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Is using video games to train computer AI considered fair use? Consider a scenario where I'm thinking of building an automated driving system for my own learning, I use driving simulation video games to aid a specific computer vision module as a test bench since I don't have the financials to actually hire a fleet of vehicles and land. Is this considered fair use? If later on I'm successful in building the system and I want to commercialize it what legal issues can arise? What if I decide later on to use portions of the software for another commercial product? | It's not fair use. Fair use is when you do something that normally only the copyright holder can do. Playing a video game is the ordinary, intended use of the work. In the United States, ordinary use is not protected by copyright. 17 USC 106 sets out the rights protected by copyright. The include copying the work, producing derivative works, distributing the work, and so on. None of these are ordinary use. Someone could perhaps argue that you are creating a derivative work. I doubt that argument would work because you are not taking any protectable elements from the work. But if anyone did argue that, it would make sense to also argue that if that's so, your use would still be covered under fair use because it's transformative, does not substitute for the original work in any way, and takes very little of the work. | You can’t use pictures You can’t use any of these, nor can you make your own art that is derived from these. That’s copyright infringement and there is no fair use defence because you are specifically trying to do something Nintendo already does. You can reproduce that stats of the Pokémon because stats are facts (even if they are facts about fictional things) and facts are not protected by copyright. | The web-browser game was copyrighted the moment it was created by the individual. It did not need a copyright notice to be copyrighted, or a TOS to inform you of copyright. The individual was fully within the law to claim infringement and demand you stop disturbing your mod as an unauthorized change to their game. They should have had a TOS up when they started distributing the game, but that's their choice. The developer could - or have their attorney - send their own legal "takedown notice" of infringement directly to you rather than Tweet about it or approach Google. Google's takedown and your "copyright strike" is different than your original copyright violation and involves Google's TOS - Google Chrome Web Store Developer Agreement | Google Chrome - regarding copyright violations of apps and code under distribution. By your use of the store, Google reserves the right to remove your extensions when there are ...violations of intellectual property rights, including patent, copyright, trademark, trade secret, or other proprietary right of any party,... And, the original game being free and your mod being free rarely matters in copyright law and in cases of infringement. That's something a court would decide on the case and in looking at precedent(s). ...can I get into legal trouble for this? You could be sued by the maker of the game in civil court; that's up to them. Google's recourse is to simply remove the mod from the store and possibly restrict your use of their service(s), according to their TOS. For more background, see the Law SE Meta post I have a question about copyright. What should I read before I ask it? . | AD&D, like all games, is covered under copyright. HOWEVER, games are not treated the same as books and other works. Rules of a game, including "stats" and other information required to play the game, are NOT protected by copyright. This is Copyright Law, and has nothing to do with a license which a work is published under. Artwork is fully protected by copyright, as is any setting descriptions. In the context of the D&D franchise, the actual wording of any rulebooks, monster descriptions, game modules, and such are all protected by copyright, so you can't wholesale cut-and-paste things. But, that does not extend to the various mechanics of the game. Armor Class, Hit Dice, etc. are all mechanics, and CANNOT be protected. That includes values assigned to monsters or characters or such. A company cannot also protect the particular layout of those statistics, if that layout is considered generic in nature. In the case we are talking about, a table listing the statistics is NOT protected, as it does nothing more than list those statistics, and contains no original, protected material of WotC. In addition, uniquely created monsters, characters, etc. all have their name protected, but not their statistics. But generic names thereof cannot be protected. It is perfectly permissible to have a clone copy of a Drow and call them a Dark Elf (a generic name). One could not copy the description of the Drow from a Monster Manual, but the idea of a Dark Elf cannot be protected, nor can the statistics thereof. It is explicitly permissible by Copyright Law to clone the rules to a game, which in the context of D&D includes a generic name for anything trademarked (thus, no Drow, and no Dungeon Master, but Dark Elf and Game Master), the mechanisms used to play the game -- including the terms used to reference them -- and all related numerical statistics associated with those components of the game. All of this is in addition to any rights the OGL gives you. These rights CANNOT be restricted by the OGL, as they are basic Copyright Law rights, not license rights. I've been writing D&D expansions and such for over 4 decades now (since the late 1980s), and this is what I've repeatedly been told by various Copyright lawyers. In short, provided you don't use the text description of a particular monster (and instead write your own one, using the same concept of what the monster is), and you don't use a trademarked name for it, it is possible to "scrape copy" the statistic summary section of any Monster Manual or the like. Here's an explicit parallel: the game of Monopoly. When creating a clone of Monopoly, here's what you CAN do: Copy the basic layout of the board - a square with the properties laid out in a path around the edge. Arrange the properties as they currently are, WITH THE CURRENT NAMES on them. Each property's name is not possible to protect, as they are generic names. Free Parking, Jail, and Go To Jail, and Go can all be labeled and placed accordingly. Chance and Community Chest cards can be named as such, and referred to as such. The text on the cards is also (mostly) usable. The costs and values of all Chance, Community Chest, and properties can be copied. The rules of movement, going to jail, etc. can all be copied. Have pieces that are Hats, Dogs, Cars, etc, and both Hotels and Houses, and explicitly refer to them by those names. Here's what you CANNOT do: Use the particular color scheme of the board Use any artwork, including the drawings on any cards. Use the particular graphic presentation of a card. Copy the design of any piece, except the House/Hotel which, insofar as they are very generic, can be extremely similar. You can only use the word "Monopoly" in the context of referring to the Parker Brothers game, not in any other context, as it is trademarked. The specific wording of the rulebook cannot be duplicated. You have to write the rules in your own words. The wording of certain Community Chest and Chance cards, where they are not just generic game instructions, cannot be duplicated. E.g. "Grand Opera Night—Collect $50 from every player for opening night seats" cannot be duplicated, but you can have any other wording for something that would gain you $50 per player. Now, see how that works in comparison to D&D? | Presumably you are referring to works commonly called "fan fiction." Under copyright law these might be considered "derivative works" and therefore subject to the rights of the copyright owner. However, they might also qualify for exemption from copyright enforcement under "fair use." It appears that the legality of fan fiction is not settled law, and the outcome of legal challenges have turned on facts specific to each case. Decent background on the question is summarized on wikipedia. | Since the person who posted the game component under the CC-BY license has no right to do so, no one who used it in reliance on that license had any rights either, and all such uses were at least technically infringement (unless they came under a copyright exception, which seems unlikely). The holder of the copyright on the component could sue in any country where a game using it was published. The details of the law, including the rules on damages and other remidies, will vary from country to country. In the united-states those rules are contained in Chapter 5 of title 17 USC particularly sections 502-505. Section 504 provides for possible money damages. Section 502 provides for a possible injunction (court order to stop infringing). Section 503 provides for for infringing works to be seized. Section 505 provides for possible awards of costs and legal fees to a successful plaintiff (copyright holder). Section 502 allows injunctions to "prevent or restrain infringement of a copyright" on "reasonable" terms. But when the infringement has already been stopped, no such injunction is needed and a court is not likely to impose one. Section 503 allows the court to order the impoundment of infringing copies and "plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced". This is largely obsolete for digital content. Section 504 is the key. It offers the plaintiff a choice between actual damages plus profits and statutory damages. The rule for the first is: The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. This means money made by use of the unauthorized content, plus any loss of sales or other losses suffered by the owner. Money mad by the infringing work but not made by use of the infringing content is not included, if this can be proven. Income obtained after the infringing content was removed would probably not be included in the infringer's profits. Statutory damages can be any amount between $750 and $30,000 that the count thinks is just, but id the infringement is proved to be "innocent" the lower limit is $200. The exact provision reads: 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. An award of costs and fees under section 505 is entirely up to the discretion of the court. If the maximum possible award of infringer's profits is $10,000, and a defense of innocent infringement is plausible, a plaintiff might well find such a suit unprofitable, given the legal expenses involved in preparing an carrying through such a suit. But that is entirely up to the copyright owner. An owner may choose to file even an unprofitable suit in an effort to deter others. A person who has discovered that s/he has innocently infringed a copyright and made some money in the process would be wise to document the prompt removal of the infringing content form any publication, and efforts to notify the copyright owner. Ther is no way to be sure what actions the owner will take, if any, within those that the law allows. Often a owner in such a case will not bring suit if the infringement was apparently innocent, resulting profits were small, the infringement has been halted, and future infringement by that infringer seems unlikely. But different owners have different policies on such matters. An owner can delay in deciding whether to file suit or not. | Yes, you may The layout of the board and its appearance are not protected by copyright, because they are not expressions or any other type of copyrightable content. Even if they were (say if some protested art was displayed on the board) you are displaying this for instructional purposes, and not harming any market for the board, so fair use is likely to apply (in the U.S.). The device could be protected by patent, but you are not copying or imitating the board, nor showing anyone how to do so, so that would not apply. You are not selling or advertising the board, nor knock-offs of it, so trademark protection would not apply, even if a protected trademark is visible on th board. Just in case, be sure to make clear that your video is not authorized or endorsed by the maker of the board. | The question as worded implies that if something is a parody it is automatically fair use or allowed in US copyright law. This is a myth. First of all, in a copyright context, the term "parody" is somewhat limited. In that sense, a "parody" is a new work which comments on the original (often but not always by mocking or ridiculing the original). A mere alternate version which modifies the form of the original, perhaps humorously, but not to comment on the original or perhaps on much of anything, is not a parody. A new work which modifies the original to comment on something else, but not on the original, is a satire. Of course many works may be both parodies and satires in this sense. See this law.se Q&A for extensive quotes from Suntrust Bank v. Houghton Mifflin Co 268 F.3d 1257 (The case of The Wind Done Gone vs Gone with the Wind) and discussion of what is and is not a parody in US copyright law, and when a parody is fair use. A parody, because it comments on the original, will often be found to be a fair use of the original. But not always. The full four-factor analysis must still be done, and the results are never certain until a court has passed on the specific case. See this law.se Q&A for more on fair use. I can't tell from the question whether the modified song is truly a parody in the sense used in copyright law. If not, it probably isn't fair use, although it might be for other reasons. By the way, a song written for a television show or video to be distributed commercially is a commercial use, even if a non-profit corporation is involved, and even if there is an educational purpose. Note that fair-use is a strictly US legal concept. Even if something is fair use under US law, it may be copyright infringement under the laws of some other country. |
Can you refuse to swear on the Bible? Everyone has heard the procedure to get sworn in in an American court: Put your hand on a Holy Bible and answer yes to "Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?" However swearing on a Holy Bible to God has decidedly Christian roots (regardless of whether it is actually a Christian practice) in an official setting in a country with a constitution that explicitly gives freedom of religion. As a non-Christian can you refuse to make such a vow? | In order to accommodate various objections that have arisen in recent generations, in general: You are allowed to "affirm" instead of "swear" You do not have to say "so help me God" You do not have to place your hand on a Bible or any object These variances are often allowed by statute. A witnessed "solemn affirmation" has the same legal consequences as the traditional swearing on a Bible: I.e., you would be held to the same statutes and rules that apply to sworn statements. | In the United States, the First Amendment generally protects your right to communicate using gestures. Probably the most common example of efforts to outlaw specific gestures involves the "middle finger," which is a symbolic "fuck you" to its target. The U.S. Supreme Court acknowledged in W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943), that symbolic gestures can be "a form of utterance" protected by the First Amendment right to freedom of speech, and it addressed the middle finger specifically in a decision last year. In Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2046 (2021), a school suspended a student from its cheerleading team because she posted a picture to social media showing her and a friend "with middle fingers raised" (and bearing the caption "Fuck school fuck softball fuck cheer fuck everything."). But the Supreme Court held that this violated her right to free speech, as her post "did not involve features that would place it outside the First Amendment’s ordinary protection. That decision aligned neatly with decades of lower-court decisions holding the same. E.g., Bad Frog Brewery v. N.Y. State Liquor Auth., 134 F.3d 87 (2d Cir. 1998); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) ("Sandul's action was not fighting words and therefore was speech protected by the First Amendment."). Of course, First Amendment protectiosn are not absolute, so although the government almost certainly could not criminalize dabbing itself, it would be easier for a governmental body to prohibit it during its public meetings, easier still for a government employer to justify disciplining a working for dabbing, and easier still for a public school to justify disciplining a student for dabbing. | No, it is not illegal to use the symbol of the federal government for your own personal use as it is a public domain symbol. However, the USMC will frown upon it. Marines have a sort of warrior culture ethos to them, when compared to the other branches of the U.S. military and a strong culture among those who served. Among Marine culture "there is no such thing as a former Marine"... that is, once you enter the service, you are a marine even if you retire (a former Marine is usually someone who was dishonorably discharged OR committed an action that would have gotten him/her discharged had they not retired). They do not take kindly to Stolen Valor (pretending or seeming to pretend you served when you did not). While this is legal to do per SCOTUS rule, it's not considered advisable. Most of the US military have dim views of Stolen Valor and will react very negatively. And seeing as how the Marines like to boast in song that they Guard Heaven for God upon Death, these are not enemies you would like to make. Tread extremely cautiously while doing this. | 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. | It would be unconstitutional for there to be a law against (public) schools having a field trip to a church or other religiously-centered building. The First Amendment requires government action to be neutral with respect to religion. This means that a public school can neither promote nor condemn religion. A field trip where the venue was a church is not per se the promotion of religion in general or a particular religion. A pattern of activity, and associated facts, could, however, establish that a seemingly innocent event is in fact religious proselytizing. If for example the teacher actually says "I want to make churches be a happy experience, so that students would be inclined to convert", that would cross the line from neutrality to advocacy. If there were many possible venues for such field trips and yet only the church is chosen, that might be evidence of non-neutrality. It really depends on the totality of facts. If the church has the only stage in town, that would be a perfectly reasonable basis for repeated trips to that church. | Yes An American would spell it as “your honor,” but yes, this is how we refer to all judges. This is simply a custom that shows respect. There is no law or concrete fact I could cite that requires this; it is more of a “tradition.” But I have seen plenty of court proceedings (mostly on TV), and I can confirm that all judges, ranging from small claims court to the Supreme Court, are called “Your honor.” (The chief justice of the Supreme Court is sometimes addressed as “Chief Justice.”) Googling articles about courtroom etiquette also mostly leads to people who agree with this. Apparently, there are some countries where it is customary to say “my honor,” or even something else altogether. Sometimes people from these countries immigrate to the US and continue using their local terminology in a US court. Although every judge is different, my perception is that most judges try to be inclusive of other cultures, and if whatever term they use is intended as a sign of respect, most judges will usually just interpret it as it was intended. | What discrimination? As explained in Conflict between a religious belief that accounts for the existence of transgender people vs. one that doesn't the Constitutional protection of the Free Exercise Clause applies to the exercise of a deeply held belief (religious or not). So, let's accept that a person believes that certain sexual practices or gender identity is morally repugnant for whatever reason and that belief triggers the Constitutional protections. That means, that the person cannot be forced to engage in those sexual practices or adopt a different gender identity. It does not mean that they have a licence to discriminate against people who do in a work or public environment - they can, of course, choose to avoid such people in their private life. Alternatively, if the person believes that they are required by their faith to discriminate on the basis of those characteristics then such a belief does not get Constitutional protection as it is now affecting the rights of others. In the same way that someone who believed in human sacrifice would not get Constitutional protection. | In the United States, the question that determines whether it's perjury is whether or not you believe what you said was true. Whoever— (1) having taken an oath..., willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or (2) ... willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury. So if an attorney asks if you saw the defendant, and you believe you saw the defendant, "yes" is generally going to be the correct answer. You're free to qualify your answers or answer questions that weren't put to you, but you aren't obligated to do so. Generally speaking, our adversarial system puts the burden on the defense to ask if you're sure, how the lighting was, whether you were wearing your glasses, whether you were drunk, etc. |
Is it legal to develop and sell software that operates in a similar fashion to available software? I'm currently working on a project that can provide remote desktop assistance like RealVNC. There are many programs already available providing similar services (like these programs). I wrote all code myself. Can I sell my program or it's not legal because there are already programs providing same features? | 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. | Probably yes. But it is only a trademark violation when used in connection with a sale of good and services in a manner that is suggests affiliation with the programming language. Thus, you can have a bar named "C++" but not you own programming language or updates to an existing programming language. | 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. | 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. You can sell it for whatever you can get for it. The license allows you to watch the DVD. If you sell the DVD, you won't be able to watch it - but the buyer will. This is same principle that books are subject to copyright, but there is nothing stopping you selling your books second-hand to a dealer. | "Doing the same thing" is very common. We even have names for certain categories of websites, such as "web shop" and "blog". Such concepts are not protected in general. Obviously, you can't copy the name of existing webshop, or their logo, but things like a "rectangular layout of products for sale" aren't original. There is of course a grey area here, because there's a continuum of similarity. In general, similarities that follow from technical justifications are acceptable (having an upload button is sort of the point for your website), similarities that are cosmetic only (same color choice) might be interpreted as intentional attempts to cause confusion. | You have a false premise: "it offers the same conditions", and "MIT license is functionally equivalent to CC-BY". These premises are not true. CC-BY: applies to more than just software; it applies to artistic or literary work, databases, other material disclaims endorsement explicitly withholds moral rights explicitly does not license patent rights (MIT license gives anyone who obtains a copy of the software the right to use it, a patent right) prescribes the acceptable forms of attribution Those are just some of the differences. | A creative prosecutor could probably come up with a raft of charges. But you could start with the federal wiretapping statute, 18 USC 2511, and the anti-hacking statute, 18 USC 1030. Here is an indictment brought in 2012 under the anti-hacking statute against someone who distributed and used this kind of software. Depending on the facts and the jurisdiction, this may also constitute the tort of intrusion on privacy or seclusion, a tort recognized by the Restatement (Second) and actionable in many jurisdictions. The most common test is whether the invasion would be "offensive to a reasonable person." And no, contrary to the commenter's view, a "click to accept" license is not a get out of (literal) jail free card here. Courts interpret adhesion contracts liberally to favor the signer, and outrageous terms hidden in small print are not guaranteed to be enforceable, especially if the software is clearly designed to trick people into installing it. The license terms might even hurt you, by providing evidence of your intent to use the software for perving rather than its ostensible use. This is not an exhaustive list, and there may be additional state-level statutes that apply. Bottom line: yes, this is clearly illegal, and the courts will be reluctant to let you trick people into getting away with it. |
What wording should I use to include non-binary pronouns in a contract? I'm working off of a template for a Terms of Service agreement for an app, and I would like to modify it to use non-binary pronouns (they/their/them) instead of gender-specific pronouns (he/she his/hers him/her). What, if any, language should be included at the head of the contract to explain that they/their/them is referring to a single person rather than a group of people? Right now I'm thinking of something like In this document when referring to the Licensee, we use the non-binary and non-gender-specific pronouns “they”, “their”, and “them”. These pronouns are not intended to reflect plurality of the Licensee, and can be replaced by he/his/him or she/her/hers where appropriate to reflect the Licensee’s identity. | I think you're viewing the use of pronouns and contracts wrong. You are speaking to the Licensee, not some third person. So you would say "You agree to give us all your bases", not "The]y agree to give us all your bases". If you were to use a third person pronoun in describing what the other person is gonna do and what you'll do for them, calling the Licensee "they" is positively confusing, and more likely to cause problems. I hope they see my point. | I will assume B.C. as your specific jurisdiction: there could be provincial differences. As phoog says, you certainly may mention this problem to management, who have an interest in keeping you happy. No law against that. As for the "legality" of sexual harassment, the CBA BC branch says that "Sexual harassment, which is discrimination based on sex, is illegal under the BC Human Rights Code". It is interesting to see what the code actually says. Section 8 Discrimination in accommodation, service and facility says (1) A person must not, without a bona fide and reasonable justification, (a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or (b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons. The question is whether using the term "babe" constitutes discrimination against a person regarding service because of sex. This article on the Law Society of BC web site specifically identifies "verbal harassment" as an instance: Verbal harassment – This comes from anyone within the firm and or other workplace or a person who does business with the firm or company. Some examples are: referring to an adult as a babe, honey, girl or stud; whistling at someone; turning work discussion to sexual topics; asking personal questions of a sexual nature; making sexual comments about a person’s clothing, anatomy or looks; or asking someone repeatedly for dates and refusing to take no for an answer. (emphasis added). In case you're thinking that maybe there's a difference in what the code says regarding services and what it says regarding employment, section 13 Discrimination in Employment says: (1) A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. In other words, it is defined simply in terms of "discrimination", which means "making a distinction". It is known that unwanted sexual advances constitute illegal discrimination, see Janzen v. Platy Enterprises Ltd. [1989] 1 SCR 1252. The court found that Sexual harassment is a form of sex discrimination. Sexual harassment in the workplace is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job‑related consequences for the victims of the harassment. They did not, however, find that this is the only form of sexual discrimination (obviously, since it isn't). I can't point to case law indicating whether gender-biased expression are actionable, but that would be consistent with the letter of the law and "babe" is indeed an example cited in the Law Society article. | The issue of who pays directly for the items and/or to contractors is irrelevant. The important thing is to memorialize the agreement/arrangement in writing so as to preempt or solve eventual disputes. A clearly written agreement signed by the parties would supersede any presumption of conditions and rights arising solely from the parties' conduct. | As user6726 notes in an answer, the page you link to derives from 26 USC 7701. However, it does not reproduce the text accurately. There, "United States person" is defined at section 7701(a)(30), and it notably lacks anything corresponding to "any other person that is not a foreign person." It's possible that that language is motivated by some court decision, but it's also possible that someone just added it for the sake of symmetry with the definition of "foreign person" without thinking about the logical paradox that it might create. Looking at section 7701, I don't see any explicit mention of US non-citizen nationals. It appears that such a person who does not live in one of the 50 states or the District of Columbia falls under the definition of nonresident alien at 7701(b)(1)(B) even though such a person is explicitly not an alien under the Immigration and Nationality Act. I do not see any regulations correcting this oversight, but I suppose that in practice such people are indeed treated as US citizens. I don't know enough about the classification of nonhuman legal persons as foreign or domestic to have any ideas about whether there are similar ambiguities there. | Do newer contracts superceed prior ones? It depends on whether the contracts conflict with each other. That is why many contracts contain language akin to "This contract supersedes and replaces any previous or contemporaneous agreements between the parties". The parties would need to adapt such clause if the contracts are compatible and they intend to maintain them. I have seen many contracts saying tgis "this will happens unless agreed in writing to do something else".However many contracts do not have this in written. The main purpose of that language is to specify that any amendments to the contract shall be in writing. That precaution makes it easier to ascertain whose version of the contract is binding, such as where party A alleges an oral amendment and party B denies that such amendment was agreed upon. Your outline of the agreements between A and Z is incomplete. At the outset, the contracts are not necessarily incompatible: The first contract does not provide a deadline for payment; it is unclear when the 2nd contract will be in force; there is not enough information to discern whether the 2nd contract is an amendment of the 1st one, or an independent agreement involving unrelated considerations; there is no indication that the 2nd contract replaces and supersedes the 1st one; and if Z is the draftsman in both contracts, the doctrine of contra proferentem could favor A's legal position. Therefore, the matter of superseding contracts depends on various factors. | No Or at least not necessarily. Contract terms are legally one of three types: Conditions, Warranties, or Intermediate. Breach of any term allows the aggrieved party to sue to recover damages - monetary compensation to restore them to the position they would have been in had the breach not occurred. Breach of a condition also (or instead) allows them to terminate a contract. Breach of a warranty does not. Intermediate terms are terms that might be a condition or might be a warranty depending on how egregious the breach was. A contract can explicitly make a term a condition, the historical and still used phrase being that X is “of the essence”. If the contract is not explicit (most aren’t), then that is the concept that the court uses to decide - is the term “of the essence”, that is, absolutely fundamental to the performance of the contract. Similarly a term can be explicitly a warranty, usually by saying party Y “warrants” something. Most incidental or procedural terms are warranties - if breached, they never give rise to a right to terminate. Most terms are intermediate, particularly most terms about time. Normally, intermediate terms are warranties but if a breach is egregious enough, then this can elevate the term to a condition. Payment terms are a classic: if you are a day or a week late in making payment, the other party can’t cancel the contract. If you are a year late, they can. Somewhere in between, your breach changes the term from a warranty to a condition. For your situation, the early delivery is clearly a breach of a warranty, not a condition. If it even is a breach - the contract may say that they are obliged to deliver by 1 December: delivery on 1 November is clearly in compliance with that term. If it is a breach, you do not have the right to terminate the contract and if you tried you would be breaching the contract yourself by repudiation. By the way, repudiating the contract is definitely breaching a condition. A huge number of contract disputes turn on who validly terminated and who repudiated the contract. If it is a breach, you can sue for damages which, since they have not charged you for November, would be what it cost you or what you lost by having their bin on your premises for a month. My guess that this would be in the order of zero. | Ah, the old "is this contract invalid (but still legally binding for the other party)"? You signed a contract with someone else. You do not dispute that it was you who signed the contract and agreed to it. You made it abundantly clear that there was a contract between you when you allowed him to do the work. This means one of the following was true: There was a mistake in the contract. What was followed was how it was intended. You signed a contract containing false information in an attempt to defraud someone. One of these will end up much worse for you. The fact that the work was not completed to the agreed upon standard could be considered a breach of contract- this is something a small claims court would decide. | Such clauses are called "copyright assignment", "invention assignment", and/or "works for hire" clauses, partly depending on the clause's intent and wording. They're pretty common in employment contracts for software development and some creative positions. Frankly, the clauses don't actually do much, at least in the US -- copyright law already recognizes the concept of works made for hire (which belong to the employer), and claims too far beyond that are often rejected if they aren't obviously related to company business. With that said, your hypothetical programmer's painting is safe unless it depicts, say, the contents of an email from the CEO. :) Even if the clause technically entitles the employer to claim ownership, the employer has no legitimate interest in doing so. Likewise, that app created outside work is safe as long as it is created using no company resources and is unrelated to the employer's business. If the app is obviously related, that's where things get hairy. |
Are there any Utah, USA laws about landlords providing fire extinguishers or other fire suppression? I recently had a problem with a faulty light switch that had me worried about my townhome having an electrical fire. When I contacted the housing manager about it, he fixed the faulty switch, but told me that he doesn't provide fire extinguishers because they're too expensive and maintaining them is too much of a hassle. Given that the building is over 30 years old and I've now had two electrical problems in as many months, I'm not going to risk my family's safety, so I bought a fire extinguisher last night. But I had always assumed that landlords were required to provide at least one fire extinguisher for residential dwellings. Is this not the case? Are there any Utah or federal laws about whether a landlord is required to provide and maintain some means of fire suppression? Maybe in relation to renter's or property insurance? | Utah uses the IFC Code with modifications (none of which apper relevant based on a seach for "extinguisher"). You describe your premisis as a "townhome" which suggests it is a free-standing house, if so the classification of your building would appear to be R-3 and fire extinguishers are not requires in that classification. If it is instead an apartment (more than 2 dwellings in the same building) then it is R-2 and fire extinguishers are required and would normally be the responsibility of the building owner. Notwithstanding, a building built in the 1980s should not have electrical faults: You might wish to persuade the landlord to conduct an audit of the electrical system since he will be out of pocket if the building burns down. | There are various ways in which you could be "responsible". For example, if you own the house, have no insurance, the house burns to the ground and the electrician has no resources that you can seize, then you will have to suffer the consequence of having no home. If a guest is harmed in the fire, you might be found liable because of your negligence (plaintiff's lawyer has to put convincing spin on your actions in showing that you neglected your duty of care). Since you are hiring the electrician, under the doctrine respondeat superior you can become liable for the worker's acts carried out on the job. What matters in that case is how the act came to be, for example did it happen as a result of bad wiring that he was hired to do, or was he a crazy arsonist who look advantage of an opportunity to torch your house (you are not liable, torching the house is not an act reasonably related to what you hired him for). You could end up responsible for the loss if you are insured, the "electrician" was uninsured (and other kinds of "un" like "unlicensed"), and the insurance contract allows the claim to be denied because you wrongly hired an unqualified, unlicensed guy off the street who did not secure the required permits. That doesn't mean that you can't sue him, but if you cannot collect on the judgment, then you end up having to take responsibility for your action. "Responsibility" is a legally vague concept, instead I assume you are interested in whether the courts might force you to pay for the damage done to someone, or even might punish you for a criminal act. In the former case, the relevant legal concept is "liability", meaning that you can be required to compensate another for the damage that you caused. In the latter case, the criteria are much stricter, that you have to deliberately do a thing that was explicitly forbidden. | In saying "Not a problem at all", you cannot infer that the agent is committing the landlord to covering the difference in cost. That sentence is standard verbal fluff equivalent to "it's no bother, I'll pass the message on to the landlord". You requested him to inform the landlord of the expected higher cost, and that you hoped he would cover the difference. He then says "please calculate the difference, which we will then pass onto your landlord", so he is agreeing to pass the information on. This is not a commitment by anyone to do what you want. Of course, the lease might specifically commit them to providing a gas-fired boiler. If so, you should expect that they will cover the difference in cost for the duration of the lease (and the lease may change after the current period). | I am not from Denver, so it may be different there, but I would think most people would take that to mean the appliance meets UL standards or other safety standards and has been certified. Each governing body, be it a town, county, state, or country, gets to decide who can certify an appliance. | In Texas, if the lease states that the landlord can inter for some purpose, the landlord can enter for that purpose. I assume there is no statement in the lease. Then the landlord has no right to enter except in emergencies and for routine inspections or repair. This right, however, stems from the courts and not statutes, and you could theoretically sue the landlord to prevent such an inspection (you would need a good attorney, to overcome the presumption that reasonable routine inspections with notice are allowed). | At common law, a tenant is entitled to "quiet enjoyment" of the property. This means that the owner can only interact with the tenant as spelled out in the lease or in an emergency situation. First, calmly and quietly write down a list of your grievances. Then check your lease to see what the landlord is entitled to do. Cross off any grievances that are permitted by the lease. Take this and the lease to your solicitor and pay him to write a letter to your agent advising them of your grievances and asking that they stop. Without knowing where you are, we do not know what additional rights and dispute resolution procedures are available in your jurisdiction. Very few jurisdictions still rely entirely on common law as real estate is one of the most highly government regulated areas of life wherever you are. Your solicitor will know and, for less that a week's rent will give you solid advice. | renting a single room with three other guys each renting their own rooms means exactly what it says. What you are paying for is that room, plus shared access to the common areas. Without knowing exactly what your lease says, especially with respect to the common areas, it's difficult to give a proper answer. I suspect that the lease for your room says nothing about who can live in the other rooms. Unless the lease says otherwise, the landlord has full control of the common areas. (Compare with a large apartment building, with hallways, stairwells, lobbies, etc., which must be maintained by the landlord.) This isn't an unusual arrangement, but I've never understood why anyone, landlord or tenant, would want it. There's far too much potential for conflict. You, yourself, could be a totally obnoxious person that the other three guys can't stand, but they'd have to put up with you. Their only alternatives are to move out or to ask the landlord to evict you. Moving out would be a lot of trouble for everyone. But, depending upon jurisdiction, as long as you're paying the rent on time and not causing damage to the property, eviction could be a very difficult and long process. And eviction is hardly in the landlord's interest. It costs a lot of money and time, and might not be granted even if she did apply. Why might a landlord spend so much time at the house they're renting? I'd be concerned about the implications of a woman going out of her way to do yoga in an area rented to four men. That is the part that sounds most strange in this situation. How do I resolve this? I'd start looking for a room somewhere else. | This guide from Shelter lists the steps you should take. It can be summarised as: if the landlord fails to arrange the repairs, contact your local council. If they can't help, you can arrange the repairs yourself and request that the landlord reimburse you. If the landlord still refuses to co-operate, then you can pursue legal action. It's important that you document everything you're doing, and keep the landlord fully informed at every step. The guide states that you can deduct the cost from future rent. But it also says: You do not have the right to withhold your rent if your landlord refuses to do repairs. If you don't pay rent, the landlord could take steps to evict you. ...so you may want to get expert advice before going any further. |
Does a wife have to ask her husband to record their conversation without consent? Just wondering, in California specifically, can a recording of a conversation by the wife of a husband and wife's conversation within their own home be submitted as evidence if the husband had no awareness of the recording? This is not a personal question, but an episode of "Billions." | In California, all parties to a conversation (people being recorded) have to agree to a recording. There are no special rules pertaining to husbands and wives. It is sufficient that the parties are aware that the recording is being made and they continue to talk, knowing that fact. There are exceptions, under Cal. Penal 633.5, in that surreptitious recordings are allowed in order to gather evidence of "extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m". To be used as evidence, there are also "predicate rules" to the effect that you have to prove who the voices are from, that the recording hasn't been altered, and that the recording is reliable (e.g., there isn't a mysterious 18 minute gap). | There is no way to know for absolute sure. The statutes do not address the question, so one would look at the case law. There appear to be about a dozen wiretapping cases that made it to the court of appeals in Maryland, and none of them involve implied consent (e.g. where it is announced prior to recording that the call may or will be recorded – prior is mandatory). The probability is high that implied consent suffices, since the legislature did not specific require express consent and consent is not generally taken to mean express consent. One can and should hire an attorney who will give you a professional and considered (but not infallible) opinion, if it really matters. | united-states "I know is it illegal for authorities to question a suspect when their lawyer isn’t present" This is not really true, at least in the US. The suspect must explicitly ask for a lawyer. Even saying "Maybe I should talk to a lawyer" (ie Davis v. U.S. (512 U.S. 453 (1994)) isn't enough, they have to say "I want a lawyer". Until they invoke the right, an officer can question all they want (provided they were informed of these rights, except for certain situations which are relatively complicated. See Miranda Rights). So no, an officer questioning you without a lawyer is neither a crime nor illegal. Once you invoke your Miranda right though, they have to respect that. With or without your lawyer, this is called interrogation. You can filter your responses through a lawyer, or waive your right to a lawyer and answer directly. | 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. | As a comment by @DavidSchwartz notes, this is not wrong. Questions of law but not fact are allowed. It is worth noting that the line drawn is arbitrary. In Colorado, where I practice, jurors issue written questions (pre-reviewed by the judge and counsel for all parties before being presented) to witnesses at the close of the testimony of each witness called by a party to testify. This is very helpful to counsel, as it provides indirect evidence of whether the jury understands what they are being told, and often juries will directly ask questions that for tactical reasons, both parties have refrained from asking that go to the heart of the matter. It also frequently clarifies misunderstandings that trained legal professionals assumed were not made about terminology. This is more problematic in criminal trials, where jury questions could provide evidence pushing a case over the threshold of proof needed to prove beyond a reasonable doubt that the prosecution failed to provide, than in civil cases with a preponderance of the evidence standard. Also, as a matter of reality, when jurors ask questions, counsel often loathe to object even when they have valid grounds to do so, for fear of offending the decision-maker, unless it is really critical to keep certain information away from the jury. | 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. | The first part is a matter of jurisdiction. I do not believe that simply using a cell phone with an Illinois number will give the Illinois courts jurisdiction, if you're standing in Wisconsin and calling a person in Wisconsin. Also, when you state that the call is recorded for ___ purposes, does that have any bearing on the actual use (e.g. they state it is for quality assurance, but instead they use it for marketing, legal, etc) The use can make a difference. There's an exemption in Illinois law if a business records if: the monitoring is used for the purpose of service quality control of marketing or opinion research or telephone solicitation, the education or training of employees or contractors engaged in marketing or opinion research or telephone solicitation, or internal research related to marketing or opinion research or telephone solicitation If they do not use it for these purposes, presumably the exemption would not apply. In addition: No communication or conversation or any part, portion, or aspect of the communication or conversation made, acquired, or obtained, directly or indirectly, under this exemption (j), may be, directly or indirectly, furnished to any law enforcement officer, agency, or official for any purpose or used in any inquiry or investigation, or used, directly or indirectly, in any administrative, judicial, or other proceeding, or divulged to any third party. | The fact that something is illegal does not imply that it is illegal to post pictures of it happening. In general, under U.S. law, free speech protects almost all forms of communications subject to a handful of narrow exceptions and this is not one of them. There are many legitimate reasons one might want to post video of a fight (e.g. to identify crime perpetrators for purposes of prosecuting them), but no legitimate purpose is legally necessary. Surely as a platform Reddit cant hide against it being a platform of free speech in this case? They most definitely can. Reddit is also not responsible for user posted content under Section 230 of the Communication Decency Act, even if it were illegal for the person posting it to post the content |
Is it illegal to keep an encrypted version of illegal data? If I encrypt copyrighted data to which I have no right with a private key known only to me, am I infringing the copyright by holding only the encrypted version? | Mere possession of copyrighted material does not infringe any of the copyright holder's exclusive rights.1 This conclusion is echoed by Jay Dratler: Nothing in copyright law prohibits the mere possession of an unauthorized copy of a copyrighted work.2 From the Fifth Circuit: The copyright owners not only had no interest in the tangible video cassettes that contained copies of the works, but they did not have the exclusive right to possess or authorize possession of video cassettes containing copies of the works.3 From the Tenth Circuit: The Copyright Act, however, says nothing about an exclusive right to possession of a copyrighted work.4 Possession may be used as evidence that you copied the work, though. courts have held that when two works are so strikingly similar as to preclude any reasonable possibility that the defendant’s work was independently created, access may be presumed. Any circumstantial evidence of copying (i.e., proof of access and probative similarities, including the presumption of access created by striking similarities) can, however, be rebutted.5 The fact that your copy is encrypted doesn't change the copyright infringement analysis, but it may be an investigatory hurdle. 1. 17 U.S. Code § 106 2. Jay Dratler, Cyberlaw: Intellectual Property in the Digital Millennium 2-83 (2000) 3. United States v. Smith 686 F.2d 234 (5th Cir. 1982) 4. Khandji v. Keystone Resorts Management Inc. 140 F.R.D. 697 (D. Col. 1992) 5. Jason E. Sloan, An Overview of the Elements of a Copyright Infringement Cause of Action - Part I: Introduction and Copying, American Bar Association (last visited Dec. 7, 2016). | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. | Generally speaking, what isn't illegal by law is legal. It's possible for law enforcement agencies to share crime rates, maps, and their data, but within any laws regarding access and sharing of that data. Such crime data may be publicly available, but that depends on local and state laws. The local or state agency would have to enter into a legal licensing agreement - if local and state laws allow such sharing - with the GPS company to provide the data, update it, and reasonably assure that it is accurate. The more realistic reason GPS systems might choose to not show crime data may be public relations. If a GPS user lives in an area that has been objectively identified by data as having a higher than baseline crime rate, i.e. for carjackings, that user may not be very happy with that designation. Worse, what happens to public relations when data errors show an area is wrongfully identified as high crime? What kinds of lawsuits could result? Real estate agents suing since bad data from a GPS unit soured the sale of a house? | If you do not have permission to make and distribute reproductions of the work, then it is illegal to make and distribute reproductions of the work. US copyright law Indian copyright law | The 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. | Is it ok to copy the game concept and even with mostly similar content like "fighting", "building houses" etc ? Yes, but ... I should also mention that pretty much my whole User Interface is based on the User Interface from "Parallel Kingdoms" Is copyright violation. Ideas are not protected by IP law. The tangible representation of those ideas (art, words, layout, format etc.) is protected. | 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. | Unless the game is out of copyright, e.g. chess, snakes and ladders, Go, or checkers, your software would probably be considered a derivative work of the copyrighted game and an actionable infringement. The fact that you do not monetize it is not a defense. You would need written permission in the form of a license agreement from the copyright owner to do this legally. The penalties for violating copyright laws in this way could be punishingly serious. |
In a rear-ending traffic violation, is the ticket dropped if the other party does not show up but the officer does? I rear-ended someone and received a "failure to maintain safe distance" citation. I don't believe I'm at fault and am considering challenging it in court. I don't want to get an attorney or deal with any of that, so I'm partially counting on the other guy not showing up. At the scene of the accident, the officer told me that if the other guy does not show when subpoenaed that it would be "a no-go". Am I correct in interpreting this to mean that the ticket will be dropped? | 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. | New York has a "stop and identify" law which says that a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct. However, there is no requirement to carry an identifying document or to prove your verbal statements of identity. For that matter, there is no requirement that you have your license in your possession when driving, you simply have to be duly licensed. In this case, the officer has reasonable suspicion of a crime, so you do have to tell him your name, address, and what you were doing. In Washington, there is no stop-and-identify law, so you don't even have to tell the police who you are. There does exist a requirement to identify yourself if you are stopped for an traffic infraction: (1) Any person requested or signaled to stop by a law enforcement officer for a traffic infraction has a duty to stop. (2) Whenever any person is stopped for a traffic infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check for outstanding warrants, check the status of the person's license, insurance identification card, and the vehicle's registration, and complete and issue a notice of traffic infraction. (3) Any person requested to identify himself or herself to a law enforcement officer pursuant to an investigation of a traffic infraction has a duty to identify himself or herself and give his or her current address. However, the proposed scenario does not fall under this requirement because you weren't stopped. Also note that the limited ID law of Washington does not compel you to provide a document, it compels you to provide information. It is a misdemeanor to drive without a valid Washington license, but it is only an infraction to drive having been issued a license but not having it in your possession, as long as you provide an alternative ID document. So if you drive without a license in WA and are stopped, you have to show an ID document or suffer the misdemeanor alternative. But again, in this scenario you were not driving and were not stopped, you will not be forced to provide a document. Because driving without a license is a misdemeanor and the officer did not observe you driving, under Washington's arrest without warrant law, he cannot arrest you for suspicion of having committed the misdemeanor of driving without a license. (The arrest without warrant law is a bit more complicated, see the 11 exception subsections, none of which apply here). If your goal is to try to be forced to show your driver's license, you might try Indiana, where the law says A person who knowingly or intentionally refuses to provide either the person's: (1) name, address, and date of birth; or (2) driver's license, if in the person's possession; to a law enforcement officer who has stopped the person for an infraction or ordinance violation commits a Class C misdemeanor. But again, you were not stopped for an infraction or ordinance violation, so you may keep your license in your wallet. | Yes, you would be responsible. Maintaining the vehicle in a state that enables compliance with the law is the owner's responsibility, and it is a driver's responsibility to comply with the speed limit. There is no knowledge or intent requirement in a speeding violation. That said, a judge might show leniency if you came to court with documentation of a repair or recalibration of the speedometer after the citation. | Unlikely, but specific facts may change this. The fact a vehicle gets the approval of the NHTSA and/or other safety regulatory bodies will probably mean that it already passed a certain level of safety testing, and any reasons for a recall will only surface after orders of magnitude greater sample and/or testing time. Therefore, the probability of causing endangering participants in traffic and others are negligible. The duty of notice will most likely be on the manufacturer under a product liability theory. Driving continuously and/or repeatedly after notice may be a different matter if it actually results in harming one — theoretically even oneself. | Is there a way to accept civil liability without admitting a criminal violation? Are you allowed to tell the police, “I accept full responsibility for the accident, but I don’t wish to discuss what happened”? You can allow a default judgment as to liability to enter in a civil case (and then possibly even have a contested adversarial hearing on damages), or you can reach a settlement dismissing the case with prejudice in exchange for payment of a certain settlement without admission of liability. Indeed, this is what actually happens in about 90%+ of car accident cases that aren't resolved at trial or in a motion for summary judgment (something that is quite rare in a car accident case). Likewise, you can plea "no contest" or even being convicted following a trial of a traffic violation in connection with an accident, without the outcome of the traffic case having a binding effect on the outcome of a civil case, even though this seems contrary to the logic of how results in one case determine issues in other cases (called "collateral estoppel"). Basically, this rule has been enacted in most U.S. jurisdictions (usually by statute but in some rare cases by judicial decision), in order to prevent local traffic trial cases from turning into expensive high stakes battles that are really about liability for huge economic damages, in a traffic court process designed to efficiently deal with disputes in the tens to thousands of dollars at stake, rather than the tens of thousands to millions of dollars that are at stake in a personal injury case where there have been serious injuries. However, while the outcome and plea in a traffic case in not binding in a civil lawsuit involving a related accident, any testimony given under oath in one case can be used in the other case in almost all circumstances. | Stop: possibly The standard for initiating a traffic stop is named after Terry v. Ohio, 392 U.S. 1 (1968): Terry stop. The standard is rather simple: Initiating the stop only requires reasonable suspicion. If their computer claims that the driver's license of the car owner is expired or suspended, that is reasonable suspicion to at least stop the car to check if the owner is driving it and if the license really is expired. Arrest: possibly To facilitate an arrest, the next level of scrutiny is needed: probable cause. Generally, there is little requirement on when a police report is to be written, but contemporary reports (at the same time or close to) are typical. Example of rising through the ranks Alice, 16 years old, dent in the fender from a fenderbender. That is not even a warning's worth and does not rise reasonable suspicion. Bob cop's computer still reads the license plate and Bob gets a flashing light: the car owner's license is expired. That is reasonable suspicion that there is an offense if the owner and Alice are the same person. But Bob needs to verify that. The reasonable suspicion can go away if for example the car was owned by Charles, a 60-year-old gentleman, then the suspicion that Alice's license is expired goes away. But the stop in itself was reasonable! Bob starts the ticket after stopping Alice, then passes the car to get to Alice. Looking in he sees that behind Alice lies a box stamped "Top Secret - US President's Eyes Only" all over. Bob arrests Alice for the probable cause of possibly possessing those documents illegally. The documents were in plain sight, so no search was needed btw. | 4511.71, "driving on a closed road", doesn't apply here: it requires that the closure be done using a sign, rather than a generic "traffic control device". It also appears to be intended to apply specifically to construction closures, not closures in general. However, what you describe is, at a minimum, a violation of: 4511.25, lanes of travel: (A) Upon all roadways of sufficient width, a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows: [exceptions that don't apply] where "roadway" is defined in 4511.01 as (EE) "Roadway" means that portion of a highway improved, designed, or ordinarily used for vehicular travel, except the berm or shoulder. and 4511.28, passing on the right: (A) The driver of a vehicle or trackless trolley may overtake and pass upon the right of another vehicle or trackless trolley only under the following conditions: (1) When the vehicle or trackless trolley overtaken is making or about to make a left turn; (2) Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaking vehicle. In short, the road is "closed" in the sense that there is no legal way for you to drive past the police car. And it doesn't really matter which offense you're charged with: all three are classified as "minor misdemeanors", carrying the exact same penalties. | I live in MD near DC, and have been ticketed by the cameras in both DC and MD. At least for speeding and red-light violations (and I think for all camera detected violations) these are just fines, not true moving violations in that no license points are assessed, and there is no impact on insurance, provided the ticket is paid, unlike what would have happened had an officer written the ticket in person. One can contest the ticket, but it is not likely to be worth the time and trouble. This policy of not assessing points is precisely because there is no assured way of determining who the driver is with current technology, although cameras that can see the driver through the windshield and match him or her against a database by facial recognition may be coming. Currently a human reviews the images in an effort to rule out false positives and certify that an actual violation is shown. The name and title of this person is shown on the notice I get, at least from MD. What one can do "proactively": do not speed or go through red lights pay all camera tickets promptly (or file the paperwork to contest them). If unpaid beyond the deadline they turn into more serious violations that do carry points, just like failing to attend a court date. |
