord doesn't know about it, or the landlord is hoping that you don't know about it. Pointing it out in a polite manner will inform the landlord of the law and that you are acquainted with the law. Unless the landlord is quite unreasonable, that should take care of it. Whether there is any law prohibiting landlords from announcing an intention to take a prohibited action is indeed a different question. Is there any legal reason for me to bring this up and get the landlord to formally acknowledge that they will not in fact charge illegal late fees? No. You have a contract with the landlord that already says you are going to move in. He cannot modify that contract simply by sending you a letter. | Not a lawyer, but: In many countries, a purchased item is your property once you removed it from the premises of the seller. In practice, this rarely makes a difference. You have entered a contract with the seller where the seller has to deliver the product, and you have to pay the money, you did your part, they have to do their part. There would be a difference if the item was stolen while in the store, or damaged by fire, or if the store went bankrupt and bailiffs took the item. If these rules apply in your country, then what they did is not theft, otherwise it would be theft (in all countries, if the store removed the door from your home after it is installed, that would be theft). You paid for a door, the store owes you a door. You have a legal contract. Both sides are bound by that legal contract. They have to do what the contract says (delivering the door that was displayed in the store), if they can't, then they have to do the nearest thing that isn't to your disadvantage, like delivering a new door. Or possible a different door that was on display. They can't just declare your contract invalid because it suits them better. That wouldn't be the case if this would put the store at an unacceptable disadvantage. For example, if thieves had broken into the store and stolen ten doors, including yours, the store might get away with returning your money. Since they intentionally sold your door again to someone else, I don't think they could use this as an excuse. I'd go once more to the store and ask them whether they want to deliver a door to you, according to your contract with the store, or if they want you to get a lawyer. A letter from a lawyer might work wonders. (Or of course the lawyer might tell you that I'm completely wrong, but they don't know that, so telling them that you will hire a lawyer might be enough). | According to this article, the Malmö Administrative District Court found that the intent of the user is immaterial to whether a camera is being used for surveillance, so even if that is not why you are doing this, it counts legally as "surveillance". The law requires a permit from the länsstyrelse (county? government), according to the Kameraövervakningslag (2013:460) (article 8 states the requirement for permit, art. 16 tells you who to apply to). I believe that a tennis court would be considered a "public place", even if privately owned. Art. 17 tells you what goes into an application (there is probably a form), and art. 18 says that the kommun gets to weigh in. Presumably it would be critical to have a consent form signed before any recording happens, and you would include that in the application. | The one answerable question regards the legality of taking the damages out of the security deposit. Consulting the Ohio landlord-tenant law, the tenant has various obligations including to Dispose of all rubbish, garbage, and other waste in a clean, safe, and sanitary manner ... Comply with the requirements imposed on tenants by all applicable state and local housing, health, and safety codes The citation should indicate the specific violation, but dumping trash in the street is a health violation. The act that says that if the tenant violates his obligation, the landlord may recover any actual damages that result from the violation together with reasonable attorney's fees. Causing a landlord to be saddled with a fine is actual damage. It would be pointless to contest the fine with the city, unless you are alleging that some vandal drove by and dumped trash in the road near your apartment. (Even then, unless you already reported supposed illegal dumping to the sheriff, it is unlikely that you wouldn't be held responsible). | 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. | If the police can get a warrant from a judge confirming that they have probable cause, they could, and that finding would probably be confirmed in a subsequent suppression hearing alleging that the warrant was issued without probable cause. But, it would be unlikely that a judge would issue a warrant that covered multiple apartments if there was not probable cause to indicate that evidence of the crime was in a particular apartment. I could imagine a situation where a judge might do so (e.g. the evidence was strapped onto a rat that had the ability to move from apartment to apartment in a wing of four adjacent apartments in the same wing of the building through the crawl space in the ceiling), but in any reasonably normal fact pattern, a judge would be unlikely to grant a warrant in a situation where probable cause had not narrowed down the particular apartment where the evidence was believed to be located due to insufficient investigation by the police. | It is a false statement to claim to live in one county when you actually live in a different one. It becomes perjury (a crime) when you falsely swear to that statement on your status report, and you are required to report changes in "household situation" within 10 days. There isn't an exception allowing you to give a false address "in case it costs more to report truthfully". The only legal solutions are to report truthfully and pay more, or move again, report truthfully, and not pay more. |
Requirement to carry driver's license and registration in Massachusetts I was reading Chapter 90 in the Massachusetts General Laws and I could not find any provision requiring an operator to carry a driver's license and registration documents in the vehicle while operating it. Is it illegal in Massachusetts to operate a vehicle while not carrying a license and/or registration? | See Chapter 90 Section 11: Every person operating a motor vehicle shall have the certificate of registration for the vehicle and for the trailer, if any, and his license to operate, upon his person or in the vehicle, in some easily accessible place [...] According to the state's "Schedule of Assessments for Civil Motor Vehicle Infractions", violation of the license or registration requirements of this section are each punishable by an assessment of $35, $75, or $150 for first, second, or third offenses; plus a $5 public safety surcharge in each case. | In most states or localities "loitering " has a specific statutory meaning. For example in Prince Georges County. MD Section 14-139.03 provides: (a) In this Section, "loiter" means for a person to: (1) Remain on a public street, sidewalk, or pathway, including one privately-owned but used by the public in general, so as to obstruct the free passage of a pedestrian or vehicle after a regular or special police officer has notified the person that the action is unlawful and has requested the person to move; (2) Remain in or on a vehicle on a public street, sidewalk, or pathway, including one privately-owned but used by the public in general, so as to obstruct the free passage of a pedestrian or vehicle after a regular or special police officer has notified the person that the action is unlawful and has requested the person to move; (3) Refuse or fail to leave a private business, commercial establishment, or parking lot that is posted with conspicuous "No Loitering" signs if the business or establishment is not open for business, and the person has been requested to leave by the owner, the owner's agent, or a regular or special police officer, unless the person: (A) Has written permission from the owner, lessee, or operator to be present; or (B) Is window-shopping under conditions and at a time of the day or night that would be considered conducive to that activity; (4) Refuse or fail to leave a private business or commercial establishment that is open for business, or a parking lot of the business or establishment, after having been requested to do so by the owner or the owner's agent; (5) Refuse or fail to leave a public building, public grounds, or a public recreational area, or a parking lot of a public building, public grounds, or a public recreational area, after being requested to do so by a regular or special police officer or by a regularly employed guard, watchman, or other authorized employee of the agency or institution responsible for the public building, public grounds, recreational area, or parking lot if the circumstances indicate that the person has no apparent lawful business or purpose to pursue at that place; (and so on) I do find that at one time New York state (and some other states) had an "anti-loafing law" which required all men between the ages of 18 and 50 to be “habitually and regularly engaged in some lawful, useful, and recognized business, profession, occupation, trade, or employment until the termination of the war.” This was passed during World War I (1918) and the then NY Governor said: The purpose … is to force every able-bodied male person within the State to do his share toward remedying the conditions due to the present shortage of labor. This is confirmed at https://andrewchernoff.wordpress.com/tag/anti-loafing-laws/ I don't know if it was ever challenged on constitutional grounds. Other than that, I cannot find any published law defining loafing. | 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? | No party is granted the right of way, instead, some party is required to yield the right of way. Sec. 545.155 of the Texas Transportation Code says An operator about to enter or cross a highway from an alley, building, or private road or driveway shall yield the right-of-way to a vehicle approaching on the highway to be entered. Sec. 545.256 likewise requires that An operator emerging from an alley, driveway, or building in a business or residence district shall: (1) stop the vehicle before moving on a sidewalk or the sidewalk area extending across an alley or driveway; (2) yield the right-of-way to a pedestrian to avoid collision; and (3) on entering the roadway, yield the right-of-way to an approaching vehicle. The law against wide right turns says "To make a right turn at an intersection, an operator shall make both the approach and the turn as closely as practicable to the right-hand curb or edge of the roadway"; intersection "means the common area at the junction of two highways, other than the junction of an alley and a highway", and highway or street "means the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular travel", i.e. the part where the parking lot empties into the main road. | 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. | 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. | Possibly: remember that we have 50 different states and their laws plus the federal government. Alabama criminal code §13A-9-9 define the crime of "possession of a forgery device", which is when one makes or possesses with knowledge of its character any plate, die or other device, appliance, apparatus, equipment or article specifically designed or adapted for use in forging written instruments with intent to use it himself, or to aid or permit another to use it for purposes of forgery. Selling is covered under the fact of possession. Arizona has a similar law, referring to the situation when a person Makes or possesses with knowledge of its character and with intent to commit fraud any plate, die, or other device, apparatus, equipment, software, access device, article, material, good, property or supply specifically designed or adapted for use in forging written instruments. Makes or possesses any device, apparatus, equipment, software, access device, article, material, good, property or supply adaptable for use in forging written instruments with intent to use it or to aid or permit another to use it for purposes of forgery. Federal law would be covered here: §474 covers any plate, stone, or other thing, or any part thereof, from which has been printed, or which may be prepared by direction of the Secretary of the Treasury for the purpose of printing, any obligation or other security of the United States, uses such plate, stone, or other thing, or any part thereof, or... but this could not be reasonably interpreted to include a printing press, and would not cover a gadget that forges passports (Dept. of State, not Treasury). There isn't a federal statute with the breadth of the Alabama law. Any such law would have to include an "intent to forge" element. | The statute in question is section 26708 (13)(B): A vehicle equipped with a video event recorder shall have a notice posted in a visible location which states that a passenger's conversation may be recorded. It doesn't require it be visible to all passengers and doesn't make any provision for visually impaired passengers. I am not licenced to practice in California but know of no cases clarifying how "visible" the notice needs to be. I wouldn't suggest trying to hide the notice, though. |
Should I use first-person (I) or second-person (you) for ToS consent? This is a bit of a nagging question for me. Let's say I'm creating a web application that allows users to sign up for some service, subject to certain terms of service. I've seen some sites use first-person pronouns for this purpose: By registering, I agree to the terms of service. Others use second-person pronouns: By registering, you agree to the terms of service. For simplicity, let's assume that the terms are readily viewable and fully enforceable. Is there any significant legal difference between the two? | There is no significant difference between the two and it is simply a matter of (modern) legal writing style. Traditionally, contracts were always written in the third person, but starting sometime in the late 20th century (if I had to hazard a guess, I'd say sometime in the 1980s), the innovation of writing in the first and/or second person was developed and found to be more readable for most people, especially in contracts of adhesion. | There is no law pertaining to top level domains, defining "appropriateness". Instead, some organization is an administrator, and there is an understanding as to what the purpose of the domain is, but this is not legally enforceable. The TLDs com, org, net are open to anyone, whereas edu is limited in the US to accredited post-secondary institutions, however some non-educational commercial enterprises were grandfathered in. Insofar as registering a com-domain website does not entail "an intent to make profit" and registering an org-domain website does not entail "an intent to not make a profit", there is no deception w.r.t. internet users. One would of course have to be truthful in registering the domain. Public Interest Registry, the administrator for org, does not even purport that businesses registered under org should be "nonprofit". | Yes If you are in the EU, or your players are in the EU and your service is targeted at some part of (or all of) the EU, then this pretty clearly falls within the scope of the GDPR. Such a service would be collecting data associated with natural persons. At least some of it would be made public along with an online identifier, and other parts would be processed and stored, even if disclosed only in anonymized form. (By the way it is a non-trivial task to anonymize data well enough that it is no longer persona data under the GDPR. But let's suppose yoru methods are good enough.) Under GDPR Article 6 the DC must have a lawful basis for such processing. If the basis is "consent" then the consent must be freely given, whch means giving consent may not be a condition of using the service. Under GDPR Article 13 a notice must be sent to the Data Subject (DS) when the data is collected from the subject, including some 11 items or categories of information about the collection process, the Data Controller (DC), the purposes of processing, the legal basis of processing (which the DC must define), who will receive the data, the data retention period, and various rights of the DS. Such a service must be prepared to respond to data access and data erasure requests, under articles 15-17, and data restriction requests under article 18. It must provide a method for a DS to easily make such requests. Other GDPR provisions may well apply in addition to these, but that is enough to show that such service is very likely to be within the scope of the GDPR, unless none of the DSs are present in the EU or the related market area. | Can reading a something mean agree to to a contract? Just reading — no. Reading and acting as if you have agreed — yes. This is called "acceptance through conduct". I had an employer deduct a small fee to process my payment, they argued that they were allowed to because it stated they would on the website I had to use for the job. Does this even form a contract? Yes — because you read and continued to use the website. librarian came up to me and pointed out a sign saying I had to pay before using the computer (which is uncommon where I live). Is there a contract formed by just having a sign? Hypothetically could the library sue me for not paying? Provided that you read the sign and started using the computer — yes. However, because you did not see the sign, the library had failed to communicate the terms of the offer to you, which means there was no contract. However to however, if you continue using the computer even after the librarian tells you that you have to pay, you now accept the offer through conduct. In this case, the library could sue you for damages should you not pay. if there was a sign on the door to a private building saying you have to pay $20 to enter, if you didn't read the sign and entered, could the owner demand $20 from you? If the sign was so conspicuous that no reasonable person would have missed it — yes (because you should have read it and then you entered the building. But you could get away if you convinced the judge that you genuinely did not see/read the sign, for which you would have to have a plausible excuse (e.g. vision impairment). | I believe in this case, your company (OrgX) is a data processor and your customer's organization (OrgY) is the data controller. OrgY is responsible for establishing a lawful basis for sending you (OrgX) the personal data for their employees. Note that consent is just one of six lawful bases outlined in article 6(1). I'm no expert, but I believe OrgY's admin can claim they have a legitimate interest in sending their employee's personal data for training sake. In either case, the data processor is not responsible for establishing the lawful basis for processing. Of course, data processors aren't completely off the hook. GDPR outlines specific requirements for data processors (see chapter 4, particularly article 28). | There are two cases to distinguish: information that the other party does not want to give without court order, and information that the other party may not give without court order. Only the former case matters, of course, since the latter by definition requires a court order. So, if the other party is legally capable of giving the information, but it's commercially not sensible for them, then you'll need to sweeten the deal. And that's business, not a legal question anymore. In other words: there's no legal instrument that's at the same time equal to a court order but also different from one. When you need a court order, there's no alternative to a court order. | "One-party consent" law governs recording of conversations in New York state and under federal law. What that means is that a conversation can be recorded, provided one of the parties consent. You can publish any legally-acquired material, or send it to journalists. | Nicknames, usernames, or gamer tags are definitely personal data under the GDPR. You are operating under a very narrow definition of “identifying”, which is understandable since the definition of personal data in the GDPR isn't overly enlightening at first glance: […] an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; — GDPR Art 4(1) However, this definition does show that “identifiable” should be interpreted rather broadly. For example, indirectly identifying data is still identifying data – there doesn't even have to be a strong identifier like a name, passport number, or street address. It is also not necessary that identification enables you to determine the real world identity – identification is anything that allows you to single out a person, or to combine data into a profile of that person (compare Recitals 26 and 30). In any case, an online username or user ID is clearly an identifier and will fall under one of “a name, an identification number, […] an online identifier”. If in doubt, ask your data protection authority for guidance. You've correctly understood that you will need a legal basis to process this data, and that legitimate interest could be that legal basis. This doesn't have to be your own interest, so a community interest would be OK. You need to balance the user's rights against this interest. You have performed this balancing and have found that the interest outweighs these rights. You've noted that such leaderboards are a cultural norm and are generally expected, which strongly weighs in your favour. However, legitimate interest is not a free pass but just means an opt-out solution (right to object per Art 21). You should also inform users that the leaderboard is accessible publicly when they join your server (transparency principle per Art 5(1)(a) as detailed by the information obligations in Art 13). In particular, you should use a “message of the day” or welcome message functionality to link to your privacy policy. You should also be aware that other rights such as the right to access, erasure, and data portability apply. As an alternative to legitimate interest (opt-out) you could also consider consent (opt-in), though this results in slightly different data subject rights and is more difficult to do correctly. But I'd agree that legitimate interest is more appropriate here. |
Who prosecutes a crime if it's impossible to tell which state the crime took place in? Let's say that I go out on a fun hiking expedition with this nice Donner family and we get lost in the woods that reside on the state line between states A and B. After a few days of wondering in circles without food were all pretty hungry and so we decide to kill Bob and eat him (no one liked Bob anyways!). Because we have been lost for so long we don't know where we are, or on which side of the state line we reside. Eventually the few well fed folks that were faster with an Axe than their lunch finally figure out how to read a map and make their way out of the woods. They decide they're sick of woods and so fly over to Hawaii for some nice surfing instead. While in Hawaii the police start asking about Bob and realize he was murdered (and that he goes well with ketchup). A crime has been committed, but at this point no one can tell which state the crime was committed in. The people in question are arrested in a third state that definitely doesn't have jurisdiction, so they would have to extradite us to one of the two states for trial, how does one decide which state can try us? Do they just ship us to whichever state they feel like? What if one state has harsher punishment for the crime then the other, can we demand to be shipped off to the one with the more lenient laws? In fact let's go a step further. After some digging it's discovered that state B has for some reason left some bizzare loophole in their murder statue which says that it's totally okay to murder someone for dinner so long as their name is Bob and their eaten with extra ketchup. Now rather or not we are guilty of a crime at all depends on which side of the border we happened to be on during dinner time, which can't be proven. All three states decide they want to proscute us, do they have any option so long as there is a chance that we were in B at the time? | They could be prosecuted in any state where there was evidence that part of the crime was committed. Realistically, either State A or State B could prosecute for conspiracy to murder as an additional charge, because the conspiracy clearly spanned more than one state, even if they can't prove where the crime was committed, although physical evidence (e.g. traces of camp sites, footprints, testimony about landmarks, evidence of poop with human DNA from the victim in it), would usually make it possible to show that some part of the crime was committed in the state. There is probably also a federal crime that could be implicated such as "murder involving flight across a state line" (hypothetical, but I'm sure that there is something similar on the books). I'm not going to address the further hypothetical as it is too bizzare and law is ultimately very context specific. Find a more plausible fact pattern, perhaps with a different crime, and ask a separate question if you want to really address the issue. | If you are charged under the laws of Estonia (or Australia or Thailand or the UK) then the laws of the USA have no relevance whatsoever. It makes no difference if you are a US citizen, if the alleged crime happened in the USA or was perpetrated against the USA. If nation X has jurisdiction then you are tried under the laws of nation X. That is what sovereignty means. As to your specific example, Facebook does business in Estonia, therefore they are subject to Estonian law, as a US corporation they are also subject to US law and the law of every other jurisdiction they operate in (see why they need big legal departments?). If a legitimate Estonian warrant was served on them to disclose metadata or anything else then they are legally obliged to do so or be in contempt of court. Oh, and by the way, the first amendment right to free speech does not give you a right to anonymous free speech. | I assume this took place in Washington state. There are a number of self-defense provisions in Washington law. The first, RCW 9A.16.110, is primarily about reimbursements for prosecutions of acts of self-defense, but includes an applicable limit on prosecution: No person in the state shall be placed in legal jeopardy of any kind whatsoever for protecting by any reasonable means necessary, himself or herself, his or her family, or his or her real or personal property, or for coming to the aid of another who is in imminent danger of or the victim of assault, robbery, kidnapping, arson, burglary, rape, murder, or any other violent crime as defined in RCW 9.94A.030. This provision is relevant, since executing a prisoner on death row is not a crime (the state Supreme Court recently struck down the death penalty, so I assume this took place before that ruling). RCW 9A.16.020 states the more classic law on justified use of force, saying The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:...(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary; Statutory law does not define offense against his or her person. Grabbing a person and strapping them down for some harmful purpose would normally constitute battery under the common law, but in this instance it is privileged, so it is not an offense against the person). RCW 9A.16.030 says that Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent. The person is under court order to be executed, and it is not lawful to resist that order. The guard, however, RCW 9A.16.040, may use deadly force pursuant to the legal mandate to carry out the court orde ((1)(b)"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"). | 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. | The potential problem is if there is a form which you had to sign which says "I am a US citizen", and you signed the form (who reads the fine print, anyhow?). Unfortunately, that statement is false, and there are consequences for making a false statement. However, that law penalizes false statements with the intent to deceive, not mistaken statements. Nevertheless, this is a matter that a professional really needs to deal with. If there was no form and they didn't verbally ask you to assert that you are a citizen, then there is less of a problem (for you), but still one needs to be extremely cautious in dealing with the court. [Addendum] It is highly likely that the form contained wording like "swear" or "certify" and mentions "perjury", so the error would be in the ballpark of perjury. Perjury is making "a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath". Aggravated perjury is perjury which "is made during or in connection with an official proceeding and is material". The term "material" means "matters; is not inconsequential". The consequence of a non-citizen improperly serving on a jury is that a mistrial has occurred, which is not inconsequential. Aggravated felony is a third degree felony. The penal code says that An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years. (b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000. I must emphasize that an essential element is "intent to deceive and with knowledge of the statement's meaning", an element that cannot be present if there is no awareness of such a statement. Thus an innocent mistake could be legally excused. When you become aware that a statement made under oath was false (assuming such a statement was made), then in maintaining the falsehood, that would be intentional deceit. This is why it is necessary to consult with a lawyer. On the Houston form, you would have to check the "are a US citizen" box. The Fort Bend county form has you certify and sign on the front page: it does not require you to certify that you are a US citizen, only to certify (and sign) if you are not – so if you failed to read the back side, that isn't a literally false statement. I can't locate an online form for Tarrant county, so dunno if that out is available. | Since we don't have a system of robot justice, it's impossible to say whether a prosecutor would file charges in this bizarre circumstance, since filing charges is discretionary. However, this situation does fit the description of murder. It is intentional, it causes death (maybe, vide infra), it is not legally justified (as self-defense, or as an act legally sanctioned by a state executioner), the victim is a person. It is not sanctioned by any "death with dignity" statute. The one issue that might be effectively argued by the defense assuming the irrefutability of the factual claims of your scenario is that perhaps the relevant crime is assault with a deadly weapon, since it probably could not be proven beyond a reasonable doubt that the victim died from the shooting, and not from being incinerated by lava. It depends on where the person is shot, and with what. | These charges aren't the same offense. They are three different offenses, all of which arise from the same conduct. Imagine throwing a grenade in a building because you saw a police officer about to discover evidence connecting you to a crime. I think most people would agree that there's no reason you could not be charged with murder, arson, and tampering with evidence under those circumstances. Likewise, Chauvin committed multiple distinct offenses when he kneeled on George Floyd's neck -- for instance, murder charges are based on the act of causing a death, while manslaughter charges are based on the act of creating a risk of death -- and the state is free to seek punishment for all of those offenses. Double jeopardy doesn't have any application to the case at this point. The Double Jeopardy Clause doesn't say you can't face multiple charges for the same conduct; it says you can't face multiple trials for the same charges. | Yes, it Could A state can repeal or modify its laws against any particular crime, or just decline, as a matter of policy, to enforce such laws. It is in my view quite unlikely that a state would do this in the case of murder, but legally it could. Such action by a state would not affect the federal murder statute is at 18 USC 1111. But that only applies under a rather limited set of situations. According to "When is murder a federal offense?" it applies when: The murder is of a federal judge or a federal law enforcement official (for example, an agent of the FBI, TSA, or ATF),1 the killing is of an immediate family member of a federal law enforcement official. the murder is of an elected or appointed federal official (for example, the President, a Supreme Court Justice, a member of Congress, or the murder of a federal judge) the killing is committed during a bank robbery [or other Federal crime]. the killing takes place aboard a ship at sea (for example, on a vessel that is engaged in interstate commerce per the Commerce Clause of the U.S. Constitution). the murder was designed to influence a court case. the killing takes place on federal property (for example, on national parks or a Native American reservation). The vast majority of murder cases do not come under the current Federal law. |
Is selling a product at a different price per country discrimination (and thus illegal)? If a company sells a product globally, but wishes to set the price of that product differently per country, is that discrimination or legal? The business reason is, it is more profitable to sell to some countries but not others. So we wish to disincentivize but not exclude some countries by setting higher prices. | It is absolutely discrimination - treating one person or group differently from another person or group is the textbook definition of discrimination. Discrimination is only illegal if it is on the basis of a legally protected class. You will need to check the law of each country involved but, in general, price discrimination based on location is not illegal. | You asked about other jurisdictions. As you'll probably be aware (from cases like EU vs Microsoft and EU vs Google) European countries and culture tend to have much stronger protection laws for consumer and employee rights than the US does. In the UK you could make a strong case, although such cases are not often undertaken. The current legislation is Part 2 of the Consumer Rights Act 2015, but the unfair contract terms clause goes back to at least the Unfair Terms in Consumer Contracts Regulations 1999. Basically the law protects a person in a situation where disparity of size and bargaining power have led to unfair terms in a contract (typically a large company offering "take it or leave it" standard terms) - and specifically if they create a significant disparity in the parties rights and obligations. In such a situation the company which drafted the terms alleged to be unfair must show they are reasonable. A list of common terms likely to be seen as unfair is provided. (Employment terms are covered by other laws but also aim to prevent abuses due to inequality of contracting power) A company which sold a product like Windows 7/8/8.1 and then later said "we are changing our terms of support and forcing you to upgrade" (especially to a different product the user may not want, or a product that is maintained in a different way),would almost certainly be at substantial risk of falling foul of this. It wouldn't matter if it was done by not providing the support/patches as originally implied (by custom or normal expectation) or as agreed in an explicit statement of support life cycle, or by saying "we have the right under the contract to do this", or by forcing what is essentially a change of product to get the updates. It also wouldnt matter how big they are, nor whether or not the user had already agreed "because I felt I had no choice". The law is there specifically to protect against abuses like this, so it is drafted to catch companies who try to find "wriggle room". | 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 | I emailed the Bureau of Alcohol, Tobacco and Firearms in the USA asking this and received the reply: "There is nothing to prevent you from marketing antiques in the UK while present in the US." I also contacted a relevant US attorney and received: "There’s nothing in your question which would implicate Colorado or US law. If you're a UK citizen, and the sale is happening in the UK while you're in the US, then the US has anything to do with it. So as long as the UK doesn’t have any problem with it, the US will not." So I would conclude this question fairly answered. | This is an incomplete answer, but regardless of the state of statutory law in the U.K. and Ireland, most credit card providers, as part of their merchant agreements authorizing a merchant to accept credit card payments, prohibit merchants who accept credit cards from offering a lower price for cash payment than for a purchase using a credit card, despite the fact that in the case of a credit card payment, the merchant has to pay a processing fee to the credit card company that the merchant does not have to pay in a cash transaction. There have been some lawsuits challenging the validity of this requirement, but to the best of my knowledge, none have been successful. Generally speaking, however, it is not illegal to offer a different price if the merchant is paid all at once, as opposed to offering seller financing on installment terms (a different sense of the phase "cash price"), which is a different situation than when a merchant is distinguishing between a credit card payment of the entire price in one go, and a cash payment of the entire price in one go. It isn't entirely clear from your question in what sense "cash price" is customarily used with those tags. Similarly, it is probably permissible to offer one price for people who pay via either cash or a credit card on one hand, and a different price for people who pay via a check (which carries with it a risk that the check will not be honored), since that is not subject to a merchant agreement restriction, although my impression is that checks are used less often for payments in the U.K. (where they were invented) and Ireland, than in the United States. | In the US, people are generally allowed to charge arbitrary amounts for services, as long as they do not violate various anti-discrimination laws in doing for. For example it would be illegal to charge people of one race less than they charge people of another race, because of federal and state anti-discrimination laws. Three primary factors govern the legality of a particular form of discrimination. One is the type of interaction, for example "voting rights", "public accommodation", "employment", "housing" – medical treatment would generally fall under "public accommodation". The second is jurisdiction – there can be federal, state, and municipal laws governing a particular kind of discrimination (the lower in the hierarchy you go, the stricter the laws tend to be). Finally there is the "protected class", that is, the basis for discrimination. Protected class is extremely variable, given the preceding two factors. Age discrimination is legal in ways that race discrimination is not. "Has insurance" is not a protected class anywhere, so this does not violate any discrimination laws (per se). There are numerous legal forms of discrimination which are analogous, for example to shop at Costco at all, you have to be a member; there are numerous businesses that offer "member discounts"; some doctors work on a "subscription" basis where they don't treat you unless you are a (paid) service subscriber. The idea that a service has to treat all comers identically is legally incorrect. Co-pay rates are dictated by insurance companies, and can vary depending on the specific insurance carrier that you have. To the extent that there are no specific laws saying otherwise, a service provider is legally entitled to charge less to a person who does not make a claims for coverage by medical insurance – or they could charge more. Indeed, the "without insurance" cost of medical services is typically higher, and the insurance company insists on doctors accepting lower compensation. A "practical" but somewhat risky solution is that if you know that the copay is higher than the street price, you can simply not reveal that you have insurance. However, sometimes an office visit results in a finding that some treatment is needed, and the street price for that treatment may be substantially higher than the insured price. At any rate, contractually-determined co-pays are legal. I should mention a remote possibility for applying anti-discrimination laws, owing to sec. 1557 of ACA. See this article on health care discrimination litigation, where the law enabled "private right of action for disparate impact claims opens the door to class-based claims challenging facially neutral health care policies, treatment decisions, and insurance coverage on the basis that they disproportionately affect members of protected classes". Under this regime, if a policy effectively discriminates on the basis of a protected class, without explicitly mentioning the class, the policy could still be found illegal. If there is a strong enough correlation between race and having health insurance, then "having health insurance" could be found to be a substitute for discrimination on prohibited grounds. There isn't enough case law on this issue, that we can clearly say that such an argument would or would not work. | If everyone hired after date X has a different contract from anyone hired before that date it is not discriminatory. (As long as they do nothing naughty like changing the contract, hiring three black people, changing the contract back). | switzerland This answer is mostly to point out that the situation isn't so obvious, and may greatly differ between jurisdictions. OR Art 7 specifies: 2 The sending of tariffs, price lists and the like does not constitute an offer. 3 By contrast, the display of merchandise with an indication of its price does generally constitute an offer. So the seller is bound to the price tag of an item in a shelf or in a window. If the prices differ, the customer can generally request the lower price, unless the seller can clearly show that there was a significant error. There's a separate law ("Preisbekanntgabeverordnung") that specifies that (under most circumstances) a shop must put price tags on their items. What margin constitutes an error is disputable. The federal court ruled that an offer for an opal ring for 1380 Francs instead of 13800 could be considered an error. But a T-Shirt that is offered for 20 Francs in the shop window but 25 Francs on the shelf is probably not. |
Do I have a right to get my son vaccinated against his mother's wishes? I am in NY state. My partner and I are not married. I am not listed on our son's birth certificate, but he has my last name. My partner is an anti-vaxxer (or whatever non-loaded term is preferred). I believe firmly in the benefits of vaccination and the lack of evidence for harmful effects on an epidemiological scale. I agreed to delay vaccination at first, and my partner agreed to vaccinate after our son turned 2.5 yrs old. Our son is now 4.5 and has still not received vaccination. Any time I bring up the issue of vaccinations she blows up and basically says she'll kick me out of the house if I were to vaccinate him. I struggle with the relationship (which isn't good) repercussions, but I am only asking about the legality of my taking my son to get him vaccinated against his mother's wishes. | In general, in the absence of a reason to the contrary, an individual parent can consent to medical care for the parent's child, even if the other parent wouldn't have agreed to it. This is where to begin the analysis. Often, when parents aren't married there is a custody decree from a court that spells out who does and does not have custody of a child with respect to issues like medical care, but it does not appear that this is the case here. The way paternity law works is that there are certain circumstances which cause someone to be presumed to be a parent until disproven (a couple of which are conclusive presumptions that can't be overcome with facts at some point), but a lack of a presumption doesn't mean that you aren't a parent, just that it is harder to prove that you are a parent. Someone who is, or is presumed to be, a parent, continues to be a parent until that status is legally terminated (usually in a legal proceeding, but sometimes by operation of law). Since you are an actual parent, you continue to be a parent and have that authority, until that status in terminated for purposes of the law or until a court order limits your parental authority. A lack of a father's name on a birth certificate does not create a presumption that a child does not have a father or that you are not a father, although the name of a different man on a birth certificate does create a presumption which can become conclusive at some point, that the person named on the birth certificate is the father. Often this presumption becomes conclusive after five years, although I haven't (as I write this) confirmed that this is the case in New York. It isn't clear from the question if there is a different man named as a father on the birth certificate although it sounds as if it simply fails to name any father. And, often paternity petitions are disfavored or disallowed once a child turns eighteen for at least some purposes. A written acknowledgement of paternity delivered to the appropriate vital statistics record keeping office can establish paternity if not contested. The standard version of this form must be signed by both parents, in each case before two witnesses. The extent to which you are acknowledged as the parent of the child by the mother and others, and the extent to which you are involved in a child's life is also relevant to legal paternity, because a termination of parental rights can proceed in the absence of showing these things. The fact that the child share's your last name and that you are actively involved enough in the child's life to make it seem unlikely that this could be established even if a proceeding was brought, and in the absence of a formal termination of parental rights proceeding, you would not normally have your legal status as a parent terminated. So, probably, you are legally the child's parent whose authority is not limited by any custody decree, and therefore, you are entitled to authorize a vaccination. But, for a wide variety of reasons, it would be prudent to have your paternity formally established under the law if you are going to have an ongoing involvement in your child's life. Also, as DaleM notes, if you have the child with you, even if you are not the legal parent, you would usually be considered "in loco parentis" and have the authority to do this even in the absence of actual paternity. | The relevant legal requirement to have accurate records is 45 CFR 156.526, where An individual has the right to have a covered entity amend protected health information or a record about the individual in a designated record set for as long as the protected health information is maintained in the designated record set. The request can be denied if the record is accurate and complete. A simple and pointed solution is to print that page and circle the section, in a letter requesting an amendment. A somewhat more costly and much more effective solution would be to get a lawyer to write a letter in legalese. It is hard to imagine that the provider would not comply. You will notice that they have 60 days to comply (+30 days extension if requested). If for some reason they insist on leaving the record as is, you have the right to insert rebuttal statements into the record (basically, prove that the record is false). There is no realistic hope of compensation for annoyance, but you can hope for a correction. | They cannot force a contract on you after the fact. You should leave these numbskulls alone, they are clearly up to something that makes them likely to be sued. I am adding the following: it's not illegal as far as I know to declare anything you want to a person as long as it isn't a threat. "You are now beholden to give me your firstborn makle child." lol, no. | One thing that may prevent this is contract law: the employer may not have the power to impose new requirements on employees during the period of the current contract. For prisons that are run by government agencies, there may also be statutory restrictions on what the warden or Bureau of Prisons can compel employees to do without legislative approval (this is a general feature of government employment). There are additional disability and religion-based protections for employees. Apart from such legal considerations, the vaccine is not universally available, which explains why not all employers mandate that employees get vaccinated. It's not clear how prisons, specifically, are relevant: there's no general rule that "because it's a prison, normal law is suspended". | You may legally ask someone to shoot you, or do all sorts of other things to you. There are no laws against asking or various kinds of speech: laws restrict the doing. If you ask a person to shoot you and they do it, that person will probably be arrested for assault (or murder, depending on how it works out) – shooting a person is assault. A possible defense against an assault charge is consent, but that defense isn't freely available whenever a person says "I give my consent for you to assault me". You cannot consent to foreseeable serious bodily injury (more accurately, the law does not recognize such consent as valid consent). You can agree to be struck (in a boxing match) because such force is not serious bodily harm; and if unforeseeably serious bodily harm results, the consent defense is available. But if you ask a person to shoot you in the liver, they will be prosecuted for assault, because the resulting serious bodily harm is foreseeable. | It is legal and quite common. Your choice as consumer is at the point of selecting insurance company. If you dislike ES enough, that would be a reason to select a different insurance company. It would be surprising if your ES contract disallows pharmacy pick-up, but even if it did, that would also be legal. This does not mean that the government doesn't have the power to break up Express Scripts, under anti-trust laws. There is no clear rule regarding how successful a company can be in attracting customers. | You may not assault a violator, you may notify the authorities. If your state has passed a law making it a felony to be outside without a mask, you can perform a citizen's arrest (but no state has such a law). So you cannot take the law into you own hands, and you run the risk of being arrested on felony assault charges if you do. There is always a significant risk that you are wrong about whether the order applies to a particular individual. You can always file a lawsuit, but you'd be in highly-experimental legal territory in terms of succeeding, specifically the claim that the person endangered your health (you can't sue on behalf of others, except e.g. as a parent on behalf of harm done to a child). For instance, nobody has successfully sued another person for going out in public having the flu on the grounds that they unreasonably put plaintiff at risk. You would have to experiment with that argument, to show that going out with a mask is reasonable and going out without a mask is unreasonable. | There are two models for citizenship, by location of birth and by the nationality of the parent. The US chiefly follows the first model, which is why only your grandma's father is American, and your grandma is not. By the same logic, you are not. Countries like Spain are far more lenient, and do allow you to request Spanish citizenship if you can show any of your direct ancestors are Spanish. That's possible because each country can make its own laws within reason. The international norm is that everybody should get at least a citizenship at birth; statelessness should not happen. |
Can a law protect itself? Can a law protect itself? For example, could it be written in to a law that, under no circumstances, it should be amended or abolished (a) for a fixed duration or (b) indefinitely? I am most interested in the United Kingdom but would also be interested to know what the general answer is, if there is one. | No Parliament is sovereign: Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution. | 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.) | The title asks about double jeopardy, but the the body seems to be asking about statute of limitations, which is a separate issue. If an argument regarding timeliness is made by John, it likely will not be based on a statute of limitations. If Jane is asking for a restraining order, she will have to show a high likelihood of harm. If further actions have occurred recently, then any statute of limitations would not apply. If four years have gone by without any further actions by John, then Jane is unlikely to convince a judge that harm is imminent. Restraining orders are not supposed to be punitive, but preventative, thus the concept of statutes of limitations generally does not apply; as they are supposed to be used to prevent imminent harm, only the current situation is considered. Long-past actions are relevant only as to interpretation of current facts. One does not get a restraining order "for" violent acts done against one; one gets a restraining order to prevent future acts, and uses previous violent acts as evidence of the likelihood of those acts. Asking a court to protect oneself from someone who has not been in one's life for four years is unlikely to go over well. | 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. | When you get married is possible to have contract renouncing both parties right to a divorce. No. That clause would be redundant, materially indistinguishable from breach of contract, and otherwise unenforceable. It is redundant because the legal definition of Marriage (Black's Law Dictionary) states that it is "A contract, according to the form prescribed by law, by which a man and woman [...] mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and a wife". Thus, the perpetuity as expressed in the term whole lives preempts the conceiving of an eventual separation. Insofar as marriage is legally cognizable as a contract (see legal definition), it might specify or imply remedies in the event that one or both spouses decide(s) that substance of marital relationship no longer exists; that is, in the event that a breach of that contract occurs. A court may order to the breaching spouse performance of certain acts (for example, alimony) in accordance to statutory law or common law. However, a prohibition to divorce goes beyond the scope of what is legally permissible. The U.S. Supreme Court in Roberts v. United States Jaycees, 468 U.S. 609, 617-618 (1984) helps explaining why a prohibition to divorce would be unenforceable: "In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty." If that is not possible how much can you limit the right to a divorce with a contract or something similar? There is no possible limit or requisite duration of a marriage, as that would inherently infringe a person's fundamental element of personal liberty mentioned in the Roberts case. | What can I do to prevent someone from leaving me something in their will? Nothing. Allowing other people to legally change someone's will defeats the purpose of a will: To express the writer's last wishes. (That is why the full title is a "Last Will & Testament"). Do I have to take responsibility for things left to me in a will or are there other options? No! You do not have to accept an inheritance. The legal process for rejecting an inheritance is called "disclaiming." It happens often enough that there are plenty of nice summaries of the process on-line. Your next step should probably be to read one of them. | The real question isn't whether there is a law, but whether you want to keep your job. If you want to do something that you believe will affect your company negatively, and you ask whether it's legal or not, the question alone should show you it's a bad idea. And another question is whether you can be sued, and what it will cost you even if you can win a case, and the answers to that are "yes" and "a lot". | Deadly self-defense is legal in Germany. The self-defense law (in particular Sect. 32 of the Criminal Code) makes no restrictions as far as the type of aggression and the type of defense is concerned. That means that - in principle - you can defend yourself against an attack by any means that is necessary to stop it. The principle behind that is "das Recht muss dem Unrecht nicht weichen", which translates to "the law does not have to yield to the unlawful". That particularily means that: You do not have to run. You do not have to yield. You do not have to wait for help from public authorities (notably the police). You can defend yourself (against any attack on you, be it life, limb or property), no matter if that would mean commiting a crime (even if that crime is killing a person). This is called "Trutzwehr" or "schneidiges Notwehrrecht", which can be translated to "active defense" or "aggressive defense" as opposed to passive defense. However... This regulation is not without pitfalls and limitations. There are quite a few, which means that in practice deadly force could be considered unlawful in self-defense. Books have been written about this subject alone, so it can not be exhaustively handled here. Some examples for corner cases are: Attackers that clearly can not understand the severity of their actions have to be spared from extreme effects of your self-defense. The classical book case is that you can't shoot little children stealing apples from your tree. If there is a massive discrepancy between what you want protect and the damage the attacker has to endure (called "qualitativer Notwehrexzess" - translating to "qualitatively eccessive self-defense"). If someone insults you, shooting him might go to far, since while your honour is attacked (which is protected by Sect. 185 Criminal Code), the attacker's life (protected by Sect. 212 Criminal Code) by far outweighs it. Note that, to ensure the effectiveness of the self-defense laws, the discrepancy must be extreme. And it does not mean you can't defend yourself. You just have to choose a less severe measure. So you might get away with knocking the insulter out. After the attack is over you hit the attacker once too often, which causes his death (called "quantitativer Notwehrexzess" - "quantitatively eccessive self-defense"). The attack was over at the time of the deadly blow, so your right for self-defense had ended. You might get away without punishment, if it was impossible for you to realize that the attack was over. If you only think an attack is happening, but it is not (for example someone attacking you with a rubber knife on Halloween). In this case there is no attack and so technically there is no right for self defense (called "Putativnotwehr"). Similar to the cases of excessive self-defense, it depends on your individual case (notable if you had a chance to realize the attack was false) if you are punished or not. To sum it up: You have the right to defend yourself by any means necessary, but you are held responsible if you go to far (not just a little, but really really to far). |
What legal action can I take if someone who had access to my personal hard disk copied all my personal pictures into his computer? A few months ago I had a temporary guest in my residence. During this time he, without my permission, went through my personal hard disk and copied all of my pictures onto his personal computer. (These are pictures of me, such as ones you take on holidays, and a few more private ones.) None of these pictures were ever posted online, so the only way he got access to the pictures is because he copied them from my computer. I only found about what he did recently because I received a message with an attachment from him saying, "I've got these photos of you...." I told him to delete them, and he said he did. A few days ago I went to his place and went on his laptop with his permission (as by this point I wasn't trusting him) and There I found lots of other pictures, all from my hard disk that I have never ever shared with anyone, including the pictures that he said he deleted. What can I do to make sure that all these photos get deleted? What are the laws about these types of situations? | You have the copyright on all your pictures. He had no permission to copy any of them, so he has committed copyright infringement on a massive scale. You can just get a solicitor who will happily take him to court for you. You shouldn't be overdoing it, $750 per infringed work (per picture) as statutory damages should be fine. If you want it cheaper, the solicitor will write a letter for you that asks him to destroy all the pictures, sign that he has destroyed all the pictures, pay the solicitor's fees, or otherwise be taken to court for copyright infringement (see above). Now I am not a lawyer, so you go to a lawyer which will correct whatever I got wrong here. Just forgot: In addition to having the copyright, if he publishes pictures of people (like you and your family), he needs permission of these people. So if anything gets published, that goes on top of the copyright infringement. | The relevant Maryland statute is MD. Criminal Law Code Ann. § 9-307 (2021), subsection (a): A person may not destroy, alter, conceal, or remove physical evidence that the person believes may be used in a pending or future official proceeding with the intent to impair the verity or availability of the physical evidence in the official proceeding. Note "that the person believes" and "with the intent to." If you have no reason to think it might be necessary in an official proceeding, you aren't violating this section. If you delete the data unintentionally or for some other reason, then you also probably are not violating the section. (I say "probably" because I'm sure there's some sort of provision for negligence or willful disregard for the evidential value of something you should know has evidential value.) As a practical matter, no copyright lawsuit or criminal trial (and criminal trials over copyright infringement are very rare) is going to depend on the browser history of the defendant's friend. What if my computer has major software issues and the only viable solution is delete everything and reinstall from scratch; am I stuck with a worthless broken computer because reinstalling things from scratch would delete evidence of a crime? If you know of evidence on the hard drive that would be destroyed, you can copy it somewhere else before deleting and reinstalling. Federal law is similar: it requires knowledge and intent. 18 USC 1519: Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. | 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. | 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. | There are three questions relevant to this issue: Who owned the copyright in the first place? Was the copyright transferred? If not, was a license given to the site to use the content? In general, under most countries' laws, the person who creates an original work owns the copyright. The person with the copyright has the right to copy and distribute the work, and the right to prevent others from doing so. In some cases, such as where a work is created as a "work for hire" by certain employees under certain circumstances, the initial copyright is held by a third party. You will need a lawyer familiar with your jurisdiction and your circumstances to determine if this is the case. Finally, even if you own the copyright, you can license others to use your content. This may be in an express written document, or it may be an implied license--implied, for instance, by the act of posting it on their blog. The existence and scope of such a license is, again, something that will have to be determined based on your country's specific laws and your specific situation. The bottom line is: if you submitted articles to that blog, you can't complain that they posted them. Depending on the license in effect, you might be able to get them taken down, or you might not. You need a lawyer, not the internet, to tell you what your rights are in this very specific case. | You violated Facebook's Terms of Service, and it's entirely within your contractual agreement with them for them to close your account. You agreed to abide by the contract you "clicked through" when you signed up and opened a Facebook account. They didn't break any laws when you broke your contract with them. You clearly broke the contract by violating the TOS. They are not breaking any laws by not restoring your account. What you see as the value of your personal or business data doesn't really mean anything; it was your choice to use Facebook in the first place, and your mistake to break the TOS. You could try hiring a lawyer to make a case that you see a difference between the personal data you want to retrieve and the business data that caused the violation, but that's up to you; Facebook is under no legal obligation (this could be different, according to your jurisdiction and national laws) to restore any or all access to your account or data, but it's possible they could be persuaded. | It is probably illegal, just not pursued. In the case of something like bank robbery, you'd have a victim that filed a police report. A murder would need to be discovered somehow - either a missing person report or a dead body. If the porn shoot happened somewhere that a member of the public saw it and subsequently filed a police report, the video could be used as evidence. Absent a report, the police simply have no reason to look into it (unless the police catches them in the act, but we probably don't see those videos posted online). Why would these public offenses go unreported? Perhaps nobody sees it. Perhaps the bystanders in the video are paid extras. Maybe they're filming in what appears to be public but is actually private property. Perhaps they have a permit to use a public space for this purpose. Perhaps they just got lucky. Again, there might be some confirmation bias here - you're not going to see as many videos of folks they catch breaking the law, since they will either be interrupted and stopped or (maybe) have their videos ordered taken down. | 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. |
What are the implications of the USA not having an official language? The USA doesn't have an official language, though in practice everything is in English and some things also in Spanish (and once in a while some services are provided in other languages too). I don't really understand what it means for there to not exist an "official language", though. You can't read road signs, contracts, or anything else you might need in a 'normal' life without knowing English. And you can't really successfully demand that they be provided in an arbitrary language of your own choice (you can't expect people to speak every possible language). So what exactly are the implications of not having an official language? In other words, how would anything have been different if the USA had English (and maybe Spanish) as its official language(s)? What would the legal implications have been? | The legal implications are negligible. A ceremonial declaration that English is official has no practical effect; other legislation is required to have an effect. Congress could pass a law declaring that English is the official language of the US, but they would also have to pass additional legislation for that to have any effect. For example, to prevent a bill from being introduced in Congress in Turkish, they would have to pass a law requiring all bills to be written in English (or not in Turkish). It is nevertheless a fact that all bills are written in English, without such a law and without an official declaration that English if the official language. Congress could pass a law withholding funding from any educational institute which teaches in a language other than English (teaches any students), but such a law would also require repeal of various anti-discrimination laws whereby children have a right to native-language education (to a point); patients have a right to a translator; witnesses and the accused have a right to a translator in official hearings. But: all of this could be done without passing a law making English the official language. The US could also adopt a constitutional amendment, similar to section 3 of the Spanish constitution ("Castilian is the official Spanish language of the State. All Spaniards have the duty to know it and the right to use it"), which means that a Catalan or Basque-speaking Spaniard has no right to a translator in a trial). Even if there were a constitutional amendment saying that English is the official language, we we still have to await myriad SCOTUS interpretations of that clause, to determine whether that prohibited immigration agents from using a language other than English when addressing a customer. Individual states can have different policies (summary here), where English and Hawaiian are official in Hawaii, English and a couple dozen native languages are official in Alaska (Inupiaq, Siberian Yupik, Central Alaskan Yup'ik, Alutiiq, Unangax, Dena'ina, Deg Xinag, Holikachuk, Koyukon, Upper Kuskokwim, Gwich'in, Tanana, Upper Tanana, Tanacross, Hän, Ahtna, Eyak, Tlingit, Haida, and Tsimshian). I understand that laws are published in English and Spanish in New Mexico. Such laws and practices would still be possible if English were declared the official language of the US, by act of Congress. Tennessee has a fairly strong official-English law: English is hereby established as the official and legal language of Tennessee. All communications and publications, including ballots, produced by governmental entities in Tennessee shall be conducted in English unless the nature of the course would require otherwise. Because this law not only makes English the official language but also mandates that English be used for government publications "unless otherwise required", that does mean that you can't take your driving test or get a ballot in Farsi or Spanish (at least, by the letter of the law), as you can in some stated. This page summarizes the state-by-state situation. The California Constitution says that English is the official language of the state. But the core mandate of the clause is fairly toothless: The Legislature shall enforce this section by appropriate legislation. The Legislature and officials of the State of California shall take all steps necessary to insure that the role of English as the common language of the State of California is preserved and enhanced. The Legislature shall make no law which diminishes or ignores the role of English as the common language of the State of California. Nevertheless, they produce voters pamphlets in 7 languages and driver's knowledge tests in Amharic, Arabic, Armenian, Cambodian, Chinese, Croatian, French, German, Greek, Hebrew, Hindi, Hmong, Hungarian, Indonesian, Italian, Japanese, Korean, Laotian, Persian/Farsi, Polish, Portuguese, Punjabi, Romanian, Russian, Samoan, Spanish, Tagalog/Filipino, Thai, Tongan, Turkish, and Vietnamese. The political consequences would not be at all trivial. | There is no "theft" without a law that defines what "property" is and what "theft" is. Laws derive from the state that has the power to enforce them. A state may issue the laws and decrees and stablish who owns the lands. It can later make changes to that ownership. When the Normans invaded England, Willian I became the legal authority and with that he could award, confiscate and keep lands as he saw fit, without that being considered "theft" in any legal sense of the word. The English government (and all others) still have the authority to take away, redistribute and otherwise change the ownership of lands as they see fit, and nothing of it would be theft. Internally most of them have chosen to stablish some procedures to ensure that this is only done when needed by meeting some tests (eminent domain), but even if they didn't have those (again, self-imposed) restrictions they still would be able to change ownership as they saw fit. That does not mean that a government using that power to punish political opponents or ethnic minorities would not face internal and external protests. | Any country is their own sovereign There is no international law that demands any state to allow anyone free speech of all kinds. Remember that your rights end where the rights of others [incl. society] begin. And in Germany, the right of the society is defined as being not subjected to the symbols of illegal organizations, especially ones that try to violate the liberal democratic basic order Also, Germany is not alone in banning the sentence or the accompanying gesture. They are also illegal to various degrees in Austria, Switzerland, Slovakia, The Czech Republic, and Sweden. It also can be illegal in the US, if disturbing the peace. The sentence is an identifier for a banned organization The sentence is certainly illegal if spoken to express certain things. However, it is legal to be used for example in art (films) and is commonly found in lecture material, as one example of how the nazi party identified. But how? People are often confused, but the rule is actually somewhat easy: If you display any symbol of a banned, unconstitutional organisation (under § 86a StGB) like any of the logos of the Nazi Party and spiritual successors (those with a red bar: banned!) or even the PKK, then you are acting in an illegal manner. And unless you have an exception to claim, the determination can be done entirely on a factual basis by looking at the circumstances. Indeed, the mens rea requirement is so minimal (because the law is written in a way that there is none needed!), that posting photos of a swastika tattoo can get you convicted for jailtime Exceptions However, I mentioned exceptions. Those are in § 86a StGB(3), pointing to $ 86(3)&(4) [eng]: (3) Die Absätze 1 und 2 gelten nicht, wenn die Handlung der staatsbürgerlichen Aufklärung, der Abwehr verfassungswidriger Bestrebungen, der Kunst oder der Wissenschaft, der Forschung oder der Lehre, der Berichterstattung über Vorgänge des Zeitgeschehens oder der Geschichte oder ähnlichen Zwecken dient. (4) Ist die Schuld gering, so kann das Gericht von einer Bestrafung nach dieser Vorschrift absehen. (3) Subsection (1) [and (2)] does not apply if the propaganda material or the act serves civic information, to prevent unconstitutional activities, to promote the arts or science, research or teaching, reporting about current or historical events, or similar purposes. (4) If the degree of guilt is minor, the court may dispense with imposing a penalty under this provision. That is why we have swastikas in German school books, as those tell about the horrors of nazi germany. That is why the logos can be found in research material and history books analyzing the use of the symbols in different countries. That's why the news outlet filming the demo where people yell Heil Hitler show that footage without precautions (unlike those that fly the banned symbol!) That is why you can have the film Inglorious Bastards with all its Swastikas and people yelling Heil Hitler, but its advertisement material was specifically altered to not show those. However, until August 2018, computer games were not accepted as arts. This is why the German versions of Wolfenstein that did get a german release before had been altered to remove Swastikas and voice lines. But the "Sozialadäquanzklausel" had been applied to computer games in August 2018, and the games got (after some other hoops) re-released in their international version on 22nd November 2019. How come some ideologies are banned?! Germany's equivalent of a constitution is the Grundgesetz (Basic Law). Its first 20 articles (not paragraphs or sections!) prescribe the rights of any person. The very first and most important one is, and the very first sentence of it makes clear what the very guiding principle of all other laws has to be (emphasis mine) before any of the other basic rights are enumerated. Art. 1: Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlichen Gewalt. Art. 1: (1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. This is the most absolute right anyone can have. There is no provision in any way that would allow (or make it possible!) to strip or reduce the human dignity and every human being, living and dead, has it. Violations of human dignity have been used quite often to repeal laws, such as several incarceration methods or when cuts to the social security system would prevent someone to live a life that would be without dignity. Human Dignity is the measure that can be used to cut all other rights. In fact, it is explicitly the foundational principle of all german laws, that rights are not granted beyond where other rights start and that nobody has any rights when it comes to harming the constitutional order derived from the Grundgesetz (emphasis mine): Art. 2: (1) Jeder hat das Recht auf die freie Entfaltung seiner Persönlichkeit, soweit er nicht die Rechte anderer verletzt und nicht gegen die verfassungsmäßige Ordnung oder das Sittengesetz verstößt. (1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law. Now, where comes freedom of speech? Only in Article 5, and it is absolutely not absolute but has defined limits (emphasis mine): Art 5:(1) Jeder hat das Recht, seine Meinung in Wort, Schrift und Bild frei zu äußern und zu verbreiten und sich aus allgemein zugänglichen Quellen ungehindert zu unterrichten. Die Pressefreiheit und die Freiheit der Berichterstattung durch Rundfunk und Film werden gewährleistet. Eine Zensur findet nicht start. (2) Diese Rechte finden ihre Schranken in den Vorschriften der allgemeinen Gesetze, den gesetzlichen Bestimmungen zum Schutze der Jugend und in dem Recht der persönlichen Ehre. (3) Kunst und Wissenschaft, Forschung und Lehre sind frei. Die Freiheit der Lehre entbindet nicht von der Treue zur Verfassung. Art 5: (1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship. (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour. (3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution. Parties and organisations that can't abide by the other rules of law because of their ideology will get banned based on that. In the case of the nazi ideology, it's quite simple: The core idea of Rassenlehre and its believe in Untermenschen is so deeply dehumanizing that there can't ever be a way to get that in line with the very first (as well as 2nd and 3rd) Article of the Grundgesetz. Or to quote the words of Amon: Nazi ideology denies dignity to some humans, goes against the liberal-democratic order, and therefore cannot enjoy the usual protections. Rule of law is still maintained because restrictions to the freedom of expression are codified in law, and violators will get a fair trial. You see, you simply don't even have an absolute right to disseminate your ramblings, because the Basic law itself points to the general laws that ban the dissemination of certain materials. This is how § 86 StGB can ban any propaganda material for organizations and § 86a StGB subsequently bans their symbols, including gestures and slogans. | You may want to ask Reich what he personally was talking about. There is a distinction within the US between states which prohibit mandatory union membership versus allow mandatory union membership. In about half of the states, a union cannot force an employer to accept a contract which obligates that a person join the union. These are known as right-to-work laws. No state requires all workers to join a union, and no state forbids the formation of unions. | That a computer language is proprietary does not mean that all code written in that language is copyrighted by the holder of copyright on the language. Anyone may write, and publish, code in a particular language without permission from the language designers, or anyone else, provided that the code is original and is not a close paraphrase of code written by someone else. If the code to be published was created by someone else, permission would be needed unless the code falls under fair use or some other exception to copyright. Permission might or might not have to be paid for. | There is a saying that you can't sue city hall: that is applicable here. Governments enjoy sovereign immunity, and cannot be sued for their errors of judgment unless they specifically allow it. Safety regulations are an example of a situation where the government hold all of the power and shoulders none of the responsibility. If a government forbids sale or use of a substance on some grounds (could be safety, could be economic impact, could be something about preventing the moral decay of society), and the grounds later turns to be false, you cannot sue the government because of lost business opportunities. Generally speaking, that which is not prohibited is allowed, so there would have to be an affirmative duty for the government to prevent all forms of harm. If there were such a legal duty, there is a miniscule legal foundation for suing the government for shirking its duty. That is not a completely hypothetical possibility, in that the state of Washington imposes a constitutional duty on the legislature to provide public education, and the Supreme Court has done things to enforce this duty (the contempt of court fines are up in the realm of $80 million). Since there is no jurisdiction that imposes a duty on the government to absolutely prevent all harm, you won't be able to sue the government if they fail to outlaw a thing that is eventually proven to harm someone. | It isn't uncommon to interlineate contract language, or to cross out contract language, with the initials of the parties to the contract. This is normally only done with smaller businesses, however, where there is someone who has the authority to do so. Some contracts, such as insurance contracts, for example, have to have their language approved by state regulators before they can be used and can't be modified in that fashion. | Since there is no search or seizure involved in having a driver's license, requiring a person to update their address is not a violation of the 4th Amendment. It is also not "testifying against oneself in a criminal case", so it does not violate the 5th. As has been repeated many times, driving is a privilege and not a right, meaning that there is no fundamental constitutional right to drive. Strict scrutiny would not render the requirement to have a license unconstitutional, and it certainly would not invalidate the requirement to give a correct address and update that address as necessary. There may be issues regarding a requirement to produce identification, but there is no legal precedent for the idea that an ID law law and a federal "must show" statute would violate the 4th (that is not to say that the courts could not find there is such a basis if the question arises, but it has not yet been found). Since there is no national ID law, one can only conjecture what the outcome of judicial review would be, but if such a law survived strict scrutiny, it would be inconceivable that a portion of the law requiring you to keep your address current would fail such scrutiny. A curiosity search would still be barred. |
High value domain taken by registrar I registered a domain name with a large domain registrar. The domain is very unique. The transaction went through. My credit card was billed. I received an invoice. I set up the domain with my website. I used CloudFlare for DNS and still have the domain listed in Cloudflare. Google has cached copies of the website pages on the domain. I verified the domain on Google search console and it is still listed under my properties. Four days after the registration I received an email from the registrar saying that there had been an error. They said the domain is a premium domain and the actual price for the domain is $1,000,000. They took my domain down and removed the whois information. They refunded me with in-store credit plus $25 "for any inconvenience". My credit card was never refunded it's all in-store credit. I never agreed to the refund. I have all the bank invoices and other documents. I want my domain back. What are my options? | You need to look at the domain registrar's TOS to determine their polices for canceling a domain after the fact in the way they did, i.e. claiming the domain is "premium" and as such allowing them to cancel and raise the price and re-offer the domain. The registrar may, in fact, have such a policy in their TOS that you agreed to when you opened an account with them and registered a domain. "Clicking through" and accepting a TOS is a binding contract. Their policy may hinge on an "escrow" hold on the domain for a certain time until your payment clears, they do due diligence, or other reasons, and by agreeing to the TOS you allowed them to reserve the right to cancel or re-offer the registration. However, such a policy is at least (I think) ethically challenged and at most could be illegal - US and local laws in your your jurisdiction may come into play - in terms of ICANN's policies. You may have success opening a complaint with ICANN, the international organization that oversees domain registrars and works to resolve complaints such as cyber-squatting, issues with the way registrars operate, etc. See Registrant Rights and Responsibilities Under the 2009 Registrar Accreditation Agreement - ICANN. If the registrar doesn't have a clear policy on the form of cancellation and re-offer you have been subjected to, your next step is definitely looking at Dispute Resolution Options - ICANN. Keep all your documents and emails, and log all phone calls or chats with the registrar. Make screenshots of your Cloudflare account and Google's web cache. And, it might be helpful to do a Google search for that registrar and "domain cancellation" or more relevant keywords to see if anything similar has happened in the past and the outcomes; those stories may give you ideas for other options. You may also need to find a local lawyer to advise you on your next steps, or talk to a free legal aid clinic in your area. | The CEO wants to "fool" users You are essentially admitting that the company you are working for is about to deceit its customers and asking whether that is legal. The relevant set of laws is rather sparse and does not give direct answers in regards to oAuth tokens or other details of that level (which is probably making your CEO think he can "handle" the arising questions). Probably the most relevant bit of legislation that applies here is The Federal Trade Commission Act (15 U.S.C. §§41-58) which prohibits unfair or deceptive practices and has been applied to online privacy and data security policies. I am pretty sure that, in practice, if the users take your company to court, it will be held liable because: users are allowing us to read their CRM data and once we get the data, the data become ours, and we can do whatever we want with it. Is this true? While the users are still allowing you to read their data it is completely up to the Terms/EULA what you can do with it. However, once you have made the users think that they have withdrawn your access (e.g. they "deleted" oAuth tokens), you are no longer authorized to read the current data (although the Terms may still allow you to use the old data you obtained when you had access). Silently continuing to access their data without their knowledge/approval is definitely a deceit. The CEO wants us to download all of their emails and store them in our database There would be nothing wrong with that if it was in the Terms. But if it is not, that would be a blatant (and easily punishable) breach of privacy. Note that you may also be held personally liable for this wrongdoing (if/when proved so). "Just doing your job" claim will not work. | DMCA applies as long as the the website is being hosted inside the U.S. The location of the copyright holder is irrelevant. For step-by-step help drafting a valid DMCA notice, see Step 2 of https://nppa.org/page/5617. If the site fails to comply with a valid notice, they lose the benefit of DMCA's safe harbor provisions and become themselves liable for continuing to host the infringing work, and you can sue them. (Prior filing suit, though, I imagine a letter from a lawyer that says, "Hey, my client sent you a valid DMCA notice a while ago; kindly comply at once, or we will actually sue you," should be sufficient.) The requirement to submit a photo appears to be totally unnecessary. A valid DMCA notice includes a signature (electronically including your name in an email is sufficient) and an assertion, under penalty of perjury, that the writer is authorized to control the copyright work and that the work is being used illegally. Beyond a signature and contact information, no further identity verification is necessary. The DMCA handles this by opening the submitter to perjury charges if the takedown was submitted illegally. Of course, any site might choose to ignore your DMCA takedown, at their own peril. They might bet that you won't actually hire a lawyer and follow through on your legal right to file suit, or they might not understand that identity verification is not a legal requirement listed in 17 U.S.C. § 512(c)(3). Your options are either: follow the law as written and file a valid takedown notice, and then hire a lawyer when they don't don't comply with the rules written in 17 U.S.C. § 512 follow their additional rules to get them to comply, which may be more difficult but might not require hiring a lawyer | The critical part is the nature of the relationship between you, the website provider, and the provider of the material you embed. If the embed-provider acts as your data processor, then things are generally fine. The GDPR does not really distinguish between personal data processing activities that you perform yourself versus activities that you've outsourced to third parties. However, you would remain responsible for compliance. This also means that per Art 28 GDPR, you will need a contract with that embed-provider (sometimes called a “Data Processing Agreement”, DPA). This contract stipulates that the processor will only use the personal data as instructed by you, but not for their own purposes. With the Google Fonts case, it must be highlighted that Google does not act as a processor for this service. Google does not offer a DPA that covers the Fonts CDN. While Google promises that it doesn't use the personal data collected in this context in any nefarious way, there are zero contractual guarantees for website providers. So we have to consider the scenario when the embed-provider is an independent data controller. We as the website provider have no control over what the embed-provider does with the collected data, our control only extends to whether or not we cause the website to disclose data to that third party. But this is still processing as personal data (see also the CJEU Fashion ID case), and we need a legal basis for this data sharing. In the Google Fonts case, the court in Munich found that there was no legal basis for using Google's CDN. There was no consent, no contractual necessity, and no necessity for a legitimate interest. After all, these fonts could all be self-hosted. (Technical remark: and given how modern browsers enforce cache isolation and provide HTTP/2, serving fonts from your main domain is probably faster anyway). Consent management services will typically act as your data processor. You don't need a legal basis for “sharing” data with them, because the processing remains under your control. As far as the GDPR is concerned, loading a script from your processor's servers is equivalent to loading a script from your own servers (which you're probably hosting via a another data processor anyway). Sometimes, the necessary data processing agreement is already part of the standard terms of service, sometimes it's a separate document that has to be signed. Figuring this out is your responsibility as the data controller, before deploying the service. Art 6 GDPR doesn't say that you always need consent. It says that you need a legal basis, for which paragraph 1 enumerates six choices. For a lot of use cases, a “legitimate interest” will be appropriate, though it requires a balancing test. Sometimes, other laws mandate that you use a particular legal basis. For example, the ePrivacy Directive says that you must get GDPR-consent when accessing or storing information on the user's device (such as cookies), unless that access/storage is strictly necessary to provide a service explicitly requested by the user. | There is not necessarily a contradiction. Information that they may keep may be: Account information Subscriber information Information on breaches of the Terms of Service or Agreement So yes, they might certainly not keep any logs – although that claim is doubtful, since they almost certainly keep at least error-level logs of their services – but that doesn't mean that they have no information to disclose to law enforcement. It's also questionable what "logs" refers to – would aggregate statistics be considered a log, by law? Would your last known IP address be considered a log, provided they don't keep any other history? | Is this how it works? Am I supposed to pay the full quote regardless? No. The contractor is plain wrong. Your agreed commitment to obtain materials directly from the retailer supersedes the initial agreement that totaled 30K. In other words, you two amended the contract. Since then, your obligations under the amended contract were to provide the materials he requested and to pay for labor costs. the contractor is insisting on the full amount, claiming that had I not paid the material I wouldn't have known the difference in cost and he was taking the risk with the quote. That is inaccurate. Once he delegated to you the task of obtaining materials directly from retailer, he exempted himself from any and all risks of giving an inaccurate estimate of the cost of materials. In fact, he shifted to you that risk. | So I suppose we basically need to disclose the exact geolocation of the datacenters that store this kind of content. That is incorrect. You need to identify a place of business where federal investigators may inspect the records without first making an appointment for access. The location of cloud storage is not particularly relevant. is it possible in any way to achieve compliance with 18 USC 2257A while using Google Cloud Storage (Or perhaps any other cloud storage service)? Yes. You must store the records as required by the statute and by the regulations issued under the authority of that statute, 28 CFR Part 75. I only scanned the regulations, but it seems that the "location" of the records is the place where they are available for inspection, not necessarily the place where digital files are stored. (The regulations also provide that you may indeed keep the records in digital form.) But consider, for example, what would happen if the FBI came knocking for an inspection and a local utility company accidentally severed the fiber cable on the next block. Such a network outage happened at my company a few years ago, and the incident disabled all of our redundant networking, so we had no internet access whatsoever for several hours. The investigators would probably tolerate such a disruption, but it is probably better to have a copy on site in addition to any off-site copies you might have. Regardless, you should hire a lawyer with relevant experience, because you need advice from someone who can find out whether there has been any litigation that may have a bearing on your rights and obligations, and you should find out what state and local law have to say about this, if anything. This is a criminal statute, and trying to protect yourself from criminal liability without qualified legal advice is quite possibly going to leave you vulnerable. | Probably not, because you should be in a position to rely on the Safe Harbor provision of the DMCA. Safe Harbor protects service providers who provide open, non-moderated spaces for users to directly contribute content. Safe Harbor means you do not need an army of moderators to inspect every message posted to the site or system. It is essential for sites like Twitter, Youtube or StackExchange to exist. You are not liable for that content if you provide a means for IP owners to report copyright violations, and promptly take down any content which an IP owner reports as violating. You don't need to get in the middle of whether that's really true; there's a mechanism for the user and IP owner to "duke it out" directly at no risk to you. However you must take the required steps. For instance you must register an agent, and respond timely to DMCA takedown notices, which means you must be reachable as per the law. Your designated agent address must be staffed 9-5. Note that the "Designated Agent" can be the same person as the "Registered Agent" that you already must have when you are an LLC or corporation. And you'll want to be an LLC or corporation by the time you get big enough to worry about copyright lawsuits. |