Can a US passport be used in advertisements? I recently saw an ad on facebook using a picture of a passport, and it seems a bit fraudulent but I can't any law restricting the use? So, is this allowed or are there certain cases for which it is allowed? | The picture shown is not fraudulent or problematic. Fraud involves using a false representation (or concealing a fact) in order to obtain a result that would not have been possible to secure without the misstatement or concealment. No one is using the photograph of the exterior of a passport (which is identical for all U.S. passports) to obtain any immigration benefit or for a non-U.S. citizen to obtain citizenship. All that is being done is visually associating international travel (which would usually be done using a passport) with a credit card that can be used internationally. Since a passport is a federal government document, it is also not protected by trademark or copyright laws -- the exterior, generic design of a passport is in the public domain. It can't be used for a purpose to mislead someone about citizenship or immigration benefits, but otherwise, it can be used for any purpose. I suppose that you could be interpreting the photograph (on a Spanish language speaker's facebook feed) as implying that by getting this credit card you will also get a U.S. passport and cool sunglasses, but that would be a patently unreasonable assumption in this context, particularly in light of the clarifying caption at the bottom, and, of course, many people who speak Spanish as a primary language have legitimate U.S. passports (including more or less all passport holders in Puerto Rico). You could also, I suppose, be interpreting the appearance of the passport as some sort of implicit government endorsement of the product when the government does not, in fact, endorse the product, but again, nothing in the advertisement that I can see that can be reasonably interpreted as conveying that message. | 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. | BAD idea It is one thing to upload the phonebook and associated pictures for use of the owner of the phonebook. It isn't a fair use of the phonebook pictures - and you might not have a license anyway, as some people associate photos with numbers that they don't have a license to associate with anyway. But what if instead of a photo of the person, the first photo someone associated with the person is a photo of something like... crack cocaine, a photo of someone in a very compromising situation, just genitals, or some other thing that is just as tasteless or possibly criminal to share? In that case, your company is possibly committing defamation, and in case sharing or possessing of the image itself is illegal, your company is now the actor and liable. Depending on the content of the picture, distribution of pornographic material (possibly even underage material of that sort) could be up that alley just as much as hate speech through symbols, usage of banned symbols (such as swastikas in Gernamy) and many many others. | People often use "passport" as a metonym of "citizenship," but that should not lead one to mistake the two. Notably, many US citizens live their entire lives without having a passport. A fairly brief search didn't turn up an explicit statement from an official government source that passport revocation does not affect US citizenship, but that is quite clearly the case if one reads between the lines of the fairly sizeable statutory and regulatory provisions governing both. Nationality law is codified at 8 USC 1401 and following, with the sections governing loss of nationality beginning at 8 USC 1481. The regulations concerning nationality generally are found at 8 CFR 301 and following, but there are not many regulations concerning loss of nationality. Passport law is found in an entirely different title of the US Code, and titles are the highest level of division in the code. It is in 22 USC 411 and following. There are provisions that restrict eligibility for a passport scattered around in there without any section applying specifically to passport revocation. That is found in the related regulations. Passport regulations are codified at 22 CFR Part 51, with revocation being the subject of Subpart E, which is 51.60 and following. There may be an explicit statement in the regulations that passport revocation does not affect citizenship. I did not look very thoroughly. But a bit of logical reasoning shows why it must be so: The conditions for loss of US nationality are very well defined. They are also fairly tightly circumscribed by several decisions of the US supreme court in the decades following the second world war. The conditions for revocation of a passport are much less strict; as an example, a passport may be revoked under 22 CFR 51.62 and 51.60 if the bearer "is the subject of an outstanding Federal warrant of arrest for a felony, including a warrant issued under the Federal Fugitive Felon Act (18 U.S.C. 1073)." US nationality is required to hold a US passport, but US nationals do not need to have a US passport. Therefore, a US passport may be revoked for a reason that cannot lead to loss of US nationality, and, when that happens, US nationality is retained. The condition mentioned in point 2 is clearly insufficient for depriving someone of US nationality, not least because the subject of an arrest warrant is only suspected of having committed a crime. Depriving a suspect of their liberty is acceptable to the extent necessary to bring that person to trial, but further deprivations beyond that end would violate the constitution's guarantee of due process. A word on "nationality" and "citizenship" in US law is in order, lest the use of the two terms seem inconsistent or arbitrary. US nationality is broader than US citizenship. All US citizens are US nationals, so loss of US nationality implies loss of US citizenship. However, there are some people who are US nationals without being US citizens, so it is more precise to speak of "loss of nationality" than "loss of citizenship," and indeed that is the term used in US nationality law. | No. Refusing to tell the address alone is not a reason to detain somebody. But there are situations where the authorities can demand that a person identifies himself or herself, including such details as the address (or lack of a permanent residency). In such a situation, failure to identify yourself can get you locked up. Also, the tone of your posting seems to question the legitimacy of the UK government and legal system as a whole. That is a box you're putting yourself into, and the company you find there is not very pleasant. | German law protects the Right of Personality, of which the Right of Publicity is a part. The Right of Publicity protects individuals from having their identity exploted for someone else's gain, without their permission. Using an individual's likeness in the way you describe would violate this, including that of non-German citizens. Depending on what you used this image for, you would potentially face a civil suit. Changing aspects so they're unrecognizable would likely depend on the specifics and intent would count. Honestly, if you're going to change them to be unrecognizable, why even bother- just create an original character. This right lasts for 10 years after the individual's death- during this time it is controlled by the deceased's estate. After 10 years, you would be able to use them this way. | Summary from comments. (Hat tip @jqning) Daniel Nathan Ballard writes here: [It] is not only improper it is UNLAWFUL and may result in serious repercussions... Such a misuse may constitute false advertising... (“It is no doubt true” that affixing the ‘Trade Mark Registered U.S. Patent Office” notice on goods that are not protected by a federally registered trademark creates “a prima facie case of fraud against the public… .”). ... Such use is also a form of “unclean hands” that can bar the user’s registration of the mark. ... Such a use may also bar the maintenance of an infringement case. ... And the fraudulent use of the trademark registration symbol DOES provide other marketplace participants with standing to oppose the user’s registration of the mark. http://www.avvo.com/legal-answers/use-of---symbol-but-not-federally-registered-1125746.html | In the general case, it seems unlikely, based on the wording (which is convoluted). In certain cases, if the president of Russia posts "My name is Vladimir Putin", that post is personal data. On the other hand, you might, based on my writing, conclude that I am from the US, and you might even conclude that I'm in Washington state, but that doesn't distinguish me from 7.5 million others, so on those grounds that is not personal data. Eventually, though, you might identify me specifically from other things that I may have said on SE. The definition depends on two parts. First, personal data is "information relating to an identified or identifiable natural person". Any "information" provided by a natural person is "related to" that person (as is any "information" that is about such a person). The second part defines "identifiable natural person", that is, who is an "identifiable person"? Every person can, in principle, be identified by reference to some label or description of fact about them, so every person is an identifiable person, under this definition. This means that every piece of text that refers to an individual (not even text which can identify the person) is "personal data". Obviously, any individual can be uniquely identified by some collection of identifiers; the problem is that the wording of the law does not explicitly say "using that supposed personal data". If I mention that I have a relative named Knudt, that would technically be personal data: I've given information that relates to a person, though you have no idea (and could not possibly figure out) who that person is. Another term that the regulation defines and uses in a few places is "pseudonymization", which is defined as the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person The point of interest here is that this says that "personal data" which cannot be attributed to an individual is, nevertheless, still personal data. I think the most important part of the regulation is art. 6, which defines lawfulness of processing, especially para 4., which allows consideration to be given to safeguards such as pseudonymization. |
At what point can a surrendered military force resume fighting? Scenario A military unit is about to be overrun by the enemy; to preserve the lives of his men, the commander elects to surrender. The entire force surrenders to the enemy, so there was no fighting going on after the surrender. However, during the process of the surrender - disarming the defeated, gathering them together, etc - a relief force arrives and engages the enemy. Question Can the surrendered troops now lawfully resume fighting? What about those who have been disarmed; are they still considered surrendered and non-combatant? Related, at what point can an escaped/rescued POW lawfully resume fighting against his erstwhile captors? | Under the Geneva Convention a prisoner-of-war may lawfully resume fighting once they have successfully escaped. Under Article 91: The escape of a prisoner of war shall be deemed to have succeeded when: He has joined the armed forces of the Power on which he depends, or those of an allied Power; He has left the territory under the control of the Detaining Power, or of an ally of the said Power; He has joined a ship flying the flag of the Power on which he depends, or of an allied Power, in the territorial waters of the Detaining Power, the said ship not being under the control of the last named Power. In the course of effecting an escape Article 93 provides: offences committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, the wearing of civilian clothing, shall occasion disciplinary punishment only. In the scenario you describe, armed prisoners-of-war may attempt to escape and join the relieving forces. Once they do so they may lawfully use their weapons against their former captors. Clearly they have joined the relievers if and when they make physical contact with them but it could also be argued that they may have escaped when they became operationally joined to those forces. | While it is from a different jurisdiction, the following goes to the heart of the matter: Arrest, when used in its ordinary and natural sense, means the apprehension of a person or the deprivation of a person's liberty. The question whether the person is under arrest or not depends not on the legality of the arrest, but on whether the person has been deprived of personal liberty of movement. Directorate of Enforcement v Deepak Mahajan, (1994) 3 SCC 440 at ¶46 (SC of India) In your example, the police officer has been deprived of "personal liberty of movement"; if they can still speak there would be no legal impediment to them placing the person who arrested them also under arrest. It would then be incumbent on both parties to deliver each other into lawful custody. The citizen would need to seek out a law enforcement officer to do this; the police officer has already done so, being their own law enforcement officer. After this, comes the paperwork. | No, it is not illegal to use the symbol of the federal government for your own personal use as it is a public domain symbol. However, the USMC will frown upon it. Marines have a sort of warrior culture ethos to them, when compared to the other branches of the U.S. military and a strong culture among those who served. Among Marine culture "there is no such thing as a former Marine"... that is, once you enter the service, you are a marine even if you retire (a former Marine is usually someone who was dishonorably discharged OR committed an action that would have gotten him/her discharged had they not retired). They do not take kindly to Stolen Valor (pretending or seeming to pretend you served when you did not). While this is legal to do per SCOTUS rule, it's not considered advisable. Most of the US military have dim views of Stolen Valor and will react very negatively. And seeing as how the Marines like to boast in song that they Guard Heaven for God upon Death, these are not enemies you would like to make. Tread extremely cautiously while doing this. | "Martial law" is not a cleanly-defined legal concept in US law, but it is generally understood to refer to placing a region of the US under military control. POTUS, Congress and state governors can do it, to some extent. Art. 1, §9 (speaking of powers denied to Congress) says that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it". Suspending the Writ of Habeas Corpus is one fundamental element of "martial law". Art. 2 §2 (presidential powers) grants relatively little power to POTUS, but does say "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States", so as commander in chief, POTUS can command the army, but in general requires authorization from Congress. At the outset of the Civil War, Lincoln declared a numbered of things which Congress ratified, but this did not include a declaration of martial law. In Ex parte Merryman, 17 F. Cas. 144, the Taney (Chief Justice of the Supreme Court of the United States) stated that "the president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it". Congress eventually retroactively legalized the suspension of habeas corpus. Without Congressional approval of the suspension of the Writ of Habeas Corpus, a "declaration of martial law" would be meaningless and toothless. The Posse Comitatus Act further limits the ability of the army to meddle in domestic affair, and 18 USC 1385 states that Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. One of authorizations by Congess is The Enforcement Acts, which empowered federal intervention when states refused to protect the constitutional rights of citizens, and this was invoked more recently during the Eisenhower administration and in connection with the Mississippi Burning murders. Another much older authorization is the Insurrection Act of 1807, now at 10 USC Ch. 13 allows use of the military (§252): Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. The next section §253 would, no doubt, be the statutory provision invoked for use of the military: The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it— (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution. The rhetoric that would need to be associated with such an executive order (sending in the troops) would resemble that in Texas v. Pennsylvania et al, which did not turn out well for POTUS. Moreover, nothing at all authorizes POTUS to declare elections void and to order new elections (therefore, the military cannot be employed to engage in such an illegal action). | Who Owns The Bunker? Your relative obviously owns the cellar up to their land property boundary. The people who own the other land would have originally been the owners of that portion of the bunker, assuming that it was not permissive (if it was permissive, an easement by estoppel probably would have arisen). So, then the question is, whether the people in the chain of title to the relative acquired ownership of that portion of the bunker by adverse possession. Normally, adverse possession is acquired when someone occupies land under a claim of right that is open, notorious and hostile. While the use of the bunker would be "hostile" in this case (because the other property owners didn't have access to the bunker), it is not at all clear that it was "open and notorious". Indeed, apparently, the other land owners weren't aware that it existed. So, there would probably not be "squatter's rights" in this situation. Also, adverse possession can't run against the sovereign, so to the extent that the bunker goes under public land (e.g. a public street), that also can't be adversely possessed and that portion of the bunker remains the property of the sovereign land owner. @PaulJohnson in a comment to another post notes that: It sounds like your relative has one of the secret bunkers built for the "Auxiliary Units" who were to wage guerilla war from behind the lines after a successful German invasion. bbc.co.uk/news/av/uk-37947840/… If this were the case, and the government authorized its construction, there would probably be an implied easement that would allow the bunker to be the property of the person owning the entry to it, rather than the other property owners. But, as you note, proving that case would be difficult. It might be possible to scour declassified civil defense records from the WWII era to determine if this was the case, but you might need to employ an archivists or historian to get to the bottom of this question. What if they sell it? Suppose that they do sell it. What happens? Since title is certificated in Britain, there would be no title insurance company to compensate the buyer if someone later claimed to own the property. Your relative would have a warranty of title inherent in the deed to the portion of the property that is legally described in the deed (unless the property were sold by a quitclaim deed specifically disavowing any promise that what was sold was owned by the seller), but that warranty would probably not include the portions of the bunker outside the boundaries of their lot because that is not included in the legal description of the property on the property certificate or the deed. So, if it was sold, the buyer might not have any claim against the seller if the buyer did not get good title to the entire bunker, and would have no one to sue at all, if your relatives died before litigation over ownership of the bunker arose. The buyer might sue your relatives for common law fraud if the bunker were described in the marketing materials for the sale, but if they were told that some of the bunker went outside the lot and that its legal status was unknown, or if the property was sold by a quitclaim deed, that suit would probably not be successful. Other Options Depending upon whether the owner is on good terms with his neighbors, the owner could probably buy the subsurface rights or some sort of easement to that property from the neighbors under whose land it runs, and might even be able to purchase such rights from the local council where it runs under a street. Negotiating the price would be tricky. On one hand, it doesn't hurt the other owners at all. On the other hand, they have the power to deprive your relatives of all use of the property. Often deals like this are done for nominal consideration between people on good terms with each other, but for extortionate prices when people are not on good terms with each other. | Despite comments in the Reddit thread you linked, I doubt it's the law in any US state, but it would be matter of policy in any state and in many other countries as well. It's not the emergency medical personnel's job, whether EMTs, paramedics or firefighters, to risk their lives giving emergency aid while a dangerous armed criminal is potentially in the area running around free. Instead they will wait for the police to let them know the area is clear and safe for them to do their job. It's easy to say that since the neighbours were giving aid, the EMTs should have been able to as well, but the EMTs wouldn't have seen the person armed with the knife leave the house and wouldn't have known that neighbours weren't themselves the ones who stabbed the victim. The neighbours also probably didn't fully appreciate the risk they were taking, that the "perp" could come back into the house at anytime. The EMTs on other hand would've heard plenty of horror stories about what has happened to EMTs that haven't waited for police to clear the scene. In other words, this could have happened in any US state, Canada, and in many other countries. | It is premature to judge the particular case because the facts are not all available. But we can address the general principles. The Model Penal Code 3.04(2)(a) sets out the general principles clearly. A person has the right to self-defense against unlawful force. But, the use of force is not justifiable to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful. But more specifically under (b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat However, there is a further condition that force is not justifiable if the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take Then finally, §3.05 says that this goes for people using force in defense of others. The short version is that the common law right to resist illegal arrest has been supplanted by a statutory requirement to submit to police authority, for example in California and New York. In Ewumi v. Georgia, defendant was illegally arrested and physically defended himself, which resulted in a battery charge and conviction. The battery charge was overturned because the arrest was illegal ab initio. If one resisting an authorized arrest, where an officer's force is likely to result in unjustifiable great bodily harm, the question is whether a reasonable person would find it necessary to resist in self-defense. It is unusual for the courts to find that to be the case. Minnesota law says that reasonable force may be used upon or toward the person of another without the other's consent when the following circumstances exist or the actor reasonably believes them to exist: (1) when used by a public officer or one assisting a public officer under the public officer's direction: (a) in effecting a lawful arrest Other sections say that a person who is not a public officer may use force to effect an arrest, or, "(3) when used by any person in resisting or aiding another to resist an offense against the person". Being arrested by the police is not an offense, and none of the other justifications for use of force apply. | "Intention to relinquish" means you actually meant to stop being a US citizen. In practice, the US assumes that normal people doing normal things don't want that. As described on the page you linked, there's an "administrative presumption" that you don't mean to give up US citizenship when you: become a citizen of another country, declare your allegiance to another country, join the military of a country that isn't at war with the US, or take a non-policy-level job with a foreign government. That means the State Department will assume you wanted to keep your citizenship unless you "affirmatively, explicitly, and unequivocally" say that you did not. In practice, if the issue comes up then the State Department will just ask you what your intention was and take you at your word. Unless you actually go to a US embassy or consulate and fill out a form saying "I do not want to be a US citizen any more," you don't really have to worry about it. |
Refusal to terminate tenancy with months notice I am renting property in UK and today tried to give my months notice, however letting agency refused to accept it claiming that they can only accept it on 25th - day when agreement started, and that this is in my contract. What this means that I would have to pay for period of 15 extra days while not living in a property... EDIT: as per comment The tenant may terminate the tenancy by giving 1 months notice in writing to the agent on the 25th day to vacate 1 month later on the 24th day of the month Another thing I just realized that 25 of Dec is Christmas and I don't think they work on 25th! Can they really do this? EDIT2: My tenancy originally was 6 months and this period has passed, I didn't sigh anything after does this change anything? Are there any regulations around this? Does months notice means month+ or is it actually a month? | Under an assured shorthold tenancy, when the fixed term expires, it automatically becomes a periodic tenancy (also called a rolling or month-to-month tenancy) if no other action is taken. For periodic tenancies, the default requirement is: The notice you give must end on the first or last day of the period of a tenancy, except when your tenancy agreement says something different. The first day of a period of your tenancy is the anniversary date each week or month of when your tenancy began. This is often the same date that your rent is due, but not always. (the above taken from this Shelter guide.) The contract merely restates this. So in other words, yes, this is normal. In this instance, if you give notice on or before 25 Dec, you'll be required to pay rent up to 24 Jan. However, if the landlord finds a new tenant and their tenancy starts after you move out, but before 24 Jan, then you are only liable for rent up to the start of their tenancy. | she immediately stated that I need to provide 60 days notice She is wrong. See Minnesota statute 504B.135(a). Absent any agreement that supersedes the statute, the landlord cannot unilaterally stretch the notice period to 60 days. Is it legal for a landlord to say my rent is due 5 days earlier than we had verbally agreed? Is it legal for a landlord to do this right after I tell them that I am planning on moving out? No. The lanlord cannot unilaterally alter the implied contract that exists between you two, including the pattern of you paying rent on the 6th of the month. To prove in court that this was indeed the pattern, it suffices to show the receipts your landlord has the statutory obligation to provide to you immediately upon making each one of your payments. See 504B.118. The landlord is just "making sure" you will not recommend her to other prospective tenants. | 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. | All that matters is whether the tenancy falls within the statutory definition contained in the Housing Act 1988. Assured shorthold tenancies are subsets of assured tenancies, so first we need to look at the latter. 1. Is the tenancy an assured tenancy? Section 1(1)(a): tenant(s) must be individual(s). Section 1(1)(b): at least one of the tenants must occupy the dwelling-house as their only or principal home. Section 1(1)(c): the tenancy must not be excluded by in Section 1(2) or 1(6). Section 1(2) in turn refers to Part 1 of Schedule 1 which contains a list of exceptions. They are quite detailed but, briefly, the following are excluded: tenancies with high rateable values, tenancies at very low rents, business tenancies, licenced premises, agricultural tenancies, student accommodation provided by universities etc., holiday lets, tenancies with resident landlords, crown tenancies, some local authority lets. 2. Is the assured tenancy an assured shorthold tenancy? Section 19A: the tenancy must either have come into existence after Section 96 of the Housing Act 1996 came into force (the vast majority of cases) or it falls under Section 20. Section 19A: the tenancy does not fall within one of the exceptions in Schedule 2A. Turning to your scenarios: Tim rents an entire flat or alternatively a single bedroom through Airbnb for a week. (The landlord doesn't live in the same house.) Is he an AST? Not an AST; excluded by Schedule 1 as a holiday let. Suppose he rents it for a month, or two months. At what point does he become an AST with corresponding PFE? As long as it is a holiday let, it will not be an AST. It would only be an AST if it were Tim's only or principal home (and all the other criteria apply). There is no magical "point" at which it changes from one to the other; it's down to the reality of the facts. Larry goes to Berlin for a week-long holiday and sublets his HMO room on spare room.com to Theodore for the week. Upon returning Theodore declines to leave. This depends on the specifics of how it was let to Theodore. It sounds like a holiday let on the face of it though. Now what if Larry instead goes away for one month or three months and sublets his room (or flat if it makes a difference) for those periods. Again at what stage does it become AST? As above, it becomes an AST when all the criteria for an AST are met per the statutory definition. Further, let us suppose that for Larry's fortnight holiday he collects a £300 deposit. Must this be accordingly protected given how casual the tenancy is? Section 213(1) of the Housing Act 2004 only requires a deposit to be protected if the tenancy is a shorthold. | I assume this is "Managed Payment to Landlord" (MPTL) for the tenant's Universal Credit and/or Discretionary Housing Payment, as opposed to for "Housing Benefit" per se, since most people are now on UC instead of HB. But in any case the period of imprisonment is long enough to affect Bob's eligibility. Under the Universal Credit Regulations 2013, Schedule 3, Bob is no longer occupying the property since their absence is expected to be for more than six months; in fact, they lose UC entirely and are meant to reapply when they get out. If this is Housing Benefit then the entitlement ends for being expected to be in prison for 13 weeks or more; see the Housing Benefit Regulations 2006, regulation 7. That's a generic rule for absence, whereas there's a 52-week allowance for pre-trial custody, and some variations for release on probation. DHP top-ups from the local authority follow the same rules. In any event, 2.5 years, even taking into account the anticipated release at the halfway point, is more than any of those thresholds. The claimant is meant to report changes of this kind, but since Alice are receiving the money directly, she is also responsible for informing the government of any relevant changes. See guidance at 10.2, Whilst a MPTL is in place the landlord must notify the department of any changes which a landlord can be reasonably expected to know which might affect the claimant’s entitlement to Universal Credit and the amount awarded. For example, the claimant changes address. When a claimant changes address the MPTL APA will cease from the end of the assessment period before the claimant changed address. If your tenant moves home and you need to end a MPTL, please contact the service centre immediately on 0800 328 5644. As noted below, and following the Social Security Administration Act 1992, sections 71 and 75, If the MPTL is overpaid due to a change that has not been reported by either the claimant or the landlord, the landlord may be asked to repay the overpaid benefit. Universal Credit payments are made every calendar month and take account of changes during that month. It may be that Bob has already done their side of things but the system hasn't caught up yet. In any case, Alice is not entitled to continuing payments and the government has various means to get the money back. Sections 111A and 112 of the 1992 Act (which applies to UC as well) make it a criminal offence for Alice to fail to notify the government about a change of circumstances that affects her right to receive payments. (Simplifying the statutory language a little - Alice is "the recipient" in the context of the full text and Bob is "the claimant", and there are various other conditions about your state of knowledge and intention.) This is not to say that it would necessarily be pursued as a criminal matter, but that possibility exists in principle. | http://www.tenantslegalcenter.com/html/eviction_notices.html 3 DAY NOTICE TO CURE BREACH (sometimes called PERFORM COVENANT) OR QUIT is used to notify a tenant that he/she has 3 days to do or stop doing something as per the rental agreement or the law. The tenant can comply with the notice or vacate within the 3 days. If the tenant vacates within the 3 days, he/she is NOT relieved from the rent obligation under the lease or rental agreement. So, the notice must be based on a law and/or the lease agreement. Presumably, the law and/or lease provision must be cited in the notice. The City of San Diego has a GOOD CAUSE law (Right to Know Ordinance) protecting certain tenants in a residential tenancy of at least TWO years and that good cause must be written in the notice. You state that you've been there seven years, so this law applies. To count the days of a notice, you begin on the next day after service as the first day. Weekends and holidays are counted but the last day of a notice to act generally may not land on a weekend or holiday. If it does, and if applicable to that notice, the "last day" can carry over to the next business day. For example, if a 3 day notice to pay rent is served on a Thursday, we count Friday as the first day Sunday is the third day. Since the last day of this type of notice cannot be a Sunday, the "third day" is then Monday (giving the tenant four days instead of three) to pay the rent. If that Monday was a legal holiday, then Tuesday would then be the "third" day (giving the tenant five days instead of three) to pay the rent. http://www.rogerfranklin.org/Instructions_for_Landlords_2017.pdf B. SERVE THE THREE-DAY NOTICE 1. After the Three-Day Notice has been filled out and signed, you must serve it on the tenant. The Three-Day Notice may be served either: (a) By delivering a copy to the tenant personally, or (b) If the tenant is absent from is place of residence and from his usual place of business, by leaving a copy with some person over the age of eighteen (18) years at either place, AND mailing a copy of the Three-Day Notice addressed to the tenant, postage prepaid, first-class mail, to his place of residence; or (c) If such place of residence and business cannot be ascertained and a person over the age of eighteen cannot be found at the tenant’s residence, then by affixing a copy of the Three-Day Notice in a conspicuous place on the property, AND mailing a copy of the Three Day Notice to the tenant at his residence. So if the notice was just left at your apartment, and was not delivered personally or mailed, then the service is invalid. | First of all, the amount involved is probably a few hundred dollars, maybe a thousand: if you do not pay it is extremely unlikely that your roommate will attempt to recover. Even if they do, they will probably fail - 30 days notice is 30 days notice: unless last month was February, the 8th to the 8th is either 30 or 31 days, you have complied with the terms of the lease. If the lease had said "one named months notice" then your roommate may have a case; as it is, they don't. Is he right? No. Is there ever a case where I'm liable for pro-rated rent beyond the 30 day notice period? Only if it says so in the lease. Do I owe him rent for each day in November that the room is vacant beyond the 8th? No Would a judge make an exception in his favor since I didn't tell him I was looking for a new place to live? Judges don't make exceptions, particularly not in anybody's favour. The role of a judge is to enforce the law - not to make exceptions to it. A judge would give effect to the terms of the contract except where those terms are prohibited or against public policy. | The overwhelming majority flats in England are leasehold, not freehold; older buildings typically have 80 or 100-year leases, newer buildings usually have 999-year leases. Therefore you are dealing with the freeholder as a landlord for the matters that a HOA would deal with in the US. Depending on your landlord you may want to reconsider your statement that HOAs "are pure hell". It is possible for the leaseholders to collectively buy the freehold although it is time-consuming and expensive and happens very rarely. If they do they set up a body similar to a HOA. |
What rights does a songwriter have when a song is made out as a youtube video by another artist? I have given permission for another artist to record a song that I have written and that song will also have a video which will most likely go on youtube. What are a songwriter's rights in terms of youtube revenue no matter how small ? | When you license your IP (like a song) you can specify the terms and conditions of its use by the licensee, including revenue shares from any derived work. However, if, as your comment suggests, you grant an "informal" license, and later decide that you want to "firm things up" with a license having different terms, that's a matter you would have to either negotiate or litigate with your counterparty. If you want a common reference point for negotiation of this sort of license, you might have a look at compulsory license terms. | Beethoven's Piano Sonata is public domain There will be copyright in the performance but as you are specifically hiring the musician to perform the piece for you to record, you would own the copyright in that as a work for hire provided this is stated in the contract. | No, one cannot safely assume that because some people have done a thing without being sued, that it is OK to do a similar thing and no suit is possible. It is possible that people who upload a video, or a section of it, have permission. It is perhaps more likely that the copyright owner does not choose to sue, for whatever reason. But a different owner of a different video might make a different choice. Uploading a video, or even a section of a video, without permission, will be copyright infringement, unless an exception to copyright such as fair use or fair dealing applies. Such an infringement gives the copyright owner valid grounds to bring a suit. But the owner can choose whether or not to sue. An owner can sue in one case of infringement but not in another, for any reason or none. If the expected damages are small, it many not be worth the time, trouble, and costs to sue. In the US, one must register a copyright before bringing suit for infringement of that copyright, and there is a fee for registration. Some owners feel strongly about the use of their work, and will sue on any pretext. Some may prefer to tacitly support uses that they approve of by not bringing suit. One cannot tell the attitude of a particular owner unless that owner has stated what his or her view is. Short films are just as protected as full-length feature films, and suit can be filed for infringing the copyright on a short film. But the more expensive a film was to make, and the more money the owner expects it to earn, the more likely it is that the owner will choose to sue. Many people infringe by uploading short films or videos, gambling that the copyright owners will never learn of this, or will not trouble to sue. Sometimes such infringers are correct, and sometimes they get sued. I do not understand what the OP means by the part of the question that reads "There should be more detail and complex lines over here" What additional detail is wanted? Who does the OP expect to provide it? What sort of "lines" does this refer to? | My question is, because I am not making any income from the distribution of the game, would the use of the copyrighted music fall under Personal Use? There are some "private use" exemptions in Australian copyright law but they have some fairly narrow conditions. These exemptions are fairly narrow because the point of copyright law is not to prevent you from making money with someone else's intellectual property but to protect the other person's ability to make money with it. If Alice writes a song and Bob distributes it free of charge, Alice loses revenue. Similarly, it is Alice's right to decide whether that song should be included in a freely available open-source software product, and her right to decide whether to allow that use without charge or in exchange for a license fee. | If you are subcontracted, then some other company is going to use the code that you wrote, and since you were not paid for it, you are the copyright holder. A letter to that company's legal department might work wonders. | I presume the input is text: "my original text" is assumed to mean you wrote (created) the text. That means that you hold the copyright to the text, and only you can authorize a derivative work (such as a synthesized recording). Therefore, you hold the copyright to the recordings as well. The crucial consideration governing that right is that you "created" the work, meaning that there is a modicum of creativity. However, if you did not create the text and your only function is to host an automatic process where users can create a synthesized recording, then whoever created the text has the right to the text and derivative works (i.e. the synthesized output). Automated processes like (unassisted) OCR or wav-to-mp3 conversion would not count as being "original", nor would automatic text-to-speech, so you don't gain copyright just from making an automatic work-creating tool available. On the assumption that the conversion involves a component of Chrome, you can use the service per the terms of service, though you cannot "reproduce, duplicate, copy, sell, trade or resell the Services". This might limit the extent to which you could make this conversion available to others, depending on how, exactly, you could do such a thing (does it duplicate the service?). As they say, Google owns all legal right to the Services, but Google obtains no right from you for any content created through their service. There is no restriction in the TOS against using the service for commercial purposes. Even if there were, that would not assign copyright in the recording to anyone else, it would just mean they could sue you for violating the TOS. | Sound recordings can be, and new ones normally are, protected by copyright. The copyright would usually be held by the person who made the recording, or that person's employer, not by the speaker if that is a different person. Use of such a recording without permission might well be copyright infringement. But more clearly and directly, broadcasting a statement: I am {performer} and you are listening to {song name} on my favorite station {station name } without authorization from the performer would in many jurisdictions violate the performer's right of publicity, giving the performer grounds to sue the station. It might well also be false advertising, implying that the performer had endorsed the station when s/he has not done so. That would depend on the specific laws of the jurisdiction where the broadcast was made. A suit over publicity rights or an action for false advertising would probably be simpler than a copyright suit in such a case. I think that most if not all such announcements are made with the consent of the performers involved, and are probably recorded directly by such performers. (For one thing it is usually in the performer's interest to cooperate with stations and networks that play the performer's work.) If such announcements were somehow artificially synthesized, but with the permission of the performer, and of any owner of copyright in any recording used, I don't think there would be any legal problem. If an AI was trained to create a good imitation of a person's voice with9ut diretly copying a recording, I am not at all sure if there would be any copyright infringemetn under current law. That may be an area where the law will need to change to respond to the technology. But if such an imitation were used without permission to make the kind of statements discussed above, the personality rights issue and false advertising issue would still be there. Those do not in any way depend on whether the announcement uses a copy of a recording or not, those are both about the use of someone's name and reputation without authorization. In fact, even if the announcement did not pretend to use the performer's voife, those woudl still bne an issue. Suppose the announcer saids, in his orm her own voice: {Performer} said to tell you that s/he is glad thit his/her song is being playing on his favorite outlet {station name}. There is no technical fakery there, deep or shallow, but if done without authorization it is still a problem, or would be in some jurisdictions at least. If technology is used to create a plausible imitation of someone's voice, but it was not distributed with any claim, direct or implied, to be that person, then the case is different. I suspect that in most jurisdictions there would be no grounds for legal action, just as celebrity imitators do not need permission as long as they don't fake endorsements. | 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). |
Third-party doctrine when recording isn't obvious I'm not a lawyer (constitutional law or otherwise), but my understanding of the reasoning behind Smith v. Maryland (full text) and the subsequent "third-party doctrine" was that: The phone companies know what number is dialed, and people know that because the phone company's equipment has to know where to route you. The phone companies keep a record of every call dialed, and people know that because they see it on their monthly phone bills. People know that "pen registers" and similar devices exist, or at least the technology to trace a call exists, because the phone company can track down people who make harassing calls. Therefore, people shouldn't reasonably expect the numbers they dial to be private. From the opinion: Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret. What I'm wondering is whether there's any subsequent case law which questions whether the third-party doctrine holds when one of these tests is not true. I'm specifically interested in cases where #2 is violated, although I'd be interested in the others as well (e.g. a hypothetical secret machine that can read the contents of mail without opening the envelope). My entirely untrained (and only moderately informed) opinion would be that because ISPs don't make it obvious in any way that they keep a record of what you do online (your monthly bill isn't broken down by website, for example), then the third-party doctrine shouldn't be applicable to them. Likewise, until Snowden brought attention to it, I would have expected most people to not know that their activity could be easily intercepted. Since there haven't been any cases making this point that I've heard of, I assume that either the cases have been quiet or there's a flaw in my logic and thus no one has tried. | You've identified exactly the right question: whether the person's subjective expectation of privacy, when viewed objectively, is the "justifiable under the circumstances". (Smith v. Maryland) The Supreme Court hasn't addressed how this test applies to ISPs and website requests. However, this question has been addressed by several circuit courts of appeal. I'll build a list of example cases. Many find that there is no reasonable expectation of privacy in this information, but there are some cases that go the other way, and there is some nuance regarding exactly what information is being given away. US v. Beckett (11th Cir. 2010): the information consisted of the identifying information transmitted during internet usage and phone calls that is necessary for the ISPs and phone companies to perform their services. It is unreasonable for Beckett to have been unaware that such information was being transmitted to the ISPs and phone companies and so he “assumed the risk that the company would reveal to police the [information].” United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2007): Analogously, 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. Like telephone numbers, which provide instructions to the "switching equipment that processed those numbers," e-mail to/from addresses and IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party's servers. Regarding your secondary question about a "secret machine" that the government develops to get access to contents of an envelope without opening it, that is very similar to the situation in Kyllo v US 533 U.S. 27 (2001) (internal quotations removed): [...] obtaining by sense-enhancing technology any information regarding the home's interior that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search-at least where (as here) the technology in question is not in general public use. [...] Reversing that approach would leave the homeowner at the mercy of advancing technology-including imaging technology that could discern all human activity in the home. | 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. | Does criticizing public figures constitute libel especially in a private group? It depends on the specifics, but a priori your description suggests that the defense of honest opinion would be applicable. This is regardless of whether the subject is a public figure and regardless of whether the statements were in private --albeit non-privileged-- communications. Case law surely provides guidelines or precedents on how the details and circumstances of the events would fare on the parties' legal position, but I am not knowledgeable of UK/English law. Does X have a counterclaim for illegally accessing the data? The matter seemingly depends on how the religious leader had or gained access to the data. Even if he gained access by stealing or hacking a device or account, X would not have standing to [counter-]sue unless the device or account belongs to X. Be mindful of the possibility that third party might have made the disclosure to the religious leader. In that case, actionability (if any) of the disclosure only encompasses the third party, not the religious leader. X's intent that his statements stay only among the participants does not necessarily imply that participants' disclosure elsewhere is unlawful. | Florida bar membership is something that can be determined from public records to see if he is an attorney or not. I would be stunned if he was not. It could be that he was an enrolled patent agent prior to being admitted to the practice of law and has never updated the record. Alternatively, it could simply be that there was a data entry error. No large database is 100% accurate. For most purposes, the rights of an enrolled patent agent and an attorney admitted to patent law practice are the same in PTO practice, so correcting this error (assuming that it is one), even if it was discovered, wouldn't be an urgent priority. | There is no general law making it illegal to lie about debts, or anything else. It is illegal to lie to a law enforcement officer in the course of an investigation. (And of course it is illegal to lie in court testimony or when otherwise under oath.) But it is in no way unlawful to decline to answer, unless a proper court order has been obtained, or other lawful means of compelling an answer. I would expect any law office to respond to such a question with something like "Am I/we being investigated? If so, send the appropriate notice and our lawyer will consider what we should tell you. If not, tell us what information you want, and we will consider and provide a written response in due course." If a taxpayer has been found to be delinquent in paying taxes, in some cases a court order may be obtained seizing assets, including unpaid debts. But no IRS agent can make such a claim on the spot, and indeed for a client to make such a payment without such a court order, or the order of an IRS tribunal (or the creditor's written consent) would itself be unlawful and would subject the lawyer to a suit by the PI (Private Investigator). When the lawyer pays a service provider, a 1099 must be filed with the IRS. If the PI is a corporation, a different form is used, but a record of payment is still required. As failure to timely file such a form is a violation of the tax code, an accusation of paying without filing would permit the lawyer to decline to answer under the Fifth amendment. If the lawyer did pay and did file a 1099 or other documentation, the IRS would know what had been payed, and would not need to confront the PI. Also, as the comment by Hilmar points out, a PI would be likely to use the cash accounting method, and so would own no tax on work performed but unpaid (as yet). So unless the IRS agent thinks the PI was paid "off-the books" and is intentionally failing to report the payment, there would be no point to such a question. And if that were he case, the lawyer would be very likely to decline to answer. I find the story quite implausible. | Since your consent is not required in Texas, revocation is irrelevant. Restrictions of use of recordings flow from the legal nature of the recording itself, so there is no provision saying, for example, that only one party needs to consent for just recording, but all parties must consent to make any use of the recording. Since these laws were devised to regulate the practice of wearing a wire and collecting evidence of crimes, requiring consent from all parties would be counterproductive to the purposes of the law. You could try drafting a contract where you pay people to not record you (anybody who doesn't sign, you shouldn't talk to them), but enforcement could be tricky, so I would not try a DIY contract: get a lawyer. You would have to show that you were harmed by them making an unconsented recording. It should be in the form of a contract where you give something of value in exchange for something of value, which is a thing typically enforced by the courts. Also bear in mind that even in an all-party state, if you know that you are being recorded, you cannot just say "I do not consent", you have to stop talking. Continuing to talk when notified that there is or may be a recording constitutes implied consent, which is why on the phone companies often announce via recording that the conversation may be monitored, and they do not ask "Do you consent". By not hanging up, you consented. | They don't have to inform you that they are a debt collector. Because that can be a violation of 15 U.S.C. Section 1692b(2) by exposing that the person they are attempting to collect from has a debt. They are required to: identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer -- 15 U.S.C. Section 1692b(1) They also may not use any language indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt 15 U.S.C. Section 1692b(5) What they do not have the right to do is harass you. They can not attempt to contact you again 15 U.S.C. Section 1692b(3) unless they have reason to believe you lied. I would contact the company back and inform them that you wish to have your number removed from their calling list, and that future calls may be a violation of 15 U.S.C. Section 1692b(3). Also, send them a notice in the mail. If they continue to attempt to contact you, report them to the FTC. You may also be entitled to monetary damages as well. See FTC The judge can require the debt collector to pay you up to $1,000, even if you can’t prove that you suffered actual damages. You also can be reimbursed for your attorney’s fees and court costs. To file a claim with the FTC, go to there online claim for debt collectors Its worth it to show that you won't joke with them. I had a "debt" with T-Mobile (really, I had a billing error in their favor, and they admitted to it, but would not stop the debt collectors) and they violated the rules. I tried to work with them, 6 months later, they damaged my credit. I contacted FTC about it and T-Mobile with in 3 days had the debt cleared and reversed on my credit. They also paid for my damages. All I wanted was the debt cleared. Note: for calls being recorded, always make sure you follow local laws and inform the other party that the call is recorded. If they have a right to record you, you have a right to record them. You must always infrom them as well. | I presume you are addressing the various wiretapping laws. In all of those channels, one would have a reasonable expectation of privacy, in contrast to using CB radio or a megaphone. However the context of using the instrument affects that expectation, for example if your phone is on speaker you do not have a reasonable expectation that those around you cannot hear your conversation, when there are others around you. Also, there is no expectation of privacy surrounding employers monitoring employee emails for valid business purposes – but the federal government can't intercept your emails (without a warrant) just because you are using business email. The expectation of privacy is really about the surrounding circumstance, not the instrument you use. |