Responsibility for causing damage to someone else's car when there is no collision In order to avoid collision with the driver of a car who made a wildly optimistic illegal left turn, I had to push my brake pedal all the way to the floor and stop far more suddenly then one would in any non-emergency situation. But I barely avoided collision. After that my brakes didn't work well and required depressing the pedal all the way to the floor to get less deceleration than one normally gets from quite moderate braking. It turned out a brake line in my ancient car (circa 20 years old) had sprung a leak from the high pressure in the line during that incident. Is the other driver responsible for any of the costs of repair? | The reason an at fault driver is liable for damage in a collision is due to the tort of negligence. To be liable under negligence one of the many factors that the plaintiff (that's you in this case) must prove is that the damage you suffered was a reasonably foreseeable consequence of the defendant's (that's the U-turner) acts or omissions. This is where your case would fall down: a collision is a reasonably foreseeable outcome, damage to your braking system in normal operation is not reasonably foreseeable given that an emergency stop is something a breaking system should be able to do. This is simply a maintenance issue. | It is legal to be wrong, it is legal to say false things in public (leaving out defamation), and it is legal to buy and manufacture signs that say false things. Moreover, the sign does not make a false statement, in that legal liability is distinct from moral responsibility. In fact, the sign helps to decrease their legal liability. Via this sign, you have been put on notice that the truck may spray a bit of gravel, so by following too closely, you are negligently contributing to the damage. This is what also underlies those disclaimer signs with "not responsible for theft from your auto". There is nothing "official in appearance" about this sign (a legal citation of a statute might have such an appearance). | In general, yes, police could do this. I am not aware of any US state or locality which requires an officer to execute a stop as soon as a traffic violation is observed. Whether the police would act in such a way is another question, but in some areas maximizing citation revenue is a high priority, so police in such areas might act in such a way. If police think a person's actions are "suspicious" and think that the person might be involved in some crime more serious than a traffic violation, it would be common procedure to follow without making a stop or arrest to get a better idea of what the person was doing. Many police I have encountered seem seriously concerned to stop someone driving in what they consider an unsafe way as quickly as possible, and so stop violators promptly, but I don't say that motivates all police all the time. | People can take their personal cars through the Channel Tunnel from Great Britain to France. They don't actually drive their cars through the tunnel, but going by car is a perfectly normal way to travel between those two countries. That's probably the most well-known place where drivers will switch from driving on one side of the road to the other, but there are many more . If driving with a car with the wheel on the "wrong" side were forbidden, these options would not exist, because at least one direction of travel would not work. Now, of course, that doesn't mean a country like Belgium, which does not have to direct way to Britain, couldn't forbid cars with the steering wheel on the right. But at least for EU states, that seems to be forbidden, as Poland and Lithuania learned when they tried to require cars that were to be registered there to have the steering wheel repositioned to the left Consequently, the Court holds that the position of the driver’s seat, an integral part of the steering equipment of a vehicle, comes within the harmonisation established by Directives 2007/46 and 70/311, so that, in the context of the registration of a new vehicle in their territory, the Member States may not require, for reasons of safety, that the driver’s seat of that vehicle be moved to the side opposite the direction of the traffic. It notes in that regard that the legislation at issue provides for exceptions with regard to the use of vehicles equipped with a steering-wheel on the right by people who reside in other Member States, and travel to Poland and Lithuania for a limited period (for example, tourists). That fact shows, according to the Court, that the contested legislation tolerates the risk involved in such use. So even those countries that tried to ensure that registered cars had the steering wheel on the "right" side made provisions for cars that were just traveling through. And the EU does not consider it a valid law to require wheels to be repositioned. | No, it is generally not legal. In most (maybe all) states, this would be vandalism. For example, see California Penal Code Section 594(1)(a): Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) Defaces with graffiti or other inscribed material. (2) Damages. (3) Destroys. For another example, see Kansas Statutes 21-5813. In your hypothetical, the pedestrian absolutely hit the vehicle, not the other way around, so the "fine line" you mention doesn't effect this conclusion. The practicality of proving the case against the pedestrian is a separate matter but the law favours neither the pedestrian nor the driver. The standard is the same no matter who the charges are filed against: proof beyond a reasonable doubt. | Is there any type of California labor law that would allow for him to ask for compensation for lost wages? Your family member might have a claim of [intentional?] misrepresentation. Simply put, it is unjustifiable for a well-known transportation company to misrepresent for too long the requirements its drivers must satisfy. Assessment of other legal theories such as breach of contract or promissory estoppel requires a detailed knowledge of the interactions and terms between the parties. Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal.4th 85, 107 (1995) points out that "courts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies". Misleading and belatedly avoiding a hiree who relied on the company's conduct contravenes public policy because of the ensuing disruptions and uncertainty the company could and should have avoided. Accordingly, see Robinson Helicopter Co., Inc. .v Dana Corp., 22 Call Rptr. 352, 361 (2004) ("[A] plaintiff advances the public interest in punishing intentional misrepresentations and in deterring such misrepresentations in the future."). Generally speaking, the doctrine known as economic loss rule bars claims of negligent misrepresentation involving no property damage or personal injury. That is in order to preempt a party from sidestepping contract law. However, the extent of the company's conduct as you describe it might forfeit the protections embodied in the doctrine of at-will employment. | Real-world situations are rarely so clear-cut Let's say, hypothetically, that I'm in the driver's seat of a car. The company told me that the car has "Full Self Driving" capabilities based on some sort of artificial intelligence, though they also said that these capabilities "are intended for use with a fully attentive driver, who has their hands on the wheel and is prepared to take over at any moment." Let's say I was not fully attentive at a moment when the car's AI decides to swerve into oncoming traffic, and I fail to grab the wheel and prevent that. Who's at fault? Is it the car company's fault for a bug that caused that? Is it my fault for failing to be fully attentive? Is it some combination of the two? But wait, it can get more complicated: maybe the car company argues that they couldn't have reasonably anticipated the situation that caused it: maybe the lines were incorrectly drawn on the road, and indicated that the road continued in that direction. Maybe I argue that the car swerved quickly enough that even a fully attentive driver couldn't have recovered. These and more are all facts that need to be sorted out in a trial. There's no way to simply say that "any issues that this algorithm caused" are entirely the company's fault. In other words, this isn't really the legal system "breaking down"—it's working as intended, trying to figure out whose fault an event actually was. The law just isn't very developed yet as to the process a court would follow to assign liability. | The important question is: was the £200 a fine (which is paid to the state) or compensation (which is paid to you)? Assuming it was a fine He doesn't (at the moment) owe you anything. However you can sue him for damages. Usually a claim for damages is time-barred after six years (and it is now seven years). However you weren't able to sue him yourself until you were 18, so you may have a couple of years left. However the clock may have started ticking immediately after the attack, on the grounds your parents or guardians could have sued. Talk to a solictor about this possibility; they should give you a free 30 minute consultation, and would probably take a case on a contigency fee (no-win no-fee) basis if it has any chance. In principle, you could have applied to the Criminal Injuries Compensation Board for compensation - but you are too late for that; you have to apply within two years (there are some exceptions, but none seem to apply to you). Assuming it was compensation He owes you £200. Now you need to enforce that payment - and again, the problem may be the six year clock. You will definitely need to talk to a lawyer about that. My gut feeling is that the £200 was probably a fine rather than compensation. |
UK - Is there a legal limit to the profit margin of an item or service? A friend of mine is adamant that a business is legally bound to not exceed a "fair" price for an item or service based on the cost of materials and hours of labour used. He claims that businesses have gotten into deep trouble over it. I told him that this was nonsense: even if one could argue that such a system were morally correct and/or beneficial to the economy, it would be impractical to implement. I'm interested in the UK mainly but other countries are acceptable. | Unless there is a law preventing you, you can charge whatever you like for your goods and services. There are lots of laws that prevent you. Just a short list, you cannot: Charge more than the regulated price if you are in a price regulated industry (e.g. telecommunications) Collude to fix prices Form a cartel Abuse your market power: this prohibits practices such as predatory pricing, bundling, etc. Sell at a higher price than advertised Profiteer to benefit from unexpected shifts in demand However, assuming you are a normal business in a normal industry with a healthy level of competition (e.g. hairdresser, plumber, engineer, lawyer etc.) you can set your price anywhere you want. | It is cl;early not legal to charge for an optional warranty without ever having gotten approval for it. The customer could simply ask for a refund on teh ground that this was an error, and take it to small claims if that was refused. I am sure it is legal to offer such an optional warranty and point out its (alleged) benefits. I do not know if consumer law forbids making this pitch multiple times in the same selling encounter. | Your question isn't quite as simple as it sounds; some civil cases are tried before juries, and though a judge can give directions to a jury to give a particular verdict, they are not always required to obey; there are eighteenth-century English cases on the point that established that principle for most related jurisdictions. But your last sentence does have a simple answer: No. A judge usually takes an oath on assuming office, to administer the law without fear or favour. That means he will investigate the relevant law (with the assistance of the parties' lawyers), and enforce what it says. "This law would be unfair to the customer, so I will ignore it" would be just as bad as "The mechanic threatened to hit me with a wrench, so I find for him". Of course, most jurisdictions do have overriding principles of fairness; it may be that this contract term was not shown to the customer, so is not enforceable, or it may be that it is contrary to public policy to be uncertain what repairs will cost. But unless there is an explicit legal reason, the judge will have to find for the mechanic. It would be neither improper nor unusual for the judgment to include the sentence "This result is clearly unfair to the customer, and I urge the legislature to look at closing the loophole; nevertheless, the law is clear, and I find the customer must pay the increased price." | Because your legal fees and contract damages are not "in addition to" your risk; they are your risk. If you pay the retainer and lose, you don't lose anything more than the retainer and damages. If you pay the retainer and win, you don't win anything more than the retainer and damages. The only kind of argument I can see here is that you're incurring some kind of psychic cost by enduring the uncertainty surrounding the litigation, but I can't remember ever seeing a case -- in Florida or elsewhere -- in which the court recognized taking on risk as a compensable harm, especially in a contract case, where damages are much more limited than in other kinds of cases. Risk is just a necessary feature of an adversarial legal system. | When you own something, you get to decide what you do with it There is no obligation to make a copyrighted work available and the fact that it isn’t is not a defence to a copyright infringement. Brenda Books is entitled to either damages or an account of profits. Arguably, they have suffered no damage, so Alan’s profits are the better target. In some jurisdictions, such as the United States, statutory damages (a set dollar amount for each infringement) is available even if there are no damages or profits. | 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.) | A contract can’t legalise illegality Let’s assume that absent the “simulation” disclosure in the ToS, this would be fraud. The question then becomes, does making the disclosure make it not fraud? Fraud requires dishonesty and deception. These are measured by what a reasonable person would determine from the overall conduct so a small piece of truth in amongst a web of half-truths and outright lies is still dishonest and deceptive. From the perspective of US law, is Bob doing this regarded a scam? No, but only because “scam” isn’t a legal term - it’s slang for fraud and this is fraud Is this a criminal case, or a civil case? Both What evidence can Tom provide to support the lawsuit? Whatever he has. However, in practice, these types of fraudsters are rarely ever caught and it’s even more rare for the victim to recover their money. They are usually off-shore in countries with either poor rule of law or which will not extradite their nationals. | That is a very broad clause, broader than the default US rule for copyright, for example. (I know the question asked about the UK, I just happen to know the US copyright rule.) It would seem on the face of it to include independent research on a subject totally unrelated to the person's employment, done off the company's premises and not during normal work hours, but while the person was an employee.. Indeed it would arguably include the copyright to a novel written off premises and during off hours. Use of "course of employment" (instead of "term") would improve the provision. so would "as a part of his or her employment" or "closely related to the subject of his or her employment". Another possible restriction would be "Using the Company's facilities and/or equipment, or during normal working hours". However, my experience is that an employer will have drafted whatever language it uses through its company lawyer, and will be quite unwilling to alter it in any way. A prospective employee will probably be faced with a take-it-or-leave-it choice unless that person is a nearly indispensable figure to the company. One could send the company a certified letter saying, "When i signed the contract agreeing to {company language} I did not intend to include any developments made off company premises, not using company equipment, and unrelated to the subject or scope of my employment. I retain full rights to any such developments." Such a letter would help establish that there was no meeting of the minds to assign such non-employment-related developments or IP to the Company. How much weight it would have if the rights to such developments were the subject of a court case I am not sure. |
Seizure Without a Warrant Can the police in California seize your car (i.e. tow it from where it's parked) without a warrant? | This is allowed under the police's "community caretaking" function. See South Dakota v. Opperman 428 U.S. 364 (1976): To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge. | The answer is somewhat similar to the "corollary" question, in that this wouldn't be the only information taken into account at a motion to suppress and one would need know why the officer requested (in your scenario demanded) to search you in the first place. There are scenarios whereby he could search you without benefit of a warrant. Was he chasing you from a crime scene? Were you attempting to flee? Did he see something illegal before demanding the search that may have made it legal despite you thinking it not? The analysis is different if you are in the car versus in your house. That said, regardless of where, a consent search is just not likely to happen in this way. In your car, the officer has the right to take your keys to "secure the scene," or if there is a reasonable suspicion that you may attempt to flee. Typically, the officer will say "turn off your car" without taking your keys. Despite what's typical, though, they certainly can take your keys if circumstances make it necessary and that (the mere taking of keys) does not constitute a search. Keep in mind that the police can search a car without a warrant in a number of circumstances, without your consent, that would not be available to them with a dwelling. Courts will typically give police much more latitude to search a vehicle than a home. Under the "automobile exception" to the search warrant requirement, individuals have less of an expectation of privacy when driving a car and there is also a much greater chance of losing the evidence in a car vs. a dwelling, since it's mobile. Generally, the police can search your car if: You have given the officer consent (in this scenario you've not – unless you hand them the keys without protesting – and then this would be considered implied consent); The officer has probable cause to believe there is evidence of a crime in your car; The officer reasonably believes a search is necessary for their own protection (e.g., they can search for a weapon, if they have reasonable suspicion); You have been arrested and the search is related to that arrest (such as for drunk driving or for drugs, they can search for alcohol or drugs). There are tons of contextually specific rules that dictate when each of these situations is OK, and when they're not, as well as where they can search under what scenarios. It is not a one size fits all analysis. In fact, warrantless and consent searches may be some of the most variable analyses criminal attorneys and judges undertake to explore. The law on these topics is voluminous. Searching your car after you've given the officer the keys, assuming there was no basis and you actually said "you're not consenting," can result in suppression, but not necessarily as the fight is a lot tougher when it comes to a car. (E.g., if you said no earlier, but then handed the cop the keys later without renewing the objection, this could be considered an implied consent.) Similar to the other question, there is also going to be a whole other side to the story, with evidence aside from your testimony dictating what the ruling will be. A dwelling is different from a car, although your question makes some assumptions here that I would find very hard to see happening in real life (having represented both police, municipalities, and defendants to criminal searches).... It would be highly unlikely for an officer to threaten to break in like this ... especially in a dwelling where neighbors and passersby can see what's happening and would not only watch, but would probably video it. This is not to suggest that threats and actual wrongdoing doesn't happen, it's just not typically in this way. Police know the law. They rarely do things so blatantly unlawful that not only will nearly ensure that any evidence is inadmissible, but (in a case like this) where they will also probably lose their job. Short of a pursuit where the police are chasing someone into a house, I have never heard of a forced entry in a situation like you're describing. While we don't know the circumstances leading to the encounter, I am assuming that the search isn't pursuant to a chase, since you're having a discussion with the officer and if you're chased from the scene of a crime and run into your house, they're coming in. They are not having discussions. However, since we don't know what the circumstances are that lead to you being approached in the first place, it's difficult to analyze whether he has the right to enter warrantlessly. What we do know is that with a dwelling, it is much less likely to be lawful. As with the other question, the analysis as to whether consent was given or not is far from simple. Suspects are much less likely to give consent to search a dwelling as they are a car, and if they do, the search is often limited to a certain area, so chances of suppression are much better. That said, others will often give consent to the police when requested of them (spouses, kids, landlords, hotel owners, etc). Just imagine ... there are literally thousands of warrantless searches done every single year in the U.S., nearly all of which are alleged to be based on some form of consent. Assume every one of those people has a lawyer; that means nearly every one of those cases is arguing the consent was bad, some way, some how. Duress is one of the most common arguments when someone gives permission; either explicitly (like what you are proposing), implicitly (they came with 10 grimacing cops, so the guy thought he didn't have a choice). Most of the time, however, there is no duress, people just simply didn't know they can say no, or they think the cops won't find what they're hiding. Cops can do a lot of things to get you to allow for a warrantless search. They can even lie to people to get them to consent, and officers are not required to notify the suspect that he has a right to refuse to consent (however, telling the suspect they have the right to refuse is helpful to rebut the coercion argument). In United States v. Mendenhall, "The fact that the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive." Keep in mind, a big part of the reason why these scenarios are unlikely is not just that the police can find a way in that won't be so challengeable, if they really can't get a legitimate warrant and need to find a deleterious way in. It's also because 9 in 10 times when a police officer does a consent search, the suspect signs a consent form. That's not to say that people don't get coerced or get searched due to duress, they do. But typically not in so blatant a way. There are shades of grey in most of these cases. So, to answer whether you can get the search suppressed if it leads to an arrest under these facts; the only answer that is definite, is that nobody can be sure. If consent searches, their exceptions, and all ways the evidence gets in and the evidence is kept out interests you ... read these two law review articles. There are probably 200 cases footnoted between them! http://www.bu.edu/law/faculty/scholarship/workingpapers/documents/MaclinT011508.pdf http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-81-6-Sutherland.pdf | In the circumstance you describe, you can refuse a breathalyzer test ("opt to not take it"), and doing so would not constitute probable cause for an arrest (the results of the test can be probable cause). That is when you are on the roadside. This is Washington's "implied consent" law. One of the first things that the law says is that the test is "subject to the provisions of RCW 46.61.506", which includes the requirement that the test be performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist. There are other requirements regarding 15 minute prior observation. The legally required test is done in the police station by a specially trained technician, on an approved machine (the portable machine is not approved). The implied consent law also says that this test is "required" if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor You are not required to take the Portable Breath Test, which is optional (when you have been stopped) – it's the post-arrest "evidentiary" test that is obligatory, using the approved procedure. Note that failing the optional test gives probable cause for an arrest, however there can be other grounds such as failing the line-walking test. If the officer just tells you that the roadside test is mandatory, that is a defense which can be used at trial ('cuz the optional test is not mandatory). Whether or not the portable test is admissible in court depends on the state: in Kentucky it is statutorily not admissible, likewise in Washington per court ruling. The other tests (often known as Standard Field Sobriety Test) are also optional, so ultimately it reduces to whether they already have probable cause, that is, if "the totality of the facts and circumstances known to the officers at the time of arrest would warrant a reasonably cautious person to believe a crime has been committed". It is just not clear to me what actual circumstances distinguish mere reasonable suspicion (driving slow) from probable cause, but watery eyes, slurred speech and alcohol smell will make probable cause. I don't know if driving slow and having watery eyes is probable cause – I would think not. Dunno about "smell of alcohol plus driving slow". In Birchfield v. North Dakota, 579 US ___ we find an example of a traffic stop with ample probable cause for an arrest (smell of alcohol, bloodshot watery eyes, driving into a ditch, failing the alphabet test and massively failing the voluntary breath test). The analogous North Dakota law is largely similar to Washington law, mandating only the "approved" more technical version of the test and not the roadside test. Defendant, in that case, refused the mandatory test. A crucial difference compared to Washington law is that while suspension of driving privileges follows from refusal under Washington law, refusal in North Dakota is itself a misdemeanor per N.D.C.C. § 39-08-01. The issue for SCOTUS is whether a law criminalizing refusal to submit to a breath test (but not a blood test) violates the 4th amendment: it does not. | Answering the question title, a Texas law enforcement officer can certainly make arrests in Louisiana these days under the right circumstances (I'm not about to look up the laws as of 1934). For starters, Louisiana law grants any person the authority to make an arrest when the person being arrested has committed a felony, whether or not that felony was committed in the presence of the person making the arrest. This is normally a legally risky thing to do (the arrest is illegal unless the person actually committed a felony, while a cop's felony arrest is legal as long as the cop had probable cause), but in this case the pair had been involved in a kidnapping and a robbery in Louisiana. Any person could have made a lawful arrest, and could have used necessary force to effect that arrest. But suppose the gang turned out to be innocent of the Louisiana crimes. In that case, a citizen's arrest would be illegal. But the Texas lawmen weren't at the ambush alone. They were there with the parish sheriff and a deputy, who were Louisiana peace officers with the authority to make an arrest on probable cause. And under Article 219 of the Code of Criminal Procedure, A peace officer making a lawful arrest may call upon as many persons as he considers necessary to aid him in making the arrest. A person thus called upon shall be considered a peace officer for such purposes. Neither of these things depends on the Texas officers' status as Texas officers. There are some arrests which are legal based on that (e.g. hot pursuit), and a Texas officer has some extra powers in Louisiana based on federal law that make an arrest easier (e.g. cops in the US can carry concealed firearms nationwide without needing a CCW permit), but under normal circumstances a Texas police officer has no special authority to make an arrest in Louisiana. However, it's not at all uncommon for police agencies in different states (or at the state and federal level) to cooperate on something, and there are ways to make it work out. With more planning, there are normally formal ways to do it instead of needing to rely on "we'll ask you for assistance" (for instance, officers could formally be appointed as deputies in the appropriate agency; this happens a lot on federal task forces, where a deputized state or local cop gets nationwide jurisdiction). If Bonnie and Clyde existed these days but the feds wanted to involve state cops, they'd just set up a federal task force, make Hamer a special deputy US marshal, and go from there. | Footage of an arrest is clearly evidence: tampering with it is a crime. Notwithstanding, destroying someone's personal possessions without authorisation is a crime. Accessing a computer (which all modern image and audio recorders are) without authorisation is also a crime. | In the Hicks case, police entered the premise, reasonably, pursuant a bullet having been fired from Hicks' apartment into a person in the apartment below. There were expensive stereo components in plain sight, which raised a reasonable suspicion. But that reasonable suspicion did not justify a further search, which police nevertheless conducted: they turned the stereo to get the serial numbers. Having phoned in the numbers and learning that the items were stolen, they then had probable cause for a seizure. That cause was, however, obtained via an illegal search. Suppose that the serial numbers had been visible from the front: then because they would have been in plain view and since the police were there for a reasonable search related to the shooting, then could have legally seized the stereo, since no additional search was required. There is no distinction between search and seizure w.r.t. 4th Amendment protection ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"). Police could not confiscate the stereo without probable cause, nor could they confiscate cash, or any other thing, again, unless they had probable cause. And they could not search for evidence that would give them probable cause to take stuff. As SCOTUS said, regarding searches versus seizures, We have not elsewhere drawn a categorical distinction between the two insofar as concerns the degree of justification needed to establish the reasonableness of police action, and we see no reason for a distinction in the particular circumstances before us here. | First off, you cannot booby trap your property, period. It is both illegal and tortious. But, as you noted, there are already questions/answers that deal with this issue. Sure enough, if the police get a no-knock search warrant, that in and of itself is the Court order allowing entry by any means necessary. When the officers, there by right of law, breach the outer perimeter and stop at the warnings, they will not be seeking any other court orders to have you allow them "safe entry". Their warrant gives them all the right they need, as probable cause of crime and violent intent or intent to destroy evidence was already presented to a judge. If, in real life, you actually put up signage or state explicitly that they're being forewarned that you intend to harm, trap, maim, or otherwise make it unsafe to enter; or that doing so will result in an attempt to destroy evidence, that is something they have already assumed (hence the seeking and granting of the no-knock vs. a regular search warrant). However, the signs in and of themselves are not protected speech, but rather overt threats, and that would put you in a very precarious position indeed. If the police get a "no knock" warrant (the most invasive, difficult to get warrants, whereby there is a grave risk of destruction of evidence or injury to persons), the police will ensure they have safe passage – they've come prepared for dangerous entry long before your signs, but once they see them, you could rest assured they will take them as they are intended: as a direct threat to their safety, and they will deploy a SWAT or other heavily armed entry team (who is usually there anyway for these dangerous entries). You could expect things like smoke/out canister and teargas, flash bangs, and heavily armed and well armored officers attempting to force you from your dwelling. Presumably, if you need to disarm traps to escape the situation, they can enter. Assuming you're home when they invade with chemical weapons, whether you come out or not, they will force you to disarm whatever booby trapping you may have in place that may destroy evidence, likely walking you in as their human shield in the event you're lying about any dangerous ones. That is probably your best case scenario. They may just decide to throw you through the perimeter once they get their hands on you, just to see what happens! If you don't exit and are home or if you are lucky enough to be out, the bomb squad, ATF, and SWAT will converge on your property in less than typical means. Because from your warning they can assume some incendiary or explosive device exists, bringing it into the jurisdiction of other agencies. If they cannot disarm the trap, they would send a robot in first to set it off, or cut through your roof, or knock down a wall – whatever it takes to get in without using a typical means of ingress/egress, so as not to chance your trap. Regardless, you can rest assured that they will get in, and you will pay for the trap you set for law enforcement. Further, to whatever charges you'd have been faced with from evidence flowing from the original warrant will now be added additional charges like attempted murder of a peace officer; if you have any roommates or known associates: conspiracy to do those things; attempted destruction of evidence, criminal interference with a police investigation ... all at a minimum. If anyone is actually harmed, your signage offers you no shield from criminal or tort liability, and you will be lucky to live through the experience once they get their hands on you. Police tend to not like being the targets of intentional maiming, dismemberment or death. You have to understand that, according to this hypothetical, you are intentionally trying to harm law enforcement, or destroy evidence of your dangerous criminal activity. These are not invaders, or intruders according to the law; they are the people whose job it is to enforce the laws, collect the evidence (if you weren't getting arrested pursuant to the fruits of the warrant, you certainly would be at that point). The signs themselves would make excellent exhibits in the coming case of State v. you. BTW: The only reason they have left John Joe Gray alone is that he knows the Henderson County Sheriff Ronny Brownlow, who has been told that the ATF, FBI, and State SWAT, would all be happy to enter and get or kill Mr. Gray if need be. Since the Sheriff never filed any federal charges, and has determined that he doesn't want to breach (and it's in his jurisdiction to determine this), the Sheriff, aware that Gray's entire family is holed up in the "compound", decided it's not worth going in. It's as well known as it is anomalous. When the police want in, and have the right to get in, they will get in. That Sheriff just decided it's not worthwhile. | Under Georgia v. Randolph, 547 U.S. 103 (2006) in such a case the police may not lawfully enter without a warrant, and if they do enter, any evidence found will not be admissible. The court in Georgia v. Randolph said: [N]othing in social custom or its reflection in private law argues for placing a higher value on delving into private premises to search for evidence in the face of disputed consent, than on requiring clear justification before the government searches private living quarters over a resident’s objection. We therefore hold that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident. However, the police may talk to either or both occupants at the door, and this may provide sufficient reason to obtain a warrant. If police determine that someone in the residence is in danger, they can enter on that basis, and anything in plain view may be treated as evidence. Further consider Fernandez v. California, 571 U.S. ___ (2014) In that case one occupant of an apartment denied consent for police to enter. But the police had probable cause to arrest him, and did so. An hour later police returned and got consent from the other occupant, who may also have been a victim of domestic assault by the first occupant. The consent search was upheld, as the objector was no longer present (being then detained) when the police asked to search. So the holding about divided consent applies ONLY if the objector is physically present. If only one occupant is present, that occupant may consent to a search, even if the police know very well that the other lawful occupant would have objected. Interestingly, in Fernandez it appears that police had ample probable cause and could easily have secured a warrant, but chose to proceed on the basis of consent instead. |
Could I sue for a popular vote? I'm wondering if there is solid legal ground for suing the US government for using an electoral college which can have the effect of denying citizens a vote. My argument is that the electoral college violates a citizen's right to a vote because it 1.) effectively changes your vote to match that of the majority in your state (or congressional district if you're in Maine or Nebraska) and because 2.) it gives some citizens a stronger vote than others due to what state they live in. The electoral college altering your vote to match the majority seems to be the most egregious crime because, 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. I understand the constitution does not explicitly guarantee that all votes must be equal, nor does it ban geographic voter discrimination and that it does call for an electoral college so I see the counter argument would be strong, but I wonder if you guys think there is any case to be made for my argument. | 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". | The US election authorities already record who voted in which elections, and that information is a matter of public record. When I was active in politics some years ago, and at one point a candidate for local office, my campaign and others routinely purchased from the state a "voter list" for each district. This list showed each registered voter, with that person's name, address, age (to the nearest year), party of registration if any, and in which of the last several (I think 10) elections that person had voted. These were delivered in electronic form, and could be sorted and analyzed in whatever way the purchaser pleased. I understand that similar lists are available in every US state, I think from a legal point of view, a picture would reveal no more information than these already-public lists, and since they have not been successfully challenged as unconstitutional, I don't see that the pictures would be subject to such a challenge, unless it could be shown that taking such pictures had a chilling effect, that is, that taking them made certain categories of voters, such as minority voters, less likely to vote. I am not aware of any specific federal or state laws on taking pictures of voters. But if there were a chilling effect, that would probably violate the Equal Protection Clause of the Federal Fourteenth amendment. That clause has been central, or at least significant, in most challenges to voter restrictions, both successful and unsuccessful. But since, as far as I know, no state or other US jurisdiction has tried this, there is no caselaw on point, and one cannot be sure how such a case would be resolved. Whether this would be good policy is a very different question, and where it would be politically acceptable is yet another. Neither of those are on topic here on Law.se, although they might be on Politics.SE. | "Since state level crimes are prosecuted in the state they happen and potential jurors are eligible voters, would this make it impossible for anyone who voted in the election to serve on such a jury as they would obviously prefer their side to win?" No. A conflict of interest is a particularized and personal interest in the case that is different from an interest of a member of the general public or of a voter or of a taxpayer in general. Someone who wouldn't have standing to bring a case will generally not have a conflict of interest for purposes of being a juror. | Yes. This is legal. See, e.g. SPARF v.U.S. 156 U.S. 51 (1895); U.S. vs Moylan, 417 F 2d 1002, 1006 (4th Cir. 1969); U.S. v. Krzyske, 836 F.2d 1013 (6th Cir. 1988) ("the jury asked the judge about jury nullification. The judge responded, "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error."). Indeed, procedurally, the system is specifically designed to prevent courts from even considering such a question. See also, e.g. People v. Iannicelli, 2019 CO 80, § 2 (Colo. 2019) (holding no crime was committed) ("Defendants Mark Iannicelli and Eric Brandt stood in the plaza square adjacent to the Lindsey-Flanigan Courthouse in Denver and asked people entering the courthouse whether they were reporting for jury duty. If any of these people answered affirmatively, then Iannicelli and Brandt would hand them one or more brochures discussing the concept of jury nullification, which the brochures defined as the process by which a jury in a criminal case acquits the defendant regardless of whether he or she has broken the law in question. As a result of this conduct, the People charged Iannicelli and Brandt with multiple counts of jury tampering") This is deeply entwined with the U.S. law interpretation of the Fifth Amendment Double Jeopardy Clause's protections, which prohibit a retrial or appeal following a judgment of acquittal, which have been incorporated by the U.S. Supreme Court as applicable in state courts as well. | Under the present constitution . . . Are there any consequences of the fact that the Constitution of Massachusetts and the Constitution of the United States use two different names for that state? No. Lots of the language in the United States Constitution is no longer in place or in common usage or is invalid due to subsequent amendments, and that language is still effective as originally intended. The U.S. Constitution has never been "amended and restated" and can't be understood properly without annotations to its raw text. Might a federal statute be needed for some states (e.g. Vermont, because of what is noted above) but not for others, because of differences in the federal statutes that admitted the state, or because of the lack of any need for admission by Congress in the case of the original thirteen states? Not really. Every state's name is embedded in myriad federal laws and regulations in addition to the statute that admitted the state to the United States, e.g. laws assigning names to post offices, laws allocating judgeships, laws purchasing property, laws appropriating funds, laws assigning states to various districts for purposes of executive branch departments and the judiciary, tax laws (e.g. the Obamacare tax credit), etc. Would a state statute suffice? Would a state constitutional amendment suffice? Would a federal statute suffice without a state statute or a state referendum? Would a federal constitutional amendment be needed? A federal constitutional amendment would not be needed. The Constitution vests Congress with the authority to admit states and to change their boundaries with the permission of the affected states. This would be within the power over states that could be inferred from those powers. A state and the federal government could each pass a statute to call itself something different for various purposes. For example, the official name of the state of Rhode Island is "State of Rhode Island and Providence Plantations" but various state and federal statutes authorize the use of the short form of the "State of Rhode Island" for most purposes. As a practical matter a state constitutional amendment would probably be desirable on general principles to officially change the name of a state, whether or not it was strictly required, in part, because a state constitution usually sets forth an official name of a state in its body text. It would be possible for a state to change its constitution and statutes and change its name in a move that the federal government did not accept, and if that happened, the federal government and its officials would probably continue to use the old name and the state government and its officials would probably use the new name. I think it is as a practical matter, unlikely that a standoff like this would persist, but I think that this is the most likely outcome. A federal government move to change a state's name without its consent proactively, however, would probably be struck down as violating federalism concerns. Of course, all of this is speculative, because there are really no precedents for disputes over the changing of a state's name. Context would influence the outcome of any such case. | Yes, you can register in Connecticut. Connecticut previously limited voting eligibility to "permanent" residents, but it later changed that to limit it to people with at least year's worth of residency, and then six months' of residency. Under current law, though, a voter need only be a "bona fide" resident of "some town" in Connecticut. This means you need only to have legitimately moved into the city with some actual intent to stay, even if not forever. The deadline is tomorrow, so register now. | In the USA, could a clause (article, proposition) of a State Constitution be held unconstitutional, with respect to the USA Constitution, by the Supreme Court? Yes. The supremacy clause in the US Constitution means that State law is supervened by Federal law. This includes State constitutions. If it could, has it ever happened? Yes. Here is a list of all SCOTUS cases that have overturned state law. For state constitutional provisions see nos 37, 49, 50, 51, 54, 74, 75, 139, 140, 151, 182, 188, 202, 207, 224, etc. (there’s nearly 1,000 in the list, you can go through them yourself). Also, could a decision by a State Supreme Court be reversed by the USA Supreme Court? Most of those cases will have gone through the State Supreme Court first. Except where SCOTUS has original jurisdiction (those involving disputes between the states or disputes arising among ambassadors and other high-ranking ministers) the state courts must have ruled to enliven its appellate jurisdiction. | This was asked and answered by KPD on the Politics stackexchange. This issue came up in a decision from an appeals court, with a judge dying before the opinion was released, leading to the following SCOTUS opinion. The short of the answer: that Judge's vote is voided. If the result of negating the deceased Justice's vote is a 4-4 tie, then the usual procedure for a 4-4 tie is invoked, which is addressed in the Q&A you link. Of course this assumes that SCOTUS will apply this to themselves, but the issue appears to be non-controversial, as it was a fairly recent decision with no dissents noted. So this assumption seems safe. |
Large YouTuber: Copyright Lawsuit vs Fair Use A channel with close to 1.5-million subscribers on YouTube, H3H3Productions, is being sued on the grounds that their video infringes another author's copyright. Their channel essentially reviews other YouTube videos in the form of satire, mockery, and comedy. I've been watching them for over 6-months, so first-and-foremost I'm a fan. But after having thought about this situation for a few days, I'm not entirely sure if the lawsuit is unfair. In H3H3 videos, they don't just show small clips or images from videos that they make fun of; they show almost the entire work of the targeted author's video but in the form of small clips. The format is essentially: Show a clip/segment of the other person's video Pause said clip Change scene from the reviewed video to H3H3 making commnetary on that particular clip/segment Pick up where you left off on the video and show the next 5-10 seconds Rinse and repeat From watching their videos, I'd estimate that H3H3 shows at least half of the other author's video more than 95% of the time. To be honest, when I watch the original work (which is rare) or have happened to see it before hand, I'd say that H3H3 uses more than 75% of the video they review within their own video. H3H3 is claiming in their defense that the grounds of Fair Use is in their defense and thus does not breach any copyright. Does it? | Only a court can decide if use is fair. As Dale stated, we will know whether it was or was not legally fair when a court decides, and it ceased to be appealed. Unfortunately, there is no formula. Remember that fair use is an exception to rules that make copyright infringement illegal, so it occupies a narrow space practically by definition. Fortunately this was already decided (yes, I recognize that this is an old question) Judge Katherine B. Forrest decided in favor of your favorite YouTuber: The Court has held that the Klein video constitutes fair use, and further that the Klein video does not infringe plaintiff’s copyrights. and further that: But even if this Court held the Klein video is not fair use, the Court would still dismiss Claim II because defendants clearly had a subjective “good faith belief” that their video did not infringe plaintiff’s copyrights. Cf. Lenz, 815 F.3d at 1153. It is undisputed that defendants understand the concept of fair use and have an established practice for ensuring their videos make fair use of copyrighted material. But that answer isn't entirely satisfying, is it? Let's get specific. Fair use seems to be something that should be clear to both parties: the copyright holders and the user of copyrighted content. While it is true that the percentage of original content may be of concern, there is no specific percentage nominated in Title 17 Chapter 1 Section 107 of the US Code. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. It takes vigilance on the part of both parties to cohabit this narrow law. Fortunately, YouTube has recently taken measures to ensure that use that should (presumably in their view) be judged as fair will remain live on their site while a dispute process is pursued. This procedure resolves cases outside of formal legal battles, which can be costly for both parties. However, YouTube has pledged to pay legal fees of content providers that are sued for copyright infringement, in special circumstances (esp. when the use was fair, and when a claimant is abusing, again presumably as determined by some legal counsel at YouTube). They discuss similar matters in their FAQ page. Why did YouTube let an abusive claimant remove my video? YouTube takes action to address cases of abuse and misuse in our copyright takedown processes. While we cannot comment on specific cases or our processes, we do look into abuse of our copyright tools and processes, and have a zero-tolerance policy for claimants we've deemed abusive. Misuse of the copyright process (for both takedowns and counter notifications) can result in termination of an account. And remember that courts love precedent Future cases will likely leverage the decisions made in the case you mention. And while the following does not have any real legal value, you may find comfort in knowing: there are many YouTubers out there that heavily leverage others' content, and their videos are still up. Again this is not strictly speaking a precedent, but you can safely assume that in cases where a high-profile YouTuber (say CinemaSins, for instance) uses content from many content owners, and uses a great deal of it, they will likely have come up against claims of unfair use, and have emerged with an intact channel. The aforementioned avenues that YouTube provides should be utilized wherever possible to stay out of court. | It is, in most jurisdictions, not a crime to download YouTube videos. For criminal law, the answer is that it is not illegal. In many jurisdictions, downloading music or video of any kind from the internet is not a crime. Thus, police has no power to punish you for downloading, and even less power to shutdown such "downloader" websites. YouTube's Terms of Service seem to disallow such downloads so YouTube has the right to terminate the agreement with the downloader. They may prevent you from viewing any more videos, for example. However, I think Google does not even have a technical measure in place to do that. Google is not interested in preventing you from using YouTube (its servers can handle that) and that is pretty much the only punishment it can use. Google could use the Terms of Services to say that the downloader-websites are breaking them and thus should not have access to YouTube. The websites could be sued for breaking the Terms of Services (and the court could order them to stop) and Google can block those websites from accessing YouTube by technical measures. It appears it did so in at least one case. Google could sue you (or the websites) for advertisement revenue loss, but it is unlikely. In theory, Google loses advertisement revenue from the video playbacks you would have done on YouTube but did not play because you downloaded the video and played it offline (contrary to the Terms of Service). Google might attempt to sue a downloader website on this basis and try to make it give it money. It would be difficult for Google to prove that it deserves such money, though. I cannot imagine how it would prove that "you would have played the video online, again, with advertisements, if you didn't download it. Note that when you replay a video from browser cache, advertisements do not replay. Why Google doesn't sue downloader-website more often? It's expensive. Google could pay a lot of money to shut down a website via court order but if it really wants to do so, they can apply a technical measure (such as IP block) instead. It is much cheaper and has the same effect. This may change in the near future. There's a some talk around about European court rulings and directives that may change this. It is quite possible that in the near future, even viewing illegally uploaded music on YouTube will be criminal. I find this doubtful because of the difficulty of proving knowledge ("How was I supposed to know that it wasn't an official clip?"). As for whether downloading to a file (as opposed to downloading to the browser cache) will become criminal, I really doubt that. | may require that you obtain license rights from third-party owners or licensors of content that you include in your text inputs (Emphasis mine). Based solely on the excerpt above, yes, you have the copyright on the audio files if you created the source material, as you are the creator, using Amazon Polly as/to generate a "tangible medium". One of the central rights granted by copyright is to control translation into a different medium (in this case, from text into audio), as is the right to control distribution, which is what this excerpt is talking about. "Third party" in this case means neither you nor Amazon. Basically, Amazon is informing you that using their software on someone else's copyrighted material does not grant you copyright on the audio recording. | This kind of piracy is unfortunately common. When your copyright has been violated, your available response is to sue the infringer. Yes, this costs money, and yes, many infringers get away with it. In the Free Software/Open Source community, a couple of actors including the FSF, gpl-violations.org/Harald Welte, and the Software Freedom Conservancy have sued GPL infringers. But they can only do that for copyrights that they hold themselves. For example, the FSF holds copyright for the GNU userland, whereas Welte and Conservancy hold copyright for parts of the Linux kernel. They do not hold copyright for your software so they cannot enforce the AGPL license on your behalf. What can be done fairly easily is to file a takedown request with platforms that host the infringing content. Under various safe harbor laws including the US DMCA, a platform is not responsible if they accidentally host infringing content uploaded by users. However, the platform has to take the content down if they're notified that the content is infringing. For example, you could file a DMCA takedown request with GitHub to take down their repository, in case they are using GitHub. The drawback is that a takedown notice can be contested by the alleged infringer, in which case the content is reinstated and you would have to sue. The platform is not allowed to make its own determination about whether you or the infringer is right. | 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. | Counter notices are described in 17 USC 512(g)(3). It starts with the requirement for "A physical or electronic signature of the subscriber" (and a statement under penalty of perjury...). Supposing that you can't get anywhere with finding the contributor even via a subpoena, then you're stopped there: you can't swear on behalf of someone else. Paragraph (f) also says that if a person files a false infringement claim, they become liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it but it's not immediately obvious that you would suffer damage by taking the material down (not immediately obvious doesn't mean obviously not true). A case could be made, but it's risky. In Online Policy Group v. Diebold, Diebold was hit with substantial damages basically for having made up a theory that certain email discussion was infringing when it was clearly fair use. If a person actually lies about being the copyright owner, that would probably be viewed even more dimly by the courts. Your 4th argument gives you no traction: if an infringer posts infringing material and transfers copyright on the web page, but they don't hold copyright, then that transfer mean nothing. As for the other arguments, your attorney will have to suggest an advisable course of action. S/he might advise that your evidence is so strong that you should just ignore the takedown; or that you should take the content down and then sue for damages; or take the content down and lobby your congressman for a change in the law. [Addendum] I will reiterate my recommendation to get a lawyer. I believe that under the law, the risk to you would be the situation where the person prevails in an infringement suit against you. Outside of the "mere conduit" safe harbor, you have to participate in the notice and takedown scheme in order to "stay safe" (also you have to do so quickly). You have identified a potentially huge flaw in the system. Theoretically, criminal charges of perjury and paragraph (f) damages would be enough to deter ordinary wrong-doers, provided that you can really prove that someone else is the copyright holder. But the cost of litigation is not zero and the chances of winning are not 100%. The law does assume that all parties tell the truth, indeed the law requires a "penalty of perjury" statement. Since counter-notice is also part of the legal dance, I would conclude that you do have to write yourself a counter-notice. Then if there is a suit, you have satisfied the requirements of the law. | To answer part of your question, the takedown and restoration process of the DMCA is not required. It is a legal way a hosting site can stay in the clear for copyright infringement. Therefore, if the site didn't take down what you complained about, they're participating in copyright infringement (if that's what's happening). Since they did not take down the material (assuming your DMCA was in the right legal form), if you do sue over copyright infringement you can sue the site as well as whoever uploaded your stuff to the site. I don't think that linking to your stuff would itself be copyright infringement, so I'd suggest consulting a lawyer specializing in IP. | 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. |
can you limit what an employer can disclose about you I want to list a former employer in California that I resigned from as work experience on my resume but I will not include anyone from that company as a reference. I do not want anyone from that company disclosing anything about me besides start and end date. Is there anything I can send this former employer's HR department to limit what they disclose about me? thanks | You can ask nicely, but there is nothing you can do legally to prevent your former employer from making disclosures related to your former employment so long as they are true. | The opt-out option is exercised by hanging up the phone. The federal wiretapping law 18 USC 2511 would contain any specific restrictions on recording federal employees, and there are no such restrictions. Each state has their own laws as well, so if either party is in a two-consent state such as Florida, consent from the other party would be required. The federal law only requires one party consent. It is possible that the individual expanded a separate rule that s/he may have heard of, one prohibiting recording of an IRS due process collection hearing that is conducted by telephone, as ruled in Calafati v. Commissioner. In that case, petitioner owed taxes and penalties and there was a process where the IRS was going to take his stuff, which requires a hearing. There is a federal statute 26 USC 7521 allowing the in-person hearing to be recorded, but no mention of recording telephone hearings. The Tax Court has taken the position that if it is not explicitly allowed, the IRS can forbid it: but this is in a very specific context, i.e. a specific legal hearing. | Most employment in the US is "at will". That means that the employer or the employee can terminate the relationship without notice for any reason or for no reason. There are certain statutory protections that limit this, however, such as federal protections against discrimination on the basis of a protected characteristic. Arizona may have other protections. So the first thing you need to do (or your lawyer needs to do) is determine whether your employment was at will. If so, then it doesn't much matter if the reasons they gave you were lies, unless you can show that their actions constituted illegal discrimination. (If they lied about you to someone else, though, you might be able to go after them for libel or slander.) If your employment was not at will, then you may be able to challenge the reasons for the firing if the firing violated the conditions under which your employment could be terminated. Even if your employment was at will, your firing might fall under one of the exceptions listed in the Wikipedia article: public policy, implied contract, or good faith/fair dealing (although the article gives conflicting information about whether Arizona has an implied contract exception; the text says that it does not, but the map shows that it does). To analyze the facts of your case in connection with Arizona employment law, you really need to talk to a lawyer with a practice in Arizona employment law. The lawyer will want to review your contract or other written agreement, if there is one. | 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. | 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. | 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. | There is no fixed definition in the law of "outside activities" that is applied generally. This will depend entirely on how the employment agreement defines it, and/or how the management of your company defines it. There may be a useful definition in the agreement, ideally there will be. In the far too common case that the agreement leaves this key term undefined, you will have to ask them how they define it. While it is true legally that when they draft the contract and it is ambiguous, you may adopt any reasonable definition, as a practical matter, if you do not disclose something and they consider it an "outside activity" They may claim this is grounds for discharge. If the employment contract requires you to disclose outside activities, you must disclose them or be in breach of that contract, which is surely grounds for discharge, and possibly grounds for a breach of contract suit. Even if it is not part of the contract, saying that you have no such activities when you in fact do is arguably fraud. Saying that you decline to inform management of your outside activities is probably legal, but might well cause them to cancel the offer of employment. If you do inform management, and the activities are approved, there would be no automatic transfer of any existing IP rights. No transfer could occur without an agreement saying so. Some companies, in their employment agreements (or other related agreements) demand that an employee transfer the IP of any project created or worked on using company resources (such as a company computer or network). Some demand a transfer for any project worked on during the employee's working hours. Some demand a transfer for any project done during the period of employment, but they must clearly specify this for it to be effective. That last is unusual, because many employees dislike it enough to go elsewhere as soon as they can, which tends to be bad for the employer. But in no case can a transfer of IP for a project unrelated to the employer's business, not using company equipment or resources, and not done during work hours, be effective without a specific agreement to this effect. | Prove my work is not a trade secret violation Please don't. It's not your job to prove your innocence. The burden is on them to be specific, explain fully, and prove specific claims about your actions. In other words, don't justify, don't explain, and don't defend yourself to them. It's actually best you do not say anything to them, and just forward the letter to your legal counsel (Since you're selling software to be used in the medical field, I assume you already have some kind of legal counsel). For instance, even saying something as innocuous as "Managing patients, Exams, Bills etc are all public knowledge." could be used against you. Because it establishes the fact that you've been working on those features with them and that you've been working on those features with your new company (which doesn't necessarily follow, for all they know, you could have purchased a library module from someone else with those exact features). In other words, even if you were to reply with such an innocuous-sounding statement, you could be saving them months of cross-border discovery and litigation about some of their claims (even if you believed you were being entirely reasonable by defending yourself). But at the same time, don't take what I'm saying to mean that you should lie to them about which features you recently worked on. When I say that you shouldn't be talking to them. I mean that you should not be talking to them. You shouldn't be engaging with them and you shouldn't be giving them any shred of information whatsoever (implied or otherwise). It's not your job to make their job any easier. Do not reply to them. Don't even acknowledge the receipt of the letter (unless you already did by signing for it, which can't be helped). Use a legal intermediary. Give the letter to your own legal counsel (whether you signed for the letter, or not) and leave any reply to him or her (assuming he/she thinks this warning letter even warrants a response). And if this former employer gives you a phone call, kindly refer them to your legal counsel without saying another word. |
Improper use of work references by landlord My would-be landlord asked me for a work reference before I moved in and I gave him my line manager's contact details. My references were checked and I moved in. A month or so later my landlord emailed my line manager to ask a question that had nothing to do with the referencing process. The question had nothing to do with me either, it was a general question about the company. My landlord made no comment about having any connection with me when asking the question. I told my landlord that this was an improper use of my line manager's contact details and asked him to not contact him again for private matters. My landlord argues that I should have specified that he couldn't contact my manager. This feels wrong to me as it was implied that the contact details were shared as part of and only for the referencing process. What does the law say? This is taking place in the UK. | The Immigration Act 2016 introduced the so-called 'right to rent' provisions under which a landlord can be prosecuted for renting accommodation to someone who is not legally in the UK. Everyone in the UK, Brits included, is subject to the Act. This gives the landlord the right to examine your work permit and to see if your visa is valid. The landlord will make a copy of the information. This makes the landlord a data controller which imposes restrictions on how the information can be used. Because this became controversial, the Information Commissioner published a brochure on the things a landlord can do with your data. All things considered and based upon what you wrote, if the landlord did not get your permission to use the data, then it's likely he is in breach. But this does not mean it's actionable or that it would be advisable to make a formal complaint to the Commissioner. If you want to pursue it, you can use the Commissioner's "Report a Concern" page as a starting point. Alternatively, you can lodge a formal complaint with your landlord and he will have to respond to it. What does the law say? The act giving the landlord the right to access your data is in the 2016 act linked above. Everything else is in the Data Protection Act 1998. The ILPA Information Sheet is at "Right to Rent". "The information sheet was updated on 01 November 2016 to take account of the second commencement order issued by the government, on 31 October 2016, bringing further provisions into force." The information sheet is recommended reading for anyone in the UK on a work permit. Disclaimer: I'm a member. | Unless your employer agreed in a contract to not discuss your employment, then there is no legal restrictions on them discussing anything about your employment. If they say things that are untrue you could sue them for defamation. | How should I proceed? I am asking law friends to recommend some employment lawyers, but other than this, can I do anything else? You definitely don't need an employment lawyer for this. From a legal standpoint, the matter is very simple: If you grant their request (whether by signing or otherwise expressing your acceptance), you would be waiving any remedies currently available to you for their breach of contract. The company's attempt to override its contract with you is quite naive, but the company can always (and evidently does) try to get away with its liability nonetheless. I would not be surprised if the company subsequently tries harder to intimidate you, but that does not change your legal position & merits unless you sign the waiver the company is pursuing. Asking for your post-termination availability reinforces the notion of company's poor planning and subpar management. | When do 33D(2) notices actually get used? When, in accordance with section 33D(1), Immigration Act 2014 the conditions at s.32D(2) have been met: The condition is that the Secretary of State has given one or more notices in writing to the landlord which, taken together,— (a)identify the occupier of the premises or (if there is more than one occupier) all of them, and (b)state that the occupier or occupiers are disqualified as a result of their immigration status from occupying premises under a residential tenancy agreement. What operational guidance procedures specify when the home office actually uses this provision? There are no, that I can find, open-source "operational guidance procedures" available. Those that may exist within the Home Office will in all likelihood follow the requirements and conditions stipulated in section 33D of the 2014 Act, section 8 Housing Act 1988, and at the Rules 83.9(5A) and 83.13(2) at Part 83 Civil Procedure Rules and Practice Directions. What can trigger the Home Office's operational procedures to actually send such a notice? When there is sufficient evidence, and it is proportionate and necessary to do so after taking in to account, for example, all the available information about the landlord, the occupiers' immigration status, and the public interest in terminating the agreement. Has the provision entirely fallen out of use? I have not been able to find any publicly available data on this topic, so one option would be to submit a Freedom of Information request for an answer. Also, from a comment: It is almost surely specified/codified in some operational guidance document somewhere, and even if such is non statutory guidance, courts are still semi-bound to lend it some weight in legal contexts. Whether or not to issue of a 33D notice is an operational case-by-case decision based on particular circumstances, so if a court (more likely an Immigration Tribunal) needs to consider the Home Office's internal mechanics, authorisation requirements, quality assurance and other such processes (which, hopefully, should be recorded in detail) then the normal production of evidence / disclosure / discovery rules would apply (with any non-relevant parts properly redacted to prevent unnecessary disclosure). | It is not uncommon for an employer to ask a former employee to assist with something as a courtesy, and sometimes the former employee will choose to do so. If it requires more than a small amount of time, this may be done under a short-term consulting contract for pay. But unless there was a contract of employment requiring such post-employment advice, there is no legal obligation for the former employee to provide such assistance. The most the former employer could do is give a poor reference if asked by potential future employers, and most large corporate employers now only give job title, salary range, and dates of employment to avoid claims of incorrect or defamatory statements in such references. | This is not an NDA (non-disclosure agreement), it is a non-compete agreement. An NDA would tell you that you cannot disclose anything you did or saw at your old employer's place. A non-compete agreement is what you have here, an agreement that limits your ability to get work. If what you say is correct, then your employer is not exactly the brightest. You stay that you haven't been given a written notice, and your contract says that a "Notice of termination will only be valid if it is given in writing". So you haven't been given valid notice. There is no reason why you would sign the non-compete agreement. If they plan to fire you without notice if you don't agree, they have a problem: Your contract doesn't allow them to do that. And they have apparently not given any written notice yet. So what they can do is as soon as they decide that you are not signing, they can give you one month written notice. | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | Residents agree that the receipt of mail by any individual not listed as a Resident or Occupant in this Agreement at the Leased Premises shall be proof of occupancy of that individual and a violation of this Agreement. I assume that the lease states that only the listed individuals can reside in the unit. Maybe they think that this says that receipt of mail by an unlisted person is a further violation of the lease, I don't think that is clearly enough stated that the courts would agree that receiving mail is itself a violation of the lease. Instead, it seems to be intended to say something about an existing clause – you can't have other people living there. The courts would look at the requirements of the lease, and ask "did you comply"? The question of whether you did a certain thing is a question of fact that has to be resolved in court. However, the revised lease language does not state that all mail must be addressed to Johnny Johnson – it only addresses receipt by a person not on the lease. You are (apparently) on the lease, so you may receive mail there. Nothing in the lease controls how such mail can be addressed. If you receive mail addressed to Tommy Thompson, your defense is that you received the mail, and you are on the lease, so you will not have violated the new clause. |
Can a landlord/property change my unit after approval? My boyfriend and I are currently in the process of moving across the country, about 650 miles. On September 2nd we visited a property in the area we will be moving to and we really liked it. After getting the info for the available units from the woman in the office we then went online to apply. We applied for a specific unit, lets just say unit #1A for example. We completed the entire application and paid the application fees and the 'Holding/Starting Security Deposit'(this is the exact wording from the page where we agreed to pay. We found out 2 days late that we had been approved and I was sent what I would call the welcome packet. These documents specify that we need to have renters insurance and how and when to switch the electric to our names. I also includes a list of the fees paid. On this list is says 'Application Fee Per Applicant: $60x2 PAID' and 'Administration Fee: $150 PAID'. I noticed here that it now says 'Admin Fee' and not Deposit, but didn't much of it. The next day I received an email saying the lease was ready for us to sign. So I logged in to take a look. When I opened it I noticed that the unit number had changed to unit #B2. I was very confused by this so I called the office, and this is what I was told. The unit we had applied for and been approved for was actually a renovated unit and we did not apply for a renovated unit. I told the lady that this did not seem right of them to just change the unit on us like this. She told me that we could have the original unit if we agreed to pay the higher price, which is out of our budget. She said that it was IT's fault that it had been listed wrong and that it was now fied. After I hung up with her I went to their website to check and sure enough the unit #A1 was still listed for the same price we had applied for and been approved for but now with a different availability date. I have done some looking and it seems to me that since we paid what I was told when paying the fee was the the deposit that they can not switch the unit on us. I have been trying to get ahold of the office now for 2 days with no answer. Plus watching their website and the unit #A1 is still listed for the same price now with another different availability date. They know we are moving from out of state and I do not remember the unit #B2 being listed as available when we did our application. So I guess my questions are: 1. What should I do? Can they do this, switch the unit like that? Should I try to push for the original unit #A1? I'm worried if I do this they will treat us horribly during our lease. Should I try to get my money back? If I decided to go with the new unit they assigned should I be worried about them trying to pull off shady stuff? I really don't know what to do but they don't seem to be trustworthy. But I need somewhere to live in two weeks. UPDATE: I spoke to the woman in the office finally yesterday(9/12) she told me that her manager would call me later but I was not contacted. Instead she called me back later and said they will just give me the original unit and renovate the other instead. However when I checked last night and again just now my lease papers still say the second unit and the original unit is still listed as available for the same price I applied for it at. Also I do have proof that according to their payment system I agreed to pay the Holding/Starting Security Deposit not the Admin Fee. This is what it said in their system when I entered my payment information and hit submit for the payment. | If you want to get out, and are willing to lose $270, you can not sign the lease and demand a return of your security deposit. You could ask for a return of the other fees as well, but you are less likely to be successful. They would probably have trouble enforcing a security deposit against you if you didn't have a lease with them, and would probably have trouble demanding you sign a lease when they changed the unit. You should probably get it all back, because you applied for it, but it probably isn't worth litigating over. I would also encourage you to turn to social media sites if they have one, or to sites like Yelp, if they do not. Many businesses are sensitive to this and if you are truthful if could provide you with some leverage. | There is certainly no legal problem in asking if the tenants would be agreeable with the landlord discontinuing the security service. Even if it were in the lease, a lease like pretty much any contract can be changed by mutual agreement of all parties (unless there is a law preventing such a change, which is rare and I do not think will apply in this case). A more difficult question would be if the landlord would be within his or her rights to discontinue the service without asking the tenants first, since it is not in the lease. Since the property was advertised as coming with the service, it might be held that the continued service was reasonably expected by the tenants, and thus an implicit term of the lease. But since the landlord does not plan to take such unilateral action, that remains a purely theoretical issue. The landlord could offer the tenants a small rent reduction, perhaps one quarter of the amout that was being paid to the security firm, but there is no legal requirement to do so. As to whether asking for such a change would be "rude", I don't think so, but that is a matter of opinion, and not really on-topic here. | 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 need absolute written buy in from the landlord. His agreement is with you, not this new person. If the new person stops paying for whatever reason, then landlord is coming after you. | There's good information at https://www.gov.uk/private-renting-tenancy-agreements/your-landlord-wants-to-end-your-tenancy. There are several types of tenancy with different rules, but in all of them, the landlord has to give you a certain amount of notice to move out, and it has to give a specific date. "Three months from when a buyer is found" doesn't seem to fit that, so I would say you have not yet received formal notice to move out. This statement may have just been a courtesy to give you more advance warning. So for instance, if you are in a tenancy that requires two months notice, the landlord may have intended this to mean "I plan to send you formal notice about one month after a buyer is found." Of course, this is not binding; he could send you formal notice tomorrow if he changes his mind. As far as I know, the sale of the house is really irrelevant in all of this. You don't automatically have to move out just because the house is sold; if you're not explicitly told to leave (with appropriate notice) then you don't have to, and you'll just start paying your rent to the new landlord. If you have a fixed-term tenancy, then the sale of the house doesn't shorten it. I am not sure what the point is of getting angry at the estate agents. Your tenancy is a matter between you and your landlord, and the estate agents have nothing to do with it. They work for your landlord, not for you. | 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. | If the lease has expired and the tenant does not have an option then the landlord is under no obligation to offer a new lease; they do not have to give any reason. They would still need to comply with the notice periods in the lease or it will revert to a month-by-month contract; in that case, the notice period is 1 month. | You are never obligated to sign a contract. You already have a lease agreement in place, which will be enforceable for the agreed-upon duration. The lease can be changed if both parties agree to it, but one party cannot unilaterally demand that other agree to any changes to the contract - a landlord can't, for example, change your lease agreement to increase your rent payment in the middle of your lease term and demand that you sign it. The landlord is certainly allowed to ask, in the hopes that both parties can come to an agreement, but again, both parties need to agree in order for an existing contract to be changed. |
My friend's dog attacked my car on their property. Who will be responsible for damages? I went to my friends house. The dog was nice when i got there. When i left, the dog decided to attack my car and he bit the rear end of the vehicle. Who will be responsible for the damages? My insurance or theirs? | The ultimate legal liability for the damage is probably theirs, although the jurisdiction where this happened would impact the result in principle. Your car insurance may or may not cover third party damage to your car, depending upon what your insurance policy says, probably with a deductible. But, your car insurance would have a right to subrogation which means a right to sue the person who is legally liable for what the insurance company paid, even if it does cover the law. The homeowner's or renter's insurance policy of the homeowner with the dog would be responsible for paying damages and hiring a lawyer for the dog owner if the dog owner was sued, but you might have to sue the homeowner to invoke his insurance policy if it refused to pay upon receiving a demand letter. | According to the article, the driver ran over the ducklings intentionally, when other drivers had already stopped. From the article: "Police urged animal lovers not to take "matters in your own hands" following the incident.". So the main consequences might not be legal consequences but non-legal consequences. Before you run into animals on the road, you make sure that you stay within the speed limit, that you have unobstructed view, and that you keep your eyes on the road. If there's a dog in the road, there could have been a young child as well. So having a situation where you can't stop safely is very bad. There are lots of people with expensive animals. A dog could easily be £2,000 and there are Frenchies that cost £30,000. Something to consider, so make sure your third party liability insurance is fine. And remember there might be consequences outside the law. | Bearing in mind that you are legally required to have liability insurance in Wisconsin (or a surety bond), and the reason for that is so that people can know with reasonable certainty (and not just hope) that if someone plows into them the guy at fault will cover the damage, you would expect that insurance policies can't be written so that the insurance company can wash their hands of the matter. So per Wisc. Stat 632.32(6)(b) in the liability insurance section of state insurance law, No policy may exclude from the coverage afforded or benefits provided... Any use of the motor vehicle for unlawful purposes, or for transportation of liquor in violation of law, or while the driver is under the influence of an intoxicant ... | Not necessarily. Your own statements and the statements of the officer would be legally sufficient to convict you. Also, your statement that you don't believe you are at fault is strongly at odds with a widely held interpretation of the traffic laws (not stated in the formal language of these statutes). The prevailing interpretation of the traffic laws is that you are always at fault if you rear end someone because you failed to maintain a safe distance, pretty much as a matter of strict liability and regardless of the circumstances, because a safe distance is almost by definition a distance that it is possible for you to come to a full stop from if the care in front of you suddenly comes to a stop for any reason. The only situation I can imagine where there wouldn't be liability for rear ending someone would be if you were at rest behind them at a stop light and they actively backed up into you. In practice, almost any judge and almost any jury, would convict you of failure to maintain a safe distance if you rear ended someone absent the most extraordinary of circumstances. I honestly don't know any lawyer or likely potential juror who wouldn't convict you under these circumstances with only the testimony of the police officer and your own testimony (which you would have to offer to have any shot at avoiding a conviction) to establish that you did indeed rear end someone. Police are allowed to lie to suspects of crimes, and often simply do not have an accurate understanding of how the legal system works. So, you are not entitled to rely on a statement made by a police officer. Of course, it is also certainly possible that his statement is consistent with local practice in your neighborhood traffic court. So, showing up to contest the charge might still make sense, and it wouldn't be uncommon to receive a plea bargain with fewer points against your license, just for showing up to court. | Maybe, Hence the Lawsuits In the absence of clear statute law these all circle around tort law. For the scooter companies, trespass to chattels, and for the affected landowners (who hire the removalists) trespass to land and nuisance seem applicable. In essence, I can’t take your stuff (trespass to chattels) but you can’t leave your stuff on my property (trespass to land) or impeding access to it (nuisance). If you do, I am entitled to the reasonable costs of dealing with it. Note that, as owner, you remain responsible for you stuff even if you rented it to someone else. Both sides are pushing hard into unexplored areas of law so we await the judgement with interest. Then we’ll know. | I'm not sure there would be any need - or any ability to bring - any civil action. Forgery would appear to count as a Category D felony under Section 205.090 and, "In addition to any other penalty, the court shall order the person to pay restitution.", so person "a"'s damages should have been met under the process of the criminal prosecution of person "b" for forgery, with nothing further to claim. Person "c" will have stolen a car. Whether that car was legitimately owned by person "a" may only be relevant if person "c" is using their belief that it belonged to person "b" as mitigation (for example recovery of a debt - though it won't help much as this should have been done through proper channels), which again would be a criminal proceeding. | 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. | The vehicle occupying the lane has right of way i.e. if you merge and cause a collision, you are liable. The fact that the other driver was in breach of the road rules as well as you is immaterial. If you rephrased the question to be "A vehicle behind you in that lane is exceeding the speed limit - can I exceed the speed limit too?" you would see why. "Because they were breaking the law I should be allowed to" is not a defence that has any prospect of being successful. The law says you must give way when merging, so give way when merging. |
Can a criminal defence lawyer talk about the possible guilt of other suspects when defending their client? In other words. if some evidence (but not conclusive) exists of somebody else comitting a crime, can a defence lawyer use this when representing their client? For instance, in the Glen Sebastian Burns and Atif Ahmad Rafay case, where the two were accused of murdering the latter's parents, there was an FBI informant that had told the police that Islamic fundamentalists may have been responsible, although the police did not pursue this line of inquiry. Could a defence lawyer raise something like that in court? | The defense lawyer has the duty to do the best for his client. The client will be convicted if he or she is guilty beyond reasonable doubt. If the lawyer can create a reasonable doubt and manages to free his client then he has done a good job. So yes, if the lawyer knows that some other person might have committed the crime, to the degree that it creates reasonable doubt, then the lawyer must raise this. Of course if it turns out that there is just some phantasist making wild accusations, that might not be helpful. | 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. | Theoretically, yes it can, but it is highly fact specific The Court of Appeal explicitly answered this question in the case of R v Bown [2003] EWCA Crim 1989; [2004] 1 Cr App R 13. The Court held per Keene LJ that self-harm was capable of being a good reason within the meaning of subsection 4 of s 139 (para 20). While refraining from any abstract holding as to self-harm (which required a fact-based analysis), Keene LJ held (at para 24–5) that this would depend on evidence as to how and in what manner the bladed article was intended to be used and the time and place relating to said use. The burden of demonstrating this fell on the defence and it would require detailed evidence to be a presentable defence. In the case at bar, the absence of any evidence directly linking the possession of the knife to the tendency of the defendant to self-harm meant that there was nothing which could establish the defence to be put to the jury; a high 'degree of particularity was requisite' (para 27). NB: yes, the name of the defendant in this case is actually 'Bown', not 'Brown'—I know it looks like a typo! | It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing, unless the lawyer has some basis for asking those questions. This is not true. A lawyer is allowed to guess and ask such a question, although if it assumes a fact not in evidence it could be objected to for lack of foundation. For example, the opposing counsel could object if the lawyer asked, "After you drank twelve beers at BigTown Sports Bar, isn't it true that you got into a car and drove away?", because there would be no evidence in the record at that point that he drank twelve beers at BigTown Sports Bar. For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash. Sure he could. He could ask, "Isn't it true that you were drunk at the time of the crash?" There is nothing objectionable about that question. If the answer was "no", however, and the lawyer had nothing else to back up that suggestion, the question might not help the case, but the question is proper. Sometimes a lawyer just has a hunch and goes with it, and sometimes the hunch is right. Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here with civil cases than criminal, where a defendant's Sixth Amendment rights might be complicate the question. It isn't codified because such a rule does not exist. There are some special rules that apply to prosecutors, who are ethically required to bring criminal cases only when they believe that the cases are supported by probable cause. But, that rule applies at the case level and not at the question by question level. Lawyers are also prohibited, especially in criminal cases, from making statements asserting personal knowledge of the credibility of a defendant or witness. This is because this transforms the lawyer from an advocate to a credibility witness. But, the lawyer can ask a judge or jury to find that someone is not credible in closing argument based upon X, Y and Z evidence presented at trial. | If you consent, the evidence can almost certainly be used against you. Florida v. Bostick, 501 U.S. 429 (1991) ("Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, and request consent to search.") If you refuse consent, it is not clear whether the evidence can be used against you, as we don't know why the officer is asking to frisk you. A stop-and-frisk must be supported by a reasonable and articulable suspicion that you have just committed or are about to commit a crime, and that you are at that moment armed and dangerous. If they reasonably suspect you have just committed a crime but do not reasonably suspect you are armed and dangerous, the police may stop you, but they may not search you. That point is worth emphasizing because several other answers are incorrectly assuming otherwise. For one example, in Thomas v. Dillard, 818 F.3d 864 (9th Cir. 2016), the police responded to a report of domestic violence. Based on their reasonable and articulable suspicion that the suspect had committed that crime, the police stopped and frisked him. Because they had could reasonably explain why they thought he had committed a crime, but could not reasonably explain why they thought he was armed and dangerous, the court said the stop was legal, but the frisk was not: Whereas the purpose of a Terry stop is to further the interests of crime prevention and detection, a Terry frisk is justified by the concern for the safety of the officer and others in proximity. Accordingly, whereas a Terry stop is justified by reasonable suspicion that criminal activity may be afoot, a frisk of a person for weapons requires reasonable suspicion that a suspect is armed and presently dangerous to the officer or to others. A lawful frisk does not always flow from a justified stop. Rather, each element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined. Even then, the search is basically limited to a minimally intrusive patdown to ensure you don't have any weapons on you, and the officer is generally not permitted to actually search inside pockets or the like, though the search may escalate based on what the officer is able to feel during the patdown. Minnesota v. Dickerson, 508 U.S. 366, 375–76 (1993) ("If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, ... its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.") The refusal to respond generally operates as a refusal to consent. The police are therefore free to conduct whatever search they could have conducted without your consent. If they have a reasonable, articulable suspicion that you're carrying a gun, they can probably frisk you to see if that's the case. If they have a warrant to search your pockets, they can search your pockets. If they don't have any of that, they need to keep their hands to themselves. | Laws are different around the world and you didn't bother to state your location, but typically no- this is not how the system works. What would be the point? There's no defendant. You, the plaintiff would argue against thin air and then what? The court rules in your favour, declares this illegal, and nothing happens because there's no defendant. Is it so you can use this ruling if you find out later? Pretty sneaky. Let's look into how this would actually work. You bring up a case- Jackson vs a mannequin or something. You make your arguments. The defense makes literally no defense. The judge rules in your favour, with a result of nothing as there is no defendent. Next, you find the culprit and bring a case against them. You point out that this is illegal because we came to that decision last week. What's that defendant? An argument against it being illegal? Too bad, the decision has been made. When I posted this answer, it was before the "Nyah, I was ranting about government spying but was deliberately vague- aren't I clever?" comment and I assumed it was against, say, a neighbour but it doesn't really matter. You cannot have a system that makes a judgement without a defendant so it can be applied later. | Can defense request findings of fact before resting? Is it possible for the Defense to avoid presenting affirmative defenses (like Self Defense) before the Court has found beyond a reasonable doubt that the Defendant committed the crime? If so: How? No, no and not applicable. A verdict is a singular declaration by the jury (or judge) that the state has or has not proved their case. Affirmative Defence These are all affirmative defenses which defeat or mitigate the consequences of the unlawful conduct and the onus of proof lies with the Defence, not the Prosecution. An affirmative defence must be pleaded in a timely manner. If the Prosecution fails in their burden to prove the unlawful conduct the affirmative defence does not get engaged. This is a threshold decision point for the trier of fact and the judge should so instruct the jury. Of necessity, affirmative defences require some admission of fact, however, these facts may not be in contention anyway. Where they are in contention, it requires a strategic choice by the defendant as to whether to use the affirmative defence or not. Is there some theory or principle that illuminates why this is not considered a violation of the Defendant's fifth-amendment rights? Because the defendant is not compelled to make these defences. | The government must have reasonable suspicion to stop you and ask you questions. The government must have probable cause to arrest you. The government cannot question you if you have invoked your 5th Amendment rights The government must release you if you post bail which is set by a magistrate in some cases but can be posted without conferring with a magistrate for many minor offenses for which the amount is set in advance. Also, you can only be constitutionally held for a certain period of time without appearing before a court for an initial appearance at which you are charged and typically you have an attorney assigned for you if you cannot afford one. Generally speaking a lawyer for a defendant will either post bail on behalf of the client, or will seek to invoke the client's 5th Amendment right to silence and 6th Amendment right to counsel (including the right of a lawyer to visit his client in jail) making further detention much less useful, while challenging law enforcement to articulate probable cause for the arrest with the implication that a civil lawsuit and suppression of evidence and loss of credibility with the local judge could follow if they fail to do so. If the client is not brought before a court by the constitutional deadline (unusual, but not unheard of), the lawyer can bring this to the attention of the court and have the court demand that his client be brought before the court. Of course, strictly speaking the defense lawyer can't force the police to do anything. Instead, the defense lawyer persuades the police to do something based upon what a court is likely to do, or has already done, as a result of their conduct so far. Also, of course, it isn't always possible for a lawyer to get his client out of jail. If the police do have probable cause and the offense is not one for which bail is set in advance, it is not possible for the client to be released until bail is set by a judicial officer such as a magistrate and bail (if granted at all) is posted, which may be beyond the client's means in the case of a serious offense, particularly if the client is considered by the magistrate to be a flight risk. On TV and books, the person that the police have arrested is usually someone that the police had no probable cause to arrest but suspect of a crime anyway, and the police usually fold when called on the fact that they lack probable cause by the lawyer. Less commonly, on TV and in books, the lawyer facilitates the payment of bail on behalf of his client. |