Song titles and copyrights As the copyright owner of a song, can another artist decide to change its title? Or should that be open to change by a performer who wants to perform the song? | Copyright doesn't prevent others from calling your work whatever they want to call your work. Look at 17 U.S. Code § 106, which lists the rights exclusively reserved to the copyright owner. | I don't see how. Remember that a license is a contract where the author gives permission to copy (modify, redistribute, remix, etc) a copyrighted work, provided that the licensee fulfills the stated conditions. If the license is not in effect, then we revert to the default situation under copyright law, which is that the potential licensee has no rights to copy the work. (Not counting particular instances of copying which are permitted under fair use and similar exceptions - I presume that's not what you have in mind, or the whole question is moot.) In this case, the conditions include that the licensee must credit the author under their chosen pseudonym. The licensee can't get out of that obligation simply because they find it distasteful or objectionable for whatever reason. If they don't want to do it, then they should not accept the license in the first place, and so refrain from copying the work. (Of course, if the author is offering the CC license in hopes of encouraging reuse of the work, then this may not be a desirable outcome for the author, so they might want to think twice about their choice of pseudonym.) Even if the author's pseudonym were something that would actually be illegal to quote (say, because it is obscene), I don't think it lets the licensee off the hook. A contract with illegal terms is void, so legally it is as if there is no license at all, and we revert to the default in which there is no right to copy. A question was raised in comments about the word "reasonable". I don't know of case law where this has been tested, so I can only speculate: The context suggests that "reasonable" is intended to refer to the means of attribution (for instance, where the attribution should appear in a piece of source code or documentation), not to the pseudonym. There's a legal principle that the specific governs over the general, and the requirement to credit the author by a particular pseudonym is clearly more specific than the general requirement of "reasonableness". It seems clear that the author, who is the one offering these terms, didn't intend for the general term "reasonable" to render meaningless their request for the use of a specific pseudonym; if they had, why would they have bothered to put it in? On the flip side, there's the principle of contra proferentem, that ambiguities in a contract should be resolved in the favor of the party that didn't draft it - here, the licensee. But it's hard to argue that this is really ambiguous; it seems quite clear what the author wants. Of course, the author can circumvent the whole issue, if they're worried, by licensing the work instead under a modified version of the CC license in which the word "reasonable" is removed. After all, there is nothing particular magical about CC's language: the contract is whatever the author and the licensee agree to, and they're just using the pre-written CC license as a convenience to streamline their negotiations. | It would not be a copyright. Names and short phrases are not subject to copyright, but it could be a trademark under common law ( e.g. state law in the U.S.) or could be registered. Some people think a trademark defines a product. That is not the case, a trademark identifies the source of a product or service. | A performance of copyrighted written music is copyright infringement. One of the bundle of rights that comes with a copyright is the performance right. You can obtain a license to cover copyrighted written music, however, on a mandatory basis for a royalty amount set by law, rather than only with the permission of the copyright owner as is the case with other copyrighted works. There are exceptions to the broad general scope of the the rights associated with a copyright, such as fair use, but a performance of instrumental music is not itself, in general, fair use. | The author of the book may have a copyright, because he created a new piece of work from the/a original work. For example, by translating it in another language or in a modernized language, by rearranging the content, by adding images or commentaries etc. You will therefore have to find a book or other source that is not or not anymore copyrighted. | There are now 2 works. An original, abandoned work, and a new, derivative work. The original creator owns the copyright over the original, and the new person owns copyright over the derivative he created. In your scenario, it will be the new creator, who will have the right to sue, if the gpl of the new work has been infringed | They can be, and usually would be. If someone uses a a keyboard or other instrument that records a MIDI file, that file is protected by copyright as soon as it is saved. Or if some person or group perform a work and captures the performance with a digital recorder and saves it to a MIDI file, again that MIDI file will be protected by copyright as soon as it is recorded. However, if an existing recording is converted into a MIDI format, the MIDI will have the same copyright as the source recording, if any. No new copyright is generated, just as there is no new copyright for making a photocopy of a book. If the original recording was PD, so will the MIDI file be. Similarly, if a MIDI file is created directly and automatically from a score, it would have the same copyright as the score, nothing added, nothing changed. If the score is PD, so is the MIDI. But often the publisher of a score will claim a copyright on that version, even if the composition is PD. Sometimes such a claim is valid, sometimes not. It depends on how much original content the publisher added. If a work that is under copyright is recorded in a MIDI file, the file will be subject to two copyrights, the one on the composition, and the one on the recording. And if permission is not obtained from whoever holds the copyright on the composition, this will be copyright infringement. (There are, however, some cases where the law grants an automatic license to a performer for a "cover" version of a copyrighted work.) If a work that is PD is recorded in a MIDI file, the file will be subject to only one copyright, the one on the recording. This will initially belong to the musicians, or to their employer, depending on the agreements they have made. In short a MIDI recording is not legally different from a recording on magnetic tape or on vinyl, or in any other medium. The copyright is on the performance, although it protects the recording. | This would likely be considered a derivative work. You would need permission from the copyright holder to make it, especially if you intend to distribute it for profit. |
Can results from a criminal conviction be transplanted into a corresponding civil case? There is some overlap between crimes and torts, for example deliberately smacking a person in the head is the crime of battery and the tort of battery. If a person deliberately smacks another in the head, and causes harm to the other, they can be prosecuted and convicted for that crime. They can also be sued by the victim for the resulting damage. If a person is prosecuted and convicted for the crime, can that fact subsequently be entered into evidence in a tort action against the person, as proof that the act happened and was caused by the defendant, making the only open legal question be what the damage was? Or, does the victim have to re-prove (to a different jury) that the act happened and that the defendant did it intentionally, as well as proving harm? (My expectation is that the proof has to be replicated and the conviction cannot be introduced as evidence). Definitive case law, statutory or evidence-rule citations appreciated, as always. Any common law jurisdiction. | (My expectation is that the proof has to be replicated and the conviction cannot be introduced as evidence). Your expectation is incorrect. The name of the legal doctrine that allows a criminal judgment to have this effect in a civil case is called "collateral estoppel" which is also sometimes called "issue preclusion". See, e.g., A-1 Auto Repair & Detail, Inc. v. Bilunas-Hardy, 93 P.3d 598, 600 (Colo. App. 2004) ("Hardy contends Colorado law does not allow courts to apply collateral estoppel, now commonly known as the doctrine of issue preclusion, when the first adjudication is criminal and the subsequent litigation is civil. We disagree.") Similarly, a case out of California stated: To preclude a civil litigant from relitigating an issue previously found against him in a criminal prosecution is less severe than to preclude him from relitigating such an issue in successive civil trials, for there are rigorous safeguards against unjust conviction, including the requirements of proof beyond a reasonable doubt and of a unanimous verdict, the right to counsel, and a record paid for by the state on appeal. Stability of judgments and expeditious trials are served and no injustice done, when criminal defendants are estopped from relitigating issues determined in conformity with these safeguards. Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 606, 25 Cal.Rptr. 559, 375 P.2d 439, 441 (1962) (citations omitted). To the best of my knowledge, this is the rule in every U.S. jurisdiction (with the possible exceptions of Puerto Rico and Louisiana which are not common law jurisdictions). It is also the historical rule in British common law, although I don't know if this continues to be the case in non-U.S. jurisdictions. Procedurally, the determination that collateral estoppel applies would usually be made on a motion for summary judgment, or in the preparation of jury instructions which state that liability has been established and that the jury is to limit itself to determining causation and damages, rather than as an evidentiary matter. I've used this doctrine once or twice. For example, I used it in a case where someone fraudulently sold ditch company shares worth several hundred thousand dollars (in Colorado, water is gold) that he didn't own (a transaction that could not be unwound because the buyer was a bona fide purchaser for value and the seller had apparent authority as a trustee of a trust owning the shares even though he didn't have the actual authority to sell them under the trust) and then spent the money he received before he was discovered (if I recall correctly, for gambling debts). He was convicted criminally and then my client, the victim, sued for money damages including statutory treble damages for civil theft and attorney's fees based upon collateral estoppel and an affidavit as to damages in a motion for summary judgment. From a practical perspective the four main difficulties are that (1) people convicted of crimes often lack the income or assets to pay judgments, (2) there are double recovery issues involved in reconciling restitution awards in a criminal case (where the measure of damages is narrower) and damage awards in a civil case (where the measure of damages is broader), (3) there are priority issues involved in reconciling criminal awards for fines, restitution and costs, in each case with civil awards for damages, and (4) if the defendant declares bankruptcy, the non-dischargeability of the civil judgment must be affirmatively raised and proved (often this is elementary but there are strict time limits) in the bankruptcy proceeding. Tactically, it is often better to sue first, collect what you can, and to bring a criminal complaint only when it turns out that the perpetrator is judgment-proof. | Yes. Juries aren't terribly accurate. There is an irreducible chance that no matter how clear the outcome should be that the jury will get it wrong. Based upon a review of the academic literature on wrongful convictions and inaccurate acquittals, I generally tell my clients that this is about 10%. Many people think that this is a low end estimate. Also, sometimes a jury will acquit a defendant in a case where they think that the defendant was actually legally guilty because of extraordinary circumstances, and so the jury will disregard the law and acquit. This practice is called "jury nullification." And, as other answers have noted, sometimes the prosecution or the judicial system screws up for reasons that are unforeseeable, after a not guilty plea, in a way that makes proving your guilt difficult or impossible. Basically, if you "roll the dice" there is some non-zero chance you will be acquitted, while if you plead guilty, there is none. Also, sometimes court decisions will change the law in way favorable to you after the trial, and as long as your case is still on direct appeal from the conviction, you can benefit from those changes in the law, which you cannot if you simply plead guilty without any concessions. Likewise, if you are innocent and the evidence is currently strongly against you, but you wish to preserve the ability to later attack the conviction based upon future newly discovered evidence, not pleading guilty is generally necessary to preserve that option. Another circumstance where going to trial but losing can still be worth it, is where there are extenuating circumstances that make your conduct understandable, even if it is not a legally valid defense. Getting these facts in front of the judge in a fuller fashion, as a trial can make possible, can convince the judge that while you are legally guilty, that you deserve leniency. Going to trial typically results in a longer sentence, even without a plea bargain, however, so going forward with a hopeless trial is rarely a good move. | Civil litigation involves general causes of action that are available to anyone, including both private parties and the government. Civil courts are designed primarily to provide restitution to the injured party. Criminal courts exist for governments to exercise their police powers: specific, limited authority held only by the government. The principal purposes of criminal law are...well, they're debated, but broadly speaking, it's to punish and/or rehabilitate the criminal and deter future criminals. Because criminal conviction can result in jail time and even the death penalty, there are more stringent procedural protections accorded to criminal defendants than there are to civil defendants. So when the government's goal is to recover damages, it's easier for them to use the less burdensoome civil procedures, just the same as anyone else would. Let me give you an example. Someone steals your identity and runs up $100,000 on your credit card. You call the police, and they find someone they think is the guy. To convict him, the police must convince an entire jury panel that he did it, beyond a reasonable doubt--a high standard. He pleads the fifth, and without his testimony, the police may not succeed. If they do, he will be sent to jail, and he may also be ordered to give part or all of your money back. If the case is weak, however, the police may not want to spend their limited time on it--and that's their call, not yours. (This also applies to government agencies; only law enforcement can bring a criminal case, not any government agency.) However, you can also file a civil lawsuit. In that lawsuit, depending on the jurisdiction, you may only need to convince some of the jury--civil verdicts don't always have to be unanimous. You may even just face a judge, with no jury. And the legal standard is a "preponderance of the evidence," which in layman's terms just means "more likely than not"--a much easier thing to prove. Because the Fifth Amendment doesn't apply to civil litigation, you may even be able to argue before the jury that the defendant's refusal to testify suggests he's guilty. In summary: civil lawsuits use different rules and procedures, which may make it easier to recover money (or get other civil relief, such as an injunction) in cases where that's the goal. These courts are open to anyone, including the government. But if the government wants to use its special police powers to put someone in jail or get other criminal relief, they have to use the stricter criminal rules and procedures. | Not generally. While double jeopardy considerations does not apply in Canada until the final verdict (i.e. all appeal processes have been exhausted by decision or failure to appeal within the time limit), the right to a jury trial for serious offences, both under the Constitution Act, 1982 (or the Charter, its bill of rights Part) and the Criminal Code (section 471, which not only makes the jury trial a right, but also the compulsory mode of trial unless both prosecutor and the accused consent), exist. Under common law principles, the jury's verdict, in the fact-finding role exclusive to the jury, is almost sacrosanct. Even if in Canada an appeal court can set aside a jury's verdict of acquittal or conviction, they may only do so if there is a reviewable legal error (for appeals from the Crown and the accused), or if the verdict of conviction is plainly unreasonable and cannot be supported by evidence (or otherwise may constitute a miscarriage of justice). In the first case, the reasoning is that the jury's verdict was defective due to e.g. insufficient or wrongful instructions, seeing evidences that should not have been admitted or failure to see evidences that should have been admitted. In the second case, the appeal court acts as a safeguard, much like in the U.S., for the accused to prevent wrongful convictions however it may occur. Even then, the appeal court cannot in essence conduct a new trial from the appeal records and substitute its own factual findings for those made by a jury, unless it finds that no properly instructed jury can reasonably convict the accused based on the evidences presented (R. v. W.H.). Now going back to what the trial judge can do after a jury's verdict. The proper course of action in case where the Crown's case cannot support a conviction is for the accused to seek a directed verdict before presenting any evidence. If the judge grants the motion, the judge (not the jury) enters a verdict of acquittal, which can be appealed for errors of law. Otherwise, the trial judge has no capacity to usurp the fact finding role of the jury. The judge can, however, in exceptional circumstances, declare a mistrial or stay of the proceedings (i.e. the proceeding is concluded without a verdict, due to e.g. abuse of process by the state or other considerations to preserve the integrity of the justice system) following the jury's verdict. All most all cases on this issue followed a verdict of conviction. In one unusual case (R. v. Burke), a verdict of "acquittal" was involved. The verdict is in quotes because in this case, the court recorded a verdict of acquittal apparently contrary to the jury's intention, as the jury foreman had coughed before pronouncing "guilty as charged" and the judge (along with the court reporter, the prosecutor and the defence lawyer) misheard "not guilty as charged". After seeing the accused in the parking lot, some jury members were confused and returned to the court and reported the error. However, not all jury members could be immediately contacted and the jury had only reconvened in the court with the accused a couple days after the original verdict, and after some newspapers had reported on the situation. The trial judge decided to enter the intended verdict of "guilty". The accused appealed and the Supreme Court decided in this particular case that: the trial judge can nonetheless exercise a limited jurisdiction after the jury's discharge; the judge could enter the intended verdict if it did not give rise to a reasonable apprehension of bias; in this case, due to the media reports and relatively long delay between the original verdict and the reconvening of the jury, which may have improperly influenced the jury, a mistrial should have been the appropriate remedy instead of entering the intended verdict. On the appropriateness of a mistrial, the Supreme Court said In declaring a mistrial, the trial judge therefore turns his or her mind to the question of whether a mistrial is needed to prevent a miscarriage of justice. This determination will necessarily involve an examination of the surrounding circumstances. Injustice to the accused is of particular concern, given that the state with all its resources acts as the singular antagonist of the individual accused in a criminal case. This factor should be balanced against other relevant factors, such as the seriousness of the offence, protection of the public and bringing the guilty to justice. It may be fitting to allow the announced verdict to stand where the period the accused has been at liberty and under the mistaken impression that he or she had been acquitted has been lengthy, and where the charge is not so egregious as to bring the administration of justice into disrepute. As has already been stated, the trial judge is in the best position to assess the circumstances of each individual case and select the most appropriate remedy. This case does not directly apply to a case where the jury intended an acquittal, but the considerations may still be applied in extremely limited circumstances. While no one but the jury is privy to their deliberation process and no judge can overturn a jury's acquittal because they think the jury's verdict is unreasonable, it could be imagined that, for example, if a jury reports an acquittal and a member of jury before being discharged makes a claim of jury intimidation or the Crown presents clear evidence of jury manipulation, the trial judge might still have the authority to declare a mistrial. But this has not been clarified in jurisprudence. | A civil fraud is one pursued by a private plaintiff against the defendant and must be proved on the balance of probabilities. Success by the plaintiff results in restitution in the form of damages being payable from the defendant to the plaintiff. A criminal fraud is one pursued by the state against the defendant and must be proved beyond reasonable doubt. Success by the state results in punishment of the defendant by fine, community service, imprisonment etc. The same fraud may result in a civil case, a criminal case, both or neither. | If Person A commits a criminal or civil offense on Day 1, which then becomes lawful on Day 2, can Person A be prosecuted or sued on Day 3 (Day 1, 2, and 3 are not necessarily subsequent days, but happen in this order)? As a general rule they can be prosecuted but the exactly language of the effective date language in the statute controls. It might say, for example, "effective for prosecutions filed after Day 2" in which case it couldn't be prosecuted. Also, if Person A is a minor when the offense occurred, but is now an adult, would the person be legally considered a minor or an adult if prosecuted or sued? Generally speaking, a minor. But this is a function of the language of the statute in question in the case of juvenile prosecutions. If a statute of limitations is shortened, then does the new one apply or the one that existed when the person did the crime/tort? Again, it depends upon the effective date language of the statute. Typically, it will apply to suits filed after the effective date. | 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. | There is a general defence to any crime called self defense. If you commit a crime, but the reason you commit it is because you are acting in self defense, or the defense of another, then you will not be found guilty of that crime. For example, if you kill someone, but the court believes you are acting in self defense, then you will not be found guilty of murder (or manslaughter). This defense extends to other crimes too, and trespassing would be included in this. Acting in the defense of another person has the same effect as acting in self defense. Just note that you would have to prove that it was reasonable for you to be acting in the way you did. Usually this means that the crime you committed was proportional or necessary to prevent the crime that would have occurred, and if self defense is involved, that it was necessary to do what you had to do to prevent harm to you or another. |
What is the winning ratio of pro-se defendants in U.S. criminal cases? In cases where a criminal defendant rejects the service of counsel and defends himself pro se, how often is he acquitted? | This paper studies the question, in a restricted context of federal cases (the main problem is getting data, but turns out that some federal court clerks have been obliging). From that database, between 1998-2011 1,156,460 felony cases were resolved. 0.2% of those cases were pro se representations with virtually all cases having professional representation ("data missing" is 10 times more frequent than pro se, and the only thing rarer was pro bono attorney at 0.03%). As for outcomes, it is possible that pro se defendants had the charges dismissed at a higher rate (16.9% pro se vs. 6.1% represented -- "possible" is a way of simplifying the statistical problems in interpreting these numbers); with acquittals it's a wash, and with convictions pro se defendants may have done worse (14.8% pro se, 4.9% represented). There also seems to be a trend that juries convict pro se defendants more often than they do represented defendants (90% vs. 77.9%). Ah, and this paper follows up and contradicts the findings of the Hashimoto study, linked in the comments. | As a pro se litigant, you have the same power as an attorney to prepare your case. What is that power? Subpoena power. That is the power to compel witnesses to appear and give testimony. Along with subpoena power, you have the power given by the rules of discovery, to conduct discovery, send interrogatories (written questions to the opponent and non-parties), requests for admission (requests that opponents and non-parties admit or deny statements of fact), requests for production (of tangible documents and things) and to take depositions (recorded testimony). Those tools (powers) are available to you just as if you were a lawyer. Out of that body of information, you develop your proof to support your claim at trial. Those relevant facts that tend to prove your theory of the case and disprove the other sides. The primary problem a pro se litigant faces compared to a lawyer is knowing how to exercise that power, knowing what questions to ask, and knowing what facts are likely to be persuasive on the ultimate issues at trial. It's having the power, but due to lack of experience, not utilizing it effectively that is usually the biggest hurdle for pro se litigants to overcome. | Prosecutions for falsely reporting rape are at least as common as perjury convictions (and usually don't count as perjury since the initial report is rarely made under oath), and even when charges are brought by prosecutors involving false statements made under oath, prosecutors tend to favor lesser misdemeanor false reporting charges over perjury charges. See, e.g., cases with news reports of such cases in Colorado and Wyoming on May 24, 2021, September 11, 2015, August 29, 2014, and March 18, 2008. This isn't to say that these cases are terribly common although they tend to generate headlines when they are brought. The State of Colorado commenced 1,801 felony sex offense cases in the 2021 fiscal year, for example, which was not atypical, and false reporting of sex offense cases are brought in Colorado maybe once every year or two. The conviction rate in sex offense cases that are prosecuted isn't 100%, but something on the order of 90%-95% of sex offense cases result in a guilty plea, and well over half of the remaining cases result in convictions at trial. As an order of magnitude estimate, perhaps one in fifty to one in two hundred cases where sex offense charges are pursued, but there is not a conviction, gives rise to false reporting charges against the alleged victim. Many acquittals and dismissals of charges that do occur are best characterized as cases where there is a reasonable doubt because jurors believe that it is reasonably possible that there may have been a good faith witness misidentification, or because charges were dismissed because a confession or evidence obtained in a search was unlawfully obtained and had to be suppressed. It would be very rare for a defendant to be acquitted (after a judge in a preliminary hearing found that probable cause was present) because the jury believed that the testimony of a victim was believed to be intentionally false, and there is no way to tell from the verdict itself that the jury reached this conclusion. The problematic aspect of charges of false reporting of sex offenses is the there have been famous instances of women being convicted for falsely reporting rape (see also here focusing on a different case), only to subsequently have the allegations for which the victims were punished confirmed to be true with DNA and other evidence. The number of cases where true allegations of sex offenses are made but not pursued because law enforcement finds the allegations to not be credible, almost surely greatly exceeds the number of cases where false reports of sex offenses are made to police, although this ratio varies greatly from one police department to another based upon the institutional culture of the police department in question. | Criminal cases The answer in the case of criminal charges in the federal system and in the vast majority of U.S. states is that you can almost never recover legal fees you incur defending a criminal action. There is such a thing as a lawsuit for malicious prosecution, and there is such as thing as a lawsuit for a civil rights violation caused by bringing baseless charges, but in both circumstances one must demonstrate that the charges were brought without probable cause. But, in most cases of serious criminal charges like this one, either a grand jury probable cause finding, or a preliminary hearing probable cause finding, both made well prior to a trial, will conclusively preclude a malicious prosecution or civil rights lawsuit. (Also, prosecutors have absolute immunity for their discretionary prosecution decisions, and judges have absolute immunity for their judicial decisions, and you can't sue jurors unless they accepted a bribe or something like that.) But, the standard of proof necessary to establish probable cause is much lower than the standard of proof necessary to convict. A very small minority of states allow for reimbursement of fees upon an acquittal, but even then, it is often necessary to prove by a preponderance of the evidence that you were actually innocent, so a dismissal on procedural grounds or an acquittal at a criminal trial where the prosecution must show beyond a reasonable doubt that you are guilty, is not sufficient to show that it is more likely than not that you are innocent. Likewise, you are not entitled to recovery for indirect financial damages caused by criminal charges. As you correctly imply, this is a very harsh rule that can mean that wrongful criminal charges can ruin you. On the other hand, if you are unable to afford an attorney, and a public defender is appointed for you by the state, you do not have to reimburse the state for the public defender's fees if you prevail and are acquitted. A minority of states, however, require that you reimburse the state for the public defender's fees if you are convicted along with other court costs, fines and restitution awards. For what it is worth, only about 1% of criminal charges brought result in an acquittal at trial. Most cases are resolved through a pre-trial plea bargain, a voluntary dismissal by a prosecutor who acknowledges that there is no case against you prior to trial, or a conviction of at least something at trial. About 10% of cases go to trial and about 10% of cases that go to trial result in an acquittal or hung jury (in very round and approximate numbers that vary greatly from jurisdiction to jurisdiction and by type of case). Also, probably at least 10% of acquittals are of people who were factually guilty, because juries get it right something on the order of 90% of the time when cases go to trial. But, the vast majority of acquittals result in a vast injustice to the defendant (although not as great as when a judge uses the factual basis of the events from which you have been acquitted to enhance the sentence against you on other charges which is done from time to time in both the federal and state legal systems in a practice that is unfair but not necessarily sufficient to overrule those sentences on appeal). Civil cases The situation in a civil case is different and too broad to answer in one question. There are some civil cases where a prevailing defendant is entitled to attorneys' fees and costs, while there are others where a prevailing defendant is not. The default rule, called the "American Rule" is that a prevailing attorney is not entitled to attorneys' fees and costs of a defense. But, there are myriad exceptions to that rule that vary by type of case, by the particular details of how a case was prosecuted, and by legal jurisdiction within the United States, that are not easily summarized. For example, in Colorado civil cases, some of the more common grounds for an award of attorneys' fees to a defending party are: (a) a two-sided contractual fee shifting term, (b) dismissal of the case before filing an answer for failure to state a claim when tort claims were asserted, (c) a determination that the suit was groundless, frivolous or vexatious, (d) violation of certain rules relating to disclosure of information to the other party, (e) a statutory fee shifting provision in the case of a claim based upon a statutorily created right which is present in some statutes but not others. | 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. | I have beaten all but one of my traffic tickets just by going to court. In one case, the judge threw out the charge because he couldn't read the officer's handwriting on the ticket. In another, the officer charged that I was parked in a "no parking" zone on a particular street (at night), but gave a cross street where parking was, in fact, allowed. | In the overwhelming majority of criminal trials for felonies, and a very large share of misdemeanor and traffic trials, criminal defendants, following the advise of their criminal defense attorneys – who have a good knowledge of the system – overwhelmingly choose jury trials. (Even though criminal defense attorneys may personally have reasons to prefer bench trials which take less preparation as criminal defense attorneys are usually spread very thin with many clients and limited resources.) This is primarily for one very good reason. A jury is six times more likely to acquit than a judge and, unlike a judge, can also deadlock (resulting in a mistrial followed by a retrial or more lenient plea bargain in most cases), if the facts are at all susceptible to more than one interpretation. Judges and juries agree on the verdict in roughly 78% of criminal jury trials where a verdict is entered, but judges are much less likely to acquit defendants than juries do, (3% v. 19%+) (see the sources cited in this previous Law.SE answer). The National Center for State Courts conducted a survey of hung jury rates using felony case data from all federal courts and 30 state courts in 75 of the most populous counties. The NCSC project found that state courts in large urban areas had an average hung jury rate of 6.2%, with substantial variation across courts, ranging from a low of 0.1% in Pierce County, Washington to a high of 14.8% in Los Angeles County, California. Federal hung jury rates were found to be particularly low, averaging about 2% of all federal jury trials: federal civil trials had lower rates than federal criminal trials. (Source.) On average a criminal defendant is eight times more likely to avoid a criminal conviction in a state court criminal case in a trial before a jury than in a bench trial. In federal court, there is a 38% chance of bench trial acquittal (12% of all federal criminal trials are bench trials while 88% are jury trials), some of which are for misdemeanors and traffic cases, and a 14% chance of jury trial acquittal. But only 2% of federal criminal cases go to trial (roughly 99.6% of cases presented to federal grand juries result in indictments) with the remainder plea bargained (90% of cases charged) or dismissed (8% of cases charged, sometimes due to a state court conviction), and only about 2% of all U.S. criminal cases are filed in federal court. So, federal criminal bench trials are very rare and atypical. Secondarily, there is lots of highly prejudicial and legally irrelevant information (e.g., the criminal history of the defendant, or evidence excluded for 4th Amendment violations) that a jury will not know, but a judge will know. Jurors almost never disregard evidence that they are told to disregard, and often give it undue weight, and judges aren't any better. The real question should be: Who chooses a bench trial and why, notwithstanding these facts? Some situations in which someone might consider a bench trial rather than a jury trial include: A bench trial can be easier for a pro se defendant, which is one not represented by counsel either because the defendant is not indigent and hence not entitled to counsel, or because the proceeding is one in which there is no right to counsel (usually traffic cases). In these, usually low stakes, matters the cost of counsel does not justify the expenditure and it can be easier to do a bench trial as a pro se party than a jury trial. The vast majority of criminal or quasi-criminal bench trials are in low stakes cases (which are segregated into separate courts in state court and mixed in with more serious cases in federal court) where this is a primary consideration. A bench trial can be desirable for someone who needs a quicker trial date (e.g., someone who lives somewhere seasonally and needs to get home), especially in a low stakes case where the sentence is likely to be a fine or a sentence to "time served" if there is a sentence. A bench trial can be desirable when the guilt-innocence determination is largely a foregone conclusion but the defendant would still like to at least try to be acquitted, as a way to more fully tell a story of how the incident was understandable even if not a legal justification for conduct, to prepare the judge for sentencing with a more full picture of what happened than a guilty plea would provide. For example, it might be a strategy that someone who assaults (ambush style) someone who raped his sister might take, even though a tape recorded confession and video tape of the incident makes the likelihood of acquittal small (unless the defendant thinks that "jury nullification", i.e. ruling in his favor notwithstanding the law, is likely). Another example would be to provide a forum in a drug possession case to show that someone in possession of a large quantity of controlled substances was really a "mule" and not a big time dealer. This kind of consideration drives a fair number of bench trials in federal criminal cases. A bench trial can be desirable for a defendant who thinks that a judge will be favorably inclined towards him (e.g., some law enforcement officers or public officials). A bench trial can be desirable for a defendant when a jury is likely to be biased against him (e.g., a Muslim defendant at a time when anti-Muslim sentiment is strong due to some recent news event, or a defendant in a community with lots of racist potential jurors who is before a black judge). A bench trial can be desirable for a defendant whose primary defense requires above average sophistication to understand (e.g., a defendant in some complicated regulatory or white collar case). Bench trials are more attractive in cases where the criminal defendant is a first time offender, has no arrest record, and is not relying on suppressing any evidence at trial, so that the availability of more information to the judge than the jury is not a problem. A summary of jury trials in Colorado, which is typical, shows the revealed preference for jury trials. In 2016, defendants elected jury trials in 67% of traffic cases, 69% of misdemeanor cases, 97% of state court felony cases, and 59% of federal criminal cases (which are a mix of misdemeanors and felonies). | Would a U.S court honor his request, based on his prior commitment? You are not specifying the purpose of the court hearing, or whether Adam is pro se litigant (which sounds unlikely if this plaintiff is a movie star). If plaintiff Adam is represented by an attorney, Adam's presence is unnecessary in most or all court hearings. In fact, typically neither parties nor their lawyers have to show up in court, whence their absence does not constitute contempt of court. Absence merely implies that they miss the opportunity to [orally] argue their position before the court, and thus would depend on whether the judge bothers to actually read their brief. If you mean a hearing in which Adam needs to be present, his request to reschedule the hearing is most likely to be granted. His contract is strong evidence that his request is not a vexatious attempt to delay proceedings. Since the hearing would be in month 4, the particularity that his contract goes up to month 4 implies that rescheduling would not significantly delay proceedings. Regarding your comment, rescheduling can (and does) happen multiple times even in criminal cases. This post includes an excerpt of the Register of Actions of criminal case 16-870-FH in Michigan state court (Washtenaw county), highlighting several instances of rescheduling as requested by the defense counsel and despite prosecutor's objection. I believe the case got rescheduled a few more times beyond what the snapshots reflect. |
Is there any legal obligation for the POTUS to stay sober? Obviously there is a moral obligation for the president to stay sober. However, is there any law that ensures this is the case? | Well, moral obligations are not laws, nor sometimes even moral obligations. Some laws are based on what some courts and legislatures think are moral obligations. We think cannibals have a moral obligation not to eat people; cannibals think non-cannibals are fools for passing up a good BBQ. As for a leader's moral responsibility for millions of lives, we can take as extreme examples Mao, Hilter, Stalin, Pol Pot, etc., that there are no obligations. The law that could apply in the case of a POTUS who does not "faithfully execute the Office of President of the United States..." (oath of office for POTUS) is that of "High Crimes and Misdemeanors", the grounds for most impeachments. But "faithfully executing the Office of President" has no moral obligation; it has legal implications, that's all. High crimes or misdemeanor are legal definitions, not moral, and depend on previous cases of what a crime or misdemeanor is. Insobriety can be illegal; there are laws on the books concerning public drunkenness. But in the contest of POTUS (one who is hopefully not passed out on the sidewalk in front of the WH), it remains to be seen if insobriety is a high crime or misdemeanor. That would be up to the House Judiciary Committee and US House of Representatives, which by Constitutional powers handles impeachment proceedings. The Twenty-fifth Amendment outlines who succeeds the president due to "Inability to discharge the Powers and Duties of the said Office," but it does not state who has the power to declare a President incapacitated. It's possible that a POTUS who incapacitates himself with alcohol is guilty of a "high crime or misdemeanor." But how drunk do you have to be to be incapacitated? Drunk enough to think a Game Boy is the nuclear football? Again, that's up to the House. Some past presidents have arguably been functional alcoholics (or functional recovered alcoholics.) But incapacitated? That can be subjective when it comes to the application of the law. And morals have little to do with it, unless those morals have a basis in that same law. Update 12/04/16: Some federal judges have been impeached due to drunkenness: http://www.fjc.gov/history/home.nsf/page/judges_impeachments.html and http://www.crf-usa.org/impeachment/high-crimes-and-misdemeanors.html | Political speech is at the core of First Amendment protections on free speech, but there are still legal limits that exist on political speech. (I respectfully disagree with the idea posited by user6726's good answer that political speech is immune from legal restraint.) Direct incitement to imminent lawless action that is likely to occur can technically be prohibited and people can be arrested for it, but the segments I've seen of the most pro-violence of Donald Trump's rallies have not quite risen to that standard. He has been couching his incitement-related language carefully; it sounds much tougher than it actually is. "I will pay to defend you if you commit a crime" or even an approving "back in the day, you used to get a punch in the face for X" is not the same as saying "Punch those people in the face on your way out" or "Let's knock those protestors out of here in 3, 2, 1... GO!" While I'm not saying that a pre-crime promise to cover legal fees can never be enough to rise to the level of conspiracy (that's an interesting question), it also isn't really incitement to riot. But If Donald Trump, or anyone else, used their political position to speak at a public event and directly incite a riot, then they could be arrested under an applicable law without violating the First Amendment. There are also other limits on political speech, such as defamation. While a political speaker has incredibly wide leeway, there are still limits that exist, especially if the speaker targets a private citizen rather than another political figure. | 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. | Generally, no. Legislatures pass laws. The fact that someone else knows more about the thing they're passing laws about is utterly irrelevant -- the power to make laws is given to the legislature, not to experts. If the legislature thinks experts should make the rules on something, they can delegate (this is why the FDA approves medicine rather than Congress), but the legislature of a state generally has the power to pass any law that is not unconstitutional. Your analogy to paper money is a poor one: that's a federalism thing, not an expertise thing. Congress has established a system of paper money, and states can't interfere with that. It's not that the Fed thinks paper money is good, it's that Congress said paper money shall be a thing. That could stop a state from banning an FDA-approved drug; however, since marijuana is illegal under federal law, it would be odd to conclude that banning it at the state level as well is preempted. Legislators aren't inherently experts on anything (except being elected). That doesn't matter. They have the authority to pass laws, even if those laws directly go against the views of people who are recognized experts in the area. You appear to think there must be a judicial remedy against bad policy. You would be wrong. The role of the courts is not to decide what policies are good or bad; they are concerned only with what is legal. Deciding what policies are good or bad is a matter for the democratically elected representatives of the people, or for the people themselves in states with ballot questions. It is not the job of the courts. | The Twenty Second Amendment is quite clear on this: No person shall be elected to the office of the President more than twice In your question, the President has been elected twice - unless of course the President was actually the Vice President (or elsewhere in the line of succession) at the start of the first term, in which case theres other limits: and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. So, someone who has held the office of President after being elevated to it rather than elected to it, but served no more than 1 year 364 days of that first term, could possibly, by the wording of the Twenty Second Amendment, be eligible to resign within their second term and stand again but only once more. | There is no parallelism between the Texas decision and the proposed lawsuit. In the anti-mifepristone lawsuit, there exists a statute granting the FDA authority to regulate and review new drugs, and a petition procedure whereby citizens can state ground for the Commissioner of Food and Drugs to consider a regulatory action. There is no statutory basis on which a ban of meat-eating could be created by executive action. Congress cannot be sued for not passing a law (failure or refusal of Congress to pass a particular law is not justiciable). If, for example someone were to submit a petition to the FDA urging such a regulation, the petition would have to be denied because the FDA does not have statutory authority to issue such a regulation. As argued here, the anti-mifepristone plaintiffs lack standing in that case, so one can expect that to be a substantial issue in the subsequent appeal. | There is no law governing the 'number' of the president. Common sense suggests that a person can't be 45th and 46th; there must be someone in between having the presidency and they will become the 46th president. In the extremely unlikely scenario that a foreign power occupies the United States this year, eliminates the office of President, and a few years later the US is liberated and Donald Trump is re-elected, I guess people could name him the 45th and 46th President, but it makes no sense to speculate about this. | Here are the Washington state proclamations with legal force, for example this proclamation amending proclamation 20-05. The legal authority is the paragraph starying "NOW, THEREFORE, I, Jay Inslee, Governor of the state of Washington" and what follows is what is legally proclaimed, in this case the effect is to "waive and suspend portions of Title 79 RCW that require in-person meetings", pertaining to Dep't. of Natural Resources. Here is 20-25, the original stay-home proclamation. It claims Chapters 38.08, 38.52 and 43.06 RCW as authority, and prohibit[s] all people in Washington State from leaving their homes or participating in social, spiritual and recreational gatherings of any kind regardless of the number of participants, and all non-essential businesses in Washington State from conducting business, within the limitations provided herein. 43.06.220 is the main hammer that the governor can wield. The powers granted by the legislature include: (1) The governor after proclaiming a state of emergency and prior to terminating such, may, in the area described by the proclamation issue an order prohibiting: (a) Any person being on the public streets, or in the public parks, or at any other public place during the hours declared by the governor to be a period of curfew; (b) Any number of persons, as designated by the governor, from assembling or gathering on the public streets, parks, or other open areas of this state, either public or private; (c) The manufacture, transfer, use, possession or transportation of a molotov cocktail or any other device, instrument or object designed to explode or produce uncontained combustion; (d) The transporting, possessing or using of gasoline, kerosene, or combustible, flammable, or explosive liquids or materials in a glass or uncapped container of any kind except in connection with the normal operation of motor vehicles, normal home use or legitimate commercial use; (e) The sale, purchase or dispensing of alcoholic beverages; (f) The sale, purchase or dispensing of other commodities or goods, as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace; (g) The use of certain streets, highways or public ways by the public; and (h) Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace. One could argue that some order is not reasonable, and perhaps it would fail strict scrutiny, if anyone sued. At present, though, there is no legal order. There is a guidance, a statement of best practices. There may well be a formal proclamation on this topic, which would wrap this in the legalities of other official proclamations. It boils down to RCW 43.06.220(1)(h). |