Hosting One time pad of copyrighted material Hosting copyrighted material without permission is illegal in most countries. However, what happens if two independent websites host seemingly random data, which combined (by XOR-ing) form a stream of copyrighted material? The idea is rather simple, someone has digital copyrighted material, the digital form might be 011001 (CR). He then creates a random string of binary digits, for example 010111 (XOR1) and XORs the copyrighted material with the original, resulting in 001110 (XOR2). Both XOR1 and XOR2 seem random and unrelated to CR, but when XOR-ed, they form CR. Now this person anonymously uploads XOR1 and XOR2 to independent hosts, and publishes links to both on a third independent forum. I would assume the anonymous person violates the copyright, but do any of the three hosts do so as well? Can the copyright holder force the removal of XOR1 or XOR2, since for neither XOR1 nor XOR2 it is provable that it is derived from CR and independently both look random. Moreover, is the post on the forum illegal, as it describes how to get the copyrighted material, but doesn't host it itself? I am curious about this w.r.t. either Dutch or US law. | It infringes the copyright. It can easily be proved that both XOR1 and XOR2 derive from the source work by XOR-ing the streams with each other. It's just like any encrypted copy: it infringes the copyright, but only those who can decrypt it are in a position to know that it infringes the copyright. The posts on the forum are illegal because they infringe the copyright; it doesn't matter that they are derived works rather than the work itself, just as your drawing of a copyright-protected image infringes copyright because it is a derived work without being the work itself. | If it was illegal to make the entire copy, it is illegal to copy half the file. See also, e.g., Basic Books v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) In response to the question of whether moving it to someone else's servers makes a difference: it is the act of copying, not the possession of the copy, that is the violation of copyright law. As for the copy a service assists someone to make, contributory liability would be the issue. You don't need to be the person making the copies to be contributing to the infringement--material contribution to the copying process and knowledge of infringement run a serious risk of creating contributory liability. If seriously considering such a service as a business model someone would need to consult a copyright expert with technical knowledge or pay counsel with technical knowledge for a good bit of time to do some research. There are major civil and criminal consequences if the industry or the government decides to go after a service doing this, so legal expenses would be a significant and important cost of doing business that would significantly increase barriers to entry. In addition, the service would likely be in violation of its agreement with storage vendors, who would want to minimize their legal exposure and might well discontinue the service when they learned what it was doing. | Udemy claims that all the videos and course content are copyrighted, but does that also hold for the material of the course? Yes, all the material is copyrighted. Ideas are not, material and content is. it would be really useful to me if I could take a large part of that code ... I want to know if I am allowed, by the law, to use this code for commercial purposes, or is it protected as the intellectual property? Yes, it is protected, specifically it has copyright applied and you may only use it if the license it is distributed under allows you to - in some cases this may be a permissive license, or the code may be obtainable legitimately from another source under a permissive license, in which case its usable. But in many cases, it may not be distributed under a permissive license or indeed any license, and in such cases you will not be permitted to use it. The license under which the code is released depends on the individual course, and in many cases the source code repository or download site for the code for the course. Check their for a license. | The only real recourse you have is to contact the webhost and try to convince them your content is really yours and file a DMCA Takedown request. How you convince them might be an issue; do you have any old screenshots? Original photos? Any proof that the content and photos are yours? The webhost appears to be https://datacamp.co.uk/ , unless the DNS is being proxied, since DNS points to CloudDNS https://mxtoolbox.com/SuperTool.aspx?action=dns:marksmayo.com NZ and UK are members of the Berne Convention and the Universal Copyright Convention, so there don't appear to be any arguments about not applying copyright law. You willingly gave up the domain, so you have no recourse or valid reason to try and regain ownership of the domain. You could try and contact the new owner of the domain by filing a complaint via the abuse email listed by the domain registar at https://www.godaddy.com/whois/results.aspx?&domain=marksmayo.com But they may not do anything, even if you can prove a copyright violation, since they only handle the domain registration and not the webhosting. How they got the content is another question: who was your webhost when you owned the site? Datacamp? Did they not delete it when you closed your account? How did the new owner come to get it? | I realize there's already an answer, but I'd like to go into more detail. There are generally two kinds of open source software licenses: permissive and copyleft (the latter sometimes called viral). Both are intended to allow people to freely use, modify, and redistribute a work while ensuring the original author gets credit. This contrasts with releasing your work into the public domain, which would allow anyone do literally anything, even claim to be the author. The difference is that permissive licenses allow you to re-license your derivative works however you like, while copyleft licenses require your derivatives to be licensed under the same license (hence the term viral). The reasons you'd choose either one are philosophical and political and beyond the scope of this answer. Both the Apache License and the MIT license are permissive, so incorporating MIT licensed code into your Apache licensed project is certainly allowed. Just be sure to attribute the original author for the parts your incorporated and include a copy of the MIT License terms, as required by the license. Go ahead and read it to make sure you get all the details right; it's fairly short and easy for a layperson to comprehend. | Yes That is very simple - copyright is an exclusive right that starts automatically with the creation of a copyrightable work. The default situation is that the author has an exclusive rights to make copies of the work and derivative works. If the code is published somewhere by the author but the author has not said anything about its licence or copyrights, then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. They have the right to just publish it somewhere, others don't. If you try to contact the author and they don't say anything and ignore you, then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. If it's impossible to find the author (e.g. I have certain cases with literary works where it's not clear who inherited the rights after the author died), then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. That being said, certain forms of reuse (recreating ideas, learning from them, etc) would not be a copyright violation. But in general the situation with the author not saying anything is almost the same as the author explicitly stating "all rights reserved, you're not allowed to do anything, violators will be shot" - some specific uses are allowed even against author's wishes (e.g. 'fair use' clauses) but everything that needs their permission really does need their explicit permission. | The words "proprietary format" are important. Are you sure the format is proprietary? If it is, then it's likely protected in which case they might have grounds to sue (but that does not mean they would definetly win). If the format is not proprietary, and so long as you don't share data which is proprietary then I believe you fine. I'm not a lawyer - but I cite GIF files as an example. They were still protected by the US and some other countries until at least the late 90s and there were various threats to open source linux companies who shared code that used the file format. I'm not aware of anything other than threats and never heard of any company being sued, let alone winning or losing. Another example that comes to mind is the RedHat ISO format. My understanding is RedHat could not stop anyone from sharing open source, but they could prevent folks from sharing the format they assembled and shared the open source. Again, I am not sure if it was ever tested in any court of law anywhere. | People running web servers are generally liable for contributory culpability, when some user breaks the law by putting the material on the server. There are legal mechanisms for relieving the server guy from this burden. The best-known mechanism is "DMCA takedown", where you publish contact information so that an offended person can serve up a proper legal claim that you are distributing material that they own copyright to. If you follow the rules, you may enjoy "safe harbor" protection against contributory liability: one of the requirements is that you have to take infringing material down. The specific requirements can depend on the nature of the liability and jurisdiction, but generally involves a "hands off" involvement where the person has no knowledge of what's going on on his server. So just disclaiming responsibility does not work. There are other more serious violations, such as distribution of child porn or transmission of top secret information. Jurisdiction is not totally central to internet questions, and I could sue you (the server guy) in US courts, or (depending on the offense: copyright infringement of a particular item) in UK courts. Nailing this down specifically to Sweden is harder, but recall that The Pirate Bay had a whopping judgment against them. |
Can I use modified version of Apple, Android, Windows, and Blackberry logos in commercial advertising to show compatibility? I am making and commercially reproducing a script that would show textual advertisements based on a user's device. I want to, beside the text, have an icon showing the device in order to show compatibility with the device. However, I looked into the guidelines by each company and it looks like Android is the only one I would be able to do this with. In place I have though of using some modified logos, such as the last icon in this image. http://orig09.deviantart.net/9015/f/2013/158/1/2/boxed_metal_icons_by_martz90-d684ioq.jpg Would this be legal or would that still be copyrighted? EDIT: Here are the guidelines from each website. Apple Guidelines: Apple Logo and Apple-owned Graphic Symbols: You may not use the Apple Logo or any other Apple-owned graphic symbol, logo, or icon on or in connection with web sites, products, packaging, manuals, promotional/advertising materials, or for any other purpose except pursuant to an express written trademark license from Apple, such as a reseller agreement. I think this one is pretty clear. Microsoft Guidelines: Third parties may only use the logo without a license under the following limited circumstances: In advertising, marketing collateral, or a website that references your connection with Microsoft (e.g., the material states that you are an authorized distributor or reseller of Microsoft products) provided that the area in which the Microsoft logo is used includes the corporate logo of at least 1 other company with which you have a similar relationship. In an area of a website, advertising, or marketing collateral exclusively dedicated to the sale of Microsoft products, and in such a manner that associates licensed Microsoft software with the Microsoft logo. In this one, if the user is on a Windows phone there would not be a corporate logo of any other company on the page. Blackberry Guidelines: BlackBerry owns the BlackBerry family of trademarks. To maintain the distinctiveness of BlackBerry trademarks, logos, and imagery, BlackBerry must ensure these terms are used in a manner that does not imply that an app is affiliated or endorsed by BlackBerry, when in fact there is no such relationship. You need to have license from BlackBerry, or express written authorization to use BlackBerry trademarks, logos and imagery by third-parties. I do not have enough reputation to post more than two links so for my second link I will post a pastebin containing sources for the three guidelines. | The word "use", for purposes of trademark law, is a term of art meaning it is used in a way that may be a violation of law if not licensed. Not all uses of trademarks are violations. Similarly, there is a difference between using the name of a company and the brand of products or services sold by that company. In any case, using a trademark or trade name to REFERENCE a company or brand is not a trademark infringement. For instance, I don't need any license to tell you that I own a Dell or HP or Apple product, or that my software will run on a Dell or HP or Apple product. The use of a logo is, however, more sensitive and likely to require detailed legal analysis, if not an actual license. | 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 companies really need to speak to an IP lawyer as this question is seeking specific advice which this site is loathe to give out for fear of compouding issues. The answer would depend on the license agreements and enforceability in various jurisdictions. According to https://social.msdn.microsoft.com/Forums/vstudio/en-US/0368d7ee-0eb3-4e3e-a143-4410969a15bb/eula-for-vs2010?forum=vssetup Microsoft says you cant rent out the software - but this applies to the "Pro" version - I could not find anything on the "Premium" version - so most likely Microsoft to have some clam. The flipside is how enforceable this EULA is - and this would probably vary from jurisdiction to jurisdiction. It would be a very, very good idea to speak to a lawyer before letting Microsoft come onto the premises - as "inviting them" to do this is almost certainly not going to improve the Asians company's case and will allow Microsoft to go fishing further and make it easier for them to expand on and collect evidence should they decide to pursue the matter. | 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. | The relevant law is trademark law. The basic question is whether the mark is identical or creates an unreasonable risk of confusion with the protected mark. There is no per se 30%-40% rule. I can imagine cases where changing a single letter in a long phrase turns a trademark violation into a parody or clearly different mark (see the Electric Company TV show). I can also imagine cases where changing a large part of the mark could still be infringing and confusingly similar. A parody is protected on fair use grounds in copyright law (which could conceivably come into play since this is a derivative work but would be protected since it is a parody), but in trademark law the issue is that a parody is unlikely to be confused for the original. Of course, at a fine grained level when one is looking at particular cases rather than general ideas, you would have to know which country's laws were involved, for example, where the goods would be sold. | Generally, it's illegal. You are creating a derivative work and you are not allowed to do that without the permission of the copyright holder. Some jurisdictions may have exceptions, such as fair use under US law. However, this generally protects uses that are intended to comment on or parody the work. It doesn't sound like that is the purpose of your image modification. NOT including: faceswaps, modifications that would shame or affect negatively the reputation of the actors on the image. That doesn't make it legal. I share it in a way that I don't make any economic profit out of it, and clearly stating that it is a modified image (not sure if inside the image, or in the caption under it) and state who is the legal owner of the original image. That doesn't make it legal, either. | There is something called the exhaustion doctrine that says that once the holder of a patent sells a patented device, they have relinquished control over that particular instance of the patent implementation. Anyone who legally purchases this hardware has the right to run whatever software they want on it, as long the software is otherwise legal (software designed to defeat DRM would be an example of software that is is not legal). | I will note from the outset that journal editors might require things from you that go beyond what is legally necessary. A typical case is that they will require one to obtain permission before reusing a figure from another article/journal/author (even though in the vast majority of cases no such permission would be needed). The legal answer might allow you to push back on the editor’s demands, but they still have the last word. There are two kinds of intellectual property to consider. Unless otherwise noted, this answer is valid for france and united-states. Trademark is almost certainly not an issue Trademark is a right to branding. A trademark holder can prevent others from using certain elements to promote their own products. The elements need not be complex, they just need to be recognizable by the public as related to the brand in question. For instance, "Tesla" is the name of an 19th century Serbian-American inventor known among other things for discoveries related to radio transmission. You would probably be able to market a radio transmitter under a "Tesla" brand (assuming there are no existing trademarks, which I have not checked). If you try the same thing with electrical vehicles, you will get sued. For a research paper, as long as you do not imply that Visa or MasterCard support your research or its results in any way, that should not be an issue. I assume, but cannot guarantee, that the above applies to most Western jurisdictions. Copyright Copyright is a protection or creative elements. Whoever authors a creative work can forbid others from distributing it under certain conditions. Are the Visa and MasterCard logos copyrighted? The first question is whether the elements at hand are protected under copyright. In the case of the Visa and MasterCard logos, this might depend on the jurisdiction. The criterion for "creativity" varies a lot. Some jurisdiction have adopted (some version of) the sweat of the brow doctrine, according to which work suffices to produce a "creative element" with copyright protection. The typical example are databases of facts where each individual entry is unoriginal but the collection might take some time to collect, curate and maintain (such as a phone book). In the united-states, the Supreme Court rejected the sweat of the brow doctrine in 1991. Accordingly, a work needs to reach the threshold of originality. Determining whether the threshold is met for a given work is done on a case-by-case basis at trial. However, it seems very likely that both logos are not protected by copyright in the United States. The Visa logo is a simple font with no significant creative elements; the MasterCard logo contains two overlapping circles. I note that Wikimedia Commons hosts both logos on their website and claims they are public-domain under that rationale (Visa, MasterCard). Wikimedia Commons usually follows copyright fairly closely, and they are a high-profile website hence a prime target for takedown requests by IP lawyers at Visa or MasterCard, so that is weak evidence that their claim is correct. But there is always the possibility that Visa / MasterCard just have not decided to sue yet. In france, the statute makes no explicit reference any threshold of originality: (article L-112-1 of the code of intellectual property) Les dispositions du présent code protègent les droits des auteurs sur toutes les oeuvres de l'esprit, quels qu'en soient le genre, la forme d'expression, le mérite ou la destination. The present code [containing all copyright statutes] protect copyrights for any works of mind, whatever their style, form of expression, artistic worth, or intended use. However, various court cases have tended to require "works of mind" to exhibit some amount of intellectual originality. For instance, Civ. 1ère 22 janv. 2009, n°08-11404 held that a perfume cannot be copyrighted because la fragrance d'un parfum, qui procède de la simple mise en oeuvre d'un savoir-faire, ne constitue pas la création d'une forme d'expression pouvant bénéficier de la protection des oeuvres de l'esprit par le droit d'auteur the smell of a perfume comes from the simple application of a know-how and does not constitute the creation of a form of expression subject to the protection of works of mind by copyright After a fifteen-minute look at various cases, I still do not have any strong idea of whether the Visa or MasterCard logo would be copyrighted in France. Let’s assume for the sake of the argument that they are. "Fair use" Even copyrighted works can be used without the copyright holder’s agreement under certain exceptions. Here again, any precise answer is jurisdiction-specific. "Fair use" is a US-specific doctrine, resulting from a string of court cases eventually codified into law (Wikipedia has a decent history). It is a rather general doctrine (any use case can be analyzed under the four balancing factors) and results can be hard to predict. I believe research articles usually fall on the right side, but because the logos under discussion are not under copyright in the US (see above), I will not attempt to make any in-depth analysis. Pedantic note: it is sloppy wording to use the term "fair use" for similar clauses in other jurisdictions. "Fair use" is a US doctrine. In france, the corresponding doctrine is given by a rather strict but precise statute at article L122-5 of the code of intellectual property: Lorsque l'oeuvre a été divulguée, l'auteur ne peut interdire : (...) 3° Sous réserve que soient indiqués clairement le nom de l'auteur et la source : a) Les analyses et courtes citations justifiées par le caractère critique, polémique, pédagogique, scientifique ou d'information de l'oeuvre à laquelle elles sont incorporées ; When the work has been published, the author cannot forbid: (...) 3° As long as the name of the author and the source are clearly mentioned: a) Analysis and short citations justified by the inclusion in a work with an aim of criticism, debate, pedagogy, science or information A research article is the typical case of a "work of science" (science means here "scholarly research", not STEM). I have little doubt that it would be a covered use, especially if the paper discusses the reason behind the choice of those logos (easily recognizable by test subjects? simple shapes? etc.). |
Is it legal use parody products for commercial purposes? I am future T-Shirt seller. I don't want to have problems with copyright for my designs. So I have made some research and learned that parody is fair use. Can I sell below parody T-Shirts? (Parody of Superman, and Parody of GodFather). | Can I sell below parody T-Shirts? Sure, you can sell those shirts. But there is no guarantee that your own determination and claim of Fair Use for a parody would prevail in court. The determination that your use of those derivative designs - Fair Use as a Parody - is not yours to make; it is for a court to make, if and when the copyright holders of those two franchises choose to take you to court. Your determination of Fair Use could only be valid in the US; there may be no Fair Use law in your country, and any relevant international laws and agreements will impact what the legal steps the copyright holders can take against you. Read Fair Use again for exceptions to the law and about international laws such as as Berne Convention and World Intellectual Property Organization. Warner Brothers (Superman) and Paramount (Godfather) could decide at any time to confront you with a cease and desist letter or a lawsuit to challenge your claim of Fair Use. They may win; you may win your defense of their lawsuit. That's a risk you will take. The fact that other people currently produce shirts with similar designs doesn't mean anything. They may not have been confronted by the copyright holders; or the copyright holders may not care to confront small producers of possibly infringing designs and products. | united-states The first sale doctrine, (17 U.S.C. § 109), allows one who legitimately purchases a copy of a copyrighted receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. However, it does not allow one to change it. Under US law, doing so would create a derivative work, which would potentially violate copyright, but may indeed fall under the affirmative defense of "fair use" (which is determined on a case-by-case basis). (The rationale is that the first sale doctrine applies to a single article; one who makes a "fair use" derivative work can claim their own copyright, and thus make more copies). The more "transformative" the derivative work, the better chance it stands of being found fair use. Merely ripping up a work, and reassembling it to form a "mosaic effect" is unlikely to pass muster, for example. A derivative work that comments on the original work, especially social or political commentary, or on a sentiment strongly associated with the original work, is more likely to be deemed fair use. Painting polka dots the Statue of Liberty is unlikely to do well, whereas putting images of a political or social commentary nature on the Statue of Liberty is (for example, I believe I've seen one such with faces of individuals of a variety of ethnicities superimposed on the statue, making a statement of America (associated with the statue) and its history of immigration and multi-ethnic makeup). (Although the Statue of Liberty is very much not under copyright, for a number of reasons). Another aspect is how much, and how central a portion, of the original work is used. Using the pedestal the Statue of Liberty stands on would probably be better than the statue its self, for example. | You cannot use a trademark in a way that may cause confusion that your goods and services are associated with or endorsed by the trade marked goods and services. If you are clear that they are not then you shouldn't have any problems on that front. You also cannot defame the brand: that is make derogatory comments that are not true. On a practical note, when Pepsi (for example) sends you a cease & desist notice, what are you going to do? They can go to the petty cash tin for $2 million to make your life a legal hell for 18-36 months: how much do you have to defend your rights? | Your feeling is correct. Copyright in those images is owned by Amazon, or by someone Amazon contracted with, in any case not by you. Using them to sell your bean bag would be infringement, unless you have been granted permission to use the images. (It is not very likely that you would be sued over this, but please do the right thing anyway.) In any case those stock images may not show quite how your particular bean-bag looks now. Take your own photo and upload it with your sale listing. | In general this kind of brief literary reference is not unlawful, and such things occur in both novels and commercial games with some frequency. Making such a reference a major part of the plot, such as by using a name from a previous work as a major character, particularly if other aspects of that character are also used, is far more likely to cause a problem. In the united-states this would be a matter of fair use. In general, when only a very small part of the source work is used, such a a single name; where the use is "transformative", that is used for a rather different purpose than in the source work; where the use does not harm the market for the original work; and where the use does not serve as a replacement for the original, it is likely to be held to be fair use. But fair use decisions are always fact-dependent, and are made case-by-case, so it is hard to be absolutely sure of one in advance. But the kind of literary reference described in the question is very unlikely to be held to be copyright infringement. | The length of a literary work doesn't determine if its use is fair use. Copyright does not cover names, titles of works, catchwords/catchphrases/advertising slogans etc. or lists of ingredients (like in a recipe or chemical instructions), however, the procedure can be copyright. The work must also be original. If the tweet copies something that already exists then there is no copyright in the tweet - if the thing that is copied has copyright protection then the tweet itself may be a violation. That said, assuming that the Tweet enjoys copyright protection, the owner will be the author: presumably the owner of the Twitter account. For anyone else to legally use it, the use must be either: Licensed by the copyright owner Fair use (USA) or Fair Dealing (most everywhere else in the English speaking world) For Item 1, the Twitter terms of service say: You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). In case you don't know what that means, Twitter gives you this plain English summary: Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same. So, you can get permission from the copyright holder or from Twitter. Well, Twitter has given permission: Except as permitted through the Twitter Services, these Terms, or the terms provided on dev.twitter.com, you have to use the Twitter API if you want to reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Twitter Services or Content on the Twitter Services. Providing you use their API, you can "reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the ... Content ..." Therefore, fair use/dealing considerations are irrelevant. | Is this legal? Generally yes, unless it unlawfully exceeds the scope of the license. Also, if it is, how can I check if it's permitted by the original store's EULA? Read the whole EULA, focusing on terms related to resale, assignment, and transferability. | united-states The license won't let you sell the .stl file. Probably you have created a derivative work, which means you can't sell it without a copyright license (and the CC-A-NC won't do). If it were licensed under CC-A you could sell it without problems (you'd have to give attribution, of course). You could also sell it under the CC-A-SA, but once you do you have no control over the result -- anyone you sold it to could give it to someone else under the terms of the license. This could work, though, if it were (say) a commission and you only expected to sell one copy. I don't know what the situation would be with the physical objects printed under any of these licenses. |
Is it rape if someone goes by a pseudonym and gave fake facts about themselves? Let’s say Person A, an adult male, meets Person B, an adult female online. They develop a close relationship and talk on the phone on numerous occasions, but never meet in person. Finally Person B blocks Person A and ceases all communications with him. Some months later, Person A befriends Person B on the same online service, but with a different persona. Person B does not know that the new account is really Person A, but rather, believes they are someone completely different. Over time the new relationship grows in a similar way that the original one did. Eventually the two arrange to meet in person, and they have consensual sex. Person A secretly records the sexual encounter in order to capture the fact that the sex was consensual but does not reveal that recording to Person B. Several weeks to a month later Person A reveals to Person B that he is in fact the original person. Person B gets extremely angry and accuses Person A of rape. Is that a crime? | In Texas, sex offenses are defined in Texas Penal Code § 21.01, et seq., and rape and kindred offenses are defined as sexual assault § 22.011 and aggravated sexual assault § 22.021. None of those laws prohibit the conduct described (assuming adults who are not in a teacher-student relationship with full mental capacity), nor do they prohibit the video as long as there is no intent or threat to disclose it. Of course, not recognizing that it is the same person both times in an in person meeting when they have sex is highly implausible. | united-states Messaging (and other online communication) are fixed media. A face-to-face conversation, or a telephone call, does not exist at all - except in the mental recollections of the participants. And those are always very problematic as evidence, because people's recall is inaccurate. Whereas communication in a fixed medium is durable: a newspaper, a sound recording, security camera footage. It stands on its own and can be examined by experts. What catches a lot of people off guard about the Internet is they are mostly fixed media. Prior to the Internet, investigation of harassment almost entirely depended on anecdotal evidence. It was difficult to prosecute cases which were entirely based on the victim's word. The closest any of this came to objective evidence was a polygraph, and that wasn't reliable. Of course we want bona-fide victims protected, but what keeps a malicious actor from putting someone else in jail with words alone? Now with the Internet, much of the evidence is rendered in fixed media. This is a "breath of fresh air" for such prosecutions! However, just like any other physical evidence, it must be brought into evidence by the testimony of persons, and that testimony gets to be cross-examined. And this is where your concerns about provenance get addressed. A party will assert that the messages are forged, and that will be examined. The validity of evidence is itself on trial. There are two evaluations: first whether the evidence is even valid enough to present to a jury, and evidence that makes the cut is then examined and cross-examined in front of the jury. Keep in mind that contrary to TV drama, there's no "surprise evidence". Almost any evidence - and certainly ALL evidence in a fixed medium - must be shared with the other party long before trial. Pre-trial, it will be challenged, the phone/device subpoenaed and turned over to experts for analysis. If it is evident that the party "has conveniently deleted or lost" the material, the evidence will be thrown out. And if the party is proven to have falsified the data, they're in much worse shape. A lot of chat services keep chat logs on the server/cloud, in the clear. Getting those is as easy as subpoenaing them, and that will be a canonical answer because the ISP would have no reason to lie. For a service where chat logs are kept in the clear only by individuals who choose to keep them, then "reading those logs into evidence" will involve a cross-examination of the parties involved as to their honesty and motivations. I don't know what and how WhatsApp stores when they log chats, so I don't know if there's any cryptographic information there that could be authenticated. But certainly if "he" presents one chat log, and "she" presents a different chat log, then we're clear around to "he said, she said". But all of it together can be examined. For instance, linguists can look at other chats, discern the writing styles of each party, and then look at the disputed lines and examine who is more likely to have written those. And they give testimony on that. So it is evidence, but it gets two rounds of possible challenge: First as to whether the evidence is reliable enough to even present to the jury, and then experts testifying in front of the jury their opinion of its reliability. | Generally speaking, if a person sends you an email you can publish it. Like if they call you a bunch of nasty names, or threaten you in some way, that information is yours and you can publish it. However, I'll give you three scenarios where you should not publish an email sent to you (and I'll edit to add more if they come up). Private facts. There is a tort called publication of private facts. A plaintiff must establish four elements to hold someone liable for publication of private facts: Public Disclosure: The disclosure of facts must be public. Another way of saying this is that the defendant must "give publicity" to the fact or facts in question. Private Fact: The fact or facts disclosed must be private, and not generally known. Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities. Not Newsworthy: The facts disclosed must not be newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern. From Digital Media Law Project Note one thing - the offensive fact does not need to have been completely private for you to be liable, it must not have been generally known. In other words, someone like you who has a really low "public" bar needs to be careful. Also note that your buffer system might not help if the facts you publish are about someone other than the email sender; you are the one who published them. Stolen Information If someone sends you some intellectual property of a third party it is not yours to publish. Trade secrets, copyrighted works, prototype photos, etc. The sender might be breaking the law by sending the stuff to you but you're the one who published it so you can join as co-defendants. Barrett Brown was indicted for sharing a link to some stolen information. A link! He's in prison on other charges. Copyright held by the original sender (ht to @Dave_D) If the sender is the original author of the email, then the sender holds the copyright to the body of the email. Publishing the email violates the copyright. However, you could account for this in your buffer. Maybe. I am not sure is that is explicit enough. | No. The conduct described would be illegal quid pro quo sexual harassment (whether or not the subordinate was promoted), for which a civil lawsuit by the subordinate for money damages would be authorized. But it is not the crime of sexual assault (a.k.a. rape). This is because the subordinate consented to have sex, and an economic inducement to have sex, or fraud inducing someone to have sex, is not sufficient to invalidate this consent. Even if someone is induced to have sex by a much more severe inducement other than by force to the victim (e.g. by a threat to expose a highly confidential secret about someone's paternity or to kill someone's pet dog), this is often the crime of extortion, rather than the crime of rape (although state law would vary with regard to whether this fact pattern constitutes rape or extortion or both). The non-performance of the deal to provide a promotion, however, would not have a civil lawsuit remedy for breach of promise or agreement because it would be a "meretricious" agreement that is void as against public policy because the consideration was for sex. Similarly, suppose that in a place where prostitution is illegal, if a man promises a woman to pay her $500 to have sex, and she agrees in reliance upon that promisse, and he then refuses to pay her. In this case, the agreement is unenforceable in court (because it is a "meretricious" agreement that is void as against public policy), and the crime of rape has not been committed. This is true even if he never intended to pay in the first place and induced her to have sex through intentional and premeditated fraud. In that case, he would be guilty of soliciting a prostitution (even though he never intended to pay her) and she would be guilty of the crime of prostitution (even though she wasn't actually paid). Of course, where prostitution is legal, no crime has been committed in that fact pattern and the woman has a right to sue the man for $500 for breach of contract or promissory estoppel, and to sue also (for any non-duplicative additional damages) for fraud, including punitive damages as well, if he never intended to pay her in the first place. The only kind of fraud that obviates consent enough to constitute rape is when the person having sex is deceived about who they are having sex with (e.g. because they are wearing a blindfold and have been put in a context where they think they are having sex with someone else). While a colorable argument could be made that the facts in the question amount to prostitution, which is illegal in almost all of the U.S., in practice, cases where the connection between the economic inducement to have sex and the sex itself are as indirect and subtle as they are in the question are never prosecuted in that manner for that offense. Prostitution cases are prosecuted, in practice, only in unambiguously clear, immediate, quid pro quo simultaneous transactional contexts between people who don't otherwise have a relationships with each other that provides context to the exchange. Prostitution is typically such a petty offense that the prosecutorial effort needed to prove a case like this, the perception that a charge of that kind would punish a victim, and the perception that it would criminalize a large swath of socially accepted "gray area" conduct (like having sex following a date where one person buys the other dinner), all prevent prostitution laws from being prosecuted to their full theoretical extent, at least in cases not involving children (where statutory rape charges, or violation of position of trust charges, are often available anyway). | 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. | 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. | england-and-wales There is nothing in the criminal law to compel Party X to identify Party Y in this scenario - they are under no legal obligation to contact the police or anyone else, and a witness summons, for example, cannot be served as there is no trial. That said, one option is for the victim to make a complaint to the police for an alleged offence of what is colloquially referred to as "revenge porn" contrary to s.33 of the Criminal Justice and Courts Act 2015: (1) It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made — (a) without the consent of an individual who appears in the photograph or film, and (b) with the intention of causing that individual distress. ... The definitions of "private" and "sexual" may be found at s.35: (2) A photograph or film is “private” if it shows something that is not of a kind ordinarily seen in public. (3) A photograph or film is “sexual” if — (a) it shows all or part of an individual's exposed genitals or pubic area, (b) it shows something that a reasonable person would consider to be sexual because of its nature, or (c) its content, taken as a whole, is such that a reasonable person would consider it to be sexual. The police can then ask Party X to either provide a witness statement identifying Party Y or, if Party X is concerned about unwarranted repercussions etc, to provide this information in confidence and their involvement will be protected as Sensitive Material as per para 2.1(9) and 6.14 of the Criminal Procedure and Investigations Act 1996 Code of Practice. | united-states Are there laws in the United States which obligate adult video websites to retain personal information (such as first and second names) of the actors/actresses in the videos uploaded on their website? If so, could someone please provide them? In the U.S. producers of adult material are required to keep information about the age of their performers pursuant to 18 U.S. Code § 2257 and 18 U.S. Code § 2257A which is part of "The Child Protection and Obscenity Enforcement Act of 1988", and 28 C.F.R. 75 which contains regulations adopted related to that Code section. See also U.S. Justice Department commentary on its website. You can read the full text at the links. The information must be retained for seven years after they are created or last amended, unless the business goes out of business less than two years after the records are created or last amended, in which case the records must be maintained for five years after the business ceases to operate. They key language of Section 2257 states: (a)Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which— (1)contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and (2)is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction. (b)Any person to whom subsection (a) applies shall, with respect to every performer portrayed in a visual depiction of actual sexually explicit conduct— (1)ascertain, by examination of an identification document containing such information, the performer’s name and date of birth, and require the performer to provide such other indicia of his or her identity as may be prescribed by regulations; (2)ascertain any name, other than the performer’s present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name; and (3)record in the records required by subsection (a) the information required by paragraphs (1) and (2) of this subsection and such other identifying information as may be prescribed by regulation. Section 2257A extends this requirement to simulated sexual content. The regulations spell out the details requirements more specifically with more precise definitions. Much of this information may only be disclosed to specified individuals and is not necessarily available to members of the general public in the absence of an investigation authorized by the U.S. Attorney General. But access to these records is not governed by these statutes and regulations. An objection to a subpoena and request for a protective order under Federal Rule of Civil Procedure 45 (and related rules) or the equivalent state court rule would be the usual process for litigating that point. Whether the reason asserted is really justifiable would be a question for other law (usually under the law of California where most adult material in the U.S. is produced). |
What crime did Walter White commit against Jane in Breaking Bad? In an episode of the famous series Breaking Bad, the main character, Walter White, is responsible for the death of Jane, the girlfriend of Jesse. The main question is, from a legal point of view, how much is he responsible for this? Is this a homicide? What kind? Here's a summary of what happened; you can find a video here. Walter and Jesse are partners and they make drugs. Jane is the girlfriend of Jesse and Walter doesn't like that, since he thinks she could be an obstacle to their business. Both Jane and Jesse have problems with drugs. One day Walter enters Jesse's house, where Jesse and Jane are in the bed together, on their sides, completely stoned, unable to wake up, and apparently sleeping. Walter tries to wake up Jesse shaking him strongly without success. Doing that he modified slightly the position of Jessie and a conseguence (since she was in a sort of hug with him) Jane. In particular now she is on her back. It is not clear if she had a pillow on her back to avoid this position. Some time before, Jesse had explained to Walter that in this situation the pillow is important, since it keeps you on your side and not in your back, so if you vomit you avoid choking to death. And this is exactly what happens. In the new sleeping position, Jane starts to vomit and cough, while still sleeping. At first Walter tries to react, running to the other side of the bed to help her, but then he stops and decides to do nothing as she dies. What is this? Homicide? Voluntary? Or just failure to assist a person in danger? Are there extenuating circumstances due to the fact that the actual cause of death is the drug? Take into account that Walter could have easily saved her with no risk. | He is probably guilty of negligent homicide or involuntary manslaughter, at most (a minor felony), and is possibly not guilty of a crime at all. The primary distinction between classes of homicide is mens rea (i.e. intent). The only affirmative act he took was to move the pillow. He did so both without intending to or knowing that he would kill Jane (the intent necessary for murder), and also, without clear actual knowledge that he would be creating a risk that Jane would die (a reckless state of mind that would support a conviction for manslaughter). Also, note that Walter himself, at this time, is not engaged in a felony, so he is not guilty of felony murder. We can presume he is present with the consent previously given of the owner of the property and did not mean anyone any harm. Likewise, this is not what is meant by "extreme indifference" for purposes of a murder statute, the paradigm of which is shooting randomly into a crowd knowing that someone will almost certainly be killed without knowing or intending that any particular person will die. The mental state necessary for negligent homicide is the equivalent of "gross negligence" in a civil case and is called "criminal negligence" in a criminal case. To be criminally negligent a person must fail to perceive a substantial and unjustifiable risk that a certain result will occur, and the risk must be of such a nature that the defendant's failure to perceive it constitutes a gross deviation from a reasonable person's standard of care. If a jury found that a reasonable person ought should clearly know that moving a pillow put Jane at risk of dying, then he might be guilty of criminal negligence. But, if a jury found that a reasonable person would not know that moving the pillow put Jane at grave risk of death, his action would not be criminally negligent. There are also at least three questions of causation which is not entirely independent of the question of negligence. First, generally an act is only considered a cause of a consequence if it is a foreseeable result of the action. If Jane's vomit caused death is not a foreseeable result of moving the pillow, then her death might not be legally caused by moving the pillow. Second, how likely is it that she would have died even if Walter had never entered the room. There are lots of ways that the pillow could have been jostled during the night leading to the same result. If it likely would have happened anyway, Walter's involvement might not be the legal cause of the death. Third, how much fault should be attributed to Jane? This is closely related to the second question. If her death was primarily caused by her getting dangerously high and placing herself in a vulnerable position, perhaps Walter's involvement is not a meaningful cause of the death. A New Mexico court has held that the defense that the victim was negligent has value only if it establishes that the victim's negligence was the sole cause of the accident. State v. Maddox, 99 N.M. 490, 660 P.2d 132 (Ct. App. 1983). But, what about Jesse's negligence? Under a relevant standard criminal jury instruction in New Mexico: The State must prove beyond a reasonable doubt that the defendant's act was a significant cause of the death of __________________ (name of victim). Evidence has been presented that the negligence of a person other than the defendant may have contributed to the cause of death. Such contributing negligence does not relieve the defendant of responsibility for an act that significantly contributed to the cause of the death so long as the death was a foreseeable result of the defendant's actions. However, if you find the negligence of a person other than the defendant was the only significant cause of death, then the defendant is not guilty of the offense of __________________ (name of offense). Caveat: A number of states impose strict criminal liability on drug dealers, often for murder, if someone died from using a drug sold by them, but often it has to be a child, and often the drug has to be the proximate cause of death, e.g. due to an overdose or impurity in the drug. I would presume that Jesse and not Walter supplied the drugs to Jane, that Jane is an adult, and it is not obvious that the drug itself (as opposed to the vomiting due to the manner in which the drugs were used) was the proximate cause of death, so a statute like this might not apply in any case. This brings us to the hard part of the question: Without the pillow Jane rotates on her back and starts to vomit and cough, still sleeping. At first Walter tries to react, running to the other side of the bed to help her, but then he stops and decides to do nothing as she dies. Note that if Walter had moved the pillow without knowing that he was creating a risk, left the room ignorant, and then this happened, surely Walter would have no legal liability for Jane's death. If Walter develops the necessary intent for criminal liability, this probably doesn't happen until he observes that she is starting to choke on her vomit and might die. Even then, he does not intend for Jane to die and probably doesn't even know for certain that she will die from his inaction, so he is probably, at most reckless, if he has a duty to rescue for criminal law purposes. Generally, under both civil and criminal law, there is no duty to rescue, even if you can do so without any risk of harm to yourself. But, there is an exception, at least in civil liability, for a duty to rescue that arises from the fact that you put the person at risk of peril through your affirmative actions. Does this apply here, at all, or in a criminal case? The first question is the exact language of the homicide statute. Some homicide offenses require affirmative acts, while others can arise from acts or omissions where there is a legal duty to act. Every crime requires some voluntary act or omission, and the voluntary act itself was not a crime and perhaps was not even a tort, at the moment it was taken, because Walter did not realize that his act created a risk of harm. He create a peril, but he did so innocently. A pretty standard formulation is that an omission is only a crime when the law creates a legal duty to act, but this is, of course, a question begging standard as it doesn't clarify whether there is a legal duty to act, which is at issue here. As the previous link notes, creation of a peril can give rise to a legal duty to act, but only sometimes. (4) Duty arising from creation of peril. If a person acts culpably to imperil another, he or she has a legal duty to rescue the victim. The cases are split on whether a duty to rescue arises if someone innocently or accidentally imperils another. This case would fall in the category of someone who innocently or accidentally imperils another, in which the cases are split, which which the linked article cites the following authority: Compare Commonwealth v. Cali, 247 Mass. 20, 24-25, 141 N.E. 510, 511 (1923) (defendant under duty to try to extinguish a fire that he accidentally set to his house and thus was guilty of arson when he did not) with King v. Commonwealth, 285 Ky. 654, 659, 148 S.W.2d 1044, 1047 (1941) (defendant who, in lawful defense of a third person, shot and wounded an attacker was under no duty to seek medical attention for the wounded assailant). A commentary that is part of a California standard jury instruction (for involuntary manslaughter, not murder for which this kind of liability is presumably not available) makes the following observation: A legal duty to act may also exist where the defendant's behavior created or substantially increased the risk of harm to the victim, either by creating the dangerous situation or by preventing others from rendering aid. (People v. Oliver (1989) 210 Cal.App.3d 138, 147-148 [258 Cal.Rptr. 138] [defendant had duty to act where she drove victim to her home knowing he was drunk, knowingly allowed him to use her bathroom to ingest additional drugs, and watched him collapse on the floor]; Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 456 [30 Cal.Rptr.2d 681] [defendant had duty to prevent horses from running onto adjacent freeway creating risk].) These examples would suggest that an innocently or accidentally created risk is sufficient to create a duty sufficient to support involuntary manslaughter liability for an omission under California law, and would probably lead to involuntary manslaughter liability in the case in the question as well, under California law. New Mexico, unlike California, does not have a standard criminal jury instruction or really definitive section of its criminal code that clearly resolves this question, although the fact that California which uses a murder, voluntary manslaughter, and involuntary manslaughter distinction in the same way that New Mexico does, limits criminal liability for omissions to involuntary manslaughter suggests that New Mexico would as well. The New Mexico case State v. Greenwood, 2012 -NMCA- 017, 271 P.3d 753 (N.M. App. 2011), touches on the issue, suggesting that there may be liability only for involuntary manslaughter (or certain specialized crimes based upon a relationship such as that of a nursing home to a resident of a nursing home) based upon an omission, and that the liability for an omission can only arise when there is a legal duty, but almost implies that only contactual duties are sufficient. It does so at paragraph 35 which says: Importantly, even if the LINKS contract relating to Jared were to have been renewed and to have been in force at the time of Jared's death, we are not convinced that it would be the sole basis or even a controlling factor in determining Defendant's legal responsibility under the Act. Defendant's criminal liability must exist solely based on an omission— a failure to act when she had a legal responsibility to act. See Deborah A. Goodall, Penal Code Section 22.04: A Duty to Care for the Elderly, 35 Baylor L.Rev. 589, 594 (1983) (stating that " authorities have long agreed that before an omission can constitute an offense[,] there must first be a duty to act" ); see also People v. Beardsley, 150 Mich. 206, 113 N.W. 1128, 1129 (1907) (" The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death." (citation omitted)). But, this could be dicta because it was a case where any legal duty would arise under contract rather than for another reason, and as is the case in many smaller states, there is simply no case that has ever been decided in New Mexico which is squarely on point. Under British criminal law, in similar circumstances, a homicide conviction was vacated: R v Khan & Khan (1998) CLR 830, confirmed that there is no separate category of manslaughter by omission unless the omission constitutes a breach of duty to act. The defendants supplied a 15-year-old prostitute with twice the amount of heroin likely to be taken by a regular user. The defendants left her unconscious in the flat, returning the next day to find that she had died of the overdose. Had medical assistance been called, the girl would probably not have died. The unlawful act was supplying the drug but the death was caused by the quantity injected by the victim. The trial judge invited jury to consider liability on the basis of the defendants' failure to summon medical assistance. On appeal, the conviction was quashed because the brothers had not accepted a duty to act before she took the heroin. A dissertation on when criminal liability is imposed for omissions in Scottish law can be found here. New Mexico, whose laws really should govern, has just two homicide statutes: § 30-2-1. Murder A. Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused: (1) by any kind of willful, deliberate and premeditated killing; (2) in the commission of or attempt to commit any felony; or (3) by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life. Whoever commits murder in the first degree is guilty of a capital felony. B. Unless he is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another. Murder in the second degree is a lesser included offense of the crime of murder in the first degree. Whoever commits murder in the second degree is guilty of a second degree felony resulting in the death of a human being. Walter doesn't qualify for any of these prongs of the statute. § 30-2-3. Manslaughter Manslaughter is the unlawful killing of a human being without malice. A. Voluntary manslaughter consists of manslaughter committed upon a sudden quarrel or in the heat of passion. Whoever commits voluntary manslaughter is guilty of a third degree felony resulting in the death of a human being. B. Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection. Whoever commits involuntary manslaughter is guilty of a fourth degree felony. Clearly, Walter also does not qualify as guilty of voluntary manslaughter. There is no quarrel or heat of passion. So, either Walter is guilty in New Mexico of involuntary manslaughter, or he is not guilty of homicide at all. New Mexico also has an unusual, and rather merciful "excusable homicide" provision at New Mexico Statutes § 30-2-5, that should also be considered: Homicide is excusable in the following cases: A. when committed by accident or misfortune in doing any lawful act, by lawful means, with usual and ordinary caution and without any unlawful intent; or B. when committed by accident or misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, if no undue advantage is taken, nor any dangerous weapon used and the killing is not done in a cruel or unusual manner. Arguably, Walter falls under "excusable homicide" part A, as moving the pillow was a lawful act done without unlawful intent and that is what caused the death. | In the UK, generally there is no duty to report crime. There are circumstances where there is a duty to report suspicious activity or 'knowledge' or 'suspicion' of a crime. These include: financing of terrorism money laundering or dealing in other proceeds of crime (criminal property) or fraud in a regulated sector (e.g. solicitors, accountants, insolvency practitioners, finance, gambling) (unless the information comes to the person in 'privileged circumstances') In respect of such circumstances, as soon as Bob 'knows' or 'suspects' Rob is engaged in such behaviour Bob must report this to the authorities and must not tell Rob about it (the offence of 'tipping off'). Bob commits an offence if he doesn't report it. In terms of failure to report money laundering that could lead to a maximum of five years in prison and/or a fine. Depending on the circumstances an additional risk of failure to report is being perceived to have participated in the commission of the crime. | The people on the show would be considered public figures, so if there was information that the fictitious writing was actually based on/about them, defamation must be proven to a different standard for public figures. Public figures, including officeholders and candidates, actors or musicians successful enough to be held in "the public eye," have to show that the defamation was made with malicious intent, which is a greater burden than defamation for the average person. Also, damages may be limited to actual (special) damages unless there is actual malice. Special damages being lost income or some other quantifiable measure of loss. If one cannot tell who it (the fictional story) is about because the name is changed, then Fox, or whomever, couldn't sue anyway because they need standing, which they wouldn't have if you called the person X, unless the story was so exact that it is obvious who you are talking about. For instance, the show Law and Order is often based on famous stories in the news, or criminal cases they dig up. Those fictional story lines often add or delete details. The case may be more or less damaging to the actual person it was based on. However, they make a statement before the show airs that says something like "Any similarity to real people or events is strictly coincidental. This show is not based on any real person or event, but is a work of fiction." If I were going to make a fictional account of a big network show, I would use some sort of disclosure like that to be safe. That said, if the statements or storyline is less damaging than the facts themselves, as revealed on the show, it isn't defamatory at all: Defamation necessarily must include the act of making untrue statements about another that damage their reputation. If it doesn't damage their "good character or reputation," than it's not defamatory. Keep in mind, however, that what you may consider less or more damaging may not be the same view held by the person it's loosely based on. That is why I'd use the disclosure. As to the question "would it protect you against a lawsuit?", if you mean would it protect you from being sued, the answer is always, anyone can sue file a lawsuit. That doesn't mean they'll win but it still means you have to defend. It may likely protect you in your defense. | There are numerous what-ifs. Society’s moral values and thus laws may change. Or the unlikely death of your wife makes this question moot. (Let’s hope not.) Yes, failure to render assistance is punishable under § 323c Ⅰ StGB. Everyone can commit this crime (Allgemeindelikt). However, this section concerns accidents, contingencies or other unplanned adverse events. In your specific case there is no element of “surprise” though, quite the contrary. Your wife does not even need to be aware of the circumstances; the assessment “is there an accident” is made objectively. Having said that, unfortunately there’s a difference of opinion how courts judge (case law) and how “legal scientists” (at law school) think. Ultimately it depends on what evidence investigators find. Frankly, § 323c Ⅰ StGB is a “minor issue” here. You can get at most “just” a one-year-sentence. And there’s the option to consider one’s own spouse’s death as poena naturalis, thus refrain from imposing any penalty because the grieving widow “won’t learn anything” from that, § 60 1 StGB←§ 153b StPO. I’d worry more about §§ 211 ff. (murder, manslaughter, etc.): To kill someone means, a) any short‑term shortening of lifetime through action, or b) in the case of § 13 StGB, any failure to potentially prolong the lifetime. § 13 StGB, Garantenstellung, also applies to spouses, cf. § 1353 Ⅰ 2 BGB. It could be argued that failure to take, say, a loaded firearm away from you constitutes manslaughter. Or, worse, maybe you’re particularly wealthy and she’ll inherit your assets. This could be construed as greed, an aggravating circumstance. At any rate it’s necessary that the omitted action makes a difference, i. e. prevents or at least inhibits the crime’s success (your death). At some point, with terminally-ill patients, you might say “he’ll die tomorrow anyway”. Then your wife could attend your suicide. Finally, for a legally airtight plan I’d seriously consider to change the jurisdiction though, e. g. by going to Switzerland. Everything happening here is subject to German criminal law, § 3 StGB. PS: Marriage can be viewed as a kind of contract. In principle you are completely free in formulating its terms. However, you cannot make provisions concerning termination of life (nichtdisponibles Rechtsgut). | No. I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter. So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it. Civil suit for wrongful death Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him"). Reckless driving charge In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law: [In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit. http://manassascriminalattorney.com/2015/10/can-reckless-driving-in-virginia-be-a-felony-charge/ In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor. Misc links https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412 | Does any American state have a statute under which Joanne would be liable for her son's death? Probably not. None of the mother's conduct seems like a basis for a homicide prosecution. Suicide is only prosecuted, in states that allow it to be prosecuted at all, for conduct with a calculated purpose to cause a suicide, or encouragement of someone to commit suicide. These facts don't show that. There is no intent to cause suicide and there is no encouragement of the son to commit suicide by on the mother. A survey of selected laws on point by the Connecticut Legislative Research Service can be found here. The case law and related legal theory is reviewed and analyzed in this law review article with the following abstract: In 2017, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy by text message, but imposed a sentence of only fifteen months. The conviction was unprecedented in imposing homicide liability for verbal encouragement of apparently voluntary suicide. Yet if Carter killed, her purpose that Roy die arguably merited liability for murder and a much longer sentence. This Article argues that our ambivalence about whether and how much to punish Carter reflects suicide’s dual character as both a harm to be prevented and a choice to be respected. As such, the Carter case requires us to choose between competing conceptions of criminal law, one utilitarian and one libertarian. A utilitarian criminal law seeks to punish inciting suicide to reduce harm. A libertarian criminal law, on the other hand, justifies voluntary suicide as an exercise of liberty, and incitement of suicide as valuable speech. Utilitarian values are implicit in the foreseeability standards prevailing in the law of causation, but libertarian values are implicit in the reluctance of prosecutors to seek, and legislatures to define, homicide liability for assisting suicide. The prevalence of statutes punishing assisting—but not encouraging—suicide as a nonhomicide offense reflects a compromise between these values. These statutes are best interpreted as imposing accomplice liability for conduct left unpunished for two antithetical reasons: it is justified in so far as the suicide is autonomous and excused in so far as the suicide is involuntary. This explains why aiding suicide is punished, but less severely than homicide. Yet even these statutes would not punish Carter’s conduct of encouragement alone. Her conviction although seemingly required by prevailing causation doctrine, is unprecedented. Guyora Binder and Luis Chiesa, "The Puzzle of Inciting Suicide" 56 American Criminal Law Review 65 (2019). In any jurisdiction, could anyone but Joanne, in light of the aforementioned circumstances, face liability for Jordan's death? Maybe the bullies could be prosecuted for homicide or some lesser charge like harassment intended to provoke a suicide or something like that. More facts would have to be developed on that point. Maybe teachers have civil liability for negligence, but not criminal liability for not intervening since they didn't intend to cause or encourage the suicide. | You misunderstand the significance of the phrase "innocent until proven guilty." This is in part because you are not considering the entire phrase. The full phrase is that an accused party is "presumed innocent until proven guilty." This does not mean that the accused is innocent, only that criminal procedure must take as its starting point that the accused did not commit the crime. The major implication of the presumption, and indeed its original purpose, is that it places the burden of proof on the prosecution. This means that if a prosecutor asserts that you stole something, you do not have to prove that you did not. Rather, the prosecutor must prove that you did. The only reason to present evidence of your own is to rebut the prosecutor's evidence. Another practical implication is that a decision to detain someone awaiting a criminal trial may not be based on the assumption that the accused committed the crime. On the other hand, that decision is not based on the assumption that the accused did not commit the crime. There is a presumption of innocence, but no assumption of innocence, and the government is not obliged before the person is convicted to treat the person as if there is no accusation or charge. Wikipedia has a decent discussion. If we modify your question accordingly, it becomes How can two people be presumed innocent until proven guilty if their stories conflict? Now the answer should be clear. The prosecutor must develop evidence that shows which one of the people has committed the crime. If the prosecutor cannot do that, neither person may be punished. | Everyone goes free. Each individual in the room is considered innocent until proven guilty. If the prosecution cannot prove that Bob was guilty of the murder then Bob is considered innocent. The same goes for each of the other 19. However if all 20 people were part of some other crime which led to the death of Jake then they might be found guilty under accomplice liability. |
Is it legal to grope an unconscious person in Virginia? A friend of mine was groped by a man she knows while she was asleep. She didn't wake up because of her medication which makes her sleep pretty heavily. The man has fully admitted to doing this, so there is no debate as to what happened. The investigator has said that according to Virginia law, what he did was wrong but not illegal. Since "he didn't use force, threats, or intimidation, it's legal. So in VA, you can do many things to someone who is asleep provided that if they wake up and tell you to stop, you stop." (quote from friend paraphrasing investigator). I find it extremely hard to believe that you can sexually assault a person so long as they remain unconscious don't resist you. Is this really how the law in Virginia works? What are the limits of what you are legally permitted to do to an unconscious person? | Short Answer No. This is not legal under Virginia law. It is a serious crime. Long Answer The basic reasoning This would be actionable as aggravated sexual battery and punishable by up to 20 years in prison, because the facts demonstrate a touching of intimate parts with an intent to molest (i.e. sexual abuse) and this is accomplished through the victim's physical helplessness, which includes being unconscious at the time for any reason. Intent to Molest, Gratify or Arouse Contrary to user6726, I don't think that groping in the factual context of the question can be reasonably interpreted as lacking an intent to molest under the statute. An interpretation that requires an effect on the victim would be contrary to the fact that the statute is talking about the intent of the perpetrator and to the fact that the statute expressly authorizes prosecutions in cases where the victim is physically helpless a definition that includes unconscious or drugged. One could probably get the court to provide an extra non-standard jury instruction if this was raised by the defense at trial as an issue. The intent to molest, gratify or arouse intent requirement is designed to distinguish between, for example, giving a sponge bath to an unconscious patient at a medical facility or by a family member, or touching someone's breasts in order to get a bra size for a tailor, and "groping." The intent requirement also excludes unintentional conduct such as slipping and falling into someone by accident. The admission by the perpetrator in the question doesn't suggest any possible non-sexual reason for the contact, and is inconsistent with unintentional conduct. Corroboration From Actual Recent Prosecutions This reading is consistent with the fact that Virginia prosecutors have brought charges in similar circumstances such as the rape of an unconscious woman at a house party and charges against a Virginia DJ for his conduct towards unconscious women. The only material difference between rape and aggravated sexual battery under Virginia law is that rape requires penetration, while sexual battery merely requires sexual contact. Additional Commentary Reaching this conclusion is a bit tricky, because usually aggravated sexual battery would have a narrower definition of the crime than "plain vanilla" sexual battery. But, in Virginia, there is conduct that constitutes aggravated sexual battery which does not constitute "plain vanilla" sexual battery, including molestation by accomplished through physical helplessness which is defined broadly in the relevant statute. In other words, in this fact pattern, "sexual battery" is not a lesser included offense of "aggravated sexual battery" under subsection A(2) of § 18.2-67.3 of Virginia's statutes. Plain vanilla sexual battery includes the circumstances of subsection A(4) of § 18.2-67.3 of Virginia's statutes and some special "statutory rape"/"position of trust" type conduct that is outside of the scope of both A(4) type conduct and aggravated sexual battery generally. I would attribute the statements of the investigator as symptom of poor training about sexual assault cases and a generally regressive state of law enforcement attitudes about sexual assault in Virginia. Your friend should insist on talking to the investigator's supervisor and reviewing the relevant legal citations, with a lawyer, if necessary, if she wants to press charges. Of course, the prosecutor has no obligation to prosecute the case even if the prosecutor had a videotaped confession to every element of the crime. But, there is no reason for a prosecution to be prevented due to a non-lawyer investigator's misunderstanding of the law. A letter of complaint to the investigator's supervisor or the head of the department or the politician to whom the department reports would also be in order. The Statutes The statute creating the crime is as follows, with all of the pertinent language in bold. I have put the word "or" when necessary to see how the statute fits together (which could be omitted in a block quotation showing omissions with ". . .") in italics and have left the remainder of the relevant statutes in plain text to allow a reader to confirm that the reading I am giving to the statute is correct. § 18.2-67.3. Aggravated sexual battery; penalty. A. An accused shall be guilty of aggravated sexual battery if he or she sexually abuses the complaining witness, and The complaining witness is less than 13 years of age, or The act is accomplished through the use of the complaining witness's mental incapacity or physical helplessness, or The offense is committed by a parent, step-parent, grandparent, or step-grandparent and the complaining witness is at least 13 but less than 18 years of age, or The act is accomplished against the will of the complaining witness by force, threat or intimidation, and a. The complaining witness is at least 13 but less than 15 years of age, or b. The accused causes serious bodily or mental injury to the complaining witness, or c. The accused uses or threatens to use a dangerous weapon. B. Aggravated sexual battery is a felony punishable by confinement in a state correctional facility for a term of not less than one nor more than 20 years and by a fine of not more than $100,000. This in interpreted in light of some key definitions: § 18.2-67.10. General definitions. As used in this article: "Complaining witness" means the person alleged to have been subjected to rape, forcible sodomy, inanimate or animate object sexual penetration, marital sexual assault, aggravated sexual battery, or sexual battery. "Intimate parts" means the genitalia, anus, groin, breast, or buttocks of any person. "Mental incapacity" means that condition of the complaining witness existing at the time of an offense under this article which prevents the complaining witness from understanding the nature or consequences of the sexual act involved in such offense and about which the accused knew or should have known. "Physical helplessness" means unconsciousness or any other condition existing at the time of an offense under this article which otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known. The complaining witness's "prior sexual conduct" means any sexual conduct on the part of the complaining witness which took place before the conclusion of the trial, excluding the conduct involved in the offense alleged under this article. "Sexual abuse" means an act committed with the intent to sexually molest, arouse, or gratify any person, where: a. The accused intentionally touches the complaining witness's intimate parts or material directly covering such intimate parts; b. The accused forces the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts; c. If the complaining witness is under the age of 13, the accused causes or assists the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts; or d. The accused forces another person to touch the complaining witness's intimate parts or material directly covering such intimate parts. Also relevant is this statute: § 18.2-67.6. Proof of physical resistance not required. The Commonwealth need not demonstrate that the complaining witness cried out or physically resisted the accused in order to convict the accused of an offense under this article, but the absence of such resistance may be considered when relevant to show that the act alleged was not against the will of the complaining witness. | Unfortunately, the police are correct The limit on filing a civil claim (a lawsuit where you seek monetary compensation) is before you turn 40. If you were 11 in 1985 then it is too late to sue your assaulter. For criminal prosecution, the law was changed in 2016. Prior to the change, the limitation was the same as for civil cases. After the change, there is no limit but only if the offence was committed on or after 1 January 2017. Assuming that your reference to Kelly is to this guy - the alleged offences were committed in the 1990s and the prosecutions are under Illinois, Minnesota and Federal law (the Federal crimes alleged are not the sexual assault of a minor). Each state has it's own rules. | Nothing in the description strikes me as illegal or unlawful, so I am unsure of the grounds your friend would have for legal action. The questions a lawyer would ask (in addition to that) would be likely to include : How does your friend quantify the damage? The law is great for pursuing financial compensation, but does not handle abstract concepts. Has your friend used psychological counselling services, and what was the cost? What additional financial costs has your friend borne? If your friend has written to the University and has expected a response, what is the evidence of diminished trust? (The letter suggests otherwise.) Would a reasonable person (the proverbial "man in the street") be psychologically damaged by the events experienced by your friend? Is there evidence of a pre-existing condition? You've also mentioned yourself as a witness. Did you witness the eviction, or would you be attesting to your friend's state of mind? If the latter, what are your psychological qualifications? In the main Western jurisdictions, the answer to the question "can my friend sue?" is usually "yes", but whether they stood a chance of winning the suit would probably be a better question to ask. Your friend would only be likely to win a case against the University or the Security company if they could demonstrate unlawful or counter-contractual activity by staff, and were able to demonstrate financial damages that had been caused by that activity. | We're missing a lot of facts that would help drive the analysis. The first question I'd ask was whether this was part of an actual or attempted sex offense. If that's the case, the suspect could be facing particularly serious charges. Other information is also missing, such as the drug involved, whether it's on the list of controlled substances, her knowledge of the drug, her relationship to the suspect, and so on. Still, based on the information we've got and the inferences we can make from them, I could reasonably see the following charges being filed: Sec. 12-3. Battery. (a) A person commits battery if he or she knowingly without legal justification by any means (1) causes bodily harm to an individual Sec. 12-3.05. Aggravated battery. (g) Offense based on certain conduct. A person commits aggravated battery when, other than by discharge of a firearm, he or she does any of the following: (1) Violates Section 401 of the Illinois Controlled Substances Act by unlawfully delivering a controlled substance to another and any user experiences great bodily harm or permanent disability as a result of the injection, inhalation, or ingestion of any amount of the controlled substance. (2) Knowingly administers to an individual or causes him or her to take, without his or her consent or by threat or deception, and for other than medical purposes, any intoxicating, poisonous, stupefying, narcotic, anesthetic, or controlled substance, or gives to another person any food containing any substance or object intended to cause physical injury if eaten. Sec. 12-4.5. Tampering with food, drugs or cosmetics. (a) A person who knowingly puts any substance capable of causing death or great bodily harm to a human being into any food, drug or cosmetic offered for sale or consumption commits tampering with food, drugs or cosmetics. Sec. 12-5. Reckless conduct. (a) A person commits reckless conduct when he or she, by any means lawful or unlawful, recklessly performs an act or acts that: (1) cause bodily harm to or endanger the safety of another person; or (2) cause great bodily harm or permanent disability or disfigurement to another person. Sec. 21-1. Criminal damage to property. (a) A person commits criminal damage to property when he or she: (1) knowingly damages any property of another Sec. 11-1.20. Criminal sexual assault. (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and: (2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent; Sec. 11-1.30. Aggravated Criminal Sexual Assault. (a) A person commits aggravated criminal sexual assault if that person commits criminal sexual assault and any of the following aggravating circumstances exist during the commission of the offense or, for purposes of paragraph (7), occur as part of the same course of conduct as the commission of the offense: (2) the person causes bodily harm to the victim, except as provided in paragraph (10); (3) the person acts in a manner that threatens or endangers the life of the victim or any other person; (4) the person commits the criminal sexual assault during the course of committing or attempting to commit any other felony; (7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim without the victim's consent or by threat or deception for other than medical purposes; Sec. 11-1.50. Criminal sexual abuse. (a) A person commits criminal sexual abuse if that person: (2) commits an act of sexual conduct and knows that the victim is unable to understand the nature of the act or is unable to give knowing consent. Sec. 11-1.60. Aggravated criminal sexual abuse. (a) A person commits aggravated criminal sexual abuse if that person commits criminal sexual abuse and any of the following aggravating circumstances exist (i) during the commission of the offense or (ii) for purposes of paragraph (7), as part of the same course of conduct as the commission of the offense: (2) the person causes bodily harm to the victim; (5) the person acts in a manner that threatens or endangers the life of the victim or any other person; (6) the person commits the criminal sexual abuse during the course of committing or attempting to commit any other felony; or (7) the person delivers (by injection, inhalation, ingestion, transfer of possession, or any other means) any controlled substance to the victim for other than medical purposes without the victim's consent or by threat or deception. Sec. 9-1. First degree Murder (a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death: (2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) he is attempting or committing a forcible felony other than second degree murder. Sec. 9-3. Involuntary Manslaughter and Reckless Homicide. (a) A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly Sec. 9-3.3. Drug-induced homicide. (a) A person commits drug-induced homicide when he or she violates Section 401 of the Illinois Controlled Substances Act or Section 55 of the Methamphetamine Control and Community Protection Act by unlawfully delivering a controlled substance to another, and any person's death is caused by the injection, inhalation, absorption, or ingestion of any amount of that controlled substance. Sec. 9-3.4. Concealment of homicidal death. (a) A person commits the offense of concealment of homicidal death when he or she knowingly conceals the death of any other person with knowledge that such other person has died by homicidal means. Sec. 9-3.5. Concealment of death. (b) A person commits the offense of concealment of death when he or she knowingly conceals the death of any other person who died by other than homicidal means. | How does the victim know that there is water in the bottle? And not some strong acid? I think there will be a difference between someone cleaning their windows and spraying someone with the same bottle they used for cleaning the windows, and some woman's jeaulous ex-boyfriend sneaking up on her in the night and spraying her in the face with fluid from an unknown container. In UK law: "An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force." So spraying water out of container labelled "acid" would be assault. Spraying water on a person after threatening them with an acid attack would most definitely be assault. If the victim expects to be injured then it is assault. Even if the victim fully expects that the fluid is water, I could imagine that you would be charged with assault if a bride to be just spent two hours getting her hair and makeup done, and you destroy the work just before the wedding by spraying her with water. | If I were a DA (District Attorney) looking out "stamp out" statutory rape, I would make the rounds of the hospitals, identify women who gave birth, or were impregnated when underaged, and go from there. But few, if any DAs, do this. No, you wouldn't. First, you have neither the time nor the budget to do this. Second hospitals are not public property, you would need a warrant which the court won't give you because you don't have probable cause to believe a crime has or is being committed. As a DA, I would of course, follow up on any complaints lodged by the victim, or even by her/his parents. And maybe I would prosecute a case where people were "caught in the act, or there were nude pictures, etc. May even an especially egregious PDA (public display of affection). No, you wouldn't. You would follow up on complaints to the extent that you have the time, budget and manpower to do so and you would prosecute cases where you believe that you have a reasonable prospect of getting a conviction and where prosecution is, in your opinion, in the public interest. In the real world, that means where the police hand you a brief of evidence that is a lay-down misere and (for statutory rape) where there is a real power imbalance between the perpetrator and the victim - giving 2 willing 15 year old kids the label of 'sex offender' for life is probably not in the public interest. But suppose there were no complaints or smoking guns. Could someone investigate based on something like a teenager "holding hands" with someone much older? To make the question objective, what has historically caused DAs to prosecute people outside of the above parameters? With some exceptions, it is not the role of the DA to initiate or conduct investigations of criminal actions - that is the role of law enforcement officers, usually for this particular crime, police officers. Notwithstanding, the general rule in western, liberal democracies (which the United States, with a certain generosity of spirit, can still be considered) is that citizens are allowed to get on with their lives without day-to-day interference from the state. That is, law enforcement officers do not 'go fishing' for crimes, they investigate crimes that they have a probable cause to believe have actually happened, either because they themselves saw it happen or someone has reported it to them as having happened. The term for having a law enforcement officer following you around waiting for you to break the law is 'harassment' and may itself be illegal. A law enforcement officer can initiate an investigation based on anything but as no law enforcement agency has unlimited resources, they tend to follow only those investigations that might lead somewhere. For example, it has been known for parents to hold the hands of their children and even to publicly display affection towards them and parents are often "much older" then their children - this would not generally be grounds for initiating a statutory rape investigation. | There is a state law that requires you to obey the police: ORC 2917.13, which says you may not Fail to obey the lawful order of any law enforcement officer engaged in the law enforcement officer's duties at the scene of or in connection with a fire, accident, disaster, riot, or emergency of any kind. If you do, misconduct at an emergency is a misdemeanor of the fourth degree. If a violation of this section creates a risk of physical harm to persons or property, misconduct at an emergency is a misdemeanor of the first degree. You also cannot Hamper the lawful operations of any law enforcement officer, firefighter, rescuer, medical person, emergency medical services person, or other authorized person, engaged in the person's duties at the scene of a fire, accident, disaster, riot, or emergency of any kind "Hamper" is not defined statutorily, but the plain meaning of "hamper" is not the same as "fail to assist". We have not established that the order is lawful, however, which is crucial. The police cannot just freely search a residence without permission. If they have permission from the occupant, they can search and seize. If they have probable cause to believe that a crime exists and the circumstances make a warrant impractical, they can search and seize. I don't know what you mean by "wellness check", but that seems plainly to be unlawful entry. However, if the resident calls 911 and reports that he is having an issue, that is sufficient consent for entry. In the case of a fire alarm, the fire code authorizes a fire department official in charge of an actual emergency response incident to order the evacuation of a building, and occupants are required to comply. If we suppose that the smoke detector in a room has gone off, the fire department is authorized to inspect for fire, and there is a provision under the law about failure to obey a lawful command (to open the door so that they can look for fire). Problem: you cannot know whether the order is lawful. The officer doesn't decide what is lawful, the courts do (after the fact), and typically a command is found to be lawful unless it is clearly unlawful. The order from your supervisor is not "enforceable" in the sense that you cannot be arrested, imprisoned, or fined for disobeying your boss. However, there is a potential club they can use against you, namely firing you for disobeying the order. Normally, you can be fired for wearing the wrong shirt. But there are laws about employers doing illegal things, such as ORC 4113.52, which provides recourse when the employee reasonably believes that the violation is a criminal offense that is likely to cause an imminent risk of physical harm to persons or a hazard to public health or safety etc. In which case you report this to the supervisor, they have 24 hours after getting the report to correct the situation, and after that you would report the situation to the county prosecutor. (Read all of the details in the linked law, don't just skip steps: this is an executive summary). Having done this, you are protected from being fired, demoted. reassigned etc. The employer will be strongly motivated to not incur the penalties for violating the whistle blower statute. Additionally, you can sue the employer if they fire you for refusing to violate the law (termination in violation of public policy). | 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.) |