What would happen to a minor who was blackmailed into robbing a bank and killing a man? An episode of Black Mirror Season 3 Episode 3, Shut Up and Dance, presents what seems like an interesting legal scenario, at least to me (NAL). A kid's computer gets a virus. Let's say he's 16. Someone records him masturbating to child porn via his webcam secretly, then blackmails him into going to a location. At the location he's given a cake, and told to bring it to another location, where another blackmailed accomplice joins him and they're told to go to another location where they find a bank. I'm explaining this in order in case the vagueness of each instruction and timing is pertinent legally to the charges. As a side question, I'd be interested to know if these details, such as the way he originally didn't plan to rob a bank or kill someone, but each thing developed in a vicious cycle, would affect the charges. They're then told to look inside the cake where they find a gun. The boy is told to rob the bank at gunpoint, he does it, and then leaves with the cash in the drawer. Then they get to a drop point, the kid's told to bring the money out into a secluded patch of woods, where he finds another blackmailed man, and they're both instructed to fight to the death. The boy tries to shoot himself, but the gun isnt loaded, kills the man (after trying to run, so this actually appears to be in self defense), walks away and is soon chased down by cops after his location is reported by the blackmailers (who didnt care about the money) with the money on his person, and his masturbation video to child porn is released to the public also. With the blackmail and not being an adult, it seems like an interesting legal scenario. What charges might this kid face? I live in the US, so I'm really interested in an answer for any state in the US, but the episode actually takes place in the UK, so an answer that covers UK law would be interesting as well! | Jurisdiction: Ohio. What charges might this kid face? Let's deal with each individually. Possession of Child Pornography Based on the facts contained in your narrative, the suspect is guilty of possession of child pornography. Here is the relevant code statute. (2907.323 Illegal use of minor in nudity-oriented material or performance.) There might or might not be a problem with the admissibility of the evidence under the circumstances. This defect can be cured if the prosecution obtains a search warrant for the suspect's computer as possession alone meets the statutory threshold. Aggravated Robbery In Ohio, aggravated robbery is not a strict liability (i.e., statutory) crime. Therefore, mens rea (mental state) of the offender can be a legal defense. In this case, the suspect can argue duress as an exculpatory and/or mitigating factor. Here is the relevant code section. Murder As you pointed out in your narrative, the facts suggest the suspect killed in self-defense and, therefore, is not guilty of murder. | Of course The prosecution just needs to prove that the crime happened (or the defendant believed it to have happened) and you helped (in brief, there will be specific elements of the crime that each need to be proved). This would be easier if the primary crime had a convicted perpetrator but it’s not impossible without. Allow me to illustrate with an example. I will set out facts which are somewhat contrived and would not be so clear cut in a real case but for the purposes of the example please take them as undisputed and fully supported by evidence. John and Jill are in a relationship. This relationship is well known to be argumentative with frequent shouting matches and one or the other storming out. This does not amount to domestic violence by either party. John's friend Alan believes (wrongly) that there is domestic violence. During an argument Jill drops dead of a heart attack. John rings Alan distraught and says "I've killed her." Alan assumes (wrongly) that John has murdered Jill. Alan says "i'll take care of it. You go to your dad's". Alan (alone) disposes of the body. John is not guilty of murder (or indeed, anything). Alan is guilty of accessory to murder even though the actual crime never happened. The fact that Alan believed it happened is enough. | Blaire Bayliss reviews the law in "The Kids are Alright 😂🍆🍑: Teen Sexting, Child Pornography Charges, and the Criminalization of Adolescent Sexuality" (2020) Colorado L. Rev. 251. The article uses the term "sexting" to mean the exchange of sexually explicit messages or images between individuals using electronic messaging. When images, this can constitute child pornography under federal law. Also (from cyberbullying.org), States that do not have a specific sexting law often rely on existing statutes when dealing with teen sexting. All states, for example, have child pornography or child exploitation laws that prohibit sending, receiving, or possessing images of a sexual nature of a minor. Bayliss notes though that some states have adapted their child pornography laws to account for teen sexting: For example, in Rhode Island, teens will not be charged under state criminal child pornography laws but may be "tried" in family court. And in Colorado, "teens who are approximately the same age and who exchange sexual images with the understanding of consent have committed a civil infraction." See Colo. Rev. Stat § 18-7-109(3). Bayliss's article and map are from 2020, but a 2022 dataset by the Cyberbulling Research Center shows not much has changed. That dataset also provides links to state-specific sexting laws where they exist. Note that no state law can exempt teens from the application of federal child pornography and related laws. Of course, if the image does not even constitute pornography, then all of the above is irrelevant, but I understand you to be asking about the circumstance where the content is typically or historically criminalized. | Are there actual laws written, or de facto situations (e.g. let's say another law specifies that a child can't be physically forced to go anywhere without causing abuse) where the child can refuse to attend? Are there "tiers" to the age; Is it true that a temper tantrum of a 5 year old would be seen as such, but the refusal of a 17 year would be legally accepted? This is a hard question to answer that doesn't have a neat resolution. Very little pertaining to the authority of a parent over a child is codified in statutory law and there is not a clear cut age at which a child has "freedom of conscience" vis-a-vis a parent. Most of the law related to children concerns allocation of parenting time and parental decision making between divorced, separated or unmarried parents; abuse and neglect; and juvenile delinquency. There is also usually a snippet of criminal law stating that certain kinds of uses of force to discipline children do not constitute crimes. But, part of why it doesn't come up very much is that older children are usually socialized in a manner that causes them to show a certain amount of respect for the wishes of their parents. It also doesn't come up much for children who aren't in their late teens, because the complete economic dependence of children on their parents or guardians gives the parents considerable power of their children that doesn't require the exercise of physical force. Also, it is quite dependent upon how the issue presents itself. No law enforcement agency is going to aid a parent in forcibly dragging a kid to church against their will. But, no social services agency is going to remove a kid from a home because his birthday party will be cancelled if he doesn't go to the church of his parents' choice the Sunday before his birthday. There are also some subtle but important distinctions between states on the issue of emancipation. In Colorado, emancipation is a statement about the empirical reality. If a child is self-supporting and lives apart from parents or guardians then the child is an emancipated minor. It is not a status granted by a court, it is a status acknowledged by courts when evaluating other issues. In California, a child is not emancipated unless a court grants a child that status and a child who is de facto emancipated without the leave of a court is guilty of a "status offense" (the New York State term for someone in this state is PINS for "person in need of supervision"). Basically, if a parent can force a child to go to church by means that don't constitute abuse or neglect and don't exceed the level of force authorize for child discipline in the criminal code, then they can do it, and if they can't manage that, then they can't do it. Many states have a "status offense" that allows government intervention with the cooperation of a parent or guardian in cases where an "uncontrollable" child is defiant and simply will not give any heed to the parent or guardian's instructions. In practice, the older a child is, the less likely someone viewing a parent's conduct forcing a child to do something is to be viewed as acceptable or legally justified. The legal rights of children in a school setting are also age dependent under the case law, although not always in a really well defined way. Controls on student expression that would be uncontroversial for elementary school students may be looked upon by the law with disfavor for high school students and clearly prohibited for adults. Perhaps one useful way to conceptualize it is that trying to make a child attend a particular kind of religious service is not considered an improper purposes for a parent of any minor to utilize the resources available to the parent to do so, but the range of resources available to a parent with regard to an adult child is much narrower. | There are several policy goals surrounding the age of criminal responsibility. One aspect is that by the age of criminal responsibility people have a sufficient awareness of societal norms and understanding of the wrongfulness of their conduct that they be eligible for criminal charges. Another aspect is that for people under the age of criminal responsibility, they may not respond to criminal charges and punishment in the same way as older people. That is, the criminal system may not be the most effective means of correction and rehabilitation of such young offenders. There is no bright line that accurately captures these factors, and thus many jurisdictions have more than one step in transitioning from the incapable child to the fully capable adult. For example, in the US and Canada, juveniles/youth over the age of criminal consent but not yet 18 years old are generally not treated the same as adults. The policy goals behind the age of consent relate to understanding of the consequences of sex, vulnerability to people in positions of power or influence, and protection of society's norms of purity. There is no reason why these different policy goals would result in the same age threshold. | 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. | You have pretty well enumerated when it is legal. On the face of it it appears that the 11 year old acted illegally. So, if he is not being prosecuted, why not? Age of criminal responsibility. Below a certain age (I don't know about Alabama but in NSW it is 12) a person cannot by law be held criminally responsible because they are deemed to lack the emotional and mental maturity to distinguish right from wrong; this is particularly relevant when the same action can be legal or illegal depending on rather nuanced circumstances. Public interest. A DA may consider that prosecution of this child in these circumstances is not in the public interest. Prospect of conviction. A sensible DA may decide that there is very little prospect that a jury will convict notwithstanding that there is adequate evidence to prove guilt. This is a subset of the public interest; it is in no one's interest to spend time and money on a trial that will probably end with an acquittal. | In this instance, the police were almost certainly trying to get you to volunteer to be in a line-up with the victim of the crime picking out potential suspects (of which you were absolutely one, and probably remain so). Assuming the chap or chappete who got mugged, who basically only saw the barrel of the gun, picked you out of the lineup at random, you could have expected to be carted off to a holding cell pending an interview, followed by arrest and very likely conviction for armed robbery. You were wise to refuse. You should never cooperate with the police even if you think have an amazing alibi that means that you couldn't have committed the crime. https://www.youtube.com/watch?v=d-7o9xYp7eE |
Are members of other tribes allowed to live on reservations? From my (admittedly surface) knowledge of Native American reservations in USA, they typically are enclaves of one specific tribe. And not all tribes historically were friendly to each other. Are there any rules in place that would prevent members of another tribe to settle in the reservation? If so, how do those rules mesh with federal laws of USA? (I'm specifically talking about formal rules, NOT social norms where an outsider may simply be made to feel unwelcome enough that they would want to leave on their own). | Reservations aren't of or for a single tribe (meaning roughly "ethnic group"), they are for a particular Nation (whether or not that term is used in a specific case -- it could be "Confederation" or "Band"). In Washington state, the Yakama Nation is a confederation of people who are Klikitat, Palouse, Walla Walla, Wanapum, Wenatchee, Wishram, and Yakama; the Tulalip Tribes covers the northern Lushootseed tribes made up of the Duwamish, Snohomish, Snoqualmie, Skagit, Suiattle, Samish, and Stillaguamish. Only 2/3 of the recognized tribes have reservations. The key legal concept is not exactly being "of a certain tribe", it is "being enrolled". Ancestry relates to enrollment (and disenrollment) via individual rules about membership. Federal Indian law is encoded in Title 25. Let's just say that a question about what that title says is way to broad to ever answer. Generally speaking, there are two types of reservation land, trust land and fee land. The US government holds trust land in trust, which has various restrictions on transfer, and is exempt from taxation: transfers require higher approval (tribe, BIA). Fee land is land that the individual(s) own outright. In the case of fee land, anyone can purchase that land. The land that would be of interest for this question is trust land. The Yakama reservation, for instance, has open and closed areas, the latter being mostly trust land with use restricted to enrolled members. On fee land located within a reservation, that does not mean that one is completely free of tribal rules. After all, off the reservation, you are still subject to the local government's land use rules (zoning restrictions, for example). The ruling of Brendale v. Confederated Tribes, 492 U.S. 408 is very complex and says "yes and no". Tribes do not have authority to zone fee land on the reservation owned by non-members, but they do have authority to generally zone fee land on closed areas of the reservation. (Very roughly speaking, fee land is subject to general government-planning type restrictions on land use that we are all subject to; but there are limits on how discriminatory those rules can be. Above all, fee land is in fact owned by the individual, and a tribe cannot claw the land back, though they can buy it back). A Nation can set rules for membership which would be patently illegal in the general context of US law. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, the situation was that the rule of the Santa Clara Pueblo nation said that the children of a Pueblo woman who married outside the tribe (e.g. to a Navaho) may be denied tribal membership, but did not exclude children of a Pueblo man who married outside the tribe. The consequence is that the children of a woman lose the right to reside on that land after the mother dies (also can't vote, etc.) The short version is that SCOTUS held that this is legal. Indian nations enjoy sovereign immunity, so you can't sue 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. | 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 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. | You are subject to the laws of the jurisdiction that you are in. However, some of the laws of the jurisdiction you reside in or are a citizen of have extra-territorial applicability, so you have to comply with those laws too. | The U.S. law rule is that treaties and laws are co-equal and that one does not supersede the other. In the U.S., the rule is that the last passed law or treaty prevails, over earlier passed laws or treaties if they conflict. See, e.g., Julian G. Ku, "Treaties as laws: A Defense of the Last-in-Time Rule for Treaties and Federal Statutes" 80 Indiana Law Journal 319 (2005) citing cases including Whitney v. Robertson, 124 U.S. 190 (1888). But, this is not self-evident, Indeed, it is a minority rule of law to the point of pretty much being an outlier. In the vast majority of countries other than the U.S., domestic laws are subordinate to treaties, and there is some hint in the structure of the U.S. Constitution and the discussions of the Founders regarding the treaty power, that this how the Founders assumed that conflicts between treaties and domestic statutes would be interpreted, even though the U.S. Supreme Court ended up interpreting the constitution differently. Few countries in the world give so little legal effect to international treaties and international law, more generally, as the U.S. does. In contrast, in Europe, many human rights protections arise from international treaty obligations that override domestic laws, rather than from their own domestic constitutional law. Also, while this rule seems simple and mechanical, it rarely presents in the fashion, because there are a variety of tools, such as interpreting treaties and statutes in a manner that avoids a conflict (particularly with respect to questions such as whether a treaty should be considered "self-executing" or not, and a rule of construction that one enactment that does not expressly overrule another should not be deemed to do so implicitly unless there is no interpretation that can resolve the conflict otherwise), that muddy the waters. As Ku, explains in the law review article linked above: Although the Constitution declares that treaties are the "supreme Law of the Land,"the status of treaties in the American legal system is plagued by uncertainty. A court considering a private individual's claim under a treaty must first consider a number of complex questions such as whether the treaty is "self-executing," whether the treaty's effect is otherwise nullified by conditions placed on it during ratification, whether the treaty exceeds constitutional limitations on the exercise of the treaty power, and whether the treaty conflicts with inconsistent federal and state law.... For instance, in recent years the International Court of Justice ("ICJ") has twice found that U.S. domestic law limiting habeas corpus appeals violated U.S. treaty obligations to guarantee consular notification rights to foreign nationals charged with capital crimes.' The ICJ found a conflict between the treaty and U.S. law even though the U.S. government offered a plausible alternative interpretation of the treaty that avoided conflict with domestic law. (Despite these findings, the U.S. did not enforce the alleged treaty obligation.) A good example of this is the case of Bond v. United States, 572 U.S. ___ (2014) (note that it is important to provide a year when discussing the Bond case, because the U.S. Supreme Court made two successive rulings in this case and also established an important precedent in an unrelated case with the same name). Wikipedia's summary of the case explains how the case avoided having to resolve constitutional issues in the case (references to Holland are to State of Missouri v. Holland, linked and discussed below): Carol Anne Bond is a microbiologist from Lansdale, Pennsylvania. In 2006, her best friend became pregnant. When Bond discovered that her husband was the child's father, she attempted to poison her former friend by putting organoarsenic and potassium dichromate on the woman's door knob. Bond was caught, and was convicted under the Chemical Weapons Act. In her appeal, she argued that applying the chemical weapons treaty to her had violated the Tenth Amendment. The Court of Appeals ruled that Bond lacked standing to make a Tenth Amendment claim. On appeal, the Supreme Court reversed by stating that individuals can bring Tenth Amendment claims. The Court then remanded the case for the Third Circuit to decide the case on the merits. On remand, the Third Circuit found that "because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that 'there can be no dispute about the validity of [a] statute' that implements a valid treaty, we will affirm Bond's conviction." Bond again appealed to the Supreme Court, asking the court to overrule Holland or to find that her actions were not covered by the CWA. The case attracted a great deal of attention, with US Solicitor General Donald Verrilli arguing for the government and former Solicitor General Paul Clement arguing for Bond. Senator Ted Cruz wrote an essay for the blog of the Harvard Law Review, urging the Court to overturn Bond's conviction. Chief Justice Roberts opened his opinion by vividly describing John Singer Sargent's life-sized painting of mustard gas victims. Roberts closed by noting, "There are no life-sized paintings of Bond's rival washing her thumb." In its judgment, the Court unanimously concluded that the convention was not meant to cover local activities such as Bond's poisoning attempt. Writing for the Court, Chief Justice Roberts declined to define the scope of Treaty Clause powers, invoking constitutional avoidance. Because the Chemical Weapons Convention is not self-executing and because it requires implementation by a signatory to be "in accordance with its constitutional processes," Roberts focused his attention on statutory interpretation of the federal criminal code. According to Roberts, one of the key "background principles of construction" is federalism; there must be a "clear indication" by Congress if it intends to "dramatically intrude upon traditional state criminal jurisdiction." The Court concluded that there was no such clear indication in the text of the criminal statute. Roberts rejected the Solicitor General's interpretation of the statute, noting that the government's reading would make it a federal offense to poison children's goldfish and that state authorities are fully capable of punishing burrito poisoners. Finally, Roberts briefly responds to Justice Scalia's interpretation by noting that adopting "the most sweeping reading of the statute would fundamentally upset the Constitution's balance." A well-known line from his opinion is at the end: "The global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon." Thus, rather than ruling that a law implementing a valid treaty was unconstitutional, the U.S. Supreme Court interpreted the law implementing the treaty in a manner that did not mean something that would potentially make the law unconstitutional. The question states: Obviously, the Constitution supersedes both laws and treaties This is mostly correct under U.S. law (although it took many decades before that rule was established in precedent), but it was not obvious under U.S. law, it is not true in every country, and it is not entirely settled law in the U.S. even today. A plurality of the justices Reid v. Covert, 354 U.S. 1 (1957), which enforced the Fifth and Sixth Amendments against a contradictory treaty, stated: There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. A plurality decision, however, is not controlling authority that must be followed by lower courts. But, in State of Missouri v. Holland, 252 U.S. 416 (1920) had previously reached an arguably contrary conclusion. The official syllabus to that decision noted that: Protection of its quasi-sovereign right to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest, for a bill by a State to enjoin enforcement of federal regulations over the subject alleged to be unconstitutional. The Treaty of August 16, 1916, 39 Stat. 1702, with Great Britain, providing for the protection, by close seasons and in other ways, of migratory birds in the United States and Canada, and binding each power to take and propose to their lawmaking bodies the necessary measures for carrying it out, is within the treaty-making power conferred by Art. II, § 2, of the Constitution; the Act of July 3, 1918, c. 128, 40 Stat. 755, which prohibits the killing, capturing or selling any of the migratory birds included in the terms of the treaty, except as permitted by regulations compatible with those terms to be made by the Secretary of Agriculture, is valid under Art. I, § 8, of the Constitution, as a necessary and proper means of effectuating the treaty, and the treaty and statute, by bringing such birds within the paramount protection and regulation of the Government do not infringe property rights or sovereign powers respecting such birds reserved to the States by the Tenth Amendment. With respect to right reserved to the State, the treaty-making power is not limited to what may be done by an unaided act of Congress. Many legal scholars expected that Bond (2014) would resolve the tension between Reid and Holland, but instead, the U.S. Supreme Court punted, and declined to reach that issue in that case. Arguably, Reid and Holland are not truly in conflict, because Holland addresses the scope of the treaty power in light of federalism concerns, which isn't necessarily identical to the scope power of Congress to enact domestic laws pursuant to U.S. Constitution, Article I, Section 8 in light of federalism concerns, while Reid concerns constitutional provisions which have been interpreted to flatly prohibit the government from abridging certain individual rights at all. U.S. Constitution Article I, Section 8 limits the authority of Congress to enact domestic laws to certain enumerated subjects (with all other powers reserved to the states), while the treaty power is not limited to any particular subject-matter (in part, because states are not permitted under the constitution to enter into international treaties, so the federal government needs to handle treaties involving both national and state level concerns, while states have plenary power to enact domestic laws in all circumstances where they are not expressly prohibited from doing so). | Generally, if someone asks you to leave their property you have to leave*. Just because a place is owned by the public, doesn't mean anyone can go there any time they wish. Military bases, firehouses, and jails are owned by the public, but many of these have limited access to the public. It may be open to the general public, but that does not mean restrictions cannot be put into place, either on times, or activities, or individuals. For example, public parks often have time and activity restrictions; schools have the power to restrict individuals from their premises, either specifically or by general category. As a general point of law, the owner of any property, or their agent, can order anyone without the right to stay (e.g. not a co-owner or tenant), and that person must depart, otherwise that person is tresspassing. The Social Service Administrator is almost certainly an agent of the controlling entity that owns the property. Thus their demand that you leave the premises is enforceable, unless you have a non-revokable right to be in that space. *As user Justaguy points out there are some exceptions. Most notably, police can some times enter a property uninvited or against the owner's wishes (such as under emergency circumstances or with a warrant). | This question is controlled almost entirely by local municipal and county ordinances. It is not a question of federal law that is uniform across the U.S. and in most cases it is not even a question of state law. So, there is no single answer to your question. Most localities regulate this with some combination of hotel specific building codes (usually incorporated by reference from a uniform building code promulgated by a private non-profit organization as a model building code provision) and hotel specific local zoning ordinances. |
What are consequences for defendant failing to meet orders of civil court? I read that a civil court judge may order that a defendant, for example, pay damages; or, another example, provide particulars relevant to the pre-trial pleadings. But what if they don't comply? What are the consequences for ignoring the orders of the court in the context of a civil trial? (I live in British Columbia and I'm trying to understand BC Supreme Court procedure.) | In the United States (and probably any common law country) a judge may find a person in criminal or civil contempt of court. One is in contempt of court if they refuse to follow the orders of the court. If one thinks the orders are wrong or improper the proper remedy is to ask for a stay of the order or file an emergency appeal and hope for a stay there. If no stay is received comply with the order until the appeal is heard. If we assume one does not follow the orders of a civil court, then that person will most likely be found in contempt of court. Originally this person will most likely receive a civil contempt charge, which will result in fines every single day the person is not in compliance with the order of the court. The [BC Supreme Court rules at 22-7][1] defines the parameters for failure to comply with court orders. At rule 22-8, it states that a person may be apprehended if they are found in contempt: (4)A person who is guilty of an act or omission described in Rule 12-5 (25) or 22-7 (5), in addition to being subject to any consequences prescribed by those rules, is guilty of contempt of court and subject to the court's power to punish contempt of court. (5)If the court is of the opinion that a person may be guilty of contempt of court, it may order, by warrant in Form 115 directed to a sheriff or other officer of the court or to a peace officer, that the person be apprehended and brought before the court. As an alternative type of sanction for civil contempt, the court can also have the person jailed until they comply with the order. In the United States, there is generally no limit on how long you can be jailed for civil contempt (the record is 14 years), and you have substantially lower due process protections (for instance, you don't have a right to a jury); both of those are because you can free yourself at any time by simply complying with the order. The court can also impose criminal contempt sanctions. Civil contempt is to get you to obey the order; criminal contempt is to punish you for disobeying. Criminal contempt sanctions are unconditional; it's a crime like other crimes, and a criminal sentence looks like "$50,000 fine" or "30 days in jail" rather than "$1,000 per day until you obey the order" or "jail until you obey the order." [1]: http://www.bclaws.ca/civix/document/LOC/complete/statreg/--%20C%20--/Court%20Rules%20Act%20[RSBC%201996]%20c.%2080/05_Regulations/17_168_2009%20-%20Supreme%20Court%20Civil%20Rules/168_2009_03.xml#rule22-7 BC Supreme Court rules, rule 22-7 | This is a civil case, taking away your freedom is only for criminal offenses. Not paying your bills is not a criminal offense. It is up to the creditor to look for your assets, etc. A court can make you show up and answer questions about your assets and income. While you are in court the judge can make you give your gold watch to your creditor. Outside the parameters of the question there are circumstances like failure to pay child support when you do have the funds that can lead to incarceration. In some places you can be jailed for contempt of court if the court requires your presence to let the creditor have the ability to try to get access to your assets and you do not show up. | As far as I understand, no. In Canada, everyone has the constitutional right to be free from any cruel or unusual punishment, under the Canadian Charter of Rights and Freedoms: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. If you're guilty of a crime, well then, you're guilty. You're either going to be tried in court (and if you were guilty of that crime, then you will probably be found guilty), or you will plead as such. Before being tried, you could try to plea bargain with the prosecutor: plead guilty and be sentenced to a lesser charge. Say you were charged with assault with a weapon or causing bodily harm. You thought that the punishment was cruel or unusual - and thought that the trial judge had made an error in the law. In this case, you can make an appeal to a higher court. There are also other things that can factor this: mitigating and aggravating circumstances. If many circumstances are mitigating, then it may make way for a lower punishment, and vice versa with aggravating circumstances, where punishment may be higher. Again, this is something where if something was erred, you can appeal to a higher court. However, just because you think a sentence is too long won't constitute cruel or unusual punishment. In R. vs Latimer, the Supreme Court of Canada ruled that minimum sentences, even if within special circumstances, will not constitute cruel or unusual punishment, and be upheld. Originally, he had been sentenced only to one year, based on the recommendation of the jury. He had been charged with second-degree murder. The Supreme Court reinstated the default punishment: A life sentence with no eligibility of parole for ten years. | If you want to have some fun and increase the likelihood that you will go to trial soon, you can file a motion to dismiss for failure to comply with the Speedy Trial Act. If you have co-defendants they may be the reason for delay. You could then move for a severance. On a slightly different note, since 95% of federal criminal cases result in the imposition of a penalty on the accused, you should start calculating your guidelines. | Yes It's not uncommon. In fact I am aware of at least one case where the trial judge referred it to appeal before he made his decision on the basis that whichever way he decided the law was so unsettled that grounds for appeal would occur. In that case the court of appeal called up the trial judge to sit on the 3 judge appeal a) because he knew the case and b) because you don't get to not make a decision because it's hard sonny-jim. | If it is necessary, yes Generally, the defendant must affirmatively show (i.e., introduce some evidence) that (a) the harm they sought to avoid outweighs the danger of the prohibited conduct they are charged with; (b) they had no reasonable alternative; (c) they ceased to engage in the prohibited conduct as soon as the danger passed; and (d) they themselves did not create the danger they sought to avoid. The necessity defence is recognised in most common law and civil law jurisdictions and in international law. In common law jurisdictions, the “harm” must be some sort of clear and imminent peril to life and safety, such as the situation you describe (although B needs to prove all the elements). In civil law jurisdictions, the peril can be more distant such as the successful defence in 2020 in Switzerland of protesters using it where the threat was climate change. | Assume that this happened in a matter that goes to court. In civil court, there is no "innocent until/unless proven guilty". In civil court, the judge hears everyone's story, and decides which story is more likely to be true. So I tell the judge "I sent a letter by registered mail; this is what was in the letter, and the post office reported to me that they delivered the mail, and someone signed for it". And you say "I never received a letter". The judge will believe me and the post office. You say "I received a letter and signed for it, but there was just a birthday card inside". Who does the judge believe? Does he or she believe that you received a letter with the contents I said and you are lying about it, or does she believe that I sent you an unsolicited birthday card by registered mail? Why would I do that? So they believe me. Now if you said "I received a registered letter containing just a birthday court, so I immediately called my secretary and three other people in the office to see this and to verify there was nothing but the birthday card, and here they are as witnesses", then the court might start believing you. | 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. |
Is asking a website user their age the same as asking their birthdate? COPPA says you must ask a user's age in a neutral way. Most websites make you enter your birthdate to check whether you're old enough to be using it. But what if you just simply ask the user's age? That seems to be just as neutral as asking their birthdate. Legally speaking, is that the same? Assume that there are no unique sections of the site. Only 13+ users are legally allowed on any given part. | The Children's Online Privacy Protection Rule, 16 C.F.R. 312 (COPPR), which is a regulation issued by the Federal Trade Commission (FTC) under the Children's Online Privacy Protection Act, 15 U.S.C. 91 (COPPA), applies to: ... any operator of a Web site or online service directed to children [under 13: see §312.2], or any operator that has actual knowledge that it is collecting or maintaining personal information from a child ... [§312.3] Many operators simply choose to block children to avoid these obligations. The purpose of age-screening is to ensure that your website is not directed to children and that you are not knowingly collecting personal information from children. Whether your website falls into this category will depend on all the facts and circumstances. Your question about a website operator's obligation to "ask a user's age in a neutral way" is reflected in the FTC publication Complying with COPPA: Frequently Asked Questions, which states: If you choose to block children under 13 on your general audience site or service, you should take care to design your age screen in a manner that does not encourage children to falsify their ages to gain access to your site or service. Ask age information in a neutral manner at the point at which you invite visitors to provide personal information or to create a user ID. In designing a neutral age-screening mechanism, you should consider: Making sure the data entry point allows users to enter their age accurately. An example of a neutral age-screen would be a system that allows a user freely to enter month, day, and year of birth. A site that includes a drop-down menu that only permits users to enter birth years making them 13 or older, would not be considered a neutral age-screening mechanism since children cannot enter their correct ages on that site. Avoiding encouraging children to falsify their age information, for example, by stating that visitors under 13 cannot participate or should ask their parents before participating. In addition, simply including a check box stating, “I am over 12 years old” would not be considered a neutral age-screening mechanism. In addition, consistent with long standing Commission advice, FTC staff recommends using a cookie to prevent children from back-buttoning to enter a different age. Note that if you ask participants to enter age information, and then you fail either to screen out children under age 13 or to obtain their parents’ consent to collecting these children’s personal information, you may be liable for violating COPPA. See, e.g., the FTC’s COPPA cases against Path, Inc., Playdom, Inc. and Sony BMG Music Entertainment. None of the three cases cited in the last paragraph deal directly with the situation you have asked about, but they contain useful factual examples of how the law is actually applied, as well as a detailed legal complaint filed by the FTC which precisely sets out the legal basis for the defendants' alleged violations. For example, the FTC's case against Path, Inc. involved allegations that the operators of the Path social network had violated various federal laws, including COPPR. The case was settled on terms that Path admitted no wrongdoing but agreed to pay an $800,000 penalty. Count III of the FTC's complaint sets out the COPPR allegations. Basically, Path asked users for their date of birth but then failed to actually block users under 13 or obtain verifiable parental consent. In Path, Inc., Playdom, Inc. and Sony BMG Music Entertainment, it was clear that the defendants had actual knowledge that they were collecting information from children. These were not cases involving operators who were found to be subject to COPPR because their age-screening mechanism was not robust enough. However, it is difficult to go wrong by following the advice of the federal regulator. The FTC says that an example of a neutral age-screen is one that allows a user freely to enter month, day and year of birth, and that a screen which only allows users to specify an age of 13 or older is not neutral. Your question falls in between these two extremes. There is no rule which makes it absolutely mandatory to ask for a full date of birth. What matters is that your website is not directed to children and that you are not knowingly collecting information from children. Obviously, it's safer to err on the side of caution and take the approach recommended by the FTC. If you don't want to follow the FTC's advice, you should take other active steps to ensure that your website is not directed to children and that you are not collecting personal information from children. | IP addresses are personal data. That means you need a legal basis to process them, but not necessarily consent from the user. That IP addresses should be treated as personal data in most contexts is clear, regardless of whether you can associate the IP address with a user ID. That you make such an association affirms that both the IP address and user ID are personal data in your context though. As the answers in the questions you linked indicate, there are alternative legal bases to consent. The GDPR offers a choice of six legal bases (Art 6(1) lit a–f). In most cases, you would instead rely on a “legitimate interest” for logging. But it's not enough to claim that you have a legitimate interest. You must have a clear purpose for which such logs would be necessary, and you would then have to weigh this legitimate interest against the interests, rights, and freedoms of the affected data subjects. If such logs are necessary for security and anti-abuse purposes, your legitimate interest test is likely to prevail. However, you must limit retention of the logged data and the included information to what is actually necessary. For example, keeping user IDs in there might not be necessary. If the association of IP addresses and user IDs is not necessary for a legitimate interest, then you would indeed need consent. Discussion on why IP addresses are personal data. You see many answers and opinions that IP addresses might not be personal data. Some of these are technically correct, but most are misinformed or outdated. I know only a single well-informed person that still disagrees. For everyone else such as the EU Commission, IP addresses are clearly personal data. Under the GDPR, personal data is any information that relates to an (indirectly) identifiable natural person. In the context of log files we can assume that the entries usually “relate” to a person, namely the person making the request. The exception would be requests triggered by automated systems. The more interesting question is whether the person to which the log entry relates is identifiable. While the GDPR does provide further guidance on the concept of identification in Recital 26, it does not provide clear unambiguous criteria. Thus, there is lots of debate about what that precisely means. One approach is to sidestep that debate and and notice that the GDPR's definition of personal data explicitly notes that a person might be identified “in particular by reference to an identifier such as a name, an identification number, location data, an online identifier” (Art 4(1)). Another but otherwise unrelated part of the GDPR mentions “internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags” as examples of online identifiers (Recital 30). We can also look more deeply into Recital 26 and see that “singling out” already counts as identification. We can use the IP address to single out one person's log entries from the set of log entries, so this could be interpreted as meaning that any stable user ID renders the data personal data – and an IP address is sufficiently stable in this context. Another part of Recital 26 says that we must consider “all the means reasonably likely to be used” for identification, even if this involves additional information from third parties. This phrasing is virtually identical to the GDPR's predecessor, the EU Data Protection Directive. On the basis of that DPD, the EU's top court (ECJ/CJEU) was asked to rule on the question whether dynamic IP addresses are personal data (the Breyer case, C‑582/14, judgement from 2016-10-19). It said yes. “It did not say yes”, some people will object. And they are technically correct. When someone rents an internet connection from an ISP, the ISP will have logs that connect the user's real-world identity to the IP address they were assigned at a time. You don't have access to the ISP's logs. But, if that user violated your rights (e.g. a cyberattack or copyright infringement), then you could (depending on civil vs criminal matters) report this to the appropriate authorities or to petition the court and they would have the right to order the ISP to disclose this information. The CJEU said that if this chain (you → authorities → ISP → user identity) is grounded in law, then the IP address would be identifiable. But whether there are suitable laws to compel the ISP to disclose this data would be up to national laws, and the CJEU doesn't concern itself with that. Spoiler: such laws are pretty common. To summarize typical objections: The IP address doesn't relate to a person: Can be a valid objection, but is not typically the case for user-facing web services. The Recital 30 argument is not valid because it's about profiling, not identification, and it only says that IP addresses may be used for profiling, not that they are always identifying: Technically correct, but I think that Recital 30 merely expresses the implied understanding that of course an IP address is an online identifier and permits identification by itself. “Singling out” does not apply because SOME_REASON: Indeed, this is an ill-defined term with no case law to guide us. However, regulators such as the EDPB and their predecessor WP29 routinely use “singling out” to mean being able to distinguish one person's data from other people's data. An IP address lets us do that. The Breyer judgement is not applicable because the defendant in that case was the German state, and the state has other legal means than ordinary website operators: Nothing in that case was specific to the website operator being a state or other authority. If the website operator can contact the appropriate authority and if they have the right to order the ISP to disclose the relevant data, then the IP address is identifiable. The CJEU didn't say “yes” in Breyer, it said “if”. So I'll take that as a “no”: The CJEU concerns itself with the interpretation of EU law, not with national laws. Specifically in the Breyer case, lower courts confirmed that German law has the necessary means. In other EU member states, further checks would be necessary but it would surprise me if there wouldn't be equivalent subpoena powers. If the ISP doesn't have the data, then the IP addresses are anonymous: Indeed, the CJEU scenario collapses if there is no additional data to be linked with the IP address. However: The CJEU used this scenario as an example to show that IP addresses can be identifiable. If that particular scenario fails, there could be other scenarios that still allow identification. The question of whether IP addresses are identifiable had of course been the subject of wider debate at the time. That the GDPR explicitly mentions IP addresses can be seen as a reaction to this debate. Thus, in a sense, the Breyer case is moot. It is still useful as an explanation of how broad “reasonably likely means” must be interpreted. | There are several policy goals surrounding the age of criminal responsibility. One aspect is that by the age of criminal responsibility people have a sufficient awareness of societal norms and understanding of the wrongfulness of their conduct that they be eligible for criminal charges. Another aspect is that for people under the age of criminal responsibility, they may not respond to criminal charges and punishment in the same way as older people. That is, the criminal system may not be the most effective means of correction and rehabilitation of such young offenders. There is no bright line that accurately captures these factors, and thus many jurisdictions have more than one step in transitioning from the incapable child to the fully capable adult. For example, in the US and Canada, juveniles/youth over the age of criminal consent but not yet 18 years old are generally not treated the same as adults. The policy goals behind the age of consent relate to understanding of the consequences of sex, vulnerability to people in positions of power or influence, and protection of society's norms of purity. There is no reason why these different policy goals would result in the same age threshold. | There is no law governing the 'number' of the president. Common sense suggests that a person can't be 45th and 46th; there must be someone in between having the presidency and they will become the 46th president. In the extremely unlikely scenario that a foreign power occupies the United States this year, eliminates the office of President, and a few years later the US is liberated and Donald Trump is re-elected, I guess people could name him the 45th and 46th President, but it makes no sense to speculate about this. | According to the US Army's web site, which gives an overview of the entry requirements, the minimum age is 17 and it seems that only felony convictions and juvenile offences are a bar to recruitment - however the Army Recruiter should be able to confirm whether or not dropped charges fall in to these categories or exclude a candidate for any other reason. Section 1 "meeting with a recruiter" section includes this: Your local recruiter will conduct a prescreening to see if you qualify for enlistment. At the recruiting station, he or she will ask you about your: Education level Criminal history Age Marital/dependency status Physical condition And one of the "see if you pre-qualify" quick-quiz questions asks if one's age is between 17 and 34 Section 2, "required documents", includes this: The U.S. Army makes every attempt to assess the moral quality of potential recruits. To this end, a thorough background check is done on all prospects. It is imperative that you disclose all legal offenses Felony convictions will result in candidates being exclude Drug and domestic violence charges will exclude candidates (Some minor drug offenses may be waived on a case-by-case basis) Juvenile offenses will also exclude you Certain Army jobs requiring higher security clearance may necessitate more thorough investigations | Discrimination is legal, so long as there is not based on a protected category or class(e.g. race, sex, religion). Age is generally not a protected category. Some states do treat age as a protected category, but: 1) It is generally only in employment, so, for example charging someone differing amounts based on their age is legal (e.g. senior discounts, kids under X are free, etc.). 2) It is generally only protecting higher ages (i.e. discriminating against someone in employment because their age is higher than what you'd like would be illegal, but discriminating against someone because their age is lower than you'd like is not; and in some cases the later is mandatory). | There are not enough facts to draw a conclusion First, it’s not clear that the document you signed amounts to a contract. For example, what consideration did the school give you in return for the permission you gave them? Providing you with an education doesn’t count - they were legally obliged to do that already. If it is a contract then whether and how it can be revoked would depend on the terms of that contract witch I’m guessing you don’t have a copy of. Notwithstanding, as a minor, you have the right to void the contract until a reasonable time after you turn 18. Even if it is now many years since that happened, it might be reasonable since you only just discovered the website. If it isn’t a contract, then it would be revocable at any time. Practicalities Make a fuss and they may take the photos down even if they are not obliged to. They presumably have plenty of photos of kids who aren’t you and aren’t complaining and if you make it so it’s easier to change the website than to deal with you, thy’ll change the website. I suspect their inertia is because they once paid a web developer to create the site, it has never since been updated, they don’t know how to do it, and they don’t want to have to pay someone to find out. Otherwise, why would they have photos of ex-students rather than current students? If so, an offer by you to cover the costs, might solve your problem. | 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. |
Are the USA the only country with multiple, "competing" penal codes (Dual sovereignty doctrine)? As a German, I was surprised to learn that in the United States, there are penal codes (and prosecution) at two levels of government, namely at the state level, and at the federal level ("federal crime") - under the so-called Dual sovereignty doctrine. This produces interesting problems, such as how to treat acts that are crimes under more than one of the US penal codes. In Germany, there is only one criminal code (the Strafgesetzbuch), which is enacted by federal parliament, and I believe the situation is similar in other European countries. So, are there other countries with "competing" penal codes, like the United states? | Federal countries usually define the separation (and sometimes sharing) of legislative competencies in their constitutions. There will also usually be a "default" case for if the competency is not explicitly defined in the constitution. For example, in the United States, the default is to give legislative power to the individual states via the Tenth Amendment. If criminal law is left to the sub-national entities, then the nation can usually still enact a penal code with respect to its competencies (again, the U.S. is a good example). So, I decided to make this a mini-research project by checking the countries Wikipedia lists as federations. I wasn't able to find an explicit statement as to whether there were competing penal codes in most cases, but was able to find in which level of government the constitution placed criminal law. In some cases where there are "competing" penal codes, the constitution specified which level has supremacy, making for less "competition". Without further ado, here's what I've been able to find. Links are either to an appropriate Wikipedia page, or the part of the applicable constitution dividing the legislative competencies. Take these with a grain of salt. Competing penal codes Australia Bosnia and Herzegovina Ethiopia India Iraq Mexico Nigeria Pakistan Sudan United States Single national penal code Austria Brazil Canada Comoros Germany Malaysia Nepal Russia Switzerland Venezuela Unclear Argentina Belgium Micronesia St. Kitts and Nevis Somalia South Sudan United Arab Emirates | The default is that countries are not required to repatriate alleged criminals It is one of the cardinal provisions of sovereignty that one country cannot "reach into" another country's territory for any reason. However, countries can voluntarily repatriate an alleged criminal subject to their own legal systems allowing this. This can be ad-hoc or through a longer-term extradition treaty. Even where extradition is allowed, there are common things that will prevent it: Dual criminality - generally, the alleged crime must be a crime in both jurisdictions, Political crimes are usually not subject to extradition Possibility of certain types of punishment - nations without the death penalty will generally not extradite for alleged capital crimes. This can be overcome with appropriate guarantees that such a penalty will not be sought. Jurisdictional issues Own citizens - some countries will not extradite their own citizens notably Austria, Brazil, the Czech Republic, France, Germany, Japan, Norway, the People's Republic of China, the Republic of China (Taiwan), Russia, Saudi Arabia, Switzerland and Syria. Fair trial standards - extradition will usually be refused when a fair trial cannot be expected. | Following the links in the article you quoted, you find that it is indeed illegal in Germany to insult a foreign head of state. For a prosecution to happen, the foreign government has to ask for prosecution, and it would be a criminal case. It's not clear to me whether a TV station could be sued as well. Where Mr. Böhmermann lives would be irrelevant, what would be relevant is whether the insult happened in Germany. | No Once a state has accused a person and tried that person for a particular act or set of acts, the state can't later hold a different trial for the same act or acts. That is the Double Jeopardy rule (or the basics of it at least). Some limited exceptions: If a person is convicted and appeals, and the conviction is overturned, the appellate court may order a new trial. *If there is a mistrial, such as a hung jury (jury cannot agree) then there can be a new trial. If an act is both a state and a Federal crime (in the US) then both can have separate trials, and possibly two convictions. If the accused bribes the judge or jury, that trial will not count, and there may be a new trial. If an act is a crime in two different countries, each can have its own trial (but often they don't). If it is later discovered that the accused committed a quite different act than the one s/he was tried for, a new trial for that act may be possible. But otherwise, whether the accused is acquitted or convicted, only one trial for a given alleged crime. The state cannot later change its mind on what to charge the accused with for the act. | In general the act must be a crime in both countries for an extradition to proceed, but the extradition treaty between countries A and B likely has more specific provisions as well. C's involvement is generally limited to consular assistance, but there have been instances where countries have offered to incarcerate their citizens for convictions in other countries. The country of citizenship certainly does not have priority to extradite or try its citizens, and it is unlikely that the country seeking to prosecute would have much interest in another country taking over the case. | When a country makes criminal laws, these laws usually apply to anyone present in the country, and acting in the country. But the country is free to declare that some law might apply to its own citizens in a foreign country, or even foreign citizens in a foreign country. Assuming the laws about using marijuana say nothing about the country, that most likely means it only applies to using marjuana in the country itself. But if the US government decided that taking marijuana in Canada is illegal for US citizens, then nobody can stop them. In this case, Canada would not extradite you (unless Canadian law says that it is criminal for Canadians to use marijuana in another country), and Canadian police would likely not collect evidence. So even if illegal, it would be hard to convict you. PS. The "polygamy" case would be interesting, I think you would have to read the exact wording of the laws in every country. Some countries will say that you can't get married twice, and the attempt to get married a second time while already married is bigamy. In that kind of country you wouldn't have committed a crime within that country. Also, you would only be married to the first wife. | That's basically correct. The Double Jeopardy clause prevents the federal and state governments from trying you again for a crime that you've already been acquitted of, no matter what new evidence turns up. Even if you confessed to the crime, you could still not be tried. The relevant text of the Fifth Amendment reads: No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb. The case of Mel Ignatow is probably among the most famous examples. He was charged with murdering a woman, but acquitted at trial. About a year later, a guy laying carpet at his house pulled up floorboards and found the victim's jewelry, along with pictures of Ignatow murdering the victim. Ignatow confessed, but the state couldn't charge him with murder again, though they could charge him perjury for testifying that he hadn't killed her. So the answer is yes, the Fifth Amendment generally prevents the government from trying you for a crime you've been acquitted of. There are two main caveats here. First is the dual-sovereignty principle, which accounts for the fact that almost anywhere that the Fifth Amendment applies, a person is subject to the laws of two sovereign governments: the federal government and that of whatever state the person is in. For example, robbing a bank in Los Angeles would violate the laws of both the United States and California. If California put you on trial, but you were acquitted, the Double Jeopardy Clause would bar California from trying you again, but it would not be a defense if the federal government wanted to try to charge you again. Second is the language about "the same offence," which is not as clear as it might sound at first. In the course of committing a crime, a person can easily commit many other crimes without thinking of it. In your bank robbery, for instance, you could easily break the following additional laws: trespassing, menacing, carrying a concealed weapon, brandishing a firearm, larceny, grand larceny. This raises the question of what affect your acquittal on the robbery charge has on the possibility of charging you on these other offenses. The answer can be found in Blockburger v. United States, 284 U.S. 299, 304 (1932): The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. This is easier to understand in practice than in theory. If you want to bring charges for the same conduct without violating the Double Jeopardy Clause, you need to be able to make a Venn diagram where the first charge and the new charge each has at least one element that the other does not. So map out the following possible offenses involved in a robbery: theft: unlawfully taking the property of another person aggravated theft: unlawfully taking the property of another person, when the property is worth more than $1,000 menacing: threatening to injure another person aggravated menacing: threatening to injure another person while brandishing a deadly weapon robbery: unlawfully taking the property of another person, facilitated by a threat to injure another person aggravated robbery: unlawfully taking the property of another person, facilitated by a threat to injure another person while brandishing a deadly weapon So now you have a Venn diagram that looks like this: If you've been acquitted of robbery, a prosecutor who wants to charge you again needs to find an offense that (1) requires proof of a fact that robbery did not, and (2) does not require proof of a fact that robbery did. This means the prosecutor can't bring a charge for the "greater offense" of aggravated robbery, because the earlier robbery charge didn't require proof of anything that aggravated robbery would not. The prosecutor also can't bring a charge for theft or menacing, because neither requires proof of anything that robbery did not. These are called "lesser included offenses." But a charge for aggravated theft would be allowed. Although there's a shared element between aggravated theft and robbery (taking the property of another), there are also unique elements to both aggravated theft (property worth more than $1,000) and robbery (a threat to injure another). A charge for aggravated menacing would also be allowed, as it requires proof of brandishing a deadly weapon, but does not require proof of taking the property of another. | Typically in extraditions, the treaties will only allow for extraditions if both nations have a similar crime and similar punishment for that crime. In this case, there maybe some pause for Australia to grant an extradition as Australia no longer has the death penalty for any crime, so it could be that while the new crime the defendant is being sought for is Escape from Incarceration related (that's a yes in both countries), technically the punishment for an escaped Death Row Inmate is the Death Penalty. Australia can't extradite for any crime where death penalty is on the line, but the requesting nation can say they will give a more lighter sentance that is more compliant with the requested nation's own laws. However, since it is Death for another crime that Austrilia never had jurisdiction over, it complicates matters. There is precidence for procedural reasons for refusing to extradite. For example, while the U.S. and Italy have an extradition treaty and both view murder in the same light, the U.S. refused the extradition of a citizen who was wanted for a murder in Italy that she was previously aquitted of, but new evidnce was uncovered. Because it is illegal for the state to try a person twice for the same crime in the U.S., the U.S. declined the extradition treaty. Some additional notes, extradited persons can only be tried for crimes that they were extradited for, so there is an argument that Australia would refuse unless Indonesia promises to commute the Drug Trafficking sentence to Life Imprisonment |
Is flag burning illegal in the USA? The following says: Currently, flag burning is not illegal in the United States. The Supreme Court of the United States in its decision from 1969 has ruled that the burning of the flag is protected by the First Amendment. However, the person who burnt the flag can be found guilty of a misdemeanor for starting a fire without a permit. http://thelawdictionary.org/article/is-flag-burning-illegal/ But this law seems to say that it is illegal: (a) (1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both. https://www.law.cornell.edu/uscode/text/18/700 What is the right one? | 18 U.S. Code § 700 was held to be unconstitutional in Texas v. Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 496 U.S. 310 (1990). If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. (Texas v Johnson) Mere flag burning is not illegal and is protected by the First Amendment. You may still be prosecuted for other crimes that happen while flag burning. For example, the flag may be somebody else's property. The Seattle appellees were also charged with causing willful injury to federal property in violation of 18 U.S.C. §§ 1361 and 1362. This charge remains pending before the District Court, and nothing in today's decision affects the constitutionality of this prosecution. (US v Eichman) | The United States has a very liberal attitude when it comes to free speech. Short of materials that are: child pornography, restricted under the International Traffic in Arms Regulations (ITAR), Libelous/Fraudulent, encourage or aid others in breaking the law, or seditious/treasonous/ terroistic/other credible threats there is almost nothing that can't be published. There is another example where supposedly The Golden Book of Chemistry Experiments was banned by the US Government, but I cannot find any evidence or action against the author to support the claim. The Political Mofia by Schiff was not neccessarily banned, but an injunction from publishing was issued against the authors in US v. Schiff, 379 F. 3d 621 - Court of Appeals, 9th Circuit 2004 per 26 U.S.C. 7408 on grounds that the books was fraudulent. Essentially it is the Federal courts that can ban a book from commerce with cause. Schools, libraries and other institutions may ban it from their collections, but not from public commerce. Wikipedia has a list of Books banned by governments that you may want to look at to find examples. | In a democratic country, they cannot be sued successfully. Freedom of speech is for the citizens, not the government. And it is a company doing the banning, not the government. So the situation is totally different in two significant ways. (That assumes laws not too different from the USA. Obviously a country might have laws that make it illegal for companies not to publish what a political party says). | Denver lawyer David Lane has said, “The First Amendment lives in a rough neighborhood and if you can’t stand the neighborhood move to China … or somewhere the First Amendment does not exist.” "One man's vulgarity is another's lyric." Cohen v. Cali. 403 U.S. 15, 25 (1971) At this point, we need to define illegal as used in your question. For instance, do you mean "you can face any form of punishment"? If so, this question is extremely broad and governed by multiple sets of laws. Additionally, one should note that this is a Federal Question. The First Amendment, through the Due Process clause applies to states as well. Therefore, there will be extremely little discrepancy (if any - first impression issues being the main differences probably) between the States,. The FCC can limit profanity on air. Additionally, Title 18 of the United States Code, Section 1464, (Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both. ) prohibits the utterance of any obscene, indecent or profane language by means of radio communication. The USPTO can limit Trademarks with "vulgar" meaning. (See EDIT below for update.) In School: High school student's First Amendment rights were not violated in suspension for uttering obscenity, regardless of whether she was merely repeating and returning words originally directed at her, particularly where words were clearly disruptive as they were heard by 90 students in cafeteria and, in opinion of assistant principal, were “fighting words.” Heller v. Hodgin, S.D.Ind.1996, 928 F.Supp. 789. Fighting Words: These seem to be words that would invoke, or are likely to invoke a fight. Fighting words claim upheld: Arrestee's speech when crowd gathered near fallen tree that had blocked traffic constituted unprotected fighting words, so that his arrest under city disorderly conduct ordinance did not violate his First Amendment free speech rights; arrestee's repeated use of the word “bitch,” his accusation of matricide directed toward his sister, his use of the phrase “fucking queer,” his pushing of third party and his raised voice all tended to show that his conduct, under the circumstances, had tendency to provoke physical altercation. Fighting words claim not upheld: Detainee's profane words to police officer as officer conducted Terry stop, “son of a bitch,” while unpleasant and insulting, were not “fighting words,” given officer's confirmation of fact that words did not cause anyone to fight or become angry; thus, words could not constitute violation of disorderly conduct statute and in turn could not supply probable cause for disorderly conduct arrest. In addition to fighting words, true threats and incitement to imminent lawless action are not protected under the First Amendment. Additionally, the government can regulate free speech in public schools (hence Free Speech Zones) and while in their employ (no yelling at your boss if you want to keep your job). It is not part of the main question, but free speech inside the court room. Well, the Judge is pretty much king in a courtroom. What he says goes. (more or less, like nothing toooooo crazy). In a courtroom, if you do something a Judge doesn't like, he can hold you in contempt of court. (You get no jury for contempt cases.) EDIT: Since I wrote this answer, new law came out from the Supreme Court in Matel v. Tam, 582 U.S. ___ (2017). The Supreme Court affirmed the finding of the Federal Circuit that the disparagement clause [is] facially unconstitutional under the First Amendment’s Free Speech Clause. Simon Tam, lead singer of the rock group “The Slants,” chose this moniker in order to “reclaim” the term and drain its denigrating force as a derogatory term for Asian persons. Tam sought federal registration of the mark “THE SLANTS.” The Patent and Trademark Office (PTO) denied the application under a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). Tam contested the denial of registration through the administrative appeals process, to no avail. He then took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause. The decision aptly concludes with: "If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered." | Unless there is a law or regulation against it, it is legal. However in a big government it can be practically impossible to determine whether something is legal. For example, nobody even knows how many criminal statutes have been promulgated by the U.S. federal government. And that's nothing compared to the volume of executive regulation and judicial case-law that determines whether something is illegal. I.e., in practice determining that something is legal is a bit like proving a negative. Furthermore, if you look long enough some argue that you can probably find some law under which almost any action could be considered illegal. Note also that even if it is not against the law, it could be proscribed by contract (read your Terms and Conditions!), and breach of contract is in general – but with an astonishing number of exceptions! – illegal. | All ex post facto laws are unconstitutional in the United States. But, not all retroactive laws are unconstitutional in the United States. An ex post facto law is basically a law that retroactively makes conduct illegal or punishes it more severely than it was punished at the time if it was already illegal. By way of example, tax legislation is often constitutionally retroactive, and laws that retroactively make the punishments for acts that are crimes at the time more lenient (or retroactively grant amnesty for previously illegal conduct) are legal. I strongly suspect, but do not know for certain, that India's constitutional law makes the same distinction that U.S. constitutional law does in this regard. | 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. | Actually, there is not a government kill list, that is just a meme. The First Amendment says (starts) "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...". That means a number of different concrete things: there shall be no laws prohibiting any religion, or preferring a religion, not may there be laws impeding or promoting the practice of a religion. The government therefore cannot reward or punish a person for believing in skin walkers, nor for turning themselves into a coyote (if they can do it). The old practice of burning witches at the stake is illegal, similarly at least under current understandings of the law it would be illegal to punish those without a religion with a fine or death. The aforementioned person can thus practice witchcraft – up to a point. One cannot get away with murder by claiming that they are just practicing the Ásatru ritual of blót. Church of the Lukumi Babalu Aye v. City of Hialeah is an example of how the government can not restrict a religious practice (banning animal sacrifices of a particular religion), Employment Division v. Smith is an example of a neutral prohibition which happens to impinge on a religion (outlawing certain drugs limits a religious practice). |
Can I electronically "sign" a lease agreement? My landlord emailed me a copy of our new lease as a PDF document. I am to print it out, initial each page and then sign and date the last page, scan it, and email it back to him. Can't I simply scan my initials and signature and insert them as images into the PDF, and email the modified document back? Would it really make a difference? | At common law you do not need to sign a contract for it to be legally enforceable; it doesn't even have to be written down. Local real estate law may require a lease to be in writing (and possibly even signed). Putting that aside generally, the purpose of signing a contract is to: Show the intention to be legally bound. This is superfluous: they have sent you the lease, you have moved in - it is clear you both intend to be legally bound. Avoid future disputes over what the terms of the lease are. Signing it provides evidence that the document has not been altered subsequently. A written rather than a scanned signature is better for this simply because anyone with reasonably low computer skills can take a scanned image and apply it to another document. Better than both is a secure electronic signature that is invalidated if the document is changed. Unless you or your landlord are willing to commit fraud to win a dispute over a lease, it probably doesn't matter either way. | Lying in itself ("of course you will get a wifi signal here") is not a crime. However, if you have proof that the lies were intended to benefit your landlord at your expense ("You won't sign the lease unless there's wifi? No problem") and that they actually did so ("You've signed the lease, it's too late to back out"), he may be guilty of fraud, which is a civil wrong and may be a crime. You would be well advised to consult a lawyer before going amy further, since there are probably ten people believing themselves to be victims of fraud for every one who actually is so in legal terms. The lawyer will also probably tell you that the best you can hope for is restoration to the state before the lies (in my example, the lease is cancelled and you get your deposit back), though the authorities will look at prosecuting the landlord. | 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. | Most Likely Yes to both. It really depends on the nature of your agreement, oral agreements are as legally binding as written ones, but as a matter of evidence in court written contracts are of course better. So looking at your agreement: did you agree to pay the full amount, in return for a place to study? Or did you specifically agree to pay on a rolling basis, where you pay for however long you actually study? I would believe that you had agreed to the first type of agreement, since that is what most study contracts are. And if that's the case: You pay to be allowed to attend, whether you actually attend or not isn't important. And even if you pay on a rolling basis, I would think in a lawsuit the court would find that - judging on previous payments - you'd have agreed to pay on a per semester basis, meaning that the incomplete semester would round up and you would still have to pay for it. I would lean yes to the 2nd question (but im not sure so anyone with more info please chime in). This answer can be more useful if you be specific about the terms and conditions of your study | Based on a reply from the Charitable Law Office of Ohio Attorney General: Hello, I am in receipt of your inquiry below. Please be advised that there is nothing to prohibit using electronic storage for your organization’s business documents. Many organizations find this method to be a very effective measure as opposed to retaining hard copies. ... it seems electronic storage is wholly permitted. | 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. | There is nothing in that contract that says anything about 3 months notice period. The 3 months is the legal default for contracts that do not expire on their own, unlike yours, that has all properties of a limited time contract. I would personally see the detailed description of how you can end this contract as overriding any legal default. But as always, with this specific contract in the original language, you need to see a lawyer to know for sure. Your contract clearly states: you can leave your appartment whenever you want, even before the agreed upon time. If you leave between the 15th and the end of a month, you have to pay for that month in full. If you leave between the 1st and the 14th of the month, you have to pay the fair share of the rent for the days you where there. So for example, on a 30 day month if you lived there for 10 days, you still have to pay a third of the rent and the landlord will return the rest if you paid for the month in advance. If you live there for 16 days, you have to pay for the full month and nothing will be returned if you paid for the month in advance. Please note that you need to "hand over" the vacated rental object during normal business hours. So don't go in there on the evening of the 14th at 16:59. And don't try to "hand it over" when you haven't moved your stuff out yet. At the hand over, you give the keys to the landlord and that is it, it is the last thing you do. Very likely your landlord will want to have a look at the rental object while you are there, so they can make sure it is all in order, you did not damage it or did not leave any of your stuff. Generally speaking, there is nothing your landlord could do to you if you decide to leave early. They cannot make you leave even earlier or any other retaliatory shenanigans you may have heard of in other countries. In Germany, such contracts are not adversarial. You don't need to keep it a secret to the last second. If you know you want to leave on a certain date, inform your land lord, make an appointment for the "hand over" well in advance and save yourself (and them) all the stress from doing things last minute. | The wording of the original lease and the renewal form are vital here. The Texas Property code, Title 8, chapter 92 is the relevant state law for residential tenancies. It neither forbids nor guarantees a right of renewal. That is left up to the lease agreement. However, it does require a landlord to provide a tenant with a copy of any signed lease promptly. Specifically Sec. 92.024. LANDLORD'S DUTY TO PROVIDE COPY OF LEASE provides that: (a) Not later than the third business day after the date the lease is signed by each party to the lease, a landlord shall provide at least one complete copy of the lease to at least one tenant who is a party to the lease. ... c) A landlord's failure to provide a complete copy of the lease as described by Subsection (a) or (b) does not invalidate the lease or, subject to Subsection (d), prevent the landlord from prosecuting or defending a legal action or proceeding to enforce the lease. (d) A landlord may not continue to prosecute and a court shall abate an action to enforce the lease, other than an action for nonpayment of rent, only until the landlord provides to a tenant a complete copy of the lease if the tenant submits to the court evidence in a plea in abatement or otherwise that the landlord failed to comply with Subsection (a) or (b). (e) A landlord may comply with this section by providing to a tenant a complete copy of the lease: (1) in a paper format; (2) in an electronic format if requested by the tenant; or (3) by e-mail if the parties have communicated by e-mail regarding the lease. Sec. 92.003 provides that: (a) In a lawsuit by a tenant under either a written or oral lease for a dwelling or in a suit to enforce a legal obligation of the owner as landlord of the dwelling, the owner's agent for service of process is determined according to this section. (b) If written notice of the name and business street address of the company that manages the dwelling has been given to the tenant, the management company is the owner's sole agent for service of process. (c) If Subsection (b) does not apply, the owner's management company, on-premise manager, or rent collector serving the dwelling is the owner's authorized agent for service of process unless the owner's name and business street address have been furnished in writing to the tenant. Dallas municipal law prohibits retaliating against a tenant who complains about improper conditions or requests maintenance, but says nothing about lease renewals. Under ordinary contract law, an offer and acceptance makes a contract, unless the parties have previously agreed otherwise. Moreover, demonstrable practice can make or confirm a contract. If the tenant has paid rent for either March or April in reliance on the renewal agreement, and at the specified renewal rate, and that rent has been accepted, that may well constitute ratification (and thus execution) of the renewed lease. This is if the new lease would hav started before the April rent was due. So the tenant may well have the right to enforce the terms specified in the February renewal form. However, this will depend on what those terms are, and also what renewal provisions, if any, were in the original lease. It might be a good idea to send a letter to the landlord and manager, saying that the renewal form that you signed constitutes an acceptance of their offer, and thus a binding contract, and asking for a signed copy as per section 92.024, mentioning the section number. If it were me, I would send such a letter by both email and USPS certified mail, to both the manager and the landlord, if I had both addresses. I would keep a copy of any communications, and make them all in writing from now on (email is writing, legally). In any case the tenant would be wise to continue to pay rent on time in the amount specified on the renewal form, by some traceable means such as a check, money order, or credit card. I would be sure to use a method the original lease listed as acceptable, or that had been used in the past, except for cash. If I used a check, I would write "payment in full for rent of {address} for {month}" on the back The tenant would be wise to consult a local lawyer who specializes in tenant's cases, there seem to be quite a few. There is a local housing crisis center. It offers regular (twice a month) legal clinics with volunteer lawyers, and can be reached at 214-828-4244 or [email protected]. Such a center might be able to recommend local lawyers. Often an initial consultation with a lawyer on such a matter is free or at a low charge. It would probably be a good idea for the tenant to take some action fairly promptly. 15 U.S. Code Chapter 96 (the federal e-sign act) (section 7001) provides that: (a) In general -- Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce— (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation. Also the UNIFORM ELECTRONIC TRANSACTIONS ACT (1999), which has been adopted by Texas, allows but does not require the use of electronic signatures. Thus the tenant;s email response ought to be a vald means of forming a contract. |
Could copyright infringement in an app result in a legal complaint? My friend recently received an email regarding copyright infringement of app title in the app store. What surprises him is that, that company is asking for compensation from him individually, or would file a legal complaint. I am wondering if this is possible. I mean, when copyright infringement takes place in the app store, is it legitimate to ask for compensation from that individual? | Copyright infringement is a legal issue. The injured party is entitled to seek damages from the alleged infringer: either actual damages or a statutory amount per copy (i.e. per download). Unless the infringer agrees to pay they need to go to court to get the money. Whether this is worthwhile for them depends on how easy it is to prove the infringement, the amount what they expect to gain, their assessment of the infringer's ability to pay without going broke and how much it costs to pursue. "What they expect to gain" may include publicity: if they think that pursuing the infringer sends a message to others they may do it even at a cost. Copyright infringement is also a criminal matter where the state can seek criminal sanctions like fines and jail time. Your friend should hire a lawyer. | Under the Berne Convention, a copyright notice is not required at all, although using one is good practice. Using one usually eliminates the claimed status of "innocent infringement", which, if found true by a court, greatly reduces damage awards. It is usual to place such notices at or near the start of a work. That is where people tend to look for them, and I don't see any good reason not to follow this practice. The book tradition is the the copyright page comes before any part of the actual work, including the table of contents, sometimes with a continuation at the end of the work, if there is more than one page of notices. But that is not now a legal requirement, if it ever was. In short, there are no rigid rules on this, but putting a copyright notice at or quite near the start is good practice, and I would suggest sticking to it. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. | The fact that a developer is showing off work that he/she has done for other another company doesn't imply that that developer owns any copyright to the work. In Canada, see the Copyright Act, § 13 (3): Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright and § 13 (4): The owner of the copyright in any work may assign the right... In the US, see 17 U.S.C. § 201 (b): In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. and § 201 (d): The ownership of a copyright may be transferred... "What rights should and should not be attributed to the developer?" That is a business decision to be made on a case-by-case basis. Advice about the prudent balance of copyright between an employer/client and employee/contractor is legal advice. "Is it okay to use this projects as part of the developer's portfolio?" If the developer can link to public use of a product that he/she developed for a company, then the developer is not violating copyright by simply advertising that they worked on the product and linking to, without reproducing, the work. If the developer for whatever reason maintained copyright ownership in the code and other assets, it would not be copyright infringement to reproduce those as part of the portfolio. If the developer did not maintain copyright ownership in the code or assets, reproducing those may be copyright infringement, dependent on whether the copyright owner allowed the developer to reproduce those elements, or if the reproduction is fair use. There may be other laws or contracts implicated, though: non-disclosure agreements, trademark law, among others. | 20th Century Fox have a trademark on "Simpsons." They have trademarks on "Bart Simpson", on "D'oh", on "Duff Beer". I would assume that they take their trademarks seriously. What you can't do is to use someone else's trademark to make people believe your commercial product is related to theirs. It's quite reasonable to assume that someone seeing your book in a store would think it is written by the makers of The Simpsons show and therefore buy it. Even if you say that isn't your intention, it is what would happen. I'd try coming up with some different titles, maybe "How to write animated TV shows" with "Example: The Simpsons" (well, you are the writer so you should come up with something better), and take them to a lawyer. And then contact the makers of the show (again asking the lawyer for advice how to do this) because even if your lawyer says the title is fine, that doesn't mean you can't be sued. | Maybe. It might fall under "fair use", which overrides the general requirement to get permission. The way to find out is to do it, get sued, then try to defend your action by using the fair use defense. If they win in the lawsuit, you can't, if you win, you can. There are four "factors" that have to be "balanced", plus a fifth. The factors are "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes", "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", "the nature of the copyrighted work" and "the effect of the use upon the potential market for or value of the copyrighted work". The fifth consideration is "transformativeness". W.r.t. purpose of the use, your use would likely be found to be "fair", except for the Youtube monetization problem. The "nature of the copyright work" question is primarily about "artistic works" versus "factual works", so it would depend on what you are taking from. One second might not be substantial, unless that one second is the only reason people pay to watch the copyrighted work. That interacts with the substantiality desideratum: could people get the crucial amusement content of the paid work for free by watching your video? You can read some case law in the links here, and you basically have to get an attorney to analyze your plans to tell you what your risks are. | What happened is that you created a legal mess. You are obviously on the hook for copyright infringement. The maintainers of the project will scramble to replace your code with newly written code. They will likely ask your company which code they are complaining about - that puts your company into the problematic situation that they shouldn't identify code that isn't theirs, that it will be hard to sue for infringing code when they didn't give the project maintainers a chance to fix it, and that everything they identify will be replaced. Since it is your actions that caused the trouble, anyone suffering damages from your actions can sue you. | You Own The Code To answer your question on whether or not it is copyright infringement: Yes, you do own the rights to the written code but posting it on Github gives Github the right to store, archive, parse, and display Your Content, and make incidental copies, as necessary to provide the Service, including improving the Service over time. This license includes the right to do things like copy it to our database and make backups; show it to you and other users; parse it into a search index or otherwise analyze it on our servers; share it with other users; and perform it. To simply put it, no matter what license you use, you give GitHub the right to host your code and to use your code to improve their products and features. This license does not grant GitHub the right to sell Your Content. It also does not grant GitHub the right to otherwise distribute or use Your Content outside of our provision of the Service, except that as part of the right to archive your Content. So with respect to code that’s already on GitHub, I think the answer to the question of copyright infringement is fairly straightforward. Things aren’t quite as clear-cut in a scenario where Copilot is trained on code that is hosted outside of GitHub. In that situation, the copyright infringement question would hinge largely on the concept of fair use. If Copilot is being trained on code outside of GitHub, we accept that at least some of what they’re looking at is copyrightable work. So, the question then becomes if it’s fair use. Now, you ultimately can’t conclude definitively that something is fair use until you go to court and a judge agrees with your assessment. But I think there’s a strong case to be made that Copilot’s use of code is very transformative, a point which would favor the fair use argument. There is precedent for this sort of situation. Take the case of Google Books, for example. Google scanned millions of books, provided people who were doing research with the ability to search the book, and provided the user a small snippet of the text that the user was searching for in the book itself. The court did in fact find that was fair use. The use was very transformative. It allowed people to search millions of books. It didn’t substitute for the book itself. It didn’t really take away anything from the copyright holders; in fact, it made it easier for readers to access the work and actually opened a broader market for book authors. And, it was a huge value add on top of the copyrighted corpus. In the latter scenario, a lot depends on the thoroughness and the length of Copilot’s suggestions. The more complex and lengthy the suggestion, the more likely it has some sort of copyrightable expression. If a suggestion is short enough, the fact that it repeats something in someone else’s code may not make it copyrightable expression. There’s also the question of whether what’s being produced is actually a copy of what’s in the corpus. That’s a little unclear right now. GitHub reports that Copilot is mostly producing brand-new material, only regurgitating copies of learned code 0.1% of the time. But, we have seen certain examples online of the suggestions and those suggestions include fairly large amounts of code and code that clearly is being copied because it even includes comments from the original source code. |
How do you get permission to use a copyright before the copyright holder has obtained their certificate from the government? I'm in a musical, and I am helping the lyricist and composers to obtain their individual copyrights. The official certificate will not arrive for around nine months. I'm also recording and producing the show's soundtrack, and putting it up online for sale. It will be ready to go up for sale in about two months time. How do I obtain permission from each of these copyright holders, before they have received their certificate from the government? Thanks. | The lyricist and composers already have copyright. Copyright exists for the moment of creation: registration is not necessary to enforce copyright rights and to grant licences. Registration in the US is merely useful if you want to prove that you own the copyright which otherwise would require providing evidence of the date of creation, priority etc. Most countries do not have copyright registers. Similarly, you will have copyright in the derivative work of the soundtrack from the moment of its creation. | Under Swedish copyright law, a work such as a movie is protected for 70 years after the death of the "creator". It is unclear who the copyright holder is, but it has not been 70 years since the film was made. Unless it was explicitly "released into the public domain", it is still protected, so you can get sued. | "Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work." Copyright in Derivative Works and Compilations http://www.copyright.gov/circs/circ14.pdf So if you have not been granted authorization, you are violating the right of the owner. It's always recommended that you get permission. Practically speaking, if the owner does not give you permission, there is probably someone else with a similar photo who will! Pretty famous recent case: Barack Obama "Hope" poster | For works released after 1989, Copyright notices don't have any legal consequences in the United States. They are just a friendly reminder of who created the work and that they take their copyrights seriously. But those notices are not required anymore to enforce your copyrights on the works you created. If you have proof that you own the copyright on something and when it was created, and if it's still within the term limits, then you can take legal actions against people who violate your copyright. Disney has a history of repeated worldwide lobbying for extending the expiration durations in copyright laws in order to avoid any of their classic cartoons from falling out of copyright protection. So it could be that they try to intentionally muddy the waters and make it harder to find out which of their works expire when. That way people are less sure about what Disney works are and are not in the public domain, making it more risky to use them. But that's just my theory. | First: the real answer to your questions is "consult your academic library staff." If this is for a thesis project, then you're presumably affiliated with a college or university, and the librarians at such institutions are used to helping sort out copyright claims and helping researchers obtain the necessary clearances. There are two questions you're asking, really. Are these works in the public domain? Possibly, but not for the reasons you think. In the US, copyright in unpublished works lasts for the life of the creator + 70 years. After that, they pass into the public domain. This means that if the composer/arranger died before 1919, then the works passed into the public domain before the formal publication in 1989, and they are still in the public domain now. However, if the creator died after 1919, then their 1989 publication effectively "resets the clock" on the copyright, and they will not come into the public domain until (according to the above link) 70 years after the death of the creator or 2048, whichever comes later. What doesn't matter is that the original symphonic works were in the public domain. Even if the 1812 Overture is in the public domain, I could write an arrangement of it for accordion quintet and I would have the exclusive right to publish it and profit from that arrangement for the standard term. In your case, if the work really is a straight transcription, it might not have a copyright; but if the work required some amount of creativity and artistic decision-making (which a piano transcription of a symphony certainly would) then the arrangement gets its own copyright when it's published. Can I make transcriptions of them if I don't publish them? Probably, but you should really consult your librarians. It's entirely possible that your proposed copying would fall under "fair use"; it would be for scholarship & research and you're not planning to include the transcriptions in your final published work. On the other hand, you're talking about effectively copying a substantial portion of a creative work that is still in print, which argues against fair use. Fair use rules are notoriously flexible/vague, and so it would be worthwhile to consult with an expert on the subject (i.e., your school's library staff.) | Because of the nature of online distribution, "watching" a show involves copying, so you need permission from the copyright holder to make those copies. You get permission indirectly, when you access a show via a legal licensee who has permission to distribute. A pirate site has no permission, therefore you cannot legally sub-license the show, and in so doing, you infringe copyright. The issue is not whether you "paid for it", it is whether you have obtained proper permission. Under copyright law, a rights holder can simply arbitrarily deny you permission to copy the work. | 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. | When a company is dissolved, someone takes over the company's asserts, often the creditors, or they may be sold for what they will bring. Failing anyone else, it may be the crown. Assuming that the copyright was in fact owned by the company (and not by someone else and merely licensed to the company), someone owns it, (just as someone owns the physical property that the company had) but it may be hard to find out who. It is even possible that the owner is not aware of the copyright. As for Person A, that depends on the details of A's contract or agreement with the company. A may be a co-owner (unlikely). A may have rights to use the code to some extent. Or A may have no more rights than I do (that is, none at all). According to "Ownership of copyright works " an official UK government web page: Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work (subject to any agreement to the contrary). The expression “in the course of employment” is not defined by the Act but in settling disputes the courts have typically had to decide whether the employee was working under a ‘contract of service’ (eg as an employee) or a ‘contract for services’ (eg as a freelancer or independent contractor). Where a person works under a ‘contract for services’ he will usually retain copyright in any works he produces, unless there is a contractual agreement to the contrary. Thus if person A was acting as an employee of the company, the copyright would automatically be owned by the company, in the absence of any written agreement between A and the company. The page goes on to state: When you ask or commission another person or organisation to create a copyright work for you, the first legal owner of copyright is the person or organisation that created the work and not you the commissioner, unless you otherwise agree it in writing. However, in some circumstances, for example when copyright is not dealt with in the contract to commission the work, courts may be willing to find that there is an implied licence allowing the commissioner to use the work for the purpose for which it was commissioned. This does not necessarily result in a transfer of ownership. Instead, the commissioner of the work may only get a limited non-exclusive licence. ... Thus if A was acting as an employee in creating or co-creating the code, and there was no written agreement on the matter between A and the company, A would have no rights to the code, and the copyright would pass to whoever purchased or was awarded it after the company dissolved. Such a copyright might well have been included in a purchase of "all other assets" (or some such language) and no explicit or specific mention of it been made. The situation in the US would be basically similar. Work by an employee within he scope of employment is a "work-made-for-hire" (WFH) under US copyright law( See 107 USC 101), and the employer is legally the author (which is not true in UK law), unless there is a written agreement to the contrary. The natural person(s) who in fact created the wok have no rights unless an agreement grants such rights. On dissolution the copyright does not end, nor is it transferred to the creator, but passes to whoever bought it, or bought or was awarded the general assets of the company (such as in a bankruptcy proceeding). |
Is selling pictures of merchandise illegal if you imply that you are selling the actual merchandise? Is it illegal if I take a picture of a piece of merchandise such as a new Xbox One, and sell the picture of that piece of merchandise? Is it illegal if I advertise the picture of the piece of merchandise on a website where people are trying to buy the actual product? Is it illegal if the name of the website where I sell the picture is completely unrelated to selling pictures and may imply that the buyer is getting a great deal? Is it illegal to use pricing to make it seem like the picture of the product is the actual thing? For example, I could price a picture of an Xbox One the same as an actual Xbox One but offer 25% off. For example, someone goes to eBay looking for an Xbox One. When they click on the product they want to buy, they see an ad in the sidebar with an advertisement saying "Check out this picture of a BRAND NEW Xbox One! Save 25% if you order in the next 10 minutes!". They would click on the advertisement and be brought to an ecommerce website. In the description of the item it would clearly state "This is a picture of a brand new Xbox one with a 250GB hard drive." The buyer might then purchase the product possibly under the impression they are getting the actual item. Is any of this illegal? | All of this is illegal. You do not give a jurisdiction so I will use NSW, Australia as an example but many countries' laws have similar effect. Australian Consumer Law prohibits misleading and deceptive conduct: It is illegal for a business to engage in conduct that misleads or deceives or is likely to mislead or deceive consumers or other businesses. It doesn't matter that what you have said is strictly speaking factual - the way it has been said is likely to mislead or deceive. However, what you are proposing goes further and IMO crosses the line into fraud (s192E of the Crimes Act): 192E Fraud (1) A person who, by any deception, dishonestly: (b) obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud. Maximum penalty: Imprisonment for 10 years. (2) A person’s obtaining of property belonging to another may be dishonest even if the person is willing to pay for the property. In addition to the illegality, stealing other people's money is morally wrong by any reasonable standards of morality. | 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. | Making a profit does not make the act illegal: it is illegal without there being any profit. The act of copying without permission is what makes the act illegal. Profit might maybe enter into the matter if you are talking about the "fair use" defense, since certain kinds of works can be partially copied for certain purposes. You could quote a few lines from a novel in a review, for instance. The judgment of whether a given act of copying without permission is allowed under fair use is complex and involves a balancing act. Profit becomes relevant in that a non-profit use favors fair use and a for-profit use disfavors it. Wholesale copying of works of art as you describe is illegal (is infringement). However... "illegal" is a pretty broad concept. If you infringe on my intellectual property, you almost certainly will not suffer any consequences unless I sue you. Taking "illegal" to mean "in violation of the law", infringing copyright is illegal because it violates the law, but I have to make a federal case out of your infringement – I have to sue you. As it happens, it can also be a crime to infringe copyright, and in that case, the government and not the copyright holder pursues the matter. If a person knowingly infringes copyright, he might be prosecuted, thus the Megaupload case which in the US is realized in the indictment US v. Dotcom. Moreover, profit motive is a required element for criminal infringement. (Also note that you don't have to actually make a profit for the profit element to be present). You cannot sue a person unless they have harmed you, so if you know that Smith copied Jones' work you can't sue Smith for harming Jones. (This is what they call "standing"). You might sue Smith, but not for infringement itself. If they sold you an illegal infringing copy, then you could sue. Or, their infringement could diminish the value of your legal copy. This website gives a multi-nation overview of criminal copyright infringement laws. | If this was anywhere in the United States, it was perfectly legal to post the photo. The First Amendment allows people to freely share information, including pictures. People commonly believe that they have the authority to control who takes a picture of them and under what circumstances, but that is generally false. Anyone with a camera is generally free to photograph anyone or anything they want out in public. You've also used the copyright tag on your question. The person who took the picture owns the copyright. Since that's the owner, there's presumably no problem with her posting it. Instead, it would be illegal for you to post that photo without obtaining a license from the homeowner. | Yes, it's absolutely legal. It turns out that UK retailers offer replacement out of their own politeness and are not required to do so by law. If they gave you refund then that's all they need to do. | You tag the question with "criminal law", suggesting that by "illegal" you mean "is it a crime" -- that would depend on jurisdiction, but in the US or my state, it is not a crime. There are crimes that you could commit with such an account, but violating the TOS is not itself a crime. However, it is illegal, a breach of contract, as you can see from the TOS "You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission". | It's not illegal to say things in your profile. SE requires you to license your content to them on a non-exclusive basis pursuant to CC BY-SA 4.0. "Non-exclusive" means that you can also license the material to others on some other basis, e.g. CC0. In that case, a person who uses your material can rely on the other license that you granted. If SE wanted to, it could prohibit putting licenses in a user profile, in which case you would have to promulgate your more generous license elsewhere. | Summary from comments. (Hat tip @jqning) Daniel Nathan Ballard writes here: [It] is not only improper it is UNLAWFUL and may result in serious repercussions... Such a misuse may constitute false advertising... (“It is no doubt true” that affixing the ‘Trade Mark Registered U.S. Patent Office” notice on goods that are not protected by a federally registered trademark creates “a prima facie case of fraud against the public… .”). ... Such use is also a form of “unclean hands” that can bar the user’s registration of the mark. ... Such a use may also bar the maintenance of an infringement case. ... And the fraudulent use of the trademark registration symbol DOES provide other marketplace participants with standing to oppose the user’s registration of the mark. http://www.avvo.com/legal-answers/use-of---symbol-but-not-federally-registered-1125746.html |
Am I Obligated to Return a Mysterious Box? Last week, I moved out of apartment complex. My U-Haul spent a fair amount of time unattended in the parking lot while I was lugging stuff out. When I got to my new apartment and unpacked my boxes, I found several boxes full of stuff that I had never seen before. Among the items that I found in these boxes were: A vacuum cleaner that makes noise, but doesn't have any suction A Rubik's cube with half of the stickers missing An old CRT monitor with an image partially burned in Shelves from a refrigerator Lots of magnets, mostly dull but a few good ones Instructions on how to install a door bell 4 copies of the DVD Battleship This was very strange to find this box. I'm guessing this came in my truck for 2 possible reasons: Somebody was also moving at the same time and mistakenly put it in Somebody was trying to throw away an old box of junk and just put it in my open truck and ran away Considering how my now former neighbors would terrorize me (blasting loud music, setting loose a possum through my window, taking a dump in my mailbox), I'm guessing it's the 2nd reason, although I'm not positive. My question is: am I under any legal obligation to try to return this box? I don't want to see my former neighbors again, but can I get in trouble if I keep this? | 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. | Intent would greatly factor into the case. As mentioned, possession of child pornography is illegal. There was a case, where a man had inadvertently downloaded such images. In the case, it was shown that there was sufficient evidence that it was accidental and without his knowledge. Presumably, if you by happenstance created an identical code through encryption/compiling, there would be a lack of evidence of intent or evidence of your intended use. For example, your stored password manager file happens to store data identical to an illegal image. The password manager output is provable and repeatable to show that it was simply circumstantial. If you have hundreds of such outputs that all "just happen to be illicit images" you would probably fall on the wrong side of reasonable doubt. As to whether you can keep the data, the programmers for the password manager would probably update their system to modify the output to avoid bad press. The general idea is that the "illegal number" is so incredibly specific that accidental cases are very unlikely to occur, and if it did, that there would be forensic evidence indicating intent and use. | I can't see anything to say this is a state-wide ban. Do they have to give an opportunity to return unused fireworks for a refund? The ban imposed by Portland Fire and Rescue appears to relate to the use, not possession, of fireworks so I assume that the stores' / State's regular refund policies would apply. Due to unusually hot temperatures and dry conditions, PF&R is announcing an immediate ban on the use of all legal and illegal fireworks... | 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. | Bizarrely, it depends on where you live in Kentucky. There is a law, the Uniform Residential Landlord and Tenant Act (KRS 383.500 to 383.705) which states limits on residential leases (otherwise, the matter would be governed by the terms of the contract and common law). The state didn't enact those laws as enforceable in the state, it "made them available" for cities, counties and urban-county governments to adopt unmodified (or not). So it depends in part on whether your locale adopted the law. Assuming it did, in the definitions, (13)"Security deposit" means an escrow payment made to the landlord under the rental agreement for the purpose of securing the landlord against financial loss due to damage to the premises occasioned by the tenant's occupancy other than ordinary wear and tear. (emphasis added) That would mean that they can't take the cost of carpet cleaning, painting etc. out of your security deposit. §383.595 (again, if applicable) states the obligations of the landlord, so he must Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by him So it depends on whether the URLTA was enacted in your jurisdiction. This page indicates where that is the law, and also urges you to read the lease. | The simple answer is, get a lawyer and explain your case, and pay him to solve the problem (or tell you that it's hopeless). The two main questions would be whether the appraiser have any duty to you, and whether his action was within the scope of what he is supposed to do. If you hired the appraiser, he has a duty to you. I will assume it was you that hired the appraiser (if it was the bank, that's a different matter). Then the question is whether his action or non-action is within the scope of the job. If the place is infested with termites, that is probably irrelevant because an appraiser is not a termite inspector. On the other hand, if he failed to measure the structure, or erred substantially in the measurement, that kind of negligence could be legally actionable. The seller (not the appraiser) is required to "disclose", so it's not obvious that there is any thing that an appraiser could disclose that relates to a map. | These all seem to be issues with how the local post office is handling your mail (and no doubt that of others). I would start by asking to see the person in charge of that office, and asking that person the same questions that you asked here. I am not sure that, under US law, the "envelope information" of your mail is protected in the way that the contents are. | Note, Washington State Senate Bill 5061 seeks to block certain "untracable" firearms without a serial number. This relates in part to "3D printable" guns, but the act of milling of a 80% lower (in Washington) could be a violation, if and when it passes. But it appears the bill hasn't been made a law yet... Is Washington specific news this issue what drives the question? Federally, the ATF web site says: Receiver blanks that do not meet the definition of a "firearm" are not subject to regulation under the GCA. The ATF has long held that items such as receiver blanks, "castings" or "machined bodies" in which the fire-control cavity area is completely solid and un-machined have not reached the "stage of manufacture" which would result in the classification of a firearm per the GCA. But this gets a bit technical. For further risk mitigation, the Texan could mitigate any risk related to both Federal and Washington state law by shipping it to a federal firearms licensee (FFL) in Washington as if it were a firearm, per ATM instructions which say (in part): Generally, for a person to lawfully transfer a firearm to an unlicensed person who resides out of State, the firearm must be shipped to a Federal Firearms Licensee (FFL) within the recipient’s State of residence. He or she may then receive the firearm from the FFL upon completion of an ATF Form 4473 and a NICS background check. That FFL is then responsible for ensuring the transaction properly conducted in the state of Washington, including federal and state requirements. The FFL I contacted only charged $25.00 (plus collecting the state sales tax). Form 4473 was easy enough; only about one page for me to fill out. Of course, I've got a clean record, so going through channels isn't a problem for me, it took less than an hour. The FFL confirmed for me that it wasn't necessary for something like an antique musket, which legally isn't a firearm by the federal defeinitions. In my case the sender was a nervous "trust" lawyer who wasn't sure, hired yet another lawyer to advise him. The FFL didn't charge me anything for receiving that musket. |
Reasking in Law forum from academia- Can i defend myself? original: https://academia.stackexchange.com/questions/78853/is-it-unethical-of-me-and-can-i-get-in-trouble-if-a-professor-passes-me-based-on?noredirect=1#comment194231_78853 I originally asked this question in academia, and although I received a lot of comments I'm looking more fore a legal viewpoint. so I thought I would post one here. Edit: There is some information I originally left out but I want to include here. **1) the only thing I have documented from me and the professors exchanges is my email mid semester asking her for office hours, conversations were made on phone. 2) The university did not restrict native speakers to take this course. 3) The reason I was comfortable with originally not showing up to class was because 2 native speakers did the exact same thing before me, and when I asked about the legality of it they told me the professor said it was okay we speak it, and that the prof wants to enroll more students in order to "open" the section. this went over my head, and at the time I thought it was normal as many colleges give credit for competence. 4) Public institution** | There are two senses in which this action might be "against the law". One is that it violates some specific (statutory) law, the other is that it violates some common-law principle especially pertaining to contracts. We can quickly dispose of the possibility that you have violated a statutory law: there is nowhere in the US where you are compelled by law to do anything about foreign language classes (take, avoid, pass, whatever). Your university has the right to establish and enforce whatever requirements it deems proper for awarding degrees and credits, and has the legal power to act broadly in providing an education. Let's say that they have stated a requirement that everybody must take 2 quarters of some foreign language, then if you don't do that, they are entitled to withhold the degree from you. Whereas, if you had satisfied all of the requirements for the degree, then they could not arbitrarily withhold the degree -- it is now a thing that you have a property right to. Just as the university has the right to impose requirements (with appropriate advance notice), they also have the right to suspend requirements, generally or according to circumstances (as long as it is not arbitrary). A typical actual example is "that class hasn't been taught for 3 years". In this case, the requirement was not suspended, but an agent of the university acting within the scope of their appointment judged that the requirement had already been satisfied in your case. The university administration might not actually approve of the professor's choice and might change their rules or sanction the professor (at my university this was common practice, albeit never officially sanctioned), but it is the sort of thing that is within the scope of the professor's job (to judge that you have satisfied the "bottom-line" requirements of the course). Since there was no wrong-doing on your part and you acted in a good faith belief that the professor's actions were "allowed", then the university would be buying itself a pile of legal trouble if it were to rescind your degree. | I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general. Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea. And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications. The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved. In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K. The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality. | 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. | 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. | Yes they can You are approaching this from the wrong direction. Their right to enforce what you can and can't do doesn't come from radio-spectrum law; it comes from property and contract law. You are on their property subject to a license that they give you to be there. One of the terms of that license is that you won't set up or operate a wireless network. No doubt there are other things you are not permitted to do; for example, you may not be able to sell goods and services. If you breach the terms of the license then you are trespassing and they are within their rights to have you removed. In addition, if you are a student (or staff), this is probably one of the terms of your contract with the university. If you breach it, they can terminate your candidature (employment). Contracts can impose obligations on you that goes beyond what the law obliges you to do. Indeed, there is no contract if it only requires what is already required. | There is no general law making it illegal to lie about debts, or anything else. It is illegal to lie to a law enforcement officer in the course of an investigation. (And of course it is illegal to lie in court testimony or when otherwise under oath.) But it is in no way unlawful to decline to answer, unless a proper court order has been obtained, or other lawful means of compelling an answer. I would expect any law office to respond to such a question with something like "Am I/we being investigated? If so, send the appropriate notice and our lawyer will consider what we should tell you. If not, tell us what information you want, and we will consider and provide a written response in due course." If a taxpayer has been found to be delinquent in paying taxes, in some cases a court order may be obtained seizing assets, including unpaid debts. But no IRS agent can make such a claim on the spot, and indeed for a client to make such a payment without such a court order, or the order of an IRS tribunal (or the creditor's written consent) would itself be unlawful and would subject the lawyer to a suit by the PI (Private Investigator). When the lawyer pays a service provider, a 1099 must be filed with the IRS. If the PI is a corporation, a different form is used, but a record of payment is still required. As failure to timely file such a form is a violation of the tax code, an accusation of paying without filing would permit the lawyer to decline to answer under the Fifth amendment. If the lawyer did pay and did file a 1099 or other documentation, the IRS would know what had been payed, and would not need to confront the PI. Also, as the comment by Hilmar points out, a PI would be likely to use the cash accounting method, and so would own no tax on work performed but unpaid (as yet). So unless the IRS agent thinks the PI was paid "off-the books" and is intentionally failing to report the payment, there would be no point to such a question. And if that were he case, the lawyer would be very likely to decline to answer. I find the story quite implausible. | This would be virtually impossible to do from scratch. If you had the guidance of someone who successfully pursued a similar legal action it might be possible. In theory you should be able to pursue grievances in court by becoming well versed in the applicable laws and rules, having impeccable attention to detail, exceptional deductive and writing skills, and getting lucky enough to run your filings through patient clerks who will tell you every time you're missing something or doing something wrong. New York Courts even offer this encouraging CourtHelp website for pro se guidance on common actions. But if you really want to attempt a pro se civil action, especially against a government entity, or other entity with essentially unlimited legal funds, you not only need all of the above but also some sort of assistance from somebody who knows the system. I would spend as much time looking for sympathetic advocacy groups and lawyers offering pro bono service as I would reading relevant law and procedure. (One more thing: The word "quick" is never used in conjunction with formal legal actions, except in jest ;) | Assuming that privilege applies, no Not all communications with your lawyer trigger privilege and if it doesn’t then the lawyer is not your lawyer and is under the same obligation to report as any other member of the public. If privilege does apply then they must keep your secrets. If they are defending you and you confess to the crime then they can: represent you if you plead guilty withdraw unless that would prejudice your defence continue to act providing that they do not: suggest someone else committed the offence set up a defence inconsistent with the confession they can: argue the prosecution has not made their case, that you are not guilty of the offence charged by reason of law, or argue for any other (non prohibited) reason that you should not be convicted. |