What are the implications of a company being "not in good standing?" I got a job offer from a company, and looked them up online at the registrar and their status is "not in good standing." Should this be a factor in deciding whether to work for them? | 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. | At what point passed the original ETA is the contract still valid? There is no hard limit or deadline other than the one (if any) the contract itself provides. The contract remains valid regardless of a party's breach or non-performance. The remedies that would be available to you are in the form of rescinding the contract --without having to pay the cancellation fee--, or forcing the store to deliver the furniture soon. The longer the delay, the clearer your entitlement to either remedy. The manager's allegation about other customers is unavailing: Your description does not reflect that the contract or estimates are in terms of the delay that non-parties tolerated. Their contracts are totally unrelated to yours. The contracts might not even be comparable. The purpose of estimates is to give the counterparty some rough information that is known to likely influence his decision-making. Accordingly, a huge departure from the estimate supports the finding that the store deprived you of information that was material to your decision. The store's failure to timely inform you strikes the contract law tenet that you entered the contract knowingly. Furthermore, the store's deliberate act of specifying even the day of the month [mis-]led you to rule out that the delivery might actually take years. Typically furniture is purchased with the expectation of being able to start using it relatively soon, not years later. In addition to breach of contract, the store might also be in violation of statutes against unfair and misleading practices. | Do I have standing to sue a credit bureau or lender after being approved for a loan but being prevented from signing due to their error? Unfortunately, no. The email you got from the loan agency reflects that no contract was formed yet. The email merely is the loan agency's expression of interest to proceed toward the formation of that contract. Absent that formation of the contract, even if for reasons beyond your control, you are not entitled to the benefits or consideration(s) the contract would provide. Nor would the lender be entitled to your compliance with the terms of that contract, terms which might not even be informed --let alone known-- to you. There is no legal obligation from one party to the other. Lastly, the agency's or bureau's faulty process/questionnaire is not actionable either. Lender's reluctance to employ an alternative method is within his freedom of contract. | These offer letters typically state explicitly that the offer is contingent on approval by the relevant governing board. This is sufficient to thwart promissory estoppel. Such highest-level overturning are frequent enough in the US that a reasonable person would know that the principal (for instance) does not have final authority to make a contract. There is no requirement that the board justify their decision to you. If you file a lawsuit alleging racial or religious discrimination, and if you can make a prima facie case for discrimination,you might survive the motion for dismissal, and the board might be required to say why they didn't hire you. | This would be a case of mutual mistake or unintentinal ambiguity. If the circumstances make it clear what year the parties intended, particularly if it is the current year, a court would probably treat the contract as if it specified that year. If the parties' intentions could not be reasonably determined, a court might rule that there had been no meeting of minds, and so no valid contract at all. | 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. | if a manager emailed an prospective employee a contract containing the pay rate of $20/hr, if the prospective employee crossed out $20/hr and replaced it with $25/hr, then went to work and gave the manager the contract which he failed to carefully read, continued working for a few months, would the employee be entitled to $20/hr? A party ought to timely alert or notify the other counterparty about any disagreements or proposed changes. This is especially recommendable when evidence suggests that the counterparty's expectation that the party only would sign the contract was reasonable. In the example you outline, the employee's unilateral alteration of the compensation/rate in the contract seems unlikely to favor the employee's position. That is because typically employer and employee negotiate compensation prior to formalizing their agreement. In that case, the employee would need stronger evidence with which to overcome the employer's credible argument that he did not knowingly accept the altered rate. | If a contract always uses the wrong name, is it still valid? A contract is not a piece of paper. It is an agreement between parties that meets certain criteria. The piece of paper is just evidence of that agreement that can be referred to should there be any misunderstandings or disputes. So in your case, you would be presumed to have discussed the terms with the party you sign the NDA. You would be presumed to have fully understood them. A wrong name on the paper is just an error. It may make it more difficult to establish that you indeed entered the contract (in case of a dispute) but it will by no means invalidate the contract. |
Politically charged emails sent to entire University I am an undergraduate student at Rutgers University, in New Jersey. Today I received the following email sent to my Rutgers address: Members of the Rutgers Community: We are writing to you in response to the Trump Administration’s announcement today regarding the Deferred Action for Childhood Arrivals (DACA) program for undocumented immigrants. The Administration today gave a six-month deadline to the Congress to legislatively enact a program for DACA-eligible immigrants, or the program will end. Obviously, we need to pull together to urge quick action in the House and Senate. Ending the program would be wrong, unwise, and inconsistent with American values. The young people who have applied for DACA protection in the hope of a productive and successful life in this country came forward and provided their personal information to the federal government in good faith. Rescinding this protection, after they have voluntarily identified themselves, is diametrically opposed to any sense of fairness, let alone compassion for their situation. We recognize the stress that this decision is having on our undocumented students and their families, and to these students we want to be very clear in saying that nothing has changed for you in regard to your relationship with Rutgers. You remain a vital and valued part of our community of scholars, and we will continue to do all we can to support your successful completion of a Rutgers degree. Those Rutgers students who are covered by the New Jersey DREAM Act, which has enabled many undocumented students who are longtime residents of our state to attend at in-state tuition rates, will continue to be eligible for this benefit. The university was successful in advocating for a NJ DREAM Act that did not rely on DACA, and it was the right decision. Rutgers will continue to employ admissions policies that do not consider immigration status, and will continue to protect the privacy of all our students. This means the university will not provide student records to anyone unless required by a warrant, subpoena, or court order, and we will continue to offer support and legal guidance to any student who seeks it. Unless Congress acts within six months, undocumented students who had been protected from deportation by DACA for a renewable two-year period will lose that protection and will, at that point, also no longer be eligible to receive a work permit. Even if the ultimate elimination of DACA does not lead to imminent deportation, it would be a very troubling decision that harms good people who have done nothing wrong, and we are determined to do all we can to advocate for action that preserves the protections offered by DACA. The most effective solution to this problem is to enact federal legislation, such as the BRIDGE Act, a bill with broad bipartisan support in Congress, with an amendment that would extend DACA protections until comprehensive immigration reform is enacted. As you may recall, our students’ advocacy efforts earlier this year led to more than 20,000 electronic letters being sent to members of the House and Senate urging enactment of the BRIDGE Act. Now is the time to redouble our efforts. You will be receiving a separate e-mail outlining how members of our community who want to help undocumented students can engage in this effort. In the meantime, let us again assure students that we are committed to supporting all of you as you make your way toward a Rutgers degree, and we wish all of you a rewarding academic year. Sincerely, Robert Barchi, President Nancy Cantor, Chancellor, Rutgers University–Newark Deba Dutta, Chancellor, Rutgers University–New Brunswick Phoebe Haddon, Chancellor, Rutgers University–Camden Brian Strom, Chancellor, Rutgers Biomedical and Health Sciences Politically, I feel that it should be illegal for a public university to send out an email like that to its students. But is it actually illegal? (Needless to say, all answers should avoid any discussions of the politics not strictly necessary for a sound legal analysis). | No, absent a state law to the contrary (and I am aware of no such law in this case) it is not illegal. Universities, as institutions, are permitted to express opinions on political issues, especially political issues that are pertinent to their operations. Indeed, they often do so. (Political candidates are arguably a different matter and certainly involve a more complex analysis to determine if the Johnson Amendment applies to a public university, but that isn't at issue in this case.) Governmental entities may not take religious positions, but may take political ones. Generally, even public colleges like Rutgers have this autonomy. Indeed, lobbying is frequently necessary for the survival of a public university - it has no choice but to lobby and a free hand regarding the issues upon which it does lobby. | The second statement is completely independent of the first. This is to certify that X is pursuing a Minor specialization in our department**.**[PERIOD] The courses offered by our department that have been taken by X are as follows:[...] As long as both of these statements are true, it is not deceptive, therefore not fraudulent. | 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. | From the sound of it, you have stated that you gained access to school data, possibly including private information about other students, professors, schedules, grades, disciplinary information, financial tuition or salary info, etc., that you were not authorized to have. The question of whether it was properly secured is rather beside the point. The school will now need to know the precise scope of your snooping: whether you were able to modify any information (i.e. change grades), what purpose to your snooping, etc. | The most prominent argument that has been advanced surrounding this proposed action can be summarized as follows: There was a bill passed by Congress, in 1965, that authorizes the Secretary of Education to take this action. This theory holds that the executive branch was granted the authority to cancel federal student loan debt as part of the Higher Education Act, duly passed by Congress in 1965 (and encoded as USC 20 §1001 et seq.) Specifically, §1087hh states that: In carrying out the provisions of this part, the Secretary is authorized— to consent to modification, with respect to rate of interest, time of payment of any installment of principal and interest or any portion thereof, or any other provision of any note evidencing a loan which has been made under this part; to enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption; ... Further background on the legal theory under which this authorizes debt cancellation can be found in this memo from the Project on Predatory Student Lending, sent to Sen. Elizabeth Warren during her 2020 presidential campaign. They concluded that via this language, Congress has granted the Secretary [of Education] a more specific and unrestricted authority to create and to cancel or modify debt owed under federal student loan programs in the Higher Education Act (HEA) itself. That provision empowers the Secretary to execute the broad debt cancellation plan you have proposed. It should be noted that this argument is not universally accepted. It should also be noted that it is questionable whether anyone could have standing to challenge this action, so whether or not it is allowable may not be testable in court. And finally, it is not yet clear (at least not to me) what the details of this particular executive action are; I'm not even sure they have been released. It could be that they're based on an entirely different legal theory. | there was absolutely nothing in the letter. You could hold it up to the sunlight and see that it was empty. There is no legal reason to do this. Somebody screwed up. Office workers are not infallible. It happens. I've seen government officials with no grudge against my client do it too now and then. Taken together with the spelling errors in your name it reflects general administrative incompetence and not some nefarious plot. The cautious thing to do would be to call them and tell them that you got a misaddressed letter with nothing inside it. A judge might frown at your conduct if you had some inkling they were trying to communicate with you and did nothing. Save the empty envelope to prove that they didn't send you a security deposit letter as they claimed if there is a dispute or litigation down the road. | The Board of Estimates still gave small boroughs like Staten Island more representatives per voter than large boroughs like Manhattan. Therefore it violated the one man, one vote principal which is evaluated with respect to all representatives having votes in a body, not just those that hold a majority. The analysis is to take all at large seats that don't violate the one man, one vote rule off the table and look at the fairness of the allocation of the remaining seats. This was an easy case, not a hard one, for the U.S. Supreme Court. The leading case are: First, Baker v. Carr, 369 U.S. 186 (1962) (holding that malapportionment claims under the Equal Protection Clause of the Fourteenth Amendment were not exempt from judicial review under Article IV, Section 4, as the equal protection issue in this case was separate from any political questions). As Wikipedia explains (links to selected full text opinions added): The "one person, one vote" doctrine, which requires electoral districts to be apportioned according to population, thus making each district roughly equal in population, was further cemented in the cases that followed Baker v. Carr, including Gray v. Sanders, 372 U.S. 368 (1963) which concerned state county districts, Reynolds v. Sims, 377 U.S. 533 (1964) which concerned state legislature districts, Wesberry v. Sanders, 376 U.S. 1 (1964) which concerned U.S. Congressional districts and Avery v. Midland County, 390 U.S. 474 (1968) which concerned local government districts, a decision which was upheld in Board of Estimate of City of New York v. Morris, 489 U.S. 688 (1989). Evenwel v. Abbott (2016) said states may use total population in drawing districts (as opposed to eligible voters). | 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. |
Who has jurisdiction over civilian crimes on a US military base overseas? A friend of mine works for the US military, and their family was living on a base in an allied nation. While they were there, a person known to them did some terrible things to their family, the kind of things that would be considered horrific crimes in every civilized nation, and get him summarily put down like the rabid dog he is in the uncivilized ones. Unfortunately, no one is doing anything about it. There's no question about what was done or who did it, but there appears to be a jurisdictional mess: the host country won't prosecute because everyone involved, on both the victim and perpetrator sides, is a US citizen and it took place on a US military base, and the military can't prosecute because the perpetrator is a civilian who is not subject to the UCMJ. My friend and their family have been transferred, but they hear that this monster is openly boasting about what he did and is planning to hunt them down, and they are looking very seriously at possibly going into hiding because no one will do anything to stop him. I'm having a difficult time accepting the concept of "no valid jurisdiction." It seems to me that if nothing else, a US citizen on US territory would be subject to Federal law, but apparently things aren't quite that simple. Even so, I don't believe in "no jurisdiction." Whose jurisdiction would this fall under? | There's no question about what was done or who did it, but there appears to be a jurisdictional mess: the host country won't prosecute because everyone involved, on both the victim and perpetrator sides, is a US citizen and it took place on a US military base, and the military can't prosecute because the perpetrator is a civilian who is not subject to the UCMJ. The host country probably has jurisdiction because a military base, unlike an embassy, is not generally immune from domestic criminal law jurisdiction, although the host country is within its rights to decline to exercise that authority and the status of forces treaty with that country would control. The belief that the military cannot prosecute the perpetrator under the Uniform Code of Military Justice because the perpetrator is a civilian who is not subject to the UCMJ is mistaken, and the easiest way to address the issue may be to point this out to the responsible JAG officers and commanding officers with jurisdiction over the case. Generally speaking, as set forth more fully below, the UCMJ does apply to civilians on military bases. See 10 USC 802(a)(11) and 10 USC 802(a)(12). There is also probably U.S. civilian criminal law that is applicable to civilians on a military base much like other federal territories. Historically, these offenses could be presided over in ambassadorial courts of the U.S. ambassador to the country in question, but the current practice is for such prosecutions to be made by the Justice Department before a U.S. District Court judge (I believe from the U.S. District Court for the District of Columbia, although I may be mistaken on that point). Who Is Subject To The UCMJ? Section 802 of Title 10, set forth in the block quote below expressly states who is subject to the Uniform Code of Military Justice. Mostly, the UCMJ applies to members of the U.S. military, broadly defined, with some of the potentially close cases described with specificity. A lot of the detail in this definition goes to the issue of when non-active duty military personnel (1) are subject to the UCMJ, (2) are subject to state versions of the UMCJ in lieu of the UCMJ, or (3) are not subject to the UCMJ at all. The UCMJ also applies to some civilians and people who belong to other military forces, most of which involve (1) people who are civilian employees of the military or civilian military contractors, (2) civilians and members of foreign militaries who are traveling with the military or present on military bases, and (3) prisoners of war broadly defined. These exception cases are emphasized in bold in the blockquote setting forth 10 USC § 802 below. (a) The following persons are subject to this chapter: (1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it. (2) Cadets, aviation cadets, and midshipmen. (3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service. (4) Retired members of a regular component of the armed forces who are entitled to pay. (5) Retired members of a reserve component who are receiving hospitalization from an armed force. (6) Members of the Fleet Reserve and Fleet Marine Corps Reserve. (7) Persons in custody of the armed forces serving a sentence imposed by a court-martial. (8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces. (9) Prisoners of war in custody of the armed forces. (10) In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field. (11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. (12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands. (13) Individuals belonging to one of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who violate the law of war. (b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment. (c) Notwithstanding any other provision of law, a person serving with an armed force who— (1) submitted voluntarily to military authority; (2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority; (3) received military pay or allowances; and (4) performed military duties; is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned. (d)(1) A member of a reserve component who is not on active duty and who is made the subject of proceedings under section 815 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntarily for the purpose of— (A) a preliminary hearing under section 832 of this title (article 32); (B) trial by court-martial; or (C) nonjudicial punishment under section 815 of this title (article 15). (2) A member of a reserve component may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was— (A) on active duty; or (B) on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service. (3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President. (4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces. (5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not— (A) be sentenced to confinement; or (B) be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (1)). (e) The provisions of this section are subject to section 876b(d)(2) of this title (article 76b(d)(2)) | The main question is whether the US has jurisdiction outside the US, which means either "in another country" or "in no country" (viz. the high seas or outer space). It has generally been felt (legally) that the US has no jurisdiction over foreign countries, see especially Banana v. Fruit, 213 U.S. 347 "the general rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where it is done". This is known as the "presumption against extraterritoriality": it is a presumption, not a rigid absolute rule. However, there are exceptions. The Alien Tort Statute (one of the first laws of the US) says "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States". An application of that law is Filártiga v. Peña-Irala, where defendant tortured and murdered plaintiff's daughter, all parties being in Paraguay at the time: the court held that the US did have jurisdiction, under the ATS. Nevertheless, in Sosa v. Alvarez-Machain, 542 U.S. 692 which involves an extraterritorial kidnapping, SCOTUS seems to have said that this law is primarily about granting jurisdiction, and not about creating new torts, and they indicate that the wrongful acts within the scope of the ATS are, specifically, "offenses against ambassadors, violation of safe conducts, and piracy" (at any rate, it's clear that damage arising from pollution would not be within the class of bad acts referred to by ATS). Kiobel v. Royal Dutch Petroleum Co. reaffirms the limit on what torts can be pursued under ATS. In this case, the issue is whether RDP might be corporately liable for acts that could be illegal under US law, and the court says "[w]hen a statute gives no clear indication of an extraterritorial application, it has none" (citing Morrison v. National Australia Bank Ltd.). Accordingly, Taylor Jr. was held liable for his role in torture in Liberia, since the Torture Victim Protection Act does specifically allow for actions against individuals acting in their official capacity, outside the US, for torture and extrajudicial killing. "Sanctions against" is kind of open-ended. The US government can (under some circumstances) prevent US persons from doing things with respect to some other country, such as the restrictions against doing business with or visiting Cuba, Albania, North Korea etc. as have existed withing the past quarter century. Were I interested in sending money to a person in Iran vs. a person in Canada, I would have more problems in the former case owing to "sanctions". I think we can safely conclude that the US cannot (in terms of US law) declare that "whatever acts of a foreign entity overseas offend the federal government shall be litigated as though the acts were committed within the proper jurisdiction of the US" (or, more simply, "the proper jurisdiction of the US government is the universe"). Congress has not yet passed such a law about extraterritorial pollution, so until it does, it cannot sanction overseas polluters. When/if it does, it presumably can, though enforcement is another (political) matter. | The IRS Criminal Investigation division is typically going to be the arresting agency, assuming that (1) the offense is treated as a criminal matter; (2) a warrant is actually issued; and (3) anyone actually sets out specifically to serve the warrant. It is usually the case, though, that the violation is handled as a civil matter. When it is treated as a criminal violation, the defendant and the Service often reach an agreement that eliminates the need for an arrest. If there is a warrant, though, any police agency could theoretically make the arrest if they happened across the defendant. But if it's a time-sensitive investigation -- if the defendant is expected to flee or destroy evidence, for example -- it's a safer bet that you'll see an actual warrant execution. In that case, you would have CI taking the lead, perhaps with assistance from other agencies. | 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. | While there are certainly statutory and procedural vehicles for sanctions, they are almost never requested or allowed when moved for, and are almost never imposed by judges. Something very severe needs to occur and not just your typical discovery violation ("speaking objections" during depositions, being late with responses, failure to cite to affidavits, affidavits citing conjecture rather than fact, et). It would have to be something quite serious....like misleading the court or directly failing to comply with a direct order or ruling on a motion. It is exceedingly rare. It is most seen in Federal Court. | It is unlikely that the US, or any government, would condone any kind of crime. The reason for this is that the law must be seen to be impartial and applied fairly to all those subject to it. What happens if tomorrow, the government decides they don't like you? It is possible that this type of activity, or activity amounting to it, would be sanctioned in specific, authorised cases. But the government throwing a lynch mob at anyone is a bad idea for order and a peaceful society. | If there is no reasonable suspicion of a crime having been committed or about to be committed, then there is no reason to seize you, and the Fourth Amendment "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". Even if a state has a "stop and identify" statute, reasonable suspicion is a minimum requirement for seizing your person, even temporarily. Texas is not a state with an obligation to identify statute. I would not expect the state to be very helpful, given the facts as you report them. There might be others, such as the ACLU, who may be happy to discuss the particulars of your case. The police need to justify a stop in court, and not to the person being seized. I don't know if there is any case law saying that a false police statement to a detainee ("No, I don't have a reasonable suspicion") precludes claiming in court that there was reasonable suspicion, but it should at least make the claim of reasonable suspicion less credible. They do have to have reasonable suspicion, and they do not have to tell you what that suspicion is. OTOH if they are just harassing bicyclists, that would be illegal. | 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. |
In the USA, how is a war officially ended from a legal standpoint? If Ron Paul became POTUS and wanted to begin undoing the Military Industrial Complex by first ending the officially declared "War On Terror", what would he need to do to officially do that? | There is no constitutionally or statutorily prescribed means of ending a declared war. One possibility is that the parties stop fighting because there was no reason to continue, and they sign a treaty (English and the War of 1812). Another is that one side stops fighting and surrenders to someone else (Rumania surrendered to the USSR though the US had declared war). Germany surrendered on May 7 1945, but hostilities with the US were not officially over until December 13, 1946 when Proclamation 2714 was signed by Truman. The core of the proclamation was Now, Therefore, I, Harry S. Truman, President of the United States of America, do hereby proclaim the cessation of hostilities of World War II, effective twelve o'clock noon, December 31, 1946 but he didn't even say who the other guys were. | 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. | Actually, the concept "right" means that it can be waived: you may exercise the right, but do not have to. If it is an obligation, you can't "waive" the obligation; but the right to free speech does not mean that you must speak, and the right to bear arms does not mean that you must bear arms. You may decline to exercise, or waive, a right. Sternlight 16 Ohio St. J. On Disp. Resol. 669 (2001) in "Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury Trial" partially addresses this (the focus though is on binding arbitration). One thing to note is that the Seventh Amendment does not appear to apply to issues in state court (it is a separate and fascinating question to wonder what parts of The Constitution are incorporated against states, and why). All is not lost for the constitutional question, we just need a different constitution. By the agreement terms, "This Agreement is governed by the laws of the State of New York". Therefore, New York's Constitution (Article 1 Sect 2) is also applicable: Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. Thus, the right may be waived. Waiver of a right to jury trial is not the same as waiver of the right to trial: what the agreement says is that litigants would have a civil bench trial, where the judge determines whether there was a breach. In New York, NY CPLR § 4102 allows parties to waive civil trial by jury (and unlike California), such waiver terms have been upheld, but the courts have recognized that there is a problem, so it's not always obvious whether such waivers in contracts are legal. | Since the US Federal government didn't try to pass any such law (nor would it have been politically possible in the period shortly before the US Civil War), there is no way to know with assurance how such a hypothetical law would have been addressed by the Supreme Court of the day, nor by the various states. Congress legally could have prohibited the importation of slaves after 1808, the constitution specifically grants this power. Congress legally could have prohibited interstate commerce in slaves. Congress could have repealed the Fugitive Slave Act. Congress legally could have imposed heavy taxes on the ownership of slaves. If heavy enough these could have been a de facto abolition. A series of Presidents could have appointed Justices inclined to overturn the Dred Scott decision (denying the possibility of citizen ship for most Negros, and denying that a "free" state could free slaves temporarily resident there). Congress could have passed laws requiring negro votes to be counted in federal elections. Various of the above hypothetical measures might have made slavery less economic, and thus less common, in time. Note that it is not likely that any actual Congress would have passed most of them. But I do not see how, absent a constitutional amendment, and absent a war, a simple Federal statute could have constitutionally abolished slavery de jure throughout the US. Lincoln's Emancipation Proclamation was legally justified as a war measure, a confiscation from those in rebellion. It did not affect loyal slave states, such as Maryland. And it was never seriously tested in court anyway. | 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. | Most of the implications here are political, not legal. For that, you'd have to ask Politics.SE. The law, however, is quite clear: If the President is alive, and "a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide" do not invoke the 25th amendment, the President would remain President and just not do their job in this case. Congress could presumably provide for a different set of people to validate the President's disability status, but in your hypothetical, this wouldn't happen due to a lack of consent from the Senate. The 25th amendment was created to solve this problem: it is the only solution to it. If it is not used, then there is no other means to remove a disabled-but-alive President. Most (all?) executive agencies can run themselves perfectly well day-to-day without the President's help, so nothing would be likely to fall apart immediately. There wouldn't be anyone to appoint new judges or other presidentially appointed officers, which would probably eventually become a problem. | There is no possibility of legally holding a country "to account" for an action. An individual could be legally tried for a crime (murder), and a country could via a political process be made to suffer the consequences if a leader performs some act (it need not be illegal). Germany, Iran and Russia have historically suffered certain consequences of actions held to be "officially sanctioned", and individuals such as Adolf Eichmann have been specifically punished; Fahad Shabib Albalawi and 4 others were sentanced to death for involvement in Khashoggi's murder. Punitive recourse against a country is always via political / military action. Khashoggi, specifically, was apparently a lawful permanent resident of the US, which is probably sufficient connection to the US for a suit based in the Alien Tort Statute. There have been various suits filed against individuals under this act, some of which succeeded, for example Filártiga v. Peña-Irala, 630 F.2d 876. An individual could be sued under the Alien Tort Statute, but a foreign government enjoys sovereign immunity (the US government has limited its liability on that grounds, but Saudi Arabia has not). His fiance might then sue some individual, but Saudi Arabia itself could not be "held to account". | This is known as a retroactive or ex post facto law. Such laws are explicitly forbidden by the US Constitution (Wikipedia reference), and are generally frowned on in jurisdictions where the rule of law applies, partly because it is difficult to prove criminal intent when your action was not at the time criminal. |
How to freelance in the UK without violating the terms of my visa? I am a non-UK student studying in the UK. I have a visa and everything is pretty good, but my visa states that I can work no more than 20 hours per week. I don't want to have any problems, so how can I freelance, for instance, and prove that I have worked not more than allowed? | If you are on Tier 4 (students on full-time degree), you have more restrictions besides the number of hours. One of this is no self-employment (which includes freelance and consultancy or creating your own company). | Is it legal? Yes. You can make just about any payment arrangements you like. You wouldn't be able to verify compliance, though, without some connection to the student's employer. The IRS won't tell you how much money a third party earned, or how much tax they paid, in a given year. Pretty sure they can't provide that info, which is why companies wanting to verify your income ask for copies of your tax returns rather than permission to get those returns. | Read it carefully. "Work additional hours as required by the nature of your work assignments". Does the nature of your work assignments require additional work hours? That's very unlikely. It may be that your boss wants you to do three weeks work in two weeks, but it's not in the nature of your work assignments that they take two weeks. If it's three weeks of work, then it is actually in the nature of your work assignments that it takes three weeks. It may be in the nature of a work assignment that once it is started it must be finished quickly. For example if you are a plumber, it may very well be that once you start a job and unscrew the first screw, that job must be finished. In that case, you can't go home after 8 hours and leave a job unfinished which could be a major problem for your customer. Are you in a similar situation? If your company is too tight to hire enough people to do the job, and deadlines will be missed if people work 40 hours a week, that is not in the nature of your work assignment - it's because your company is too tight to hire enough people. | Be very cautious about this! It depends on whether your visa is "single entry" or "multiple entry". From the US State Department: Depending on your nationality, visas can be issued from a single entry (application) up to multiple/unlimited entries. If you have a single entry visa and leave the US for Canada, you will NOT be allowed to renter the US from Candada. You'll have to return to your home country and apply for a new US visa. I know of grad students who went on a day trip to Vancouver BC from Seattle and were not allowed to re-enter the US from Canada. It was a disaster for them. | Isn’t this discrimination since nationals do not have to apply? Yes it is discrimination. But that does not make it illegal. In fact discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race). And in general, all of the countries in the world allow and enforce discrimination based on nationality; for example non-nationals will not be able to run for Head of State (and additional restrictions may apply). The EU members allowing similar rights to the citizens of other EU countries is the exception, not the rule, and once the UK stops being bound by EU treaties it can impose its own legal system on non-nationals. And while EU treaties give lots of rights to EU member-countries citizens, they still allow for discrimination based on nationality (for example you cannot run for Prime Minister or MP of Spain as a foreign EU resident). Isn’t the UK Government breaking the law? This could go against EU treaties, but the point is that the UK will no longer need to comply with them. is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing? No, the UK Government is not responsible if you do not like its laws to the point that it affects your health. Is there any ground for challenging this scheme legality in court? Unlikely. In any case it will not be because you are frightened by it, any challenge would be in the grounds that the government actions act against some other UK law. For example, if the decision to make such a list was made by the Executive but it contradicts some law approved by the Parliament. If this list does not contradict any law, then there are no grounds for challenging it. Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)? If you do not apply you will not have any evidence that you were settled, and the government could legitimately believe that you are irregularly in the country and try to expel you; you probably would have an opportunity to prove that you were settled even if you were not in the list but that could be way slower, more expensive, riskier and stressful than just registering now. Get this clear: that settled person list is to help you to show that you were a UK resident before Brexit and to give you the protections that are being negotiated between the UK and the EU for expatriates. Probably you could choose not to enlist, but it would work against you. | Can a district rescind an offer of employment? Yes. Any contractural offer can be withdrawn so long as it has not been accepted. You did not accept it, so the withdrawal is legal. Can they hire someone who is not qualified ... That depends on the particular law that mandates the qualification. As a general principle, anyone is allowed to work at anything unless there is a law that says “you cant do job X unless you have qualification/licence/accreditation/whatever Y.” So you need to actually read that law. Some allow a grace period for a person to do X while they get Y and some are outright prohibitions. And there are some things that people think require a specific qualification because everybody has one but there is actually no legal requirement. For example, I’m a qualified arbitrator, adjudicator and mediator. I need the qualification to work as the first one in australia and I it to work as the second in queensland but not new-south-wales but I don’t need it anywhere to work as the last one - most mediators have qualifications but they are not legally required. I am not a qualified lawyer because I don’t need to be to work as any of the above and, indeed, merely being a lawyer does not allow you to work as an arbitrator. … and rescind my offer of employment? The eligibility of the person they chose to hire has no bearing on their decision not to hire you. If they have hired an unqualified person then that is for the relevant regulator to deal with and has nothing to do with you. Are they not obligated to hire the most qualified applicant? No they are not. Employers have the discretion to choose the applicant they consider the “best”. And they can assess how your better qualifications weigh up against someone else’s past history with the organisation. Provided they do not consider things that they are not permitted to consider under discrimination law and that the process is not corrupt, they can weight the various factors how they wish. However, if an employer has stated that they will weight various applications is a specific way, then they have to do that. | This answer is limited to United States law. The situation in other countries is definitely different. Under United States law, the owner of a lawfully made copy of a copyrighted work has, as a right of the physical possession of that work, the right to the work's ordinary use. Licenses grant you additional rights such as the right to make derivative works, the right to make copies beyond what's needed for ordinary use, and so on. A pure license doesn't ask for anything in return, it just gives you new rights. Those rights may be conditional, but the conditions are just things you have to do to get new rights. They're not conditions imposed on any existing rights you had. A contract is an agreement between two parties. Both parties must agree to a contract for the contract to be enforceable. Contracts can take away rights you otherwise have. You don't need a license or contract to use a copyrighted work if you lawfully possess a copy of that work. Say you download a copy of a work covered by the GPL. You can refuse to accept the GPL license and you can still use that work. Why? Because no law prohibits you from doing so and there is no civil cause of action for using a lawful copy of a work under US law. But now say you want to give a copy of that work to your friend. This is illegal under US law because 17 USC 106 restrict that right to the copyright holder and there's no applicable exception since that's not part of the ordinary use. For a work covered by the GPL, the license offers to give you that right, a right you wouldn't otherwise have. It imposes conditions on you that are specifically in exchange for the grant of the new right. If you do accept the GPL, it functions as a contract. You got in exchange a right you didn't have before and if you don't comply with the GPL's terms, you don't have the copyright holder's permission to exercise those rights which is required under the law. By contrast, a click-through or EULA takes effect when you agree to it and such agreement is a condition for using the software. That's a pure contract and usually doesn't give you any rights you wouldn't have in the absence of such an agreement other than the use of the software. | Restraint of trade clauses are tricky. They are only enforceable if there is a legitimate interest which needs to be protected and only to the minimum extent needed to protect that interest. Therefore, you must have specific business knowledge (algorithms, code, customer information etc.), not general knowledge (stuff taught in schools or generally available) and preventing you working for a competitor is the only reasonable way of protecting it. If this is so then 6 months is not unreasonable. Assuming that the clause is valid then for you to take a job with a competitor is a breach of contract and you would be subject to all the normal sanctions including an injunction to stop and damages. Your new employer is not exposed as they are not a party to the contract, however, if you are forced to breach your new employment contract then they can sue you too. In both cases the employer has to initiate action and it may not be worthwhile. You can take the risk if you want but you should seek legal advice. |