Spouse as a witness to a last will I live in PA and we recently completed a will. The lawyer who drafted our wills stated that my wife and I could witness each other's will. Because his office is small (two lawyers and a paralegal), there weren't enough witnesses to go around. I searched on Google and it looks like PA doesn't require witnesses to a last will as long as the person signs at the end of the document? I assume he knows what he's doing since his practice does a lot of estate planning. Should I be worried that my wife and the lawyer signed as witnesses? | 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. | First, agree w/Dale M re: it would be an egregious and likely career-ending move for an attorney to fake his representation. That said, there is likely no reason why you would be unable to request such proof of representation. Your job consists of protecting the assets of the trust, carrying out any other duties outlined in the trust document, being honest and in communication with the trust's beneficiary, managing the assets, and ending the trust as determined by the trust document. Several of those points (particularly the "protecting the assets" part) argue heavily in favor of your confirming the veracity of any claims involving the trust and/or the identity or true intent of those seeking any information, etc., with respect to the trust. Also, demand letters are letters stating a legal claim and usually asks for restitution or performance of an obligation. It's not entirely clear what constitutes a "demand letter requesting information" unless you have a legal duty to provide that information (and this would - or should - be stated in the demand letter itself). Finally, should you be unable to obtain the confirmation you're seeking, you should consider consulting a trust administration attorney. In most cases, you may use trust assets to pay for expert help (including tax preparers and accountants). | A witness who disobeys a court order has automatically broken the law. Indeed, this is the most fundamental of laws; you can't decide "If I turn up to the hearing I may be punished for my crime; but not attending isn't against the law, so goodbye." A witness who goes out of the jurisdiction cannot, of course, be punished while there (though when he returns he may have to explain why he chose to leave having been warned that he must attend or face penalties- that is the meaning of sub poena). But your assumption that anybody who fails to attend probably had a good reason betrays a fundamental, though common, misunderstanding. A court has determined that your evidence is necessary for justice to be done. There is therefore no good reason not to attend. It may well be that a doctor would prefer that you did not go to court that day, and if you apply to the court it may be possible to find some arrangement. But you are not allowed to decide 'my convenience is more important than discovering whether the defendant should go to jail or not". Civilised countries have people who are empowered to make that decision; they are called judges, and the decision has been made. | In most places I imagine the issue would go before a probate judge who would attempt to determine the validity of each presented will, and if both were valid, then they would attempt to reconcile the disparities to the best of their ability. Broadly speaking, the process would look like this (I'm using UK law as an example): You die An individual is chosen to handle your affairs (executor or administrator [or possibly both depending on jurisdiction]) They choose a will to go off of (these steps could be reversed if the wills named different administrators, in which case each administrator would file for the grant of representation and consequently involve the probate judge earlier) Someone challenges and suggests using the other will (probably because they feel they're not getting what's theirs) A probate judge is involved The probate judge decides Appeals would be made to Court of Appeals and then to the Supreme Court That being said, every jurisdiction is different, and this is more of a template answer for English common law (and derivative courts), than an attempt to describe in detail any specific jurisdiction's procedures. | If you lived in a community property state, that would create responsibility for your late wife's debts (but Kansas is not one). If you signed a financial responsibility agreement you would be liable (but I assumed you did not). No matter what, her estate is liable, and that could eventually affect you (her debts must be paid first). However, there is one last criterion, the "doctrine of necessaries". This ruling notes Kansas recognizes the doctrine of necessaries, under which a spouse can be held liable when the other spouse obtains necessary items, like food or medical care, on credit. See also St. Francis Regional Med. Center, Inc. v. Bowles for support that the doctrine survives in Kansas. | No, in germany there is no universal requirement as to form (Formfreiheit). This includes associating a signature with a name in block letters. In principle you can enforce a contract in court even if the written contract does not identify the contracting parties by spelled out name, but by signature only. It stands to reason there is no benefit in omitting the full names. The legislature implemented elevated form requirements for certain legal transactions by mandating the use of a notary. Here, again, there is no requirement as to put a plain text name next to your signature. The link between signature and person is established via the notary’s documentation. You could put an alias “Donald Duck” next to your signature, the notarial deed will indicate that in fact Kalle Richter signed the document. As far as I am aware all european-union legal transactions will need to go through their official channels. It is simply not possible, for example, to establish a European Economic Interest Grouping on a scrap of paper. Thus there is no issue and in turn no regulation. One thing is for sure, the european-union does not impose a “minimum framework” on its member states. I recollect there are some directives regarding electronic signatures, but that is a different story now. | Who administers the will of someone who dies intestate, who has no family? There is a position known as the "public administrator" paid mostly from fees charged to probate estates in most jurisdictions. In the absence of such a post, creditors of the estate or beneficiaries of the estate can apply to do so when there is no family. Other than the administrator, who else did he need to convince the will was genuine? The court with probate jurisdiction. By what credible set of occurrences could have have led him to ‘find’ the ‘lost’ will as a non-family member, nor friend? Is there somewhere else he could have ‘found’ the will that would have been credible? A companion had it. A bank had it. A former lawyer of the person had it. A military colleague had it. A landlord or storage unit company found it. Note also that the probate court sees only the will, and doesn't hear the whole story of how it was found, in the absence of a will contest or a will not executed with the usual formalities as these wills would have appeared on their face to have. And, if the notices to disinherited family members are not actually delivered (not mailed or mailed to bad addresses), the disinherited family doesn't show up to contest the matter until the finder's fee has been collected, the fraudster is nowhere to be found, and the charity has received the money and is being asked to refund it. Would he have to have somehow had access to the deceased's property after their death? No. Often a will in not stored with someone's other property. And, in this case, he already knew that there was no actual will to find. He just needed to know that they died and weren't paupers. How could he have gotten away with listing ‘fake’ witnesses? (doesn't the administrator do research?) If the witnesses signatures are notarized, the witnesses aren't interrogated unless there is a contest. Frequently, they are law office or bank employees who witness many wills and may not have a very specific recollection. The notary's authenticity wouldn't usually be checked unless there was a dispute as to the will's authenticity raised by some interested party. Once he had convinced the right people/organisations, who would have been responsible for selling the deceased’s assets, and paying the money to the charities in the will? The executor of the estate appointed by the court. Sometimes distant family, sometimes a creditor or a representative of a charitable beneficiary, sometimes the public administrator. What benefit could his approach have had over simply acting as a normal heir hunter, e.g. using genealogy research databases to track down distant family members (who eventually brought his fraud to light), and just charging them a finders fee as he did the charities? Family, even distant family, is likely to know more about the decedent and to research that relative (previously unknown or little known to them) than a charity that never met the decedent and doesn't want to contest a bequest to itself. Also, close disinherited family will usually find out eventually. A finder's fee recipient can be paid and gone by then. A recipient of the inheritance under a forged will can be forced to disgorge it to the rightful heirs. Money laundering of the finder's fees received would be a necessary component of the scheme if it is to be successful. This was a pretty successful "long con". After the fraud was discovered and proved: The relatives we had found were then able to inherit, following the rules of intestacy laid down by law. The criminal was not prosecuted in this case because of his advanced age. In fraud, if they only catch you after you are dead, it is a win for the fraudster. Footnote In cases where the decedent had no family, this is a "victimless" crime that gives money to the finder and charity in lieu of an escheat of the decedent's entire estate to the government. Second Footnote This is not a common fact pattern at all. I've never seen it in twenty-five years of practice, I've never encountered someone who has seen this happen, I've never seen a news account or continuing education instructor account, or professor's account of this particular kind of scheme before today, and I've never seen a court opinion addressing this fact pattern. This may be the only time in the history of the world that this particular kind of fraud has occurred. More common instances of fraud involve: A family member who feels great financial need duping other family members to get the entire estate for himself or herself. A family member forging a will in an effort to win an internal family struggle where the testator isn't budging. A family member forging the estate plan the decedent intended to make, but didn't, with little substantive change. An outsider or family member winning the trust of a frail but wealthy elderly person and having that person execute a will leaving them everything. A professional conservator or guardian for someone who has no close family (or unrelated power of attorney agent) charging excessive fees (perhaps for services not actually rendered) and making undisclosed self-dealing transactions (e.g. gifts to himself or herself, and unfair business deals with related parties). | While the state, or a creditor, can initiate a probate if no one else does (if the state does so, the official in charge of this is called the "public administrator"), neither are required to do so. Also, sometimes a guardianship is converted to a probate, but this doesn't appear to have happened. This is a thankless job that probably doesn't make sense to bother with if estate liabilities exceed the assets of the estate, but most states have a "non-claim statute" that bars creditors claims, other than liens including property tax liens, after a certain amount of time after the death. So, even if the estate may have been insolvent at death, if enough time has elapsed, many of the potential claims may now be barred, making the estate solvent again. Siblings generally have priority for appointment over a nephew, so to be appointed yourself, you would ordinarily have to receive a renunciation of their right to serve as executor before applying to do so yourself, but some states disregard that priority if no one has taken action after a certain period of time. You would initiate probate by contacting an Alaska lawyer in the vicinity of the place he was domiciled at death. The lawyer can review the guardianship court file, determine if an executor was appointed, and determine if there are assets that could justify opening an estate relative to lien debts including Medicaid liens. If there are not, letting the assets be lost to a property tax lien may make more sense that spending money to transfer his property in an orderly fashion to his creditors with nothing in it for any of his family. |
Who pays medical costs for a John Doe who dies in the hospital? Say that a John Doe case (i.e. someone whose identity is unknown and the patient can't tell them) comes into the hospital and collapses, becoming incapacitated. They receive treatment yet ultimately die. As the hospital staff doesn't know the identity of the John Doe, they can't tell if they have insurance to pay for the coverage, nor do they have any known next of kin. So who is ultimately responsible for their medical costs? This question was inspired by the 2016 Doctor Strange movie where Strange brings the Ancient One into the hospital yet she dies, then Strange leaves without identifying her. | In the United States, Medicare and Medicaid pays for indigent patients in hospitals, via Disproportionate Share Hospital programs. This is not a direct reimbursement but a program based on certain qualifications and the ratios of indigent patient days to normal patient days in periods. Medicare link | I am not a lawyer; I am not your lawyer. You do not cite a jurisdiction so this makes it very difficult to get a definitive answer. What follows is for Australia but the general principles are common law and would be applicable to other common law jurisdictions except where statues apply or case law has diverged. In the first instance, it seems that you were not party to any arrangement to pay for the electricity. So on the face of it you are not party to any contract requiring you to pay. Even if there was such an agreement: family, domestic, social and voluntary agreements (which this would be) are presumed not to be intended to legally bind the participants. Whether this presumption would be overturned would depend on the specific facts. On the face of it, there is no legal obligation to pay. Your options are: Do nothing; this puts the ball in their court, they can: Forget about it (it would then be over) Attempt to sue you with little prospect of success (which would cost them and you a lot more than $50 irrespective of who won) Do something illegal like beating you up (you really need to assess this risk) Tell everyone they know (in person and on social media) what a skiving prick you are (you could probably sue them for damages but that's not really going to happen, is it?) Pay them what they are asking Offer to pay them something less. Option 1 is likely to break any relationship you have with the person, Option 2 is likely to preserve it and Option 3 could go either way. Ultimately, like most legal questions, this is not about the law; it's about relationships ... broken ones mostly. | It doesn't matter if a debt arises as a result of normal commercial transactions or because of liability for a legal wrong - if you owe money you owe money. While you are alive you are responsible for settling your debts out of your assets as and when they fall due. When you die, your executor has the same responsibility. The executor's first responsibility is to settle the debts of the deceased - only after they have done this can they make distributions to the beneficiaries. One of their duties is to advertise the death of the person and invite anyone who has a claim against the estate (as a creditor or beneficiary) to come forward - the law puts time limits on how long they have to do so. If some of these liabilities are disputed then the executor must hold back enough funds to cover the disputed amount (and the costs of defending against it). Intangible assets (copyright, patents etc.) are no different from tangible assets - they can be offered to the creditor to (part) settle the debt or the can be liquidated (sold) to get cash to settle the debt if there is insufficient cash in the estate. Once all known debts have been settled or successfully denied the executor can distribute whatever assets are left in accordance with the will (or the law if there is no will). If they do all this in accordance with the law then they have no liability. The beneficiaries never have any liability. Sometimes the estate will be insolvent - its liabilities are greater than its assets. The executor's duty in that case is to follow the applicable bankruptcy law. | Here is the section of NYC law on the medical examiner. §17-207 provides for a "Root cause analysis", in case there is a "significant event". A significant event, as defined in that section, is where there is probably a technical screw-up in the office of chief medical examiner; the designated root cause analysis officer then develops guidelines for determining whether a significant event has occurred, then reporting, and other procedures. Then if it is determined that there was a screw-up, there shall be a report written, and this may get reported to the mayor or city council. Although there is no explicit statement therein about outsiders filing a complaint, you can always file an administrative complaint, and the law does say that there shall not be any disclosure of the identity of "any complainant, victim or decedent". I assume the purpose of this complaint would be to force the medical examiner to change his report. If you simply just want to proffer an alternative claim, you can hire your own pathologists to make a different conclusion. One might care about the suicide / homicide distinction in case there was for instance an insurance policy that depended on the cause of death not being suicide. In which case, you would sue the insurance company, and the jury would look at the evidence for and against the suicide claim. As far as I can tell, there is no mechanism purporting to force the medical examiner to re-write his report and reach a different conclusion (the courts will not compel him to express a particular viewpoint). | It would merely be a "jerk move". HIPAA only applies to "covered entities": Healthcare Providers Health Plans Healthcare Clearing Houses (i.e. Paying for your health care) Business Associates of the Above) Source: CDC page on HIPAA | You generally are not required to share your medical details with people you don't want to. That said, the camp would also not be required to allow people who don't comply to enroll. They can't force you to divulge your information, but you can't force them to let you come if you don't, either. HIPAA deals with the ability of healthcare providers to disclose medical information to parties who aren't the patient themselves - it would be a HIPAA violation for your doctor to disclose your information directly to the camp without your consent. HIPAA has absolutely no bearing on who you choose to disclose your own information to, however - you can disclose your own information to anyone you want. | 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. | In the US, it depends on why you are doing this, and how you go about performing the operation. There are approved devices and procedures, and there is the other stuff. In an emergency that is life-threatening or threatens severe debilitation, it is permitted for a physician to try an extreme measure – if the state has a "Right to Try" law. Otherwise, a review and official approval by the relevant IRB is required. The devices are regulated by the FDA, but the FDA does not regulate the practice of medicine, so the feds don't have a say in whether a procedure is allowed. Nevertheless, use of unapproved devices can be taken to be evidence of failing to meet the required standard of care, in the case of a malpractice suit or punitive action by the state regulatory board. There is no specific law prohibiting removing lots of organs and replacing them with prostheses, though arguable what happened was that the brain was removed (it's not that a replacement shell was built around the person). Ordinarily, intentionally "killing" a person is illegal (except in case of sanctioned execution or self-defense). There is zero case law that would tell us whether removing a brain from a body "kills" the person. Most likely, there would be a prosecution for unlawfully causing a death, and either the legislature would tune up the law w.r.t. the definition of "causing death", or the courts would do so. |
Is it illegal to reverse engineer .docx file format? Micrsoft's '.docx' file format is closed source. There are many softwares that convert '.docx' file to any other (ex. pdf,rtf,odt,txt) . These software developers must have to reverse engineer '.docx' file format in order to study it and be able to convert it to another. So is it legal to reverse engineer these kind of proprietary file formats? | Yes it is legal and unnecessary because WordProcessingML is open source and standardised as ECMA 376. Change the extension from .docx to .zip and browse with Windows Explorer and open with Windows Notepad to your heart's content. The schemes for the various versions are here. Microsoft also offer Visual Studio libraries to allow direct manipulation of the XML. | united-states Facts are not copyrightable. Assuming Scrapehero collected these facts in a legal manner and assuming the source of these facts does not contain copyrighted (protected) material, then selling such a collection may be legal. Of particular relevance is Feist Publications, Inc., v. Rural Telephone Service Co.. Here, Feist Publications copied Rural's phone directory into Feist's own phone directory. The supreme court found that Rural's phone directory was not copyrightable and thus not protected. Of course, this cuts both ways. Assuming Scrapehero did not inject creativity into the data, nothing stops a recipient of such data from distributing it themselves. In practice, this probably isn't a concern for Scrapehero. This answer is US-specific. Some countries recognize Database Rights, which may prevent such activity. | 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. | 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. | 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. | You are in general correct, KBurchfiel. A code snippet such as import math; or For i := 1 to 10 print i; has no originality, and is not protected by copyright. A post eplaining the meaning an usage of such a snippet might well be original enough to be protected by US copyright, indeed it probably would. But the code on its own would not be. Anyone could read such a post, and if s/he understood it, use the code snippet and not be in violation of copyright, not compelled to place the entire program in which such a snippet was used under a CC-=BY-SA license. The creative commons people would prefer that a CC license not be applied to a publication that is not protected by copyright, and if it is so applied it is legally meaningless. But they have no legal way to enforce such a preference. A stack exchange post that consisted of nothing but such an uncopyrightable code snippet, with no explanation r discussion, might well be downvoted or even deleted. But that is a matter of site policy on what is a useful answer, not a matter of copyright. Using an excerpt from a copyrighted work so small that the excerpt alone would be uncopyrightable, would probably be fair use under US law, and might well be fair dealing in UK law. Something that is fair use does not compel the reuser to abide by the terms of a CC license, because those terms apply only when the content could not be reused without the CC license's permission. However, a code snippet does not need to be very much more original than the above examples before it becomes copyrightable. Whether it can be used via fair use rather than via the CC-BY-SA license is a very fact-based decision (the usual four-factor analysis is spelled out in 17 USC 107).. But if the snippet can be rewritten to express the same concepts but in a different expression, then there is no copyright issue, and again the CC license will not apply. If the snippet is complex and original enough to be copyrightable (a fairly low bar) and it is re-used unchanged, under conditions where fair use does not apply, then the CC-BY-SA license's terms must be complied with for the use to be legal. That is several "IFs" however. The exact details of a specific case will matter in such cases, there is not one rule for all snippets, all posts, or all programs. | 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. | It is not "perfectly legal" to transcribe music for personal use. It is pretty likely that you can get away with it. The first thing to understand is that the act of transcribing is the creation of a derivative work (see the definitions part of Title 17). The core protection is section 106, which states that the owner of copyright has the exclusive right to prepare derivative works based upon the copyrighted work. So it is not permitted to prepare derivative works, e.g. transcriptions, without permission from the copyright owner. There is a big however: section 107 provides a possible loophole, "fair use". If you were to be sued for violation of copyright in making an unauthorized derivative work, your attorney might well advise you to set forth a fair use defense. This question and answer summarizes the basics of the fair use defense. Probably the most important factor would be the 4th factor, the effect on market -- in the circumstance that you describe, the effect is likely to be low. If you do this as a paid service for others and not just for personal amusement, then a fair use defense becomes a stretch. |
Are digital copies of official documents lawfully represented? In order to reduce my (personal) paperwork and its governance, I was thinking to scan all my official documents and save them somewhere digitally. This way, my closet would not be filled with papers from years back (which I'm not keen on throwing away) and I could create some sort of digital classification system which would make my life a lot easier too. Example documents are: receipts, guarantee vouchers/certificates, documents of my bank/insurance company, pay slips, etc. The objective is to reduce the pile of papers, so I would throw away the paper copies. Of course, I can't do this if digital copies are not acceptable in court and other official (legal) activities (i.e. legally binding). Are you aware of an (international) regulation that approves what I would like to do, or should I stick with the traditional paper saving approach for now? | Short Answer: There Is No International Legal Standard The question of whether a scanned copy of a document is acceptable evidence in a court proceeding or bureaucratic procedure depends upon the rules and laws of each particular country and private organization that requires you to produce records. There is no international regulation that applies across the board, and the rules aren't even necessarily the same for every litigation forum in a country. In some contexts, acceptance of digitized records is widespread. Acceptance of digitized records tends to be less great in jurisdictions where computers are not a ubiquitous part of life (e.g. Third World and developing country bueaucracies and courts), and tends to be less in bureaucracities than in legal proceedings (because low level bureaucrats are often more rigid than the senior civil servants of the judiciary). Best Practices For Digitizing Records The International Standards Organization (ISO), whose standards are often adopted by reference by big businesses, has standard procedures for digitizing records, but these are merely best practices adopted by a reputatable international organization and often incorporated by reference by others, rather than having any legal fource of their own. For example, the U.S. federal government references this standards in connectins with its own E-Gov initiative to digitize its records. Another set of best practices for digitizing records has been developed by ARMA International (formerly an acronym for the Association of Records Managers and Administrators and now a proper name). Wikipedia identifies these best practice standards and some select national safe harbor regulations such as those designed by the National Archives in the U.K. Evolving Standards For Courts Increasingly, courts in the developed world only require an original rather than a scanned image or photocopy, in cases where the authenticity of the original is in doubt (i.e. where there are facts that suggest that it is possible that the original is fake or forged), but this is certainly not universal international practice for all purposes for which you might use a document. For example, in U.S. federal courts under the federal rules of evidence, which are copied verbatim or in substance by many state courts, the necessity of an original document for use a court evidence is covered mostly by Rules 901-903 (authentication and identification) and by Rules 1001-1008 (contents of writings, recordings and photographs). The most pertinent of these to your question is Rule 1002: Requirement of the Original An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise. But, while this default rule would seem to put the kibosh on your plan, in fact, the exceptions to it, largely swallow the general rule of Federal Rule of Evidence 1002. For example, Federal Rule of Evidence 1003 states: Admissibility of Duplicates A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate. But, even in the U.S., for example, some immigration court judges are in practice very skeptical of duplicates of documents from foreign countries and insist upon originals. On the other hand, some U.S. federal trial courts and an increasing minority of state courts in the U.S., require all documents using in court except those for which authenticity is in doubt, to be scanned and used in electronic form only. Courts in some jurisdictions require originals or original certifications of copies from third parties, if they are used in trials, but not if they are referred to in preliminary litigation paperwork. Arbitration forums tend to be more lax regarding the requirement of original documents than courts. The Requirements Of Government Agencies And Corporate Bureaucracies Government agencies (e.g. immigration offices, the Department of Motor Vehicles, licensing agencies) and large corporate bureaucracies (e.g. life insurance companies and brokerages) often insist on documents that are either originals or are copies of the original with an original certification by the agency that created them (even when no official statute or regulation requires that they do so). For example, many businesses will not reimburse employees for expenses if original receipts are not provided. Rules of Thumb As a rule of thumb, either an original or an original certication of a copy of educational transcripts, birth certificates, death certificates, transcripts of court proceedings, certificates of good standing for a business, and government licenses are often required by government bureaucracies, business bureaucracies, and courts. It is also a good rule of thumb to keep an original, or a copy of the original with an original certification by a government agency, is necessary for any document that must be signed or that has an official seal. The need for an original also depends upon substantive law that applies to a particular kind of document. Some documents (sometimes called "real" documents) embody a legal right rather than merely serving as evidence of a legal right. Some examples of "real" documents include: paper currency; "live" checks, money orders and promissory notes; warehouse receipts; stock certicates; certificates of title (depending upon the document, sometimes and sometimes not); and a last will and testament. In contrast, digital copies are usually sufficient for invoices, bank statements, receipts, pay slips, etc. that do not contain a signature or official seal (and obviously, that are not paper currency). A Compromise Solution When a law office or corporation goes "paperless" the most common procedure is to identify each electronically scanned file with some sort of index number. The index number is incorporated in an index that makes it possible to locate the particular box or better yet, labelled folder within a particular box, in which the paper document is stored. The indexing process usually indexes documents arbitrarily with no effort made to keep documents that relate to each other in the same place. The sole purpose of the index is to make it possible to find the original if necessary. Once documents are scanned and indexed, the firm then to send all of the actual paper documents either to a company that stores them in a remote warehouse (e.g. this one), basement, garage, shed, or a storage unit rented by the company at a self-storage facility. This makes the day to day offices of the record owner paper free without actually destroying the original records. Record Retention Policies A closely related issue is how long you need to retain a document, something for which law firms and businesses often establish a "records retention policy" that depends mostly upon the relevant statute of limitations and the domestic laws that apply to the company. These policies and laws in some jurisdictions that create a safe harbor for persons who adopt record retention policies balance the practical need to throw out dated paperwork, the circumstances under which paperwork might be needed in the future, and the often harsh penalties for throwing out paperwork if you know that it might be used as evidence against you in a future lawsuit (which is called spoliation of evidence). A practice of saving paperwork for one year after the relevant statute of limitations for a lawsuit expires is common, but some kinds of paperwork needs to be retained much longer such as vital statistics records (e.g. birth certificates, marriage certificates and divorce decrees) that can prove citizenship and marital status, documents showing the purchase price of property that may later be sold until it is sold (for tax purposes), documents that prove ownership of property that is still owned, documents that prove final payment of debts, many documents related to a divorce, and many documents related to estate planning. | I'm a notary. If someone showed me a marked-up license, I'd refuse to perform the notarization, and make a note of the persons name and phone number, to make sure I would never make another appointment with the person. Is there a law that says I have to refuse? I don't think so. Is there is a law that says I can refuse if I have any doubts about the person's identity? Absolutely. | 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. | A document can be distributed under more than one license. Just because it has been made available under a CC license for free, doesn't mean that IEEE can't negotiate a different license with different terms that allow them to sell the content. (This is similar to the way that a software library can be available for free under a license that permits non-commercial use, but also be made available for a fee for commercial use.) If you want to know whether IEEE is legally selling Aaron Swartz's manuscript, you can contact Morgan & Claypool, the publisher that owns the copyright, and ask them whether this use by IEEE has been authorized by them. For the other documents you mention, contact MIT Press. Etc. | In the US, there are provisions of criminal law especially 18 USC 2320 which make selling counterfeit goods a crime. Counterfeit goods are subject to forfeiture to the US government. However, this requires a formal legal determination that the goods are counterfeit, and no provision of the law excuses a seller for illegally seizing property that they hold in trust for a party. There might be a contractual provision that allows this, e.g. "at our sole determination we may deem property to be counterfeit and will destroy it, without compensation". In that case especially with online services, it matters what the "contract" says. It is not sufficient to say "It's somewhere on the web page". Generally there is an "I agree" button that links to a document: and that document may refer to other documents such as "Community standards". So if the restriction is in the agreement or in a document referred to by the agreement, then it would be legal. The assumption is that the party agreeing to the terms reads "the agreement", and also reads or understands any terms mentioned in "the agreement" (they become part of the agreement). | 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. | To what degree are such emails admissible in court as evidence, and what weight do they carry? Your own statement, when offered by you as evidence, is hearsay, unless it comes within an exception to that rule. Recorded recollection might be one of the better exceptions. There is also a chance that you could get it in as a business record of the company if you were using a company email account and the company stores all of its email communications. The documents also sometimes come in to provide fair context for a conversation with a party-opponent's statements that are admissible. It appears that Canada does not follow the modern British rule (which repealed the hearsay rule in civil cases in 1995), which if it were available, would come in without any difficulty at all. But, Canada does have what it calls a "principled exception" (which is somewhat broader than the parallel U.S. residual hearsay exception) that is generally available if the document can be shown to be reliable and there is an unavailable witness, or if there proponent of the document can show that it is reliable and necessary for other reasons. Even if the document itself is not admissible since it is hearsay, you could still testify as to what the boss said from your own recollection, and then have your lawyer ask you why you are sure that this is what was said. You would answer that you contemporaneously wrote a confirming letter to the boss spelling out what was said and you reviewed it to refresh your recollection before testifying at the hearing or trial. These kinds of confirming letters are used quite frequently in business and employment litigation. And, in my experience, these statements tend to be surprisingly effective and persuasive, because, while they do not foreclose the possibility that the person writing it was lying or inaccurate in the confirming email account, it does rule out the possibility that you forgot exactly what was said, and you provided the boss with an opportunity to dispute you which the boss didn't feel an obligation to correct. If one party has a coherent account in confirming emails of what was said, and the other party is trying to remember what happened a year or two earlier without notes from the witness stand, the person with the coherent, documented account is almost always going to come across as more credible unless the other side can show that your confirming emails are not infrequently gross misrepresentations of what really occurred. (I've also dealt with witnesses like that now and then.) | You clearly cannot provide data that you haven't stored – and not storing data is a good thing under the Art 5(1)(c) Data Minimization Principle. Despite the Art 20 data portability right being conditional on that the data subject has provided data and not on that data has been stored, I think responding to such a request with “sorry, as per our privacy policy we do not store this data” would be perfectly fine. It is also curious that you are using consent as the legal basis for the purpose of selecting the website language. How do you obtain consent from visitors? How can you prove that you got consent? In many ways, consent is the legal basis of last resort, and I'd think that legitimate interest would be a much more straightforward approach in your case. |
How to relicense content with unknown license as CC-BY-SA? I have recently became an owner of a creepypasta story website based on Mediawiki. This website seems to have no explicit content license, and the only legally binding text shown when creating or editing pages is following: Please note that all contributions to {{SITENAME}} may be edited, altered, or removed by other contributors. If you don't want your material to be edited mercilessly, then don't submit it here. You are also promising us that you wrote this yourself, or copied it from the resource that allows free redistribution and modification of their content. Which is very similar to old Mediawiki copyright warning. The website also does not have any legal entity associated — domain and hosting are owned by non-entrepreneur private person, and website itself does not make any profit — there are no ads, no donations etc. I would like to make all aforementioned content explicitly (re)licensed under CC-BY-SA 4.0 or CC-BY-NC-SA 4.0. Can I just claim that all website content is now under CC-BY-SA, or do I have to perform any additional actions? How should I deal with orphaned works (e.g. creepypasta obtained from unknown sources, or written by authors that have left no contact information)? Does the aforementioned notice give me the right to threat all that content as compatible with CC-BY-SA? Who should I attribute as an author then? Disclaimer: I am not looking for real, qualified legal advice here, so no strings attached. | You can do whatever you like with posts made after you change the rules - you have to leave the previous stuff alone. The contributors' have accepted the terms of the licence: They own the copyright or have permission from the copyright holder to post it (the promise) They agree that it can be edited altered or removed CC-BY-SA allows people to copy the stuff off the website and republish it - this is way outside what the contributors agreed to. These people have given permission for their work to be altered but not copied. | Their code, their rules A copyright holder is free to offer their work under none, one or many licences. They can, at the same time, use their own work however they see fit without regard to the licences they have given/sold to others (except, they can only give one person an exclusive licence). As an analogy, let’s say I own a fleet of cars. I can drive my cars anytime I want. I can let Jim drive my cars anytime he wants for free. I can let Mary drive a specific car on Thursdays and only within 10km of the depot. I can let Joe drive my cars providing he pays me $50 a day. And I’m not going to let Fred drive them at all because Fred’s a jerk. Each of those is a different licence. | One big hole in any scheme that relies on copyright is that it could not preclude people talking about the previous content or talking about you. This is well established First Amendment law. For example, see Near v. Minnesota 283 U.S. 697 (1931), which holds that except in rare judicially established exceptions (relating to military information, obscenity, and inciting acts of violence), government censorship is unconstitutional. Thus, no statutory scheme could be used to prevent third parties who happened to have seen the material while it was freely available from re-iterating what they had seen, or talking about it, or talking about the author (you). People could even reproduce portions of the published content. Some types of reproduction would be protected as fair use in the US, especially if the reproduction is for the purpose of criticism. (17 USC 107, and this previous Law.SE answer) The closest approach would be to protect your work as trade secret, making sure that anyone that you share it with agrees to non-disclosure. But, if you "publish unique content under this pseudonym" there is no way to "arbitrarily or wholly revoke discussion about that content". If the cat gets out of the bag, while you may have remedies against the person who violated the non-disclosure agreement, you would not be able to prevent third-party discussion or reproduction. | The CC-ND license seems to be what you are looking for. However, Sec. 2(a) has two conditions, one allowing copying and distribution of the unmodified original (as stated in A), but also allows the user to modify but not distribute a modified version of the work (they may "produce and reproduce, but not Share, Adapted Material"). This would mean that a reader could rewrite your paper, as long as they keep it to themselves. If this bothers you, I think you could not rely on a standard named license, instead you'd have to provide your own – such as CC-ND 4.0 without clause (2)(a)(B). Rewriting a legal document is a risky proposition, even for a legal professional, because you have to carefully think through all of the implications of any new punctuation, adjectives, and deletions. If you contemplate deleting clause (2)(a)(B), you should come up with a line of reasoning that compels you do delete it in order to accomplish your goal, and check that the deletion doesn't thwart that goal. That is why people pay money to lawyers (and also why you need to make your goal clear to that lawyer, lest the agreement be inconsistent with your goal). | 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. | The video in some ways belongs to YouTube. Although it's a royalty free one, they have rights to the video, and you ARE using THEIR service, this means that you have to follow their terms of use. It's best to get an offline copy from the content creator. Source: YouTube Terms of use section 6C For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable. | If you're in the U.S., then section 117 of the Copyright Act is likely what you're looking for. The U.S. Copyright Office says: Under section 117, you or someone you authorize may make a copy of an original computer program if: the new copy is being made for archival (i.e., backup) purposes only; you are the legal owner of the copy; and any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred. Based on the information you provided, it sounds like you meet all three of these criteria. They also note that your particular software's license agreement might include special conditions that affect your right to make a backup copy. Such a warning would only make sense if it was legally possible for the software distributor to make such a limitation, so I'm afraid the direct answer to your main question is "yes". It's definitely not the norm - at least in my experiences - but it is a possibility so you'll need to consult your program's license agreement. There's also a possibility that the company misunderstood you and was thinking that you were running a backup server (in the sense of a redundant infrastructure) and not making an offline backup of your entire server. It's quite normal to require an additional license for the former case. | A translation is a devivative work - the copyright owner has the exclusive right to these So, yes, translation is prima facie copyright infringement. Strictly speaking, if you translate it, it's a derivative work because you exercised creativity in making the translation; what Google translate does is not a derivative work, it's a copy because there is no creativity. Either way, only the copyright owner can do (or authorise) this. Whether it's legal or not depends on if what you are doing falls within one of the exceptions to the applicable copyright law such as fair use or fair dealing. Attributing the original author does not, of itself, allow translation. Additionally, I'm not able to find the copyright documentation for the site link I provided above. What is "copyright documentation"? Copyright exists the moment a work is created and no further documentation is required. Essentially, I could translate the whole documentation by myself to avoid this problem. No, you can't - see above. If copy-pasting the google translate is illegal, then exactly how much must I edit, move around sentences, change words, and such until the text is no longer plagiarized? All of it. If you were, based on your own knowledge of the software, to write a manual without any copying o the existing manual, that would not be copyright infringement. Is this plagiarism or copyright infringement? It's copyright infringement - plagiarism is an academic misconduct issue not a legal one. where can I check the copyright for the above link? The site you linked has "Copyright © 2020 Acquia, Inc. All Rights Reserved" in the bottom left corner which identifies the copyright holder, the date and prohibits all copying ("all rights reserved"). This isn't necessary but it is helpful. If you really want to do this, contact Acquia, Inc and ask for permission. |
What impact does prior art discovered after (US) patent awarding have on enforceability and even validity of that patent? If I were to be awarded a utility patent, certificate in the mail and all, and it was later discovered by me or someone else that prior art existed before the time of the initial patent application submission, what impact would that have on the enforceability and indeed even the validity of that patent? | To successfully sue for patent infringement, you need to hold a valid patent. An issued patent is not irrefutable proof that you have a valid patent; patents are presumed valid, but the defendant can raise invalidity as a defense in an infringement suit. One of the conditions for a patent is that the invention is novel (details vary depending on filing date). Even if the USPTO doesn't think there was prior art, that doesn't mean the defendant can't try to convince the court there was prior art. If the defendant proves that the invention was not novel (or any other reason the patent is invalid), the defendant wins the infringement suit. There are a couple ways to challenge the patent for lack of novelty, which can lead to a challenge before the USPTO or before a federal court. If it's challenged before the PTO and found invalid, the holder loses the patent. If it's challenged in a lawsuit and the holder loses, they can never again assert that the patent is valid in any US court (except when appealing that decision or in a few other special cases). So if it's challenged in court and the challenger wins, the patent is also effectively invalid. | Yes, technology patents are useful. Regarding the Amazon patent you referred to, it only covers Amazon's one-click ordering (and similar single-action ordering), and it is immensely valuable to Amazon. Their competitors (essentially, anyone who sells things online) would love to use a similar system, but to do so, they must either pay Amazon a licensing fee or risk being sued for patent infringement. Beyond the value that patents can bring in court or at the negotiation table, and the value that they can have in dissuading potential competitors from taking away your business, patents can also have great defensive value. Some technology companies amass vast collections of patents for defensive purposes. They do not necessarily plan to sue anyone for patent infringement, but if one of their competitors were to sue them, they have the arsenal to effectively countersue. | Once you withdrew the complaint without prejudice, any statute of limitations benefit you obtained from filing the lawsuit evaporated. From a legal perspective, it is as if you never filed at all, except that the lawsuit that was filed proves that you had notice of the claim at the time you filed, so you cannot take advantage of any "discovery rule" that allows a statute of limitations to start running from the date that you knew or should have known of your right to file a lawsuit. In all likelihood, the statute of limitations has now run, although that would depend upon the jurisdiction in which it was filed. Some jurisdictions toll the statute of limitations during a period of minority, but that tolling might very well be insufficient to allow the claim to be filed 20 years later. | You have a false premise: "it offers the same conditions", and "MIT license is functionally equivalent to CC-BY". These premises are not true. CC-BY: applies to more than just software; it applies to artistic or literary work, databases, other material disclaims endorsement explicitly withholds moral rights explicitly does not license patent rights (MIT license gives anyone who obtains a copy of the software the right to use it, a patent right) prescribes the acceptable forms of attribution Those are just some of the differences. | There is a subtle difference between NSF policy and enforceable obligation. The primary stick that goes with the carrot is being excluded from future funding. Current policy does not generally force material in the public domain, but it is a possibility in "exceptional circumstances". There no doubt is a paper record somewhere in D.C. indicating whether such a codicil was added to any of these grants. NSF generally does not have contracts with individuals, they have contracts with institutions who have relations (typically employer-employee) with individuals, so even if there were a policy requiring works to be put in the public domain, NSF would have to go after the institution, who would have to go after the author. Since that would conflict with longstanding NSF policy on copyright, it is unlikely that they would want to pursue such an approach. The statement that McGraw-Hill Book Company announces that the material, which is copyrighted, will be available for use by authors and publishers on a royalty-free basis on or after April 30, 1970 is not itself a license, it is a suggestion that a license will com into existence. A present-tense declaration "this work is dedicated to the public domain effective April 30, 1970" can be interpreted as a license effective of a date certain. Similarly, "will be available to all publishers for use in English after December 31, 1970, and in translations after December 31, 1975" does not say that it is in the public domain effective of some date. One might say that the copyright statement is simply not well written and the author really intended the books to be in the public domain as of those dates. But without compelling evidence that the book was actually released into the public domain, a court is very unlikely to abrogate a person's property rights. | Here is an excellent (and extensive) explanation of jurisprudence regarding the "good faith exception" to the admissibility of evidence found due to an error. In short: Yes, the contraband found in Unit B would be evidence admissible in court. (Of course, evidence found in Unit B would only support charges against whomever had a nexus to that property. If the owner of Unit C had no access to Unit B, then evidence in Unit B would not per se implicate him in a crime.) Law enforcement will not return seized property if it believes the property is "contraband." As an example, in Pennsylvania a person can petition a court for return of property seized by law enforcement: Rule 588 requires the petitioner to establish entitlement to lawful possession of the property, but the motion will be rejected if the State successfully argues that the property is contraband, or "derivative contraband" (which has been defined in case law to mean there is "a specific nexus between the property and criminal activity"). | I'm going to focus on one part of your question, because I think it is informative to the entire question: "By publishing those data in a copyrighted book are they now in the public domain?" Insofar as copyright is concerned, the "facts" are simply never copyrightable. What is copyrightable is the expression of the fact. So you publish a book and it contains many facts. You retain copyright over how you expressed the facts, meaning the word choice, format of presentation and so on. The discussion of this point always leads people to ask the following two questions: What if the "facts" are closely related to the way they are expressed? For example, a phonebook contains "facts" about phone numbers. The individual numbers are not subject to copyright. But if the way they were organized was clever (i.e. not merely alphabetical) the presentation may be copyrighted. Doesn't that line get blurred? Why doesn't "the presentation order" count as a "fact?" It does get blurred! And courts use nuanced case law and judgment to figure out which side of the line a given thing is. However, one backstop is that if AN EXPRESSION is so closely related to the IDEA BEING EXPRESSED that the IDEA cannot be otherwise expressed, then then the EXPRESSION is not subject to copyright protection. To answer your specific questions: The book is subject to copyright. The facts in the book are not. Someone else could publish a book with the same measurements so long as they are expressing the facts with sufficient difference from the original. I'm not familiar with CUSIP numbers. However, there are two things to say here. (A) it sounds like you are describing a contractual relationship between the people who have the numbers. This is not governed by copyright; it is governed by contract between the parties. If these numbers could be treated as a "trade secret" they might be protected IP in that way. But given that they are likely circulated at least a bit, they don't seem like candidates for "trade secret" protection. To your question, "what is the effect of one person leaking?" If "trade secret" law was doing any "work" here... then yes, the trade secret would be undone once the information was public. But like I said, its likely this is actually all about contracts not intellectual property protection. (B) The "facts" of "which number is associated with which instrument" is likely NOT subject to copyright at any time. The specific numbering code COULD BE copyrighted, but in reality is almost certainly TOO CLOSELY tied to the IDEA being expressed to be copyrighted. Could the number be expressed otherwise? If not, then its likely not protected by copyright. -- Big take away here: You seem to be confused about the concept of "facts" getting into the public domain. That's not exactly what copyright is about. Copyright would protect the expression of facts. An expression can become public domain if it is sufficiently old or if the creator designates it as public domain work. But simply "putting something out there" does nothing to alter the copyright status of the thing. | Your client is confused about how copyright law works (at least in the United States and virtually every other country I've ever heard about copyright in). If I were guessing, they read something like this from the United States Copyright Office: The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party. and figured that because it's a derivative work, the copyright only covers the additions and changes they make, and there's no copyright protection for the original work. This misunderstands the law: the original work still has its own copyright (assuming it hasn't expired), and permission from the holder of the copyright on the original work is required to create that derivative work in the first place*. The copyright on the derivative work is separate—that is, both copyrights exist in parallel. * Some exceptions, such as fair use, exist, but would be unlikely to apply to the situation you describe. |
In English civil trial practice when does a barrister become involved? In U.S. civil trial practice, the same legal professional, an attorney, or firm of legal professionals, usually handles a case from first client contact through trial and often appeals (if any) as well. But, in English law, the roles of attorneys in the U.S. are filled by more than one kind of legal professional and there is a distinction between barristers, who are legal professionals who mostly handle trial practice, and solicitors, who are legal professionals who do other kinds of legal work. I am generally familiar with the routes by which one enters each profession. It isn't clear to me, however, how the lines are drawn between the two professions in the context of civil litigation. For example, suppose that you have a medium sized business (e.g. 100 employees and several business locations with no in house counsel) with a regular outside solicitor or firm of solicitors that it employs. Suppose that business gets into a serious business dispute with another business, e.g. a joint venture gone bad with related accounting and trademark issues involving hundreds of thousands to million of pounds in controversy economically. (The example is from a case I handled in the U.S. allowing me to compare it, but any serious civil dispute could do. I limit the question to serious civil disputes because I understand that solicitors can handle civil litigation in some minor civil litigation.) At what point in time is there a transition from a solicitor to a barrister? When would a client start with a barrister in the first place? What kind of legal professional (barrister or solicitor) would represent a client in an arbitration or mediation proceeding in which no court case has been opened? Would a medium sized business in the example above that gets into lawsuits once every year or two typically have a regular barrister (or firm of barristers) that they would use, or would this choice usually be made on a case by case basis? Also, please feel to correct any of my assumptions if they are incorrect. | Barristers are advocates, and their other roles fall out of that core role. I think of it this way: your solicitor takes care of your legal risk; your barrister is the 'big gun' you bring in for specific important legal advice and to represent you in person. I'll give you my experience from the perspective of working in a large government agency. For us, 'barrister' often equates to 'Queen's Counsel' (now called 'Senior Counsel'), which is a particularly senior barrister. I am also speaking from Australia. We have the same split profession as the UK, but there are probably differences. You generally don't stop using a solicitor and start using a barrister. Rather, you have a solicitor the whole way through and then you engage a barrister through your solicitor. You can engage a barrister directly, e.g. if you have in-house counsel, but it is not common to do so. Even if you have in-house counsel, you will usually engage more specialised external solicitors to handle litigation. The barrister's role is generally to (1) provide advice on specific issues (after the solicitors have sifted the evidence and provided a brief to the barrister) including advising on your prospects in particular litigation and (2) represent you in court i.e. write submissions and speak to the court. It is not uncommon to have a barristers represent you in proceedings other than a trial (if you have the financial resources to afford a barrister). For example, a barrister may represent you in mediation or may accompany you to an examination by some regulatory authority. (Furthermore, a regulatory authority may even hire a barrister to question you, since barristers are often good at that based on their in-court role; or you and the party you are having a dispute with might appoint a barrister as the arbitrator or mediator.) You may have a barrister you prefer to use; more likely, however, your solicitor would know barristers and would recommend an appropriate one. Barristers are specialised so you would use a different barrister for a tax dispute, contractual dispute, employee dispute, etc. An organisation large enough to sustain constant legal disputes would have a number of barristers that it would go to as and when they were needed, on the basis of their particular skills and availability. There is no such thing as a firm of barristers. Each barrister is independent. A barrister's office will be in 'chambers', which is an organisation that leases office space and hires clerks to manage member barristers' business. But the barristers in a chambers are not in business together as members of a firm of solicitors are. Barristers are proud of their independence, and they all want to be appointed as judges so they have to appear impartial. To further illustrate how you might use a barrister: sometimes you get legal advice from a barrister and you cannot read the advice. You can see the words but it's gibberish. Your solicitor will interpret it for you. | In some jurisdictions it's against the code of ethics. For example, in the united-states, Model Rule of Professional Conduct 5.4(b) says: A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. The idea has to do with independence: Lawyers are officers of the court and—as members of a regulated profession—can be bound to professional codes. Talented leader/organizer/visionaries aren't bound in any such way. The comment to the Rule explains, "Where someone other than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client." This can create a conflict, and states resolve it by regulating the partnership's composition. Other jurisdictions go even further and it’s prohibited in law. | Just because you can doesn’t mean you should I’m a professional electrical engineer and a licensed electrician. That means I can do electrical wiring but most electricians who do nothing else can do it quicker, better and neater than I can. Just because a solicitor-advocate can do the job of a barrister doesn’t mean that’s in their client’s best interest. | Defendants cannot switcheroo whenever they want. There are good reasons why this is almost never done. The lawyer in any of these scenarios is violating an ethical duty of candor to the tribunal, if it is done without court permission (which is unlikely to be granted), even if the client suggested or insisted upon the idea. The lawyer would be responsible for his or her client's actions by cooperating in it, rather than calling out his client in open court over the objections of the client to prevent the switcheroo from working, as the lawyer would have an ethical obligation to do. I would not really consider this to be a gray area. The relevant ethical rules and the related official commentaries to them are quite clear, even if they are not absolutely perfectly clear. Those rules create an affirmative duty of an attorney to prevent his or her client from misleading members of a tribunal (either a judge or a jury or both). Cooperating with this scheme could (and likely would) result in professional licensure related sanctions ranging from a private censure to disbarment for the lawyer, just as it did in the linked 1994 case. Also, while a "not guilty" verdict was entered in the 1994 case, the prosecution would have a good chance of success if they demanded that the judge declare a mistrial, and also a good chance of avoiding double jeopardy limitations in this situation, because the mistrial arose from the actions of the defendant trying to bring about the situation. On the other hand, if this trick worked so well that the prosecutors came to the conclusion that their primary witness linking the defendant to the crime was wrong and that the defendant was not actually the person who committed the crime, the prosecutors would have an ethical duty to not attempt to prosecute the individual whom the prosecutors now believed to be factually innocent (the analysis is actually a bit more complex than that, but that is the gist of it). The defendant and the attorney could (and likely would) also each be held in direct, punitive contempt of court by the judge for this conduct, allowing them to be summarily punished by imprisonment or a fine to an extent similar to a misdemeanor violation, on the spot, without a trial other than an opportunity to explain themselves to the judge in a sentence or two each, since it would be conduct in violation of the good order of the court and disrespectful of its rules and decorum conducted in the actual courtroom in the presence of the judge. Each could easily end up spending several months in jail on the spot for that stunt and perhaps a $1,000 fine each, if the judge was sufficiently displeased. There would be a right to appeal this contempt of court sanction, but the contempt of court punishment would almost surely be upheld on appeal in these circumstances. In a case where the criminal defendant faces extremely severe sanctions if found guilty, such as the death penalty or life in prison, and the defense attorney was a self-sacrificing idealist or close family member of the criminal defendant, one could imagine the defense attorney and client deciding that the professional and contempt citation sanctions were worth being punished with, in order to save the life of the criminal defendant, if they also were convinced that this trick would work so well that the prosecutors would be persuaded of the criminal defendant's innocence sufficiently to not insist on retrying the criminal defendant in a new trial. This would be somewhat analogous to an intentional foul in basketball, but with much higher stakes. But, this would be an extraordinarily rare situation in court, because the punishment for this "intentional foul" in the courtroom are much more severe, and because the likelihood of it producing a beneficial result is much smaller. It isn't hard to understand why a successful switcheroo feels morally justified. It prevents a witness whose testimony would have been much less reliable than it actually would have been from being used to convict a criminal defendant who might conceivably be factually innocent. And it might be very hard to discredit the testimony of that witness in any other way in order to prevent a wrongful conviction of the criminal defendant. Eye witness misidentifications are one of the leading causes of wrongful convictions, and are especially common in death penalty cases because jurors are "death qualified" making them more pro-prosecution than a typical jury. Preventing innocent people from being convicted of crimes is one of several important values of the criminal justice system, and this is the instinct that probably motivated the dissents in the professional misconduct process in the 1994 case. But, the court system also strongly values candor on the part of attorneys, and likewise values not having the court systems be used to trip up witnesses who may sincerely think that they are telling the truth even if they are mistaken about the accuracy of their testimony, in a deceptive manner. In this situation, the latter candor consideration usually prevails, because the rules prohibiting this kind of conduct and scheme, which admits no "moral justification" or "necessity exception", are quite clear. In the same vein, a prosecuting attorney can be sanctioned (and has been on at least one occasion in Colorado) for not being truthful in communications to third parties, even when the lies are used to peacefully defuse a potentially deadly hostage situation. For attorneys, the duty of candor and truthfulness really knows no exceptions. Cops, in contrast, however, are allowed to lie in many circumstances to secure confessions or stop criminals. | There should be no more lawyers in an event such as that described by the OP. The Legal Profession, by its own constitution, exists to ensure that everybody can access our adversarial justice system through a diligent and competent advocate. For example, among the responsibilities stipulated by the American Bar Association: [A]ll lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. There are famous examples of lawyers, perhaps reluctantly and even at their personal peril, honoring their professional obligation to advocate in court on behalf of unpopular people and causes. One that comes to mind is John Adams defending the British soldiers who perpetrated the Boston Massacre. Of course, lawyers are people too so I wouldn't be surprised if there are counterexamples. But there shouldn't be any counterexamples unless every last lawyer in a jurisdiction resigned his professional membership and hung his head in shame. | when is it a good idea to get a lawyer? Only when you are not confident that you can put enough dedication to the matter & learning curve, or when you are not confident of your ability to cope with the emotional/frustrating toll of judicial proceedings. I do not mean this in an ironic way or to challenge you. It is just important to avoid a false sense of confidence. However, if you decide to represent yourself in court, you will have much more control of your case than if you delegate it to some lawyer whose attention is split with many other unrelated cases. Also, never get intimidated by pedantic or wasted phrases such as "he who is his own lawyer has a fool for a client". In the XXI century, most urban people can read and write, Canadian laws are written in your own language, and the Internet provides many informative resources for free. Furthermore, even knowledgeable attorneys happen to be clearly wrong about the law, as I pointed out here. I feel like the bulk of the work is carefully detailing what happened which feels more like the job of a news paper editor. It involves more than that. A newspaper editor does not get entangled with subtleties of a story or of the law, and subtleties are often decisive in judicial proceedings. Litigation also involves intensive legal research so as to find case law (that is, binding court decisions) and statutes that support your position. The application of these laws to a particular case are often premised on subtleties. Hence my remark in the previous paragraph. A newspaper editor hardly ever knows what questions or evidence are required or would suffice for proving a case. This knowledge only comes through (self-)education and experience. What options exist if I don't want to pay a lawyer a bunch of money and am willing to do most of the work myself, for example would pro bono be a good option? Start by searching for "pro se" and "Canada" on the Internet. Some of the results might actually provide guidance on what procedural law(s) apply in your jurisdiction, the legislation, and so forth. As for searching case law, there should be a Canadian equivalent of http://www.leagle.com/leaglesearch (sorry I am not knowledgeable of the specifics of Canadian litigation/resources). Based on your other post, I presume you are or will be getting acquainted with the Tenancy Act. I recently addressed here a question about the Act, showcasing the combination of that legislation and contract law (interestingly, many tenants presume their issue with the landlord is strictly about landlord-tenant legislation when in fact it has to do with contract law). I am sure in a library will find plenty of useful books covering the basics of the legal system as well as the rules of civil procedure. Find out whether the public has access to case files in Canadian courts. If so, go to a courthouse and study those files. Get acquainted with the drafting and format of pleadings, motions, responses, briefs, and so forth (although in Small Claims court much of this would be unnecessary, for small claims proceedings are much more simple). This will show you the practice aspect of what you learn from books. When using a term that you consider essential to your case, be sure to consult its meaning in a legal dictionary (I do not know whether Black's Law Dictionary is applicable in Canadian litigation). The meaning of many words are much more specific in litigation compared to their common usage. Or would getting a real lawyer and spending only one hour of his time be better? I highly doubt it, especially if you have not gained any background in law. A lawyer will not explain things from scratch, let alone the intricacies you need to know. The most you could get from speaking with a lawyer for an hour would be notions which are too generic to be of any use at all. Moreover, I doubt that a lawyer in a phone interview will give you any legal references for you to verify on your own. In the very beginning of my litigation, I spoke with a law firm as assigned by a lawyer referral company. By then I already had some background in law and therefore I had specific questions. The guy from that law firm just kept babbling ambiguities very quickly. At the end of the phone call, I thought "nah, I will do this by myself". You might end up making that decision in your current or future matters. | The UK Supreme Court (as you tagged in the question) uses an odd number for this exact reason. A recent case, Attorney General v Crosland [2021] UKSC 58, further explains: it is a very common feature of appeals in the UK generally that the appellate court consists of a larger panel than the court appealed from. It not infrequently happens that a party to an appeal to the Supreme Court wishes the court to depart from an earlier decision of the Supreme Court or of the House of Lords. In such a case the practice is for the appeal to be heard by an enlarged panel of seven or more justices, precisely to clothe it with that greater authority The statute establishing this Court provides: The Supreme Court is duly constituted in any proceedings only if all of the following conditions are met— (a) the Court consists of an uneven number of judges; (b) the Court consists of at least three judges; (c) more than half of those judges are permanent judges. (with the possibility of some deviation in special circumstances). This practice was previously followed in the House of Lords, before being made statutory when the Supreme Court was formed. The UK court does not sit en banc, partly because there are twelve permanent judges and that is an even number, and partly because the legal tradition hasn't held it to be worthwhile. An exceptional case was R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, heard by eleven judges - a record! - which happened to be the entire Supreme Court at the time, since there was one vacancy. A panel of nine was used in Attorney General's Reference (No. 2 of 2001) [2003] UKHL 68, for the first time since R v Ball [1911] AC 47. Smaller numbers are more typical, such as five. For the Supreme Court of the United States, there are nine judges but they do not use panels. It is fairly common for some judges to recuse themselves because they had been involved with proceedings at a lower stage, or if there is a vacancy, and so there are cases where there are an even number of judges actually involved. The US court also has a practice of fairly complex patterns of concurring and dissenting opinions, with justices potentially joining more than one opinion, so it can be subtle to identify where the majority position really lies. It is therefore possible for there to be a tie. If there is a tie on appeal, then the lower court's decision stands, without precedential effect. For matters within the original jurisdiction of the Supreme Court, there is no consensus on what is meant to happen - see What happens if the US Supreme Court ties 4-4? for more. | The clause refers to what might be a lawsuit, which can be adjudicated in appropriate government courts (cf. the choice of law clause), but instead would be submitted to an arbitrator. The contract will spell out the details. An offence is a punishable criminal act, which is outside the scope of civil suits. In US law, the government prosecutes the wrong-doer, not e.g. one of the parties to the contract (if for example the vendor ships an illegal substance to a customer). The same goes for a "breach of law", depending of course what you mean by breach of law. A breach of contract could not be pursued in court, given a mandatory arbitration clause. The fact that the two parties are in different countries does not nullify a mandatory arbitration clause, at least between the US and the UK. |
When (if ever) is USPS's Certified Mail/Registered Mail/Signature/etc. valid for proof in court? Something really confuses me about the whole legal aspect of confirming you sent someone mail. USPS has different types of mail (e.g. Certified Mail) for "proving" you sent your mail (e.g. tax returns). (Note: This question is not specific to tax returns. I'm just using that as an illustrative example.) My question is, (how) does this prove anything about what you actually sent? I could very well just stuff an envelope with empty pieces of paper (or, more plausibly, something totally irrelevant that is likely to be discarded) and mail it to some address, then get every kind of confirmation possible for it from the post office. And then claim that I sent some important piece of mail (say, my tax returns, or a contract, or some other legally important document). And when court day comes, I'll have all the "proof" I could possibly have from USPS for it, yet I clearly didn't need to actually do what I claimed. So my question is, whether these mail certifications actually mean anything in a court? If they do, then why or how -- clearly I didn't need to send what I claimed? If not, then why do people need to use them for legal documents? What useful thing does it establish? | You appear to be conflating two different legal concepts: evidence and proof. evidence something that furnishes proof: testimony; specifically: something legally submitted to a tribunal to ascertain the truth of a matter proof the cogency of evidence that compels acceptance by the mind of a truth or a fact So evidence is presented to a tribunal who will then decide if that evidence meets the required burden of proof. In a civil matter the burden of proof is met on the preponderance of evidence (in a criminal matter the burden is beyond reasonable doubt) and the onus of proof rests with the person making the allegation. Preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. Certified mail is evidence (very strong evidence) that something was mailed and delivered. It is, as you rightly point out not evidence of what it contained. So let's follow through with your IRS hypothetical: No Certified Mail The IRS alledges that you did not file your tax return - they have the burden of proof. As evidence, they put forward an affidavit that no return was filed. You put forward an affidavit that you did file a return. The judge considers the evidence and (probably) gives more veracity to the IRS's affidavit than yours - the IRS have met their burden of proof. Certified Mail 1 The IRS alledges that you did not file your tax return - they have the burden of proof. As evidence, they put forward an affidavit that no return was filed. You put forward an affidavit that you did file a return and the proof of delivery from the USPS. The judge considers the evidence and (probably) considers that the IRS has recieved something from you: if it wasn't a tax return then they were in a position to give evidence as to what it was, and they didn't - given that it is the IRS that is obliged to prove that what they receieved wasn't a tax return, the IRS have not met their burden of proof. Certified Mail 2 The IRS alledges that you did not file your tax return - they have the burden of proof. As evidence, they put forward an affidavit that no return was filed but they did recieve an envelope stuffed with newspaper clippings and here they are. You put forward an affidavit that you did file a return and the proof of delivery from the USPS and you have no idea how they changed from a tax return to newspaper clippings in transit. The judge considers the evidence and (probably) gives more veracity to the IRS's affidavit than yours - the IRS have met their burden of proof. | When someone registers at your website, they enter a contract with you. You need an email address, because you need to be able to contact them (at least for the password recovery). You probably want to verify the email address, otherwise you might not be able to contact them in the future. So the email verification is required as part of the performance of the contract. But also anti-spam laws might require you to use confirmed opt-in before you are allowed to send automatic emails. So at least Article 6(1)(b) (performance of a contract) would apply, but for the confirmed opt-in also Art. 6(1)(c) (compliance with a legal obligation) might apply. That means sending the verification mail is lawful. However you probably want to write this down in the privacy policy as Greendrake commented. Note that there must not be an option for users to agree with the privacy policy, it is just a statement which you make. | You don't need to "report" it to anyone in the US or do anything else. The US doesn't have any national registry of marriage. Any marriage or divorce conducted anywhere in the world is automatically recognized anywhere in the US (with some exceptions like polygamous marriages); the same is true in many other countries. How does the U.S. find out, for tax or insurance purposes? Obviously there's a little box that says [] Married but how would they know if I lied if I'm not registered in the United States? They don't, and don't need to. (The same is true for marriages in the US -- they don't directly "know".) You are required to use an appropriate filing status for your marriage status at the end of the year for each year's tax returns. If you don't, you are committing fraud. There are lots of things that you can intentionally lie about on tax returns, and they may not immediately "find out"; but when they do, you are in big trouble. Am I legally required to report it when I return? No. Would the Canadian/provincial government inform the U.S./state government? No. | To what degree are such emails admissible in court as evidence, and what weight do they carry? Your own statement, when offered by you as evidence, is hearsay, unless it comes within an exception to that rule. Recorded recollection might be one of the better exceptions. There is also a chance that you could get it in as a business record of the company if you were using a company email account and the company stores all of its email communications. The documents also sometimes come in to provide fair context for a conversation with a party-opponent's statements that are admissible. It appears that Canada does not follow the modern British rule (which repealed the hearsay rule in civil cases in 1995), which if it were available, would come in without any difficulty at all. But, Canada does have what it calls a "principled exception" (which is somewhat broader than the parallel U.S. residual hearsay exception) that is generally available if the document can be shown to be reliable and there is an unavailable witness, or if there proponent of the document can show that it is reliable and necessary for other reasons. Even if the document itself is not admissible since it is hearsay, you could still testify as to what the boss said from your own recollection, and then have your lawyer ask you why you are sure that this is what was said. You would answer that you contemporaneously wrote a confirming letter to the boss spelling out what was said and you reviewed it to refresh your recollection before testifying at the hearing or trial. These kinds of confirming letters are used quite frequently in business and employment litigation. And, in my experience, these statements tend to be surprisingly effective and persuasive, because, while they do not foreclose the possibility that the person writing it was lying or inaccurate in the confirming email account, it does rule out the possibility that you forgot exactly what was said, and you provided the boss with an opportunity to dispute you which the boss didn't feel an obligation to correct. If one party has a coherent account in confirming emails of what was said, and the other party is trying to remember what happened a year or two earlier without notes from the witness stand, the person with the coherent, documented account is almost always going to come across as more credible unless the other side can show that your confirming emails are not infrequently gross misrepresentations of what really occurred. (I've also dealt with witnesses like that now and then.) | You are right, the entry and exit photos are only evidence that you were there. This is something they need to prove so the photos may only be for that. Their statement that you didn’t display a valid ticket/permit is, at present an unevidenced assertion. If you contest this, they will provide evidence that you didn’t (e.g. the actual records they refer to) and you would provide evidence that you did and, if it goes to court, the judge will decide what evidence they prefer. As this is not a criminal matter, they need to prove the offence on the balance of probabilities. However, there are almost certainly administrative remedies which will allow you to contest the fine without going to court. This would involve you sending them a copy of the permit and them assessing whether their belief that you didn’t display it is justified or not. | If you don't respond to the letter, you will be penalized. So why would they send you a pre-stamped envelope? Paying for communications is just part of your everyday life and shouldn't come out of tax payers' money. | Any written communication is generally admissible Subject to all the normal rules for admissibility of course. For texts between you and a third party the major issue that springs to mind is relevance. As in, how are they relevant to the dispute between you and this man? If they are not, your lawyer should have objected to them on this basis, however, its too late now. I'm curious as to how he obtained these and whether it was done legally or not. Illegality will not affect their admissibility as the exclusionary rule doesn't apply to civil matters, however, it does speak to the gentleman's character. | Keep in mind that a warrant doesn't require proof that you stole the property or have the property. Instead, the warrant is just authorization to look for that proof. The standard for securing a warrant is probable cause, which is a much lower bar to clear than people seem to think. It just requires that given everything the officer knows, there's a "substantial probability" that a piece of evidence will be in a given place at a given time. If the officer swore to a judge that a reliable source had told him that the letter was stolen, then seen in your front yard, and not seen since, I wouldn't be at all surprised if the judge gave him a search warrant. |
What is the typical consequences if a foreign person stop paying landlord rent for housing and leave USA? What is the typical consequences if a foreign person stop paying landlord rent for housing and leave USA? This question is for a friend. | The law only addresses possible legal consequences, from which you could surmise what actually happens. If a person stops paying rent, the landlord institutes eviction proceedings, and may sue for the remainder of the rent for the term of the lease: they have an obligation to try to find a replacement tenant, to mitigate the damage. Some relief is available to the landlord in the deposit, from which the unpaid rent might be deducted, but let's assume that after that, the actual damage suffered is $5,000. When you sue a person in your home state, the court serves official notice that the defendant must appear to answer the charges, and the state has jurisdiction over the respondent because they are in that state. Giving notice and collecting on a judgment across jurisdictions can get complicated and expensive, so it would depend on what kind of treaties exist between the countries. There is the Hague Service Convention which may simplify the business of giving notice to parties, which works if the respondent fled to Norway or India but not if they fled to Somalia or Turkmenistan. Since it turns out the US is not party to any multinational treaty recognizing foreign judgments, that country is not obligated to care about a US judgment, so unless the person left assets in the US, you may not be able to collect. You could sue in the person's country (hire a local attorney to pursue the matter). The main legal question would be whether there is any conflict between the lease and local law: while the basic idea of a lease is universally recognized, there may be peculiar conditions or procedures applicable in that country. (Norway has some laws pertaining to "shared utilities" which don't exist in the US, which might put a US lease at odds with Norwegian law, and there are rent-raising rules that don't exist here). It might be necessary that you appear in court in that country to swear under oath that the lease was agreed to voluntarily, or the court may require a special form of 'notarization' not available in the US. None of that renders international litigation impossible, though a favorable judgment might be unlikely in some courts. The cost of litigation might be much higher than what would be awarded by a court. | We don't want this issue to adversely affect our credit and got legal consulting which suggested we should pay the debt collector to protect our credit score, and then sue the landlord for the money back in small claims court. I'm a little worried about this strategy since it requires to hand away the money first, and am trying to get second opinions. The debt collector is probably either the owner of the claim against you, if it is an assignee of the claim, or an agent of the landlord for purposes of collection. Thus, payment to the debt collector is equivalent to payment of the landlord. The law varies from jurisdiction to jurisdiction regarding whether payment constitutes of waiver of a right to sue over the debt. Sometimes it is necessary to designate the payment "under protests" or "reserving all rights", but that is not a uniform rule of law that applies in all jurisdictions, and I do not have the time and familiarity with that state's law to research Massachusetts case law on that point accurately. | Joint tenancy means that you both have equal (full) rights to the entire property, so just as you don't his permission to live there or to invite guests, he doesn't either. Unless they threaten you in some way (and you get a court order barring them from entering), there is no legal means to deprive an owner of their property rights, while they are still an owner. | We don't give specific legal advice and one might VTC, but I think your phrasing is not quite right, and you are just curious about the possibility of binding the landlord to a term across leases. The first thing that a term in a contract has to so is say exactly what must be done by whom (or not done). You need to describe more precisely what it means for all future rent and rent increases to be commensurate with the current rent. You can think of conditions like "no more than 2% per annum" or "no more than 15% per annum", and then you can figure out what number is acceptable to the two of you. I would be surprised if you could come up with an agreeable number. Second, you'd have to make this limit "perpetual", which is pretty much impossible. You could negotiate the terms of the next lease today which would prevent an increase of rent by more thay you're happy with, but until governmental controls say exactly what a legal rent increase is, the property owner has the right to raise the rent by a million dollars, and you have the right to move elsewhere. It's as hard to permanently lock a landlord into an arrangement as it is to lock a tenant into renting a specific residence. Every year, you have the right to terminate the lease if the rent goes too high for you, and every year the landlord has the right to raise the rent if the current arrangement isn't sufficiently profitable. Incidentally, you might want to check with AHFC to see if you can actually do this. Your expectations don't determine what relief they provide, just make sure that you provided accurate answers to their questions and reported all income that you're required to report. | This guide from Shelter lists the steps you should take. It can be summarised as: if the landlord fails to arrange the repairs, contact your local council. If they can't help, you can arrange the repairs yourself and request that the landlord reimburse you. If the landlord still refuses to co-operate, then you can pursue legal action. It's important that you document everything you're doing, and keep the landlord fully informed at every step. The guide states that you can deduct the cost from future rent. But it also says: You do not have the right to withhold your rent if your landlord refuses to do repairs. If you don't pay rent, the landlord could take steps to evict you. ...so you may want to get expert advice before going any further. | Your lease is with the LLC in bankruptcy - you should not be paying rent to anyone else. Unless and until the lease is transferred to someone else (in accordance with the terms of the lease or with your agreement) it will remain with the LLC. Contact the bankruptcy trustee to see how they intend to proceed. Providing the LLC keeps fulfilling its obligations under the lease there is no breach. | 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. | Laws and regulations often limit or restrict remedies in various ways that may not be intuitive or correspond to popular ideas of legal rights. In the case of the recent US eviction moratorium, the obligation to pay rent was not changed. The only effect is that no action for eviction could be brought for a residential property during the effective period of the order, in situation to which the ordeer applied. The order says (see link above): This Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract. Nothing in this Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract. To invoke the order a resident must sign a statement declaring under penalty of perjury that: I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary [38] out-of-pocket medical expenses; I am using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses; If evicted I would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because I have no other available housing options. as well as various other declarations. The order's justification section says in part: Evicted renters must move, which leads to multiple outcomes that increase the risk of COVID-19 spread. Specifically, many evicted renters move into close quarters in shared housing or other congregate settings The order later specifies that: This Order shall be enforced by Federal authorities and cooperating State and local authorities through the provisions of 18 U.S.C. 3559, 3571; 42 U.S.C. 243, 268, 271; and 42 CFR 70.18. However, this Order has no effect on the contractual obligations of renters to pay rent and shall not preclude charging or collecting fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract. ... While this order to prevent eviction is effectuated to protect the public health, the States and units of local government are reminded that the Federal Government has deployed unprecedented resources to address the pandemic, including housing assistance. It would seem that civil suits for payment of debts arising from unpaid rent are in no way prevented, only a remedy of eviction is blocked. That block would apply to any state or local courts, as well as any federal courts. Eviction cases are not normally brought in federal courts. But seizure of bank accounts or garnishment of wages could be obtained, if permitted by state law in a particular case. So might other remedies authorized by state or federal law. |
Under English law, what limitations apply to arbitration of civil disputes? Under U.S. law, almost all kinds of disputes between people who have contractual relationships with each other can be subject to binding arbitration with no appeal right or class action rights through a contractual term with only minimal regulation of the arbitration process. In English law, are there significant classes of civil disputes that can not be subjected to arbitration? For example, is binding pre-dispute arbitration prohibited (or required) for any significant subset of consumer disputes, landlord-tenant disputes, realtor disputes, employment disputes, banking disputes, or international disputes? Or, for example, are there contexts in which the duty to arbitrate is subject to strict scrutiny, either based upon either the arbitration process or the nature of the subject matter subject to arbitration? Also, in civil disputes, when they are subject to arbitration clauses, is the arbitration process subject to significant legal regulation in English law? For example, is the business/profession of arbitrating civil disputes one that requires licensing and is subject to government regulation that affects the arbitration process in any material respect? To be clear, when I say "arbitration", I mean a pre-dispute agreement to have a non-governmental private individual or firm resolve a civil dispute between parties bound by a common agreement of some kind, in lieu of resort to civil courts, where the agreement is binding without further action of the parties (with or without a right to a trial de novo or appeal of the decision either within the arbitration context or to a civil court). I do not mean mediation in which the parties are required to discuss settlement with the aid of a third party facilitator that only has any legal effect if both parties affirmative sign some sort of settlement agreement to particular terms after those terms are known. | It is not true to say that there is "only minimal regulation" of arbitration in the US: arbitrations are conducted under law, usually the Federal Arbitration Act but sometimes equivalent state laws and must be conducted in accordance with the rules agreed to by the parties. Further they can be appealed, however, the grounds for appeal are restricted to those enumerated in the Act or agreed by the parties. In general, this is the case for all jurisdictions including England, however, the specific Acts that makes arbitration legal are different in each jurisdiction. Section 69 of the UK Arbitration Act 1996 enumerates the rights of appeal and which may and may not be excluded. That said, appeals from arbitrations are rarely initiated and exen more rarely upheld. A recent decision, NYK Bulkship (Atlantic) NV v Cargill International SA [2016] UKSC 20 has clarified this section: The only two grounds to challenge an award which cannot be waived in an English-seated arbitration are those of substantive jurisdiction or serious irregularity. The right to appeal an award on a point of law is not a mandatory provision of the English Arbitration Act 1996. Where this right to appeal on a point of law has not been excluded, an appeal can be brought under section 69 only with the agreement of the parties to the dispute or with the permission of the court. Under section 69(3), the court can only grant permission if (a) the determination of the point of law will substantially affect the rights of one or more parties, (b) the question is one which the tribunal was asked to answer, (c) the arbitral award is obviously wrong or else the decision is open to serious doubt and concerns a question of general public importance, and (e) it is just and proper for the court to rule on this issue despite the parties agreeing to resolve the dispute by arbitration. It is then at the court's discretion to confirm, vary or set aside the award or else to remit it to the tribunal in whole or in part for reconsideration in the light of their ruling. However, the statute provides that the court shall not exercise its power to set aside an award unless it is satisfied that it would be inappropriate to remit the award to the tribunal for reconsideration. http://hsfnotes.com/ As far as I know arbitration clauses in England are not mandatory in any class of contract nor can a court order arbitration (but they can order mediation). They are restricted in employment contracts where the employee has a statutory right to appeal to an employment tribunal in that they cannot be the sole remedy and they are prohibited in insolvency proceedings and criminal matters. Other than impartiality, there are no requirements under the Arbitration Act relating to the qualifications and characteristics of arbitrators. It is not necessary for an arbitrator to be a national of, or licensed to practice in, England. While not strictly relevant to English law recent decisions in the USA and Canada on the unconscionably of arbitration clauses in consumer contracts (where one party can offer a "take-it-or-leave-it" contract to the other) have come to diametrically opposed conclusions. In the USA these are enforceable, in Canada they are not: probably a reflection of the different attitude of the jurisdictions on laissez-faire versus social welfare styles of capitalism although in both jurisdictions they were 5-4 decisions so more finely balanced than you might think. I would guess that English courts would probably find the Candadian rather than the US decision more persuasive if and when the question is asked. In other common law countries, Australia is almost certainly on Canada's side particularly since for small-business contracts the standard is (since 16 November 2016) whether a term is "unfair" rather than "unconscionable". | A person who is nominally in the class and does nothing remains in the class. Such a person can file formal objections to the terms of the settlement, including the amounts to be paid to the lawyers who ran the class action and negotiated the settlement on behalf of the class. Any such objections will be considered when the judge decides whether to approve the terms of settlement. As a practical matter, there needs to be a good reason stated for any objection if it is to have any effect on the terms. A member of the class does not pay any fees, directly. However, the total fees paid come out of the money provided by the settlement, and may reduce the benefits available to class members, which is why members may file objections to th fee structure. A member of the class can get some of the settlement money only if that person files a claim on the proper form, and the claim is approved. A person who is nominally in the class may send in a written request to be excluded from the class. Such a person ceases to be a member of the class, cannot object to the terms of settlement, and cannot file a claim. However, such a person is not bound by the settlement, and can file a separate, individual lawsuit over the same issue, if such a person chooses to do so. This would mean paying a different set of lawyers. | Pretty much any time a contractual, statutory or case law precedent uses the word "reasonable" what it means is that the decision regarding what is and is not reasonable is vested in the trier of fact (i.e. the judge in a U.K. landlord-tenant case) to decide on a case by case basis in light of all of the facts and circumstances presented at trial, rather something to be decided as a matter of law by an appellate court absent of extreme abuse of discretion by the judge in determining what is reasonable. Put yourself in the judge's shoes and consider the range of opinion that people who are judges in a case like this might have, and you have your answer. A reasonable amount of time balances out factors like the availability of repair contractors at a reasonable price, the magnitude of the repair, and the extent to which the repair impairs the habitability of the premises, and assumes a time frame that would apply if the landlord is diligent and trying to solve the problem in good faith. A reasonable time to fix a broken heating element is different in July than in January. If three different inspectors failed to determine the cause of the problem, that is going to work in favor of the landlord for a longer period of time. So will the significant extent of the damage (apparently). On the other hand, the fact that the repair rendered the premises completely uninhabitable argues for a shorter time period. Starting late to address an urgent problem could be breach, although it doesn't sound like this has happened here if some action has been taken that would seem to be reasonable under the circumstances and the results have been inconclusive about what to do. Unnecessary foot dragging could also be a fact in reasonableness, because ultimately the duty is to get the job done. There may also be a parallel duty of the landlord to provide a habitable premises and to compensate you for time when this is not provided, in addition to the duty to repair within a reasonable time. Asking to be paid for alternative accommodations while diagnosis and repairs are underway would be a logical demand to make before suing for a fairly small dollar amount in an ongoing lease. You would probably focus on failure to repair in a reasonable time more if you seek to terminate the lease entirely and rent elsewhere instead in the face of repair delays, hoping to avoid the duty to pay rent for the remainder of the lease term due to the landlord's breach of the duty to repair under the lease. | The pre-action protocols are part of the Civil Procedure Rules (CPR) which governs proceedings in the County Court, High Court, and Court of Appeal (see Rule 2.1). They set out what the parties should do before initiating proceedings in court. Being practice directions, they are not rules, but you ignore them at your peril; failing to do so will not affect the outcome of your case but can have cost implications or, in the most severe cases, result in sanctions (see paragraphs 13 - 15 here). There is a general pre-action protocol and a set of specific pre-action protocols for particular types of cases. If there is a specific protocol for your case, you follow that, otherwise you follow the general one (see paragraph 2). The full list of specific pre-action protocols can be found here. Note that there is another list contained within the general pre-action protocol at paragraph 18 but this list is not complete. This is rather unfortunate because paragraph 18 contains the phrase "the table sets out the protocols currently in force" and, below the table, "Updated: Wednesday, 6 April 2022" (which implies, incorrectly, that any older protocols not appearing in the table are not currently in force). I suggest using the first list. "How long does it typically take?" This varies depending on the protocol being followed. See for example paragraph 6 of the general protocol which, without being prescriptive, suggests that a reasonable time for a defendant to respond to a pre-action letter is 14 days in a simple case and 3 months in a complex one. "pre-action protocol (PAP) must be completed before a case is brought to court in England-and-Wales" This is incorrect. Per paragraph 17 of the general pre-action protocol, if you are close to the limitation period, you can start proceedings and then apply for a stay to give you time to comply with the protocol. | Note that in the Duval case the landlord was prevented form approving the alterations only because there was also a provision in the leases of other tenants providing that any of them could require the landlord to enforce the agreements. In paragraph 41 of the judgement it is said that: Dr Duval accepts that, absent clause 3.19, the landlord and lessee would be free to agree a waiver of an absolute covenant or a licence to carry out a piece of work that would otherwise amount to a breach of its terms, but contends that in this case and as a result of the inclusion of clause 3.19 in each of the leases, any such waiver is precluded unless all of the other lessees agree to waive their rights. Put another way, by undertaking to enforce the covenants of the lease, the landlord has undertaken not to do the opposite, namely to license breaches of covenant. She argues that, were it otherwise, clause 3.19 would be ineffective. And this contention was eventually upheld. In paragraph 59 (the final paragraph) the court wrote: ... By contrast, clause 2.7 is directed to more fundamental works which go beyond routine alterations and improvements and are intrinsically such that they may be damaging to or destructive of the building. These are the kinds of work which it is entirely reasonable to suppose should not be carried out without the consent of all of the other lessees. In short, the landlord could have approved the work, even in the face of an absolute covenant, butr for the presence of the further covenant with other tenants to enforce the absolute covenant . Even then, the work can be done provided that all of the tenants approve. It would seem from this judgement that substituting the lawyer's statement "without consent of the landlord" for the older absolute form would permit such changes to be made if the landlord consents, and such consent apparently may not be unreasonably withheld. However, under the older absolute form, the consent of the other tenants might also be required, if there is a provision similar to clause 3.19 in the Duval case by which the landlord promises enforcement to other tenants. In the absence of a conflicting contract with others, a landlord and tenant can agree to modify a lease or tenancy agreement in any lawful way. In the Duval case there was such a conflicting contract. | When you tendered three pennies, that should have satisfied the debt as the landlord does not have the right in this situation to insist on payment in a money order in lieu of currency. A money order requirement is only effective as a means by which to refrain from accepting personal checks, not cash. This is the ignorance of the property manager at work. At a minimum, refusing to accept the pennies would constitute a violation of the landlord's duty of good faith: § 383.550. "Good faith" obligation Every duty under KRS 383.505 to 383.715 and every act which must be performed as a condition precedent to the exercise of a right or remedy under KRS 383.505 to 383.715 imposes an obligation of good faith in its performance or enforcement. Imposing a late fee in this situation may also be unconscionable: § 383.555. Unconscionability (1) If the court, as a matter of law, finds: (a) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result; or (b) A settlement in which a party waives or agrees to forego a claim or right under KRS 383.505 to 383.715 or under a rental agreement was unconscionable when made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result. (2) If unconscionability is put into issue by a party or by the court upon its own motion, the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose, and effect of the rental agreement or settlement to aid the court in making the determination. This term is defined as follows in § 383.545(16): "Unconscionable" means an act or conduct which is willful and is so harsh and unjust as would be condemned or considered to be wrongful and would be shocking to the conscience of honest and fair-minded persons. The notice should not be effective to bring an eviction action because it states a demand that the landlord is not authorized to make. The notice is probably attempting to comply with this statutory requirement: § 383.660. Tenant's noncompliance with rental agreement - Failure to pay rent (1) Except as provided in KRS 383.505 to 383.715, if there is a material noncompliance by the tenant with the rental agreement or a material noncompliance with KRS 383.605 or 383.610, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than fourteen (14) days after receipt of the notice. If the breach is not remedied in fifteen (15) days, the rental agreement shall terminate as provided in the notice subject to the following. If the breach is remediable by repairs or the payment of damages or otherwise and the tenant adequately remedies the breach before the date specified in the notice, the rental agreement shall not terminate. If substantially the same act or omission which constituted a prior noncompliance of which notice was given recurs within six (6) months, the landlord may terminate the rental agreement upon at least fourteen (14) days' written notice specifying the breach and the date of termination of the rental agreement. (2) If rent is unpaid when due and the tenant fails to pay rent within seven (7) days after written notice by the landlord of nonpayment and his intention to terminate the rental agreement if the rent is not paid within that period, the landlord may terminate the rental agreement. (3) Except as provided in KRS 383.505 to 383.715, the landlord may recover damages and obtain injunctive relief for any noncompliance by the tenant with the rental agreement or KRS 383.605 or 383.610. If the tenant's noncompliance is willful the landlord may recover actual damages and reasonable attorney's fees. By not accurately stating the non-payment, the notice may be ineffective legally. The circumstances of your case would not entitle the landlord to attorneys' fees. O'Rourke v. Lexington Real Estate Co. L.L.C., 365 S.W.3d 584 (Ky. App. 2011). My guess is that the late fee is $71.20 because there are really two components of your rent, one of which is $712 per month with a 10% late fee, and the other of which is $83.33 which is probably some passed through charge for utilities or a water and sewer bill or some sort of tax. If indeed the late fee is a percentage of the unpaid rent, then first of all, the late fee shouldn't be more than 0.3 cents (which rounds down to zero), and second of all, the unpaid portion may very well be not rent, but a passed through charge that is not subject to the late fee, depending upon what the lease says about how amounts received are to be applied. If the late fee is indeed a percentage of the amount owing, so that you owed at most 3.3 cents on the day after the rent was due, which rounds to 3 cents. Then, by tendering 3 pennies on that day, you satisfied your obligation in full and they are not living up to their obligation. If the late fee is stated as a sum certain in the lease, however, and not as a percentage, you might be obligated to pay $71.23 by the terms of the lease, even though charge a late fee of $71.20 for paying 3 cents one day late probably violated usury and consumer protection laws in Kentucky, as well as the common law related to liquidated damages which requires penalties in contractual agreements to be proportionate to the breach of the contract. The maximum legal interest rate in Kentucky is set forth at § 360.010 of its statutes is is the greater of the commercial discount rate on 90 day paper plus 4%, or 19%, which is smaller. There is a civil penalty of double the amount of the usurious interest paid. § 310.020. Still, as a practical matter, it may be easier to tender a money order for $71.23 than to deal with a bureaucratic nightmare. Honestly, this is the sort of scrooge-like behavior that TV stations love to splash on the evening news, and contacting one of them might be one of your better options. Another option may be to contact a legal aid society, or to contact the local bar association to see if they have a pro bono lawyer available to take this case. Another plausible option would be to communicate directly to the owner of the property in lieu of the property manager, setting forth the facts in writing. If I were a lawyer for the landlord, I would be embarrassed to bring a case like this one, and the judge would probably chew me out for bringing it. | Yes. Arbitration is a private, voluntary process, so two parties can agree to arbitrate virtually any dispute. However, because it is voluntary, Country B generally has no obligation to participate in the process once you've inititated it. | Non-residential tenancies are subject to Fla. Stat Ch. 83 Part I. This is statutorily a tenancy at-will unless a contrary agreement is in writing signed by the lessor: the duration of the lease is yearly, quarterly, monthly, weekly as determined by the periodicity of rent payments. There are various legal conditions related to rent default and causes for removing tenants, also conditions about premises that are wholly untenantable. Unlike residential leases, there are not any special statutory conditions surrounding the landlords presentation of leases. Florida law contemplates and allows the possibility that there are no written documents, and for non-residential tenancies has very little to say about it (only pertaining to the distinction between at-will vs not at-will leases). Therefore, the matter follows the general rules for contractual disputes: whoever makes the best case for their claims wins. If Bob has a scanned copy, that is excellent proof. If Alice alleges and proves that the scanned copy was modified, that disposes of Bob's evidence. If Alice presents a copy of the contract that says otherwise (I do mean copy), then this anomaly has to be explained. Bob can claim that they tore up Alice's original and renegotiated the deal, but he needs to prove that claim. If Alice presents the original contract, Bob's story becomes much less plausible. There are millions of variants of what might happen: the point is, there is no requirement to present the original signed document to support a claim in a contractual dispute. |