Legality and liability of writing medical software by someone who is not a health care practitioner Is a person who is a non health care practitioner (NHCP) allowed to write and distribute software for use by NHCPs? If so, will the liability be any different than that of any other software? Let's take a simple example: say a software company wants to write an app for checking one's eyesight. A user will answer questions based on pictures shown on the screen and distance from screen etc., and will self determine their eyesight health. The software will contain a short warning that the installing user will have to confirm to have read, that it was written by a NHCP. Would this be legal? Could a user successfully sue the software company after a misdiagnosis by the software's fault? Assuming the fault is unintentional, of course. EDIT Perhaps I wasn't clear. I just wrote The software will contain a short warning that ... it was written by a NHCP. What I meant was more than that, that this software is not sold as an official "medical instrument" and should be treated as such. Much like alternative medicines are sold expressly for the treatment of certain ailments, but presumably do not fall under the medical category as long as they are clearly labeled as non-medicines. Would labeling the software as such relieve such software from the burden of being approved in advance by the FDA (as seems to be the case according to an answer below)? | You can write anything you want (basic First Amendment protections): the question is whether one would be liable for damage that arises from what you're written, or whether you can distribute what you've written. Distribution may be restricted, thanks to the Commerce Clause (hence FDA regulations, which figure prominently in the analysis). Most software writers are not medical practitioners, and vice versa, and what the software writer does is implement something described by a competent medical practitioner. It is logically possible that a med. practitioner might also try to write software (no problem) and distribute it (possibly a problem); or, a software writer might read up on something on Wikipedia and try to implement it (again, no problem) or distribute it (possible problem). Damages can be sorted into two categories, implementation errors and scientific errors, and having ruled out deliberate sabotage, we are left with negligence. If the software writer failed to use suitable care in writing code that sums a set of numbers, the software writer has been negligent. If the person purporting to have the qualified scientific knowledge mis-states the formula, that person has been negligent. It is possible for many parties to be negligent (the programmer failed to be diligent in understanding the software requirements; the medical professional failed to adequately explain what was required of the program). The FDA does regulate medical devices, and "device" is construed pretty broadly (condoms are non-exempt class 2 medical devices). There is FDA guidance on medical software which makes it clear that the device manufacturer shoulders the regulatory burden. Anytime you manufacture a tangible thing (which is within the scope of FDA regulation for medical devices), you have to have the thing approved. Many (most?) medical devices implement software, and are thus within the scope of FDA scrutiny. It is not illegal to write software that ends up being implemented in an unapproved medical device, but the unapproved medical device itself is illegal. It is reasonably likely that purported medical software (not a gadget with software build in) would be held to be a non-exempt device. To know if something is exempt, you would look at the exemptions list, and determine that your program (or thing) is not on or implied by anything on that list. The visual acuity eye chart is a class 1 exempt item, as is the manual toothbrush. There is no way to specifically look for things that are only software, or that contain software, so the search through the list would have to be guided by knowledge of the subject area. Canada is helpful in explaining when software is a regulated medical device. This is non-probative w.r.t. US law but gives you an idea what is likely to be considered a "device". Under Canadian law, the software would be clearly a regulated medical device. The FDA has a power-point that attempts to say something about the matter which warns you that you are on your own and "You will need to go back to study and use the source regulatory documents" to make the determination. Eventually, slide 13, they hint that if you intend the software to be used in diagnosis, prevention, or treatment, then it is a device (so, yes, the aforementioned software would be a device, and probably not exempt from regulations). General purpose software (word processors, web browsers, communications software, etc.) are not indented to be used for a regulated purpose, although they can be so used, and thus they are probably not subject to FDA regulation. There is a murky relationship between regulatory approval and liability. Being approved by the government does not convey immunity to negligence suits (see Wyeth v. Levine), but being approved can have weight in determining whether a party was negligent, since regulatory scrutiny ostensibly filters out errors that could have been caught. Federal approval does not preempt state tort law, as the court ruled. Regulations pertaining to medical devices hold for anything that qualifies as a device, and is not defined (negatively) in terms of disclaimers. If you sell a medical device but label it saying "this is not a medical device, it is not created by a competent medical practitioner", that doesn't make it not a medical device. Unfortunately, what counts as a regulated device is based on intended use, and there is an obvious connection between disclaimers and intentions. Taking MS Word as an example, MS does not as far as I know say that "Word is not intended to be used as a medical device". It can certainly be used to diagnose, teat, and prevent medical conditions, but so too can a screw driver or pretty much anything else. The number of non-medical uses vastly outweigh the medical uses, so it would be deemed not to be a regulated device. A program which prescribed a set of prayers to be uttered in case of illness would be subject to First Amendment override of any FDA regulations. Quack medical devices are prohibited (that's why there is regulation of devices in the first place), but discerning the fine line between permitted actions based on nutty beliefs and forbidden actions is not easy. The FDA also has guidance on the distinction between "Complementary and Alternative Medicine", which does not clearly state that, for example, a software reading of your cakra-energies based on a computer program's questions is not a medical device. They do say of mind-body medicine (mentioning yoga, biofeedback and tai chi as examples) that "CAM practices in this domain would not be subject to our jurisdiction under the Act or the PHS Act", but then say "any equipment or other products used as part of the practice of mind-body medicine may be subject to FDA regulation, depending on the nature of the product and its intended use" (hence a yoga-enabling program may be subject to regulation). | 1) I saw that no where during registration you actually tell what your work does, you only fill up details, how exactly is it protecting you if you don't specify? For example I have a computer program/website that do something, how exactly the copyright protects you if you did not specify about it? A copyright protects a particular single expression of an idea and versions that are derived from that particular expression. When you copyright software you have to provide approximately 50 pages of printed code so as to make it possible to distinguish your code from someone else's and you generally deposit a full copy with the Library of Congress. The ideas in the computer program are not protected. You only protect the exact language of the code in the computer program and other programs that use that exact language as a starting point. If someone reverse engineers a way to achieve the same process or outcome with different code language (or even comes up with exactly the same code language without ever looking at the language used in your code) then their software does not infringe on your copyright. To protect the ideas in a computer program you need a patent. 2) If I am a non-us citizen, do I need to select in State "Non-US", or leave it blank on "Select"? Because it allows me to complete registration with either. State "Non-US" refers to where you are located, not to your citizenship. If you are located outside the U.S., then you select "Non-US" and if you are located in a U.S. state, but are a non-citizen, you select the state where you are located. The answer does not affect the validity of your copyright. It is used for economic statistics and to determine where the copyright office should locate its own offices to be maximally useful to the public. | This is "Topic #601" in various ForwardHealth interpretative statements about BadgerCare Plus and Medicaid. The last 3 paragraphs say: When commercial health insurance plans require members to use a designated network of providers, non-network (i.e., providers who do not have a contract with the member's commercial health insurance plan) will be reimbursed by the commercial health insurance plan only if they obtain a referral or provide an emergency service. Except for emergency services and covered services that are not covered under the commercial health insurance plan, members enrolled in both a commercial health insurance plan and BadgerCare Plus or Wisconsin Medicaid (i.e., state-contracted MCO (managed care organization), fee-for-service) are required to receive services from providers affiliated with the commercial health insurance plan. In this situation, providers are required to refer the members to the commercial health insurance plan's network providers. This is necessary because commercial health insurance is always primary to BadgerCare Plus. BadgerCare Plus and Wisconsin Medicaid will not reimburse the provider if the commercial health insurance plan denied or would deny payment because a service otherwise covered under the commercial health insurance plan was performed by a provider outside the plan. In addition, if a member receives a covered service outside their commercial health insurance plan, the provider cannot collect payment from the member. If we take these statements by the Dept. of Health Services as correct interpretations of the law, then it seems that their interpretation is correct: "providers are required to refer the members to the commercial health insurance plan's network providers" (you as a patient have no choice) and "the provider cannot collect payment from the member" (they are encouraged to refer you to a network provider, because they are prohibited by law from taking payment from you). If you had received the services from the provider and not mentioned any insurance, this would have been treated as a normal doctor-patient case, and they would not know that the state would prohibit them from receiving payment from you. By going through the motions with insurance, I regret to say that you exposed them to relevant knowledge which they cannot take back or deny. The fraud would be between the provider and the state, via the provider's relation with this program. That does not endorse the DHS legal interpretation, but since they are the ones who wrote the regulations, it is fairly likely that (by definition) they got it right. | Under your proposal, the author cannot effectively use the software at all, much less sell his creative efforts. The EULA clearly states that copyright is automatically transferred to the vendor when a document is created. The author gets started, writes "It was a dark and stormy night" then has a moment of writer's block, saves and closes, takes a walk, then tries again. The author has transferred copyright in the work to vendor, and needs vendor's permission to make revisions. So you have to tweak the EULA to grant automatic permission to author to create derivative works (revisions), and to distribute. A more effective strategy would be to impose a revenue-sharing formula on any commercially-exploited work created using the software, rather than attempt to directly seize the intellectual property. The CC "NC" license attribute is a distant version of what you are looking for - it prohibit any money-making use of the software. What you would add to that is a condition that the software can be used commercially, provided a certain compensation be rendered. You would of course have to be very clear in advance about what was actually agreed to. | You can license the use of your IP only for certain uses, for example (most commonly) "non-commercial". The general template of permission is "You have permission to ___ as long as you ___". What the user is permitted to do, in your scheme, is something along the lines of "only distribute the output in this manner", or "not distribute code developed with this tool anywhere else". It's up to you to prove that someone violated that condition, if they did. | Late to the party, but I'll answer anyways. In general, providers have a lot of wiggle room when sharing information with parents, on condition that the patient hasn't explicitly objected despite having opportunity to do so. HIPAA allows the provider to make a judgment call on whether such information can be shared without explicit consent: Quoting Title 45 § 164.510 : (i) Obtains the individual's agreement; (ii) Provides the individual with the opportunity to object to the disclosure, and the individual does not express an objection; or (iii) Reasonably infers from the circumstances, based the exercise of professional judgment, that the individual does not object to the disclosure. HHS does discuss disclosure to family members in their FAQ : A covered entity is permitted to share information with a family member or other person involved in an individual’s care or payment for care as long as the individual does not object. A parent of a child who has just turned 18 is likely still somewhat involved in the child's care, so, absent either an objection or a reason to believe the child would object if asked, sharing is probably not a violation. | I'm wondering whos responsible for this code if people start using it? The user. Can the people using it that think its under GPL in any way get in trouble for it or be made to remove it from their projects? Yes, they can be sued (successfully) for copyright violation. It’s not enough that you think you have permission from the copyright holder - you actually have to have permission. The law places the onus on the copier to seek out and get permission from the copyright holder. In theory, someone deceived in this way could sue the repo poster(s) for misrepresentation, however, there are practical issues about finding them, having them in an accessible jurisdiction and if they are judgement proof. Copyright law was created to protect physical books and paintings - it doesn’t really fit with digital methods of reproduction but it is the law. It doesn’t matter that complying with it can be hard bordering on impossible - comply with it you must. | The main US law that governs patient access to medical records is called HIPAA, the Health Insurance Portability and Accountability Act of 1996. Here is a brief summary of the patient record provisions from the federal Department of Health and Human Services. There are further details, intended for providers, here. In general, you are entitled to receive a copy of your records, or to have them sent to another doctor. But they can charge a reasonable fee to cover the costs of copying and mailing the records. I am not sure how this applies to a physical model: whether the doctor would be required to send the original or to make a copy (which could be expensive), or whether it would be considered a "record" at all for the purposes of this law. |
Car broke down within 30 days of purchase. Recourse? I live in Omaha Nebraska. I financed a car (2001 Mercury Sable) through a "buy here pay here" lot located in Council Bluffs Iowa. The car was sold "as is, no warrenty". The car was acquired less than 30 days ago. Exactly 16 days after purchase, the car will not start. I believe the starter is bad. Is there any recourse I can pursue? The Iowa lemon law does not seem to cover previously titled vehicles. Are there any other regulations that would allow me to receive some compensation or perhaps a replacement part or vehicle? | An as is, no warranty sale means you have no legal recourse against the dealer. | It is a principle of equity (of which damages are a part) that you are not entitled to be enriched. Let's say that the first collision did damage costing $500 to repair. If after the second collision the cost of the repair is now $700, the first driver is liable for $500 and the second for $200. That said, let your insurer sort it out - that's what you pay your premiums for. | I am unfamiliar with a "perpetual contract" and that phase does not appear in any reported appellate court decision of the State of Oklahoma. However, usually unpaid utility bills do constitute a lien against the property that is enforceable against a subsequent purchaser, which has the same practical effect. This kind of obligation is also sometimes described as an "encumbrance". Usually, in an arms length sale of real estate through real estate agents, a title insurance company is hired and is responsible for determining if there are any outstanding liens, pro-rating utility bills, pro-rating property taxes, etc. at closing. If the title company fails to find a lien and there is one, the title company is responsible for paying off the lien that it failed to find (although it can often force the previous owner to indemnify it for the payment it has to make). It could be that since water service was not currently being delivered, that the title company did not search in the manner that it should have to find this lien, or it could be that there was no title company used and so no one ever checked. Also, if the property was conveyed with a "warranty deed" such a deed contains a promise from the seller that there are no liens or encumbrances not listed on the face of the deed that have to be paid, and the seller has liability for breach of the warranty of title. But, if the property was conveyed with a "quitclaim deed" there is no such warranty. | For starters, you can't "use the antitheft law" because you are not a criminal prosecutor. I'm not sure that the criminal statute would support a civil action for replevin, at least until you've paid all the fees that the towing company is explicitly authorized to charge and they still refuse to release the vehicle. And if that was the case, you wouldn't need the criminal statute — the title to your vehicle should be sufficient. See Baltimore County Code (2003) §18-2-203 for the police department's authority to remove and store cars with expired registration "by contract." See also §§ 21-16-111.1 et seq. and §§21-16-123 et seq. regarding police initiated towing and licensing of towing companies. The latter set of statutes and the fee schedule fixed by the county are available here. | California Vehicle Code section 4456 (c), operative until January 1, 2019: (c) A vehicle displaying a copy of the report of sale may be operated without license plates or registration card until either of the following, whichever occurs first: (1) The license plates and registration card are received by the purchaser. (2) A 90-day period, commencing with the date of sale of the vehicle, has expired. The car is not required to have license plates right after it is purchased. Most dealers will put a sign with their name and/or logo in place of the license plate. If the car has been without permanent plates for more than 90 days, and it hasn't been sold again, then it is probably in violation of this law. As of January 1, 2019, the law will change, and the dealer will provide a numbered temporary plate. This plate can only be used until the permanent plates arrive, up to a maximum of 90 days. | You're missing some pretty important details in describing the facts of this case. The most important of which is: What were the agreed terms upon which Alice obtained possession of the car prior to paying? Your description says: Alice takes the car and doesn't pay. If that's literally true, then this case is both criminal theft and the tort of conversion — not breach of contract. Since the remainder of your question references a breach of contract, then I have to conclude that the fact as you stated it is not literally correct and there is some important missing detail about the terms upon which Alice was in possession of the car when she crashed it. So, I will have to invent some scenarios that would fit two other facts you describe: The jury awarded Bob $5,000. The jury found Alice to be in breach of contract. The following are the scenarios I can think of that would match the facts (as I understand them and speculated where important details are missing from the question). Maybe this is a small claims court and the damages are capped at $5,000? I never heard of a jury trial in small claims court but I guess it could be possible. Or maybe it was actually a judge and use of the term jury was careless or otherwise inaccurate? Maybe the terms under which Alice was in possession of the car when she crashed it put the parties in position where they effectively shared liability or risk of damage to the car? Like maybe Bob (or both parties) was/were required to carry insurance on the car while Alice was "test driving" it. I only use the term "test driving" as a placeholder for whatever she was doing with the car prior to paying for it which is left unclear by the question. Maybe Bob was found to have contributed to the breach of contract by something he did or didn't do. Similar to the above speculation about insurance. All this would be much easier to analyze if we knew how and under what terms Alice came to possess the car. Maybe there was only $5k of damage done to the car? Or, alternatively, the car was only found to be worth $5k and, for whatever reason (again, which we can not fully analyze given only the partial set of facts presented) the liquidated value of the car was the basis for the damage award and not the contracted price. (Consistent with @jimsug's comment.) I can easily imagine a scenario where Bob and Alice are close friends or family so the entire transaction is handled very loosely and informally and Bob let's Alice drive the vehicle while she is gathering the money to pay him. In this case, the jury might decide Bob shares the liability with Alice since the terms of the sales contract did not transfer the risk of liability to Alice during the time she was driving prior to payment. | If you are in the habit of paying people just because they ask you to, then I say you owe me $500 - if you want to pay I'll send you my wire transfer details. This is a facetious way of making a very simple point: You don't owe people money just because they say you do. If someone claims to be owed money by you, the legal onus is for them to prove both their legal entitlement and the amount. Normally, people agree that they owe money and that's enough, however, if the debtor disputes the debt then the creditor has to prove that it is owed: the debtor does not have to prove that it isn't. Their legal basis must come from either a contract or the tort of trespass. For the former they must prove that a contract exists and that you breached a term of it. For the latter they must prove that you committed the tort. In both cases, they are only entitled to recover their costs (including loss of profit) that your actions caused. As they are not a government they have no right to punish you with a fine: if they are asking for more than damages then this is a penalty and void. I am unaware of the consumer protection laws in Canada but presuming they are similar to Australia - a disputed debt is not a debt. It only becomes a debt when the dispute is resolved, usually by agreement or a court. Only actual debts can have enforcement action taken including such things as being pursued by a collection agency or being recorded by a credit reporting agency. In short: this is a scam. In 2012 I went through a similar process. This is the letter I sent: We are the registered operator of motor vehicle XXXXX and have received your letter dated 6/6/2012 for payment of car parking penalty number XXXXX that you allege we incurred on 6/4/2011. To the extent that we entered into a contract with you, which is denied, please take this letter to constitute a written appeal in accordance with the appeal process described on your website and/or in your documentation. We dispute incurring the alleged debt and we dispute entering into any contract with you. We will defend any action brought against us. You must cease all efforts to collect this alleged debt whilst it remains in dispute, in compliance with National, ACCC and NSW laws and guidelines. Except as specifically outlined herein, we are requesting that you cease all contact with us about the alleged debt. Any further contact should be strictly in conformity with the ACCC Debt Collection Guidelines (refer http://tinyurl.com/parking-01). Your contact with us should be limited to: acknowledging our letter and providing us with any documentation that we have requested informing us that you have ceased collection efforts on the alleged debt stating that you are taking a specific action in relation to the debt such as commencing court proceedings (note that you can only threaten court proceedings if you intend to start them otherwise you are in breach of the guidelines - refer page 33 "you must not threaten legal action if the start of proceedings is not possible, or not under consideration, or you do not have instructions to start proceedings"). You must also advise any debt collectors or lawyers you have collecting this debt to stop. If you or your agents continue to attempt to collect this alleged debt, we will complain in writing to the ACCC, to NSW Fair Trading, and to the car park owner (and if we receive a further letter from your lawyers, we will complain to the Legal Services Commissioner in the lawyer's home state). Please send us within 7 days: Confirmation of whether or not you still hold us responsible for this alleged debt. If you still hold us responsible, we require you to properly articulate the facts and matters on which your claim is based. Please forward us the following particulars: A copy of the contract we are alleged to have entered into. Photographs of any signs that need to be read in conjunction with the alleged contract. Details of the actual offence you are claiming. e.g. failure to buy ticket, expired ticket, parking in no-standing etc. As well as the usual particulars of date, time, precise location with the car park and other facts and matters giving rise to the alleged breach of agreement. An itemised breakdown of the debt you are claiming and details on how it was calculated. Show separately legal costs, court costs, administration costs, costs associated with identifying us as the car owner, patrolling costs and a breakdown of any other costs not already mentioned. Pursuant to the Privacy Act, a copy of all photos you have of our car and/or us. Indicate the date each photo was taken and the name of the person who took the photo. And forward us any other data that you hold on us that the Privacy Act requires you to disclose. The basis on which you allege that we ware a party to the agreement alleged to exist; Proof that the alleged debt was incurred by us. The name(s) of any lawyers or solicitors who received payments pursuant to any clause in your terms and conditions. Please show the amounts and dates on which these costs were incurred, and the dates when these payments were made. Please itemise the work that such lawyers or solicitors performed for you, and indicate which clause in your terms and conditions allows you to hold us liable for such payments. A copy of any agreement that the car parking company has with the owner of the car park which covers the handling of disputes and appeals. Indicate the amount of money the car park company would have been paid had we entered into the alleged agreement with it, and if the alleged terms and conditions had been followed to the company's satisfaction. (In other words, how much money do you normally receive for a car to park in your car park for the period of time we are alleged to have parked there for). The contact name, postal address, and phone number of each of the following: the car park owner, the car park manager, and the car park operator. A copy of your Appeal handing procedure. As well as setting out what factors are taken into account, state who is the judge or arbitrator and whether they are independent and any other relevant factors to the Appeal. In addition, please give us disclosure of any arguments being put by yourselves on this matter in the Appeal so that we might reply to any new issues which are raised. If you decide to dismiss our appeal, please send us the full reasoning in relation to each of the specific points raised in our letter. The name and address of the person you allege was driving our car at the time you allege our car was parked in your car park. If you are alleging an agent authorised by us was driving our car, please confirm this in your response and forward us a copy of the agency agreement, along with the name and address of the agent. We put you on notice that should you continue this claim, we will issue an application, seeking orders that: Any request for a statutory declaration or request from you to prove in anyway that we do not owe this debt is misleading or deceptive conduct, because you are not a government agency and that the burden of proof rests with you as the person who claims the alleged debt. The amount claimed pursuant to the alleged contract amounts to a penalty and therefore void at common law. Alternatively, the amount claimed is claimed pursuant to a consumer contract within the meaning of the Australian Consumer Law and that the amount claimed is an unfair term within the meaning of section 23 of the ACL and, accordingly, is void. Finally, this debt remains in dispute until we advise you in writing that we owe this debt. I received one further piece of correspondence which didn't address any of the things I asked for and which I ignored and that was the end of the matter. | Landlord-tenant laws are state-specific, and given the number of states it's impractical to scan all of the laws, but based on a reading of a handful of such laws I doubt that there is any law requiring landlords to pay the oil for a rented house. (The matter would be different if there was a multi-unit building with no individual control over temperature, thus pooled fuel usage). It's not clear to me what you assumed the agreement means, where it says "N/A". Perhaps you believed at the time that the place had a different heating system, and you relied on that assumption. In that case, you might be able to go to court and have the contract voided, and you could pick another place to live. If the "options" are specified so that some things are assigned to tenant, some to landlord, and some are N/A, that would especially lead to the reasonable belief that there was no oil heat in the house. But if the only indications were "landlord" versus "n/a", then you could interpret "n/a" as meaning "not the responsibility of the landlord". Analogously, if the agreement only lists "tenant" and "n/a" then a reasonable interpretation would be that this means "the tenant pays" versus "the tenant does not pay". This reasoning would also have to survive the alternative interpretation that the tenant pays for everything, except that n/a means "there isn't one of these". In other words, the meaning of the term might be determinable from the overall context of what's in the agreement. Since the house does not come with a full tank (as with car rentals), the question of what to do with the residual oil at the end of the lease should also be specified. Unlike gas or electric, you're not just paying for actual consumption, you're paying for potential consumption, and you would have an interest in the remaining half-tank at the end of the lease. You could just walk away from that investment (pumping it out and taking it with you could be illegal, since the stuff is kind of a contaminant), or you could have an agreement where the landlord buys the oil back from you, but that should be specified in the agreement (and I assume it isn't). This kind of consideration could support a claim that you reasonably believed that there was no oil system (if there were, there would be some term relating to your interest in the residual oil), or even a belief that the landlord would pay the cost of the oil (since he ultimately gets the remaining oil at the end of the lease). You attorney (hint) should advise you how to approach this. |
Does selling certificates from Let's Encrypt violate their ToS? A company I (unfortunately) worked for in the past is selling Let's Encrypt certificates for about 10€/month. I don't need to tell you that these certificates are free for everyone. The customers are not getting any information about what certificate they are buying. Is it against the ToS of Let's Encrypt to do this? | According to Josh Aas, Internet Security Research Group (ISRG) Executive Director, (the umbrella 501(c)(3) for Let's Encrypt): "It is not against our terms to charge for services using our certificates, though we'd strongly prefer that HTTPS just be part of every offering as a default with no additional fees." My host sells SSL letsencrypt certificates - Help - Let's Encrypt Community Support That said, what your old company is doing is charging for their time and expertise (aided possibly by their own automated software they developed) to install SSL certificates for their own webhosting customers on their own servers. The company is not reselling the SSLs; they are selling the service of installing the certificates. It's not easy to install and automate the updating of 90-day SSLs from Let's Encrypt. So what your old company is doing is making it easy - for a fee - for their customers to use a somewhat difficult to use free service with the rest of their paid webhosting. The customers are not getting any information about what certificate they are buying. That could be. Check the TOS and information that each customer gets when they use the webhosting service with an SSL from Let's Encrypt. Many customers may only be concerned with if the SSL works, or not. And I'm sure the webhosting company does not divulge all aspects of their services to their customers, especially concerning security of their webservers and other business systems. | You are framing it wrong. It is not that "they have put a barrier" to public domain information, it is that they have added an additional source of that information. The new source has a barrier, yes, but that does not prevent you from accessing the same information elsewhere. If you own a copy of some public domain data, you are not allowed to prevent other users from accessing other copies (by claiming copyright infringement or the like); you cannot even prevent people from doing copies from the copies you did provide them. But you are not forced to allow other users to access your copy. Consider the logical conclusion if that were the law. The moment that you downloaded some public domain file into your computer, you would be forced to give access to your hard disk from the internet, isn't it? Would you need to leave your home door open if you happened to have a printed copy of the text there? Of course, there is a need to discriminate between "public domain" (without licence) and "not public domain but open licence" (BSD, CC, GPL, etc.). In the later case the licence could be tailored so that the work could appear in archive.org but that it would be illegal to provide it with the business model of Academia.edu1. But that would be possible only for works not in the public domain. 1 To be decided by a judge on the basis of the wording of the licence and jurisdiction. | You may have issues if you take their content wholesale. Even if they freely distribute them, they still retain copyright. As such, they absolutely can claim copyright. Whether they will or not is another question. Your best bet around this is Fair Use doctrine. You can take a part of their work (e.g: a single question) and do your video based on how you work out your answer, with your video mainly focusing on the 'working out' part (thus satisfying the 'educational purposes' part) | Don't get hung up on unauthorized resale. That only prohibits unauthorized resale. Authorized resale is ok. From http://www.justice.gov/usam/criminal-resource-manual-1854-copyright-infringement-first-sale-doctrine: The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction. | A more general version of the question, as far as I can see, is "Is Google Drive legal?". I can create an account and upload files to Google Drive, and I can open them from the cloud using various interfaces. I can directly open only certain files types, others I have to download to the device that I'm using in order to open the file. There are various file storage systems that allow this, most or all of which seem to use some sort of system of password access, file-access permissions and encryption to block access by unauthorized individuals. All systems seems to allow "sharing" of a specified file. Google and colleague escape liability by complying with 17 USC 512 aka the DMCA safe harbor provisions. Basically, they don't know, they don't select uploads, they have a removal procedure, they don't know that the material is infringing, and they "are not aware of facts or circumstances from which infringing activity is apparent". There is a chance that you would be sued for inducing copyright infringement, see MGM Studios, Inc. v. Grokster, Ltd, specifically We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties You describe a situation that is unlikely to be found to constitute inducement to infringing, instead it is "enabling possible infringing", and mere possibilty of doing something bad with a tool does not make you liable for selling a tool, under current US law. An eyebrow would be raised, though, as to why this service only allows ebooks to be deposited. | This would not be "legal jeopardy" per-se, really the only remedy that Stack Exchange would have in a case like this would be to ban both accounts. It would be different if you caused SE some kind of monetary/reputation damages to the site itself. From SE's Acceptable Use Policy: Identity Theft and Privacy. Users that misleadingly appropriate the identity of another person are not permitted. It seems your described scheme would violate that term. But this isn't a legal problem, just an operational one. You aren't violating any law (unless there are local laws against this) by paying somebody to "be you" on SE. The most that this would earn you and your cohort would be a ban and probably removal of the contributions. | VirusTotal is no different than many internet companies which operate with user-supplied content (i.e. Facebook, Youtube, etc.), and they are no different in the way they protect themselves with a TOS that outlines all aspects of their use of any material contributed or licensed or sold. Their Terms of Service states that users must own the copyright for what they upload and give VirusTotal a license to use it and relicense it and profit from it. VirusTotal uses the "safe harbor" clause of the DMCA to limit their liability for illegal uploads and provide a recourse for users who claim a copyright violation of uploads. And VirusTotal clearly seek to limit their liability for their own service in the case of false positives by standard clauses that claim they "do not warrant or guarantee that the services are accurate, reliable or correct." They're really no different than many internet companies; read the Terms of Service. It's a legally binding contract for all users, though some jurisdictions may limit some aspects of it. | 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. |
Can the POTUS really pardon via tweet? If so, what would one actually look like? Is it true that the POTUS can make an official pardon at any time via a mere tweet? If so what would the tweet need to have/not-have to qualify as a legally legitimate pardon? For example, if the POTUS wanted to pardon Snowden, would a tweet like "I hereby pardon Edward Joseph Snowden of his crimes against the United States of America." (or whatever) actually work? Would it actually work in court? | Art II, Sec 2, Cl 1 of The Constitution says of the president "and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment". The Constitution does not state any further restrictions on the presidential power, and there are no statutory limits, because, as observed in Ex parte Garland, 71 U.S. 333 The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control. Accordingly, presidents have written pardons on and with numerous different writing instruments. Insofar as there are no constitutional restrictions beyond the aforementioned, it is not required that a pardon be signed, or that it be on a tangible semi-permanent medium. It is impossible to know what such a pardon tweet would look like, beyond the limit on length. The one place where a presidential signature is required is under the Presentment Clause, that when presented with a bill that passed the two houses of Congress, "If he approve he shall sign it". Such a signature need not be actually written by the president, it may and often is written by an autopen. The question of the legality of autopen signatures for bills has not been presented to SCOTUS, but the Department of Justice has issued an opinion (July 7, 2005) that it is legal. I have failed to locate a repository of presidential pardons (the actual documents), so I do not know if, so far, all presidential pardons were written down and signed, though I would expect it to be so. The Arpaio pardon was signed (or auto-signed), likewise Obama's final mass-pardon on Jan 17, and previous Obama pardons were, but pre-Obama, DOJ does not provide any document. | 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, why not? It happens all the time. Usually the witness will just say, "I am not sure" or "I don't remember, exactly". Also, if Bob is the only witness, how would anyone prove that he was committing "perjury"? In the case of an uncooperative or dissimulating witness, Judges sometimes can hold them in contempt of court, but it is pretty rare. In general, the court has to find "beyond a reasonable doubt" that the witness is refusing to testify honestly. (See "Federal Grand Jury Practice and Procedure" by Paul Diamond) It depends very much on the situation. Note that just trying to act "drunk" would not be a good idea, because that is contempt of court. | Legally you face no problem. The section 66A of the Indian IT Act, which used to be previously misused for penalizing anyone who dared insult a politician, has been struck down as unconstitutional by the Supreme Court of India. But the police could still detain you for 48 hours (legally) without giving any grounds; they are required to do that, but the police are seldom held accountable. The supporters of the said politician can vandalize your home and office without fear of legal action. I am not a lawyer. Whatever is posted above is my opinion and data that I believe to be true to the best of my knowledge and resources available to me. Please contact a lawyer for professional advice. | Probably not There's a difference between knowing DeJoy is guilty, and proving he is guilty. The first is a matter of your personal views on epistemology; the second is a matter of law. The statute says an official cannot use "his official authority for the purpose of interfering with..." In other words, in order to charge DeJoy, the government needs evidence that he is making these changes for the purpose of interfering with the election. According to news reports, DeJoy claims his purpose is legitimate: To balance the USPS budgets. He claims the PO is losing so much money that drastic cuts are required unless Congress increases funding. Given that the USPS is running a deficit, it will very hard to prove that DeJoy's explanation is just a smokescreen, that his real purpose is to screw up the election. So, unless there is a smoking gun, it seems likely he would not be charged, let alone found guilty. Note: Edited for clarity in light of comments | It doesn't really require anything beyond your say-so that it is what you say it is; that would be enough to satisfy the requirement for authentication. From there though, as with any evidence, it's going to be up to a jury to decide how much weight to give the evidence. So the more you can show them to prove that the record is real -- and to knock down any questions the opposing party will raise -- the more likely they are to believe it. So if you just bring a printout that looks like it could easily have been forged, the jury may be thinking about that. If you can bring in a data forensics expert to say the document couldn't have been faked, that's probably going to help. Addendum: As a practical matter, I wouldn't expect this to be much of an issue. Unless you're dealing with a savvy opposing party, the authenticity of e-mails seems to be generally assumed. Courts (1) generally assume that parties aren't perpetrating frauds; and (2) are generally run by judges with little to no technical savvy, who don't realize that one could forge an e-mail, let alone all the different ways it could be done. I've personally entered countless e-mail printouts without them being questioned, even though either party could have just gone down into the e-mail thread and changed what the other side had said earlier in the conversation. To avoid the issue, though, it might be that sending the e-mail to a Gmail account would elimimate the question. | First, read the definitions of defamation and libel be sure you understand them: Defamation | Wex Legal Dictionary | Cornell. Yes, posting to Twitter and Reddit is publishing, and people can post provably false facts on those services and defame someone in a civil law sense. But Section 230 of the Communications Decency Act (Electronic Frontier Foundation) mostly protects those services from defamation claims based on statements made by users of such a service. (Things are different if the case is criminal as a result of clear threats of violence, terrorism, etc.) ...what are the steps for them to exact damages in a civil court case? Find a lawyer, convince him/her to take the case, and file suit. if you don't know the person's real name, your lawyer will have to sue "John Doe" and point that out in the suit (and subpoenas) with the alleged Twitter handle or Reddit user name. How would a person compel Twitter/Reddit/etc to disclose the ISP information on their account? Read the various legal aspects of each service, i.e. Twitter Legal FAQs and User Agreement - Reddit and others. Your lawyer can explain that you can only try to compel them to disclose the IP and the ISP used with a subpoena during your lawsuit. How would a person compel an ISP to disclose the subscriber information (address, name) on the IP address? Since most ISPs protect their customer data, you will probably have to subpoena the ISP during your lawsuit. But your ability to do this can depend on if the ISP is a private company or a government entity, such as a university. State laws may come into play. Is obtaining the ISP subscriber's information enough to bring a lawsuit against them? Would they able to argue they didn't post the messages and bear no liability, even if it originated from their network? If it originated from an open wifi hotspot, would the proprietor bear responsibility at this point? Yes, you can sue an individual with such information; but there's no guarantee you'd win. Sure, because they can claim anything, such as someone else was using their computer or IP. No, owners of hotspots are generally not liable, and they protect themselves with TOS you agree to when you use the hotspot. Can the extensive legal costs of pursuing the case to it's conclusion be added to the damages sought easily? Legal costs can possibly be added, depending on jurisdiction. But seeking damages and actually winning them through a jury verdict are completely different things. | In this specific case and location, the precise location of the incident was explicitly made a public space via state law not too long before this actual event. They therefore most certainly have no right to privacy. What is interesting to me though is the other side of this, does someone have the right to record others in public spaces, or is it simply not illegal? For instance if I non-destructively and non-violently "jam" your camera by shooting a low-power IR beam at your lens, have I abridged a legal right of yours? I don't think it would be illegal to do this. I am not even positive its against the 1st Amendment. The 1st Amendment relates only to the dissemination of information, not the collection of it. The Constitution doesn't seem to compel the gov't to make information available, or even to make things/events/spaces observable. The various "sunshine" laws after-all had to be enacted, it wasn't part of an interpretation of the 1st Amendment. To put a finer point on it, is recording events in public spaces legal or merely lawful? |
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