How exactly does civil asset forfeiture work in the United States? Civil asset forfeiture is a concept that frequently crops up in the news, e.g. the recent Washington Post article "Drug cops took a college kid’s savings and now 13 police departments want a cut". Usually, the laws underlying the process are not described in detail, but the above cited article makes it sound as if police can just make up any somewhat reasonable claim they like regarding a possibly illegal source of the assets and then seize them without judicial oversight. I'm having a hard time believing that this is actually how it works. What is the legal framework for civil asset forfeiture? What recourse is there for people being subjected to it? | On the contrary there are hundreds of federal statutes that sanction civil forfeiture, as well as 18 U.S.C. § 983 (and other subsections inter alia) that governs civil forfeiture. What you seem to be more concerned with is the judicial oversight and regulations around civil forfeiture. The burden of proof varies between, and within, states - in some, prima facie/probable cause is all that is required, in others, a preponderance of evidence, or clear and convincing evidence is required. Just three states require proof beyond a reasonable doubt and civil forfeiture is only illegal in New Mexico. Civil forfeiture is subject to judicial review: a list of notable cases in civil forfeiture is available on Wikipedia. Here's some of the more interestingly-named ones: Marcus v. Search Warrant One 1958 Plymouth Sedan v. Pennsylvania Marcus v. Search Warrant held that the search and seizure procedures in that case lacked safeguards for due process, freedom of speech, and freedom of press. One 1958 Plymouth Sedan v. Pennsylvania held because the vehicle was searched without a warrant, and the untaxed liquor found thereby was used to invoke the forfeiture, the forfeiture was illegal (the Fourth Amendment protects against unreasonable searches and seizures). So, what is the legal framework? Broadly speaking, 18 U.S.C 983, as well as state legislation. What recourse is there? Judicial review. However, the procedures vary between jurisdictions. | Yes, in england-and-wales the Criminal Finances Act 2017 introduced 'Unexplained Wealth Orders', which compel the respondent to provide a statement: (a) setting out the nature and extent of the respondent’s interest in the property in respect of which the order is made, (b) explaining how the respondent obtained the property (including, in particular, how any costs incurred in obtaining it were met), (c) where the property is held by the trustees of a settlement, setting out such details of the settlement as may be specified in the order, and (d) setting out such other information in connection with the property as may be so specified. There a few requirements set out in section 362B, for example, the property must have value of over £50,000; there should be "reasonable grounds" for suspicion that the respondent would have been unable to obtain the property using their lawfully obtained income; the respondent or their connections must have either been involved in serious or organised crime, or be a politically exposed person, and so on. If the respondent refuses to make such a statement, the police may apply for a Civil Recovery Order to confiscate the property, with the property in question "presumed to be recoverable property" (section 362C(2)). Giving false information in such a statement is a criminal offence. | Unless the Youtube Video shows them committing a crime, then no, they couldn't be arrested and tried for a crime. Them saying it, not under oath, is just hearsay that has no evidentiary value unless there is already other evidence they have committed a crime. In that case, its an admission. But there must be other, either circumstantial, or actual physical evidence of a crime. Past intoxication is not a crime, either. Possession of drugs, if caught with them is. But saying you got high is not. People have walked into police stations and confessed to murders. But with no evidence, no body, no name of a missing person, they can't even be held after the holding period for investigatory purposes expires. If the video shows them committing assault, or breaking and entering (there actually are idiots who post this stuff), the video is actual evidence of a crime and it is often used against them. The statements can be used to begin an investigation, but people don't usually confess to anything worth pursuing even an investigation. The fact that someone says they used to do something criminal is not enough. For all you ( meaning anyone ) knows, the statute of limitations has expired because they "pirated games" 10 years ago. Your comment is right on. | The money is forfeited to the state This would normally be the case even if Daniel is acquitted. The proceeds of crime may be seized using forfeiture rules which require Daniel to prove that the suspect money is legitimate. | There are a few problems with your line of reasoning, but the main one is that if the government can't locate a defendant, California's Rules of Civil Procedure provide a variety of alternative means of service. When all else fails, the government can serve the defendant "by publication," meaning that they simply publish a notice of the lawsuit in a newspaper. If the defendant fails to appear to defend the suit after service by publication, the court will enter default judgment, the government will seize the property, sell it, and use the resulting revenue to continue operating. | There are a couple of indications that a bouncer may not confiscate an ID. This policy document adopting licensing policies to Require licensees with fake ID violations to temporarily or permanently hire on-site law enforcement or certified security guards who are properly trained to check IDs during regular or peak hours to deter the use of fake IDs and give gatekeepers the opportunity to pass suspected fakes to an officer or guard for a second opinion and potential confiscation. Where appropriate, jurisdictions could empower the gatekeeper to confiscate fake IDs so they are not returned to the underage drinker and sent back into circulation. To ensure compliance with legal issues (e.g., property rights, bailment issues), arrange for the on-call or on-site presence of local law enforcement. Local bar and restaurant associations, especially those in concentrated entertainment zones, can join together to share the expense of law enforcement resources. That implies that the bouncer does not already have that authority, and also indicates that the confiscation should be performed by the police. This bouncer training manual says that Even though you may consider the ID to be fake, it is not considered the server's property. Therefore servers and sellers should not confiscate IDs they suspect to be fake. Rather... follow up with a call to the police to verify suspected false IDs. However, a jurisdiction may grant servers that power, as in the case of Colorado. Washington doesn't do that, so bouncers would need to call the police (not that they always do, since passing a fake ID is somewhere between a misdemeanor and a felony). The general principle is that you may not confiscate another person's property, but the police can seize property if it is reasonable to do so. A state may pass a law authorizing a licensee to do likewise (though it does raise questions about the bouncer's understanding of "reasonable cause to believe"). The Colorado statute is restricted to licensee and their employees, and does not apply to "anyone who suspects an ID", nor does it allow civilian confiscation of other property such as an automobile that is suspected of being stolen. | It is possible that there is such a booklet in some jurisdiction, and that local police are required to carry that booklet and show it to persons on demand. This link (apparently) publicly provides the police manual for the city of Seattle, except it is 5 years and a major lawsuit out of date. No provision seems to exist that requires showing authority to detain, when requested. There is no general requirement for all police and all laws, in the US, and the full set of state, county and city codes would be impractical to lug around. If required by law to carry and display some such document, then by law a person can demand to see a police officer's authority to detain. Even without such a law, you have a First Amendment right to challenge the detention, but that does not also enable you to resist arrest. A detention is not invalidated by the fact that the detainee is unsatisfied that the detention is legal. | If it’s your pizza, yes The civil equivalent of theft is the tort of conversion, “consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In England & Wales, it is a tort of strict liability.” |
Can alcohol affect my car insurance policy if I am under the legal limit? Can an insurance company legally deny claims in a no-fault accident because of a blood alcohol content that's under the legal limit but is not 0? I'm in Wisconsin but references to any national rulings/regulations are welcome. I just bought a new car and was wondering if running to the store after a beer would jeopardize my insurance. (I'm a 200+ lb male so impairment is not a concern) | 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 ... | The insurer can avoid the claim for a qualifying misrepresentation The remedy that is available depends on whether the qualifying misrepresentation is either (a) deliberate or reckless, or (b) careless. If it is deliberate or reckless, the insurer may avoid the contract, refuse all claims and retain the premium. If the misrepresentation is merely careless, the insurer may only avoid the contract if it can show that it would not have entered into the contract of insurance at all had the insured complied with its section 2(2) duty. In those circumstances the insurer must return the premium. If the insurer would still have entered into the contract but on different terms, or would have charged a higher premium, then proportionate remedies as more commonly encountered under the provisions of the Insurance Act 2015 apply. Your misrepresentation that your last accident was more than 20 years ago when it was 19 years ago is careless and the insurer must prove that they would not have offered you car insurance if you hadn’t made that mistake. They aren’t going to be able to do this and they are unlikely to try. However, if it was last year then that starts to look deliberate or reckless, if so, you have no insurance. You might convince a judge that it was mere carelessness if the claim was minor and you car was off the road only for a day or two. If the insurer can show that it never offers insurance to people who make such a disclosure, then you have no insurance. More likely is that they would have charged you a higher premium or excess or both - you are insured but you owe them the difference. “Social purposes” will be defined in the policy Particularly since it’s a weird term. Most policies would use “private use” or “commercial/business use”. Driving to and from work would normally be “personal use”, driving for work would be commercial. Usually within those definitions there are reasonable exceptions. For example, personal use might include not more than X number of business use per year. Now, this type of situation is unlike the past-crash data because it is a representation of your intentions and no one can accurately predict the future. However, insurance contracts almost alway contain an obligation for the insured to inform the insurer of changed circumstances that increase risk. So, if you start using your car for business, you have to tell the insurer and they may adjust your premium. However, if you had been using it for business and stopped, you don’t have to tell them because the change reduces the risk. | Each of the 50 states plus non-states has their own laws, but there is nothing general about contract or other law in the US that forces a rental facility to accept customers who don't have / won't get the insurance that they require. It is a reasonable requirement, because it protects their interest insofar as angry customers might sue the facility because their car was broken into, and many of them would mistakenly believe that their car insurance covers theft or destruction of contents (thus leading to a desire to sue, to cover the property loss). It may be just too much hassle and too risky for them to assume the correctness of a customer's claim that they already have adequate coverage and will maintain said coverage, with no practical means to verify the claim. | 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. | 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. | This is a legal question, a business question, and an ethical question more than it is a bike question. Obviously there are risks when anyone rides a bike. And some people might have invisible conditions that would place them at special risk when riding a bike. But, as a shop owner, if a special risk is immediately visible, you open yourself up to a charge of negligence if you fail to take that risk into account. This happened in Canada, and I'm not knowledgeable about Canadian law. It's also interesting that this happened at a Giant company store, not a mom-and-pop bike shop. The fact that the store is operated by Giant may have made the operator more liability-conscious, but it also means they were better prepared to deal with liability than a mom-and-pop store. If I were in the position of selling a bike to someone who exceeds its load rating, I might want them to sign a document acknowledging that fact, and indemnifying me for any damage or injury sustained as a result, but I wouldn't make them promise to lose weight. But I'm in the USA, not Canada, and jurisdiction matters. | Yes Unless your business is a sole proprietorship it operates as a legal entity seperate from its owners. It owns its assets an acrues its own liabilities. It can be sued and it can sue others. It can also agree to its own contracts. Typically the only thing a legal entity that is not a natural person cannot do is sign a marriage contract. Depending on the industry there may be no need to sue. There exist many mandatory workplace insurance to cover accidents in the workplace. You may have to share details of the injury with them but they may be uninterested in whos at fault. | I overdosed on an illegal drug and called an ambulance. I was honest and told them what I took. [emphasis added] You stated that you had possession, and had recently used a notable amount, of an illegal substance. That is reasonable cause (or "probable cause" in some jurisdictions) for a search, regardless of a warrant, and they do not need permission. For example, as FindLaw.com explains, in the USA. [p]olice may use firsthand information, or tips from an informant to justify the need to search your property. If an informant's information is used, police must prove that the information is reliable under the circumstances. |
Sharing music PDF I purchased Let's say I purchased a piece of sheet music in PDF form from the author's website. I can't find anything on their website about licensing restrictions for downloads. Let's say I want to share the sheet music with other musicians at my church so that we can play it during the church service. [Edit: I do have permission to perform the song via CCLI.] Am I allowed to share the electronic PDF with the musicians? Or the printed music? Or both/neither? Or is this a gray area? | As far as the CCLI license is concerned, it depends on the source. You can see the requirements in this link. The main points that you might not meet is that the sheet music must be used to assist congregational singing and must be from a source designated as such. If your sheet music meets those requirements, then the CCLI does allow you to: Create digital song files to share with your worship team. However, if it doesn't meet the requirements, then Dale M's answer provides a good overview as to your options. | Technically, this is infringement Overview of US law In the US, Playing copyrighted music in a private setting for personal enjoyment and practice does not require any license or royalty payment. However, uploading recordings in which copyrighted music is played so that others, even a small invited group, could download copies and could, if they choose, distribute them further would be copyright infringement if done without the permission of the copyright holder. In the US such permission could be obtained with a "mechanical" license, which requires payment of a statutory fee. Or it could be requested directly from the holder or holder's agent, in which case the terms would be whatever the holder will agree to. Making recordings of a copyrighted musical work, even if they are not distributed, also requires permission (which can be obtained through a compulsory "mechanical" license or directly). Cites to US Copyright Law 17 USC 101 says: To perform or display a work “publicly” means— (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. 17 USC 106 lists as among of the rights which a copyright holder has: (1) to reproduce the copyrighted work in copies or phonorecords; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; 17 USC 115 covers "mechanical" or "cover" compulsory licenses. Practical Considerations Given that the web site will be on an invite-only basis, it is likely that the copyright holder would never learn of it. Even if the copyright holder does learn, many holders would not consider filing suit, which would involve court fees and legal expenses, in such a case. If no fees are being charged, and the market for the copyrighted work is not harmed. the likely damages even if a suit is filed and won, are relatively small, so a suit might well not pay off. But some holders would sue on principle, and there is no way to know in advance who would or would not. There would be an element of legal risk in putting up such a web site. Other countries The above is all based on united-states law. I believe that the law would be similar in most countries that have signed the Berne Copyright Convention, but the details would differ. | Those posts are talking about making a modified copy of a copyrighted work. The key word is copy. You are not making a copy. Copyright is not about how a physical embodiment of a copyrighted work is treated. You can burn a book and shred a newspaper. Neither of those actions is making a copy. Also, cutting up a newspaper and pasting a picture on your wall has nothing to do with any “derivative works” issue. | The first thing that has to be done (in court, or via lawyer-to-lawyer communication) is that The Company has to prove that they own the copyright. If they accomplish that, you can defend yourself by providing proof of a license to download and redistribute. From what I can tell, you cannot directly prove that, since the rights-holder did not give you the license. The issue is that a third party cannot impose a license on a work simply by putting it out there with a file that claims to be a license from the artist. So this brings in the Free Music Archive: they presumably have some evidence that the rights holder did indeed grant the alleged license, and may be able to provide proof. Your argument may be credible, in the sense that you had a good-faith belief that the item was so licensed, and the website would provide a basis for concluding that that belief is reasonable. If the work was licensed, then the some rights holder would know that, but not necessarily the current one. Assume the artist made a recording, transferred the rights to Company A, who later sold the rights to Company B who is now coming after you. Artist may have licensed it when it was his, and forgot to tell A. A may have licensed it when they sold the license to B. Artist may have improperly licensed it after he sold the work to A (under the "I wrote it, I have the right to do whatever I want" non-legal theory). A might have improperly licensed the work after selling the right to B (maybe by mistakenly including it in a package deal, i.e. via bookkeeping error, rather than ignorance of the law). Or, they may simply have forgotten. If this is a DMCA takedown notice, the notice-giver could just be abusing the system. But we don't know how you were contacted, so I'll leave DMCA out of this for now. | No These are derivative works and making them is copyright breach. Doing this as a hobby or even for the entertainment of friends in private is likely fair use. Distribution or performance in public (monitored or not) is likely not fair use and you would need a licence. Here is a summary of the relevant law in australia. | The notification that you saw is not useful legal information for you: stuff always belongs to whoever owns the stuff. It might be interpreted as saying "it doesn't belong to us", but you can't count on that (it's virtually guaranteed that at least some of the content there is owned by the website owner). A more informative statement would be "You will have to get permission from the content owner to copy their stuff", and "We're not going to spend time figuring out who owns what". You could read the terms of service (try this with Stack Exchange) to see what the site tells people. The TOS here says that if you contribute anything, it "is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license". You can then look up what that license says and learn what that allows. Websites are kind of tricky, though, because it's not hard to change the wording of a TOS, and you need to know what specific TOS was promulgated at the time a particular contribution was unleashed. Usual practice is to think it through carefully and not frequently tweak the TOS, but it's not illegal to change the TOS. Note that copyright law does not prohibit you from using other people's stuff, it prohibits you from copying. The distinction is clearer when you see a post that explains an algorithm with actual code, you read and learn and make use of that, but write your own code. As a user out there, if there isn't a clear indication that stuff posted is there for the taking, under some public license (as is the case with SE), then getting specific permission to copy, from the owner of the content (possibly untraceable), would be necessary. Now assume that you're a moderator or site-owner of some forum: presumably (hopefully) you have a TOS that addresses that situation, which says that moderators have the right to edit or delete content at their sole discretion, and also you say what kinds of posts are prohibited. Such an statement is not absolutely mandatory for all things, but it may be necessary to avoid litigation over some acts. One one end of the spectrum, it would be illegal for a forum to host child porn, stolen credit card numbers, or protected digital content. If a user were to post such stuff, the site would need to eliminate that stuff, and the poster could not legally rely on an argument of the type "That's my stuff, you have no right to mess with it". On the other hand, if a forum actually requires paid membership, then there may be a strong contractual expectation that the user is getting something of value, so you would have to watch for statements that could be interpreted as broad permission to put stuff out there without any interference. (For instance, a file-hosting service would have only minimal restrictions on content, aimed at protecting their own legal interests; whereas a political-advocacy site would have maximal interest in prohibiting the expression of views counter to the cause). Thus the SE TOS has you "grant Stack Exchange the perpetual and irrevocable right and license to use, copy, cache, publish, display, distribute, modify, create derivative works", which allows moderators to correct typos, delete offensive wording, and obliterate entire posts. If a site fails to have any such clauses in their TOS, then it might be a matter that has to be settled in court, whether they have the right to eliminate "spam" (i.e. advertising for a service, especially if the reason for getting an account was to provide an advertising platform). In light of the limited use sanctioned by the TOS, per the below comment, legal copying will be quite limited. However, "fair use" a situation where copying is allowed, regardless of what the TOS may say. (You could be banned from the site, but you could not be sued for infringement). Fair use was invented precisely so that people could make comments like "Jones advocates an absurd law, saying '...[quote from Jones]...'". Thus you can comment on a post and quote the relevant part ("The lines '[... quoting the code ...]' results in an infinite loop"). See the Fair Use FAQ for more details. | I'm not a lawyer, but under the law as it's written, I see two problems: 17 USC 121 allows "authorized entities" to make and publish accessible copies of works. An "authorized entity" is defined as a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities. So if you, as a private citizen, decide to do this, it could conceivably be copyright infringement. You might have to set up some kind of non-profit organization to make it legal. It's also OK (I think) if you make such copies for your own personal use, so long as you don't redistribute them. So far as I can tell, nothing under 17 USC 121 requires the original publisher to provide an "authorized entity" with a copy in any particular format (PDF, paper, or otherwise) for making accessible copies. Basically, the law seems to have envisioned organizations of sighted people purchasing paper copies, transcribing them, and republishing them; not blind individuals doing electronic transcription for themselves. It might still be worth contacting Hal Leonard and asking what they can do for you, but unfortunately it doesn't look like the law requires them to do anything for you. As Nij points out in the comments, this really seems to be a question about the company's policy, rather than the law. | If you're in the USA, this almost certainly falls under fair use, or if you are in another jurisdiction, it almost certainly falls under an analogous exception for educational use. The fact that the excerpt is short contributes to this conclusion. You can also avoid having to rely even on these exceptions by choosing sources that are in the public domain. The specific date before which a work is guaranteed to be in the public domain depends, again, on your jurisdiction, but it's probably sometime in the early 20th century. For example, you're certainly on solid ground if you use Dickens. |
Is it illegal to publish a screenplay on web? I am not talking about screenplays that written by me. Just screenplays of popular movies. I've seen other websites doing it, but I am not sure if it is illegal or not. | It is absolutely illegal, unless the movie is really old and out of copyright. Copyright protects all forms of creative expression, including novels, movie scripts, actual movies, translations of movies. | "Public domain" refers to things in principle copyrightable but where protection has lapsed, been repudiated, or is a statutory exception (such as government works). A website is not "in the public domain". The idea that a website is "public property" is (*cough*) mistaken. There are basically two ways in which a web interaction could be illegal. The first regards whether accessing another person's computer is illegally accessing a computer, which is a crime. Authorization essentially comes down to "permission": if the owner permits me to access the computer, I am authorized. Putting stuff out there on a web server is an open-ended grant of permission to look at a web page. That simply means that if I create a web page (with a bunch of links or not), I am granting you permission to interact with my computer to that extent. It does not create permission to hack into a password-protected subdirectory. An ordinary web crawler automates what a clicking human does. Copyright law is also relevant, in that the stuff I put on my webpage is not to be copied without permission. Any webpage access necessarily involves automatic copying from machine to machine: in putting stuff out there for the world to see, I am saying that the world can do that level of automatic copying that arises from normal html-and-click interactions. It does not mean that you can download and do stuff with my copyrighted content (i.e., it is not an abandonment of copyright: I did not put that stuff in the public domain). Putting a web page out there in an unrestricted fashion means that you've given a certain level of permission to "copy" (at least in the automatic server-to-browser viewing sense). I may want to impose conditions on peoples' access to my stuff, so I can impose terms on such material. For instance, I may require users to agree to certain conditions before accessing the CoolStuff subdirectory. Users then have to jump through a minor hoop and agree to those terms. In that case, my permission is conditional, and if you violate the terms of that agreement, I may be able to sue you for copyright infringement. It could then be a violation of my terms of service (TOS) if I say "you may not crawl my website" (in less vague language). A TOS gets its legal power from copyright law, because every webpage interaction involves copying (I assume that technical point is obvious), and copying can only be done with permission. You may technologically overcome my weak click-through technology so that the bot just says "sure whatever" and proceeds to illegally use my web page: I can sue you now for copyright infringement. The robot-specific methods of meta-tags and robots.txt have no legal force. Although there is a way to say "no you may not," which is tailored to automated access, the meaning and enforcement of these devices has not yet reached the law. If my page uses NOFOLLOW and your program doesn't know or care, you (your program) do not (yet) have a duty to understand, detect and respect that tag. Prior registration is also not a legal requirement, and very many pages that are on the master crawl list get there from being linked to by someone else's web page. Again, there is at present no legal requirement of pre-registration (and there is no effective mechanism for verifying that the site owner has registered the site). Archiving and especially re-displaying someone's content is, on the other hand, not legal. It would be plainly copyright infringement if you were to scoop up someone else's webpage and host it. You can analyze their material and somehow associate it with some search terms, and display a link to that page, but you cannot copy and republish their material. You can put very short snippets out there taken from a web page, under the "fair use" doctrine, but you can't wholesale republish a webpage. (It should be noted that the archive.org is an internationally recognized library, and libraries have extra statutory powers to archive). | It's not fair use. Fair use is when you do something that normally only the copyright holder can do. Playing a video game is the ordinary, intended use of the work. In the United States, ordinary use is not protected by copyright. 17 USC 106 sets out the rights protected by copyright. The include copying the work, producing derivative works, distributing the work, and so on. None of these are ordinary use. Someone could perhaps argue that you are creating a derivative work. I doubt that argument would work because you are not taking any protectable elements from the work. But if anyone did argue that, it would make sense to also argue that if that's so, your use would still be covered under fair use because it's transformative, does not substitute for the original work in any way, and takes very little of the work. | One reason could be because of the scènes à faire doctrine. Many of the things you notice as similarities are not infringement. I don't know the counts of lawsuits for music infringement vs screenwriting infringement. There may just be more songs than screenplays. Screenwriters/producers do get sued, though. See Cinar Corporation v. Robinson 2012 SCC 25. | According to the current version of the TOS: You own the rights to the content you create and post on Medium. By posting content to Medium, you give us a nonexclusive license to publish it on Medium Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). In consideration for Medium granting you access to and use of the Services, you agree that Medium may enable advertising on the Services, including in connection with the display of your content or other information. We may also use your content to promote Medium, including its products and content. We will never sell your content to third parties without your explicit permission. This explicitly says you own your content, although Medium has some rights to do some things. And they won't sell it without permission, so unless Medium itself is publishing this book, it would seem to be copyright infringement. (Of course, I don't know what the TOS said when you originally wrote the article.) If what was copied was not copyrightable (like a quote from the Constitution, or a simple uncreative graph of something obvious) then it wouldn't be infringement. But your article was probably more than that. | You can put anything you like in a ToS document, but not everything you might put there will be enforceable. By posting something on the web, you are inviting anyone to read it. In some jurisdictions that may include the right to make and store a personal copy, although not multiple copies or a copy for commercial use. You can taker technical measures to prevent automated access and automated downloads (scraping). There was a case (hiQ Labs, Inc. v. LinkedIn Corp, 938 F.3d 985 (9th Cir. 2019)) in which access restrictions were held binding in a US court, but in that case the site owner had notified the would-be reuser (a competitor) directly. The laws on this sort of thing may differ from country to country, and are not as well-settled as older parts of the law tend to be. The question asks: can I list in my terms of service that all users acknowledge I own their posts ... The only way in which the host could "own" the posts would be if the users transferred copyright to the host, or granted the host an exclusive license. Under US law this would take a written and signed document. Clicking an "I agree" box or button might constitute a valid signature. A statement that "by using this site you agree ..." would pretty clearly not. You might prohibit bots copying from your site and posting duplicates, but to prohibit users re-posting their own messages elsewhere is harder, legally, and leas reasonable in my view. Under US law you could not actually file suit for copyright infringement until you had registered the copyright, but that is not true in many other countries. | 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. | Literal Answer: Anyone can file a lawsuit for anything, doesn't mean you will win or that the judge will let it go as far as trial, but you can certainly file a lawsuit. Deeper answer: Yes they can file a lawsuit assuming they have been given authority to represent the copyright holders. The problem with succeeding in such a lawsuit is proving who is liable. This is contractual, but as the ISP customer it's possible that you signed that you would be responsible for the traffic going to your ISP. If this is not the case, it can be hard to prove who is responsible. There is also the issue of did the movie actually download? Just because you clicked a link to download, does not mean a download happened and that could be hard to for the other side to prove. Then there is the question of what is the intent of the letters? Do they want people to be aware that they will be caught and stop pirating or do they really want 4,500 X 25,000 Swedish Krona? Whether they sue the non-payers or not likely comes down to how many people send in the money but in any case it is in their best interest to make the public at large believe that they will be sued. |
How can free licenses such as GNU and CC apply to me when I did not sign them? In the GNU GPL v2, the 5th paragraph is written as : You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it. The Creative Commons do nearly the same just before section 1 : By exercising the Licensed Rights (defined below), You accept and agree to be bound by the terms and conditions of this Creative Commons Attribution 4.0 International Public License ("Public License"). To the extent this Public License may be interpreted as a contract, You are granted the Licensed Rights in consideration of Your acceptance of these terms and conditions, and the Licensor grants You such rights in consideration of benefits the Licensor receives from making the Licensed Material available under these terms and conditions. I am not a lawyer so I don't understand: how can something I didn't signed, or maybe even read, apply to me ? What if I create a slightly different version of the license, and add "by using my image/tool/software, you silently accept to give away your soul to me" somewhere in the text ? If you have human-readable documentation of how this work, I'd be very grateful (all stuffs I found on google were way to hard for a muggle like me). | Without a license, you have no right to copy or distribute someone else's work. Suppose you copy or distribute against the terms of the license. Either you didn't agree to the license, and therefore had no right to do as you did; or you did agree and still violated the terms of the license anyway. By the law of the excluded middle (accepted or not accepted), you infringed either way. | 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. | The second paragraph is an invitation for people who don't want to follow the terms of the GPL (e.g. who want to incorporate it into a larger closed-source work, or make closed-source modifications) to contact XXX for a less onerous (but more expensive) license. That would require that XXX have full rights to the software, that they did not for instance incorporate others' GPLed code. It would be a stretch to read the second paragraph as attempting to limit the first paragraph, particularly given the "please". | I can see two points you might be confused about in your question. 1. Works can be in the public domain without having a CC license The Wikipedia statement and the government statement are not inconsistent with each other; just because something isn't available under a Creative Commons license doesn't necessarily mean that it is restricted by copyright. In fact, CC licenses are moot for material in the public domain: When a work is in the public domain, it is free for use by anyone for any purpose without restriction under copyright law. Public domain is the purest form of open/free, since no one owns or controls the material in any way. ... Creative Commons licenses do not affect the status of a work that is in the public domain under applicable law, because our licenses only apply to works that are protected by copyright. So if a work is in the public domain, you can use it for whatever purpose you wish (though see below), without restriction or attribution. This is less restrictive than the various Creative Commons licenses, which require various levels of attribution, non-modification, etc. depending on the license chosen by the creator. 2. Trademark protections are separate from copyright protections Your quote from the government website implies that these logos might be trademarked, even if they're not under copyright; this is entirely possible. Roughly speaking, trademark protections keep other people from trading on your good name & reputation; copyright protections keep other people from directly profiting from your creative endeavors. If another party creates a product that uses a trademark in a way that would create confusion among consumers, the trademark holder can sue for that. Depending on how you use the logos, you might run afoul of these protections. See this Q&A for futher details under US law. (Australian law may differ a bit but I would expect that the general principles are the same.) | You can't You agreed: by submitting Materials in any form to the Company, in addition to other provisions of the Terms, you automatically grant Company a royalty-free, world-wide, irrevocable, non-exclusive, and assignable right and license to use, copy, reproduce, modify, adapt, publish, edit, translate, create derivative works from, transmit, distribute, publicly display and publicly perform such Materials for the purpose of displaying and promoting the Materials on any website operated by, and in any related marketing materials produced by, the Company and its affiliates. They can keep and use your data forever and give it to whoever they want. The clause you quote doesn't alter that. All it says is that once a year, if you ask, they will tell you what information they shared and with whom. If they feel like it they will tell you how to get the information deleted. | 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. | Wikipedia is the Licensor who are granting you the license, thus in the text you quoted: You must attribute the work in the manner specified by the author or licensor the manner specified by Wikipedia in the link you gave is the way you must attribute the work. When a person contributes content to a Wikimedia project, they agree to license it under the CC-BY-SA-3.0 license, but they also agree to be attributed "in any of the following fashions... i. [through] hyperlink (where possible) or URL to the article to which you contributed (since each article has a history page that lists all authors and editors)" (see Wikimedia Foundation, "Policy:Terms of Use — 7. Licensing of Content"). See section 1(f) of the License used for the definition of the Licensor | No. That clause does not give other users a licence to reproduce the work (other than what is necessary to access or use it) or create derivative works. The copyright owner has the exclusive right to do those things. (See 17 USC 106.) The clause you quote only indicates that other users can "access" (download for viewing) your "information" and use it, too. It doesn't give away any of your exclusive copyright in the work. You do grant Facebook a licence to do certain things with your work in section 2.1 of the Terms of Service, though. |
Is it illegal to raise money for a project, if no such project is ever expected? Say a guy asks for donations to build something. He does the best he can to make the donors think this is being built, even though it's not really. He doesn't anticipate ever finishing the project, and expects to live off of this money. He offers "perks" for large donors, and creates fake media/etc. to make people think it's really succeeding even though he barely works on it. He, however, notes a clause in which he claims there's no guarantee that the project will be finished -- and all money donated is not subject to return. Given that nothing is promised, even though he's pushing something he's not really entirely backing, and asks for the money privately (i.e., direct-payments, BitCoin, PayPal, etc.), he does not use any website other than maybe his own, and as such doesn't break any terms/agreements on such websites since he can set his own clauses and legal info pertaining to his own website. The clause is, "All money donated is donated as is. No returns or guarantees. Perks are guaranteed, but no money will be refunded should the project fail or no longer be worked on. Donating money will not necessarily further or speed up the development, but it is hoped to; thus, do not donate money and expect the development to be proportionate to the amount you donate. I hold no liability for those asking for returns when I explicitly state that donations of any amount are not to be returned." The real goal is to just raise the money for himself, but he provides a legal clause that is expected to protect him from liability should anyone get the law involved in going after their money once they've donated it by their own free will. Given these circumstances, would this be illegal? It is similar to a GoFundMe kind of thing, which is asking for money for yourself, but saying that the money could be used to help a project; thus, this makes you not so much a "backer" but "donator." Basically, using a "project" to increase the odds of making money, but the "project" itself is never expected to be finished. Given that there's no contract/agreements before donating, I see no way this can be enforced with the clause on the website stating that no money will be returned and no guarantees will happen with the project. | Yes it's illegal - the crime and the tort are both called fraud. | The party that made the overpayment would have the right to sue you for "unjust enrichment" or "breach of contract" (since the terms of service no doubt provide or strongly imply that you are entitled to only one payment per sale), if you didn't voluntarily return the overpayment following a demand to do so, even though you received it through no fault of your own. Most of the core cases involve clerical errors in the bank account number used for a bank deposit. In general, there is a right to recover an accidental transfer of property to another, even in the absence of a clearly applicable contractual arrangement. As another example, if you were accidentally given a valuable coat at a coat check by accident and didn't notice it until later, the true owner would have a right to have it returned. The FTC regulation applies (as demonstrated by the link cited in the question) to intentional unsolicited deliveries of merchandise (which would always be tangible personal property by definition) to you through the mail. It does not apply to transfers of money, or to the accidental mis-delivery of property to the wrong person or the wrong address. The law in question is as follows: 39 U.S. Code § 3009 - Mailing of unordered merchandise (a) Except for (1) free samples clearly and conspicuously marked as such, and (2) merchandise mailed by a charitable organization soliciting contributions, the mailing of unordered merchandise or of communications prohibited by subsection (c) of this section constitutes an unfair method of competition and an unfair trade practice in violation of section 45(a)(1) of title 15. (b) Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. All such merchandise shall have attached to it a clear and conspicuous statement informing the recipient that he may treat the merchandise as a gift to him and has the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. (c) No mailer of any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, shall mail to any recipient of such merchandise a bill for such merchandise or any dunning communications. (d) For the purposes of this section, “unordered merchandise” means merchandise mailed without the prior expressed request or consent of the recipient. | Generally, such sanctions prevent certain sorts of transactions in goods and services with nationals or entities of the nation under sanction. The exact list of transactions prohibited or restricted varies. If Open source software were being provided as a service, so that the recipient paid directly for a license, or for customization or configuration work, or for some sort of consulting or assistance, such transactions could be banned or restricted by a sanctions regime, but might not be. (If the sanctions included that particular class of transactions.) However, if it is merely a matter of an open source product being published, for anyone to download, install, and use, I don't see how that would be barred or restricted by any sanctions of the sort recently in use. | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. | Yes The relevant legal concepts are copyright, contract law and the Computer Fraud and Abuse Act. You are liable to be sued by the people affected for damages and/or be prosecuted by the government for the felony under either or both laws. Let's start here: "I bought a game". No, you didn't; you bought a licence to use the software in accordance with the terms of service (licence) that you freely agreed to. All modern ToS will not allow you to reverse engineer the software. If you breach those terms of service then you have broken a contract - that is what allows them to sue you. They will no doubt argue that the prevalence of cheat routines developed by people like you reduce the number of people willing to play the game - say 100,000 users x $10/month * 12 months = $12,000,000. They will also ask the court to impose punitive damages to discourage this sort of thing. Which brings us to the copyright violation. You are allowed to copy their software provided you comply with the ToS. But you didn't. Therefore you are in breach of the Copyright Act and subject to additional civil and criminal sanctions. Finally, your "cheats" access their servers in a way that the ToS doesn't authorize. This puts you in breach of the CFFA - breaking this carries serious jail time penalties. Not to mention that in the US, a criminal conviction will preclude you from many jobs, including, naturally, any with access to company computer systems. Putting aside the illegalities, cheats are unethical and ruin the game experience for hundreds of thousands of people who don't use cheats. You are a criminal - stop being one! | 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. | I wrote a letter to the Eclipse Foundation. The consultant pointed me to section 5 in their FAQ. My case falls under the term "linking". He warned that he isn't a lawyer, but offered the following short answer: The Eclipse Foundation does not consider linking with EPL content to be a derivative work and so you are not required to disclose your source code. |
Can a court be a party in a civil lawsuit? Can a State or Federal court in the U.S. be a party in a civil lawsuit? I mean lawsuits completely unrelated to cases heard or adjudicated by the court, such as: A suit filed by a fired employee (e.g. a court stenographer), A suit filed by a utility company for late payments for electricity, A suit against a postal service that failed to deliver and lost court documents, etc. Is yes, then what courts have jurisdiction over such cases? Are there any special rules for such cases? | A court can neither sue nor be sued as it is not a legal person. The state (read government) can be (subject to sovereign immunity) in its administrative arm (i.e. not the judicial or legislative branches). For your particular examples: A suit filed by a fired employee (e.g. a court stenographer), the court has no employees. Court stenographers et al are employed by the administrative branch - the person who gets sued is the Secretary of State for the Justice Department (or whatever they are called). A suit filed by a utility company for late payments for electricity, Utility companies are not the government even if 100% government owned (most are privately owned anyway) - companies are their own legal person. A suit against a postal service that failed to deliver and lost court documents, etc. I do not know what the legal status of the US Postal Service is - it is either part of a government department ora government owned corporation - see above. The court is impartial because it is constitutionally required to be - it doesn't care who the plaintiff or defendant are. | The order of operations is important I assume that plaintiff filed for a Protective Order. To get this granted, the plaintiff has to allege some kind of wrongdoing and evidence of that. If the defendant responds, then the plaintiff can amend their filing. Then the defendant once more can respond to the allegations. If the plaintiff wants to amend the filing once more, they need to ask the court to be allowed to do so, and that opens the door for the defendant to answer once more. That's all history for the case presented: The court apparently found the evidence lacking and dismissed the application for a PO. Plaintiff can only file for reconsideration or appeal but not bring in new evidence at this point. Dismissed Cases are not automatically evidence A case that did not establish its burden of proof and was dismissed - especially with prejudice - has not established that the evidence in it is good. You have to ask each item to be admitted separately and re-establish that it is good evidence. A bulk filing "I want to bring this case as evidence" is generally denied unless you prevailed in that case. A dismissed case is one you didn't prevail in. Get a Lawyer! It seems like you are in serious need of legal counsel to clear up the situation. Contact a lawyer for at least a free consultation if you even have a case. | The U.S. Supreme Court has no jurisdiction to set everyday procedural rules in state court, although it can mandate processes that flow from the constitution. In criminal cases, this allows it to regulate courtroom conduct that is prejudicial to defendants. The U.S. Supreme Court, for example, has prohibited keeping criminal defendants facing trial in a cage in the courtroom as is common in many jurisdictions elsewhere in the world. The Rittenhouse case took place in state court, over which the U.S. Supreme Court has limited authority in such matters. On the other hand, the U.S. Supreme Court has broad authority to establish court rules in the federal courts and could adopt rules in those courts if it deemed fit, and if its proposed rules were not legislatively vetoed by Congress. | Isn't the the Appellate Division in NJ required to uphold the ruling of the Third Circuit in such matters? It is not. There can be no conflict on procedural issues between the Third Circuit, which is interpreting federal rules of civil and appellate procedure, and a ruling of a New Jersey court which is interpreting state rules of civil and appellate procedure. Different court systems have different procedural rules. Federal rules of procedure are inapplicable in state courts. State rules of procedure are inapplicable in federal courts. The circuit split referred to is between different federal appellate court circuits interpreting the federal rules of civil and appellate procedure. But none of those rules are applicable to state courts. Furthermore, even if a question of substantive federal law were involved, the state courts of New Jersey are only required to follow precedents of the U.S. Supreme Court and higher appellate courts in the New Jersey state court system. Decisions of the Third Circuit on questions of federal law are not binding on the courts of New Jersey despite the fact that New Jersey is located in the Third Circuit, even though they are persuasive authority on questions of substantive federal law that are equally applicable in both court systems. | No. As a superior sovereign, the United States can sue states in federal court without restriction. I’m not sure if that would apply in state court, but the federal government doesn’t generally file cases in state court to begin with. States can also sue each other in federal court, having waived their immunity to lawsuits brought by other states when they agreed to Article III of the Constitution (although Congress has said that these lawsuits must be filed directly in the Supreme Court). | There are both statutes and customs aimed at preventing "Malicious Prosecution" and "Abuse of Process." (In Pennsylvania, for example, the 1980 Dragonetti Act allows the victim of a frivolous lawsuit to counter-sue for compensatory damages.) One can also buy insurance against this type of risk: Umbrella liability policies will generally provide a defense against civil lawsuits and any damages awarded, as will many business insurance policies. Of course, none of this is to say that a skilled legal team can't avoid all of these countermeasures and, in practice, take up a significant amount of your time and trouble. We do not have a perfect system of justice. | It isn't that uncommon to do something similar to this, which is called a "test case". One of the more familiar examples of this kind of litigation conduct is the case of Plessy v. Ferguson. There have been test cases, for example, that involved important questions of E.U. jurisdiction in civil law countries as well. | It is difficult to quantify in a useful way. Part of the issue is that calling the courts "dispute resolution forums" is misleading. Courts are "rights enforcement forums." They are designed to provide remedies to people whose rights have been violated, not to neutrally resolve disputes between parties. And, most lawsuits are mostly one sided, not circumstances where both sides have legitimate grievances for which they seek redress. The vast majority of cases brought in courts, by raw number, are debt collection actions, evictions, and foreclosures. These cases are overwhelmingly brought by landlords against tenants and by lenders (mostly banks and big businesses that extend credit) against borrowers. I'll note those in bold. For example, in Colorado, in 2010, there were 116,346 civil cases filed in District Court in Colorado (the state trial court of general jurisdiction). Summary mortgage foreclosure actions accounted for 39,404 of those cases. State tax lien filings accounted for another 45,528 filings. These case make up 73% of the district court civil docket. There were 30,236 cases of other types on the District Court civil docket in the state. About 5,809 are claims that fit in the heartland of tort law: cases involving personal injuries including worker's compensation cases that end up in court) and wrongful deaths, breach of warranty, public nuisance, sexual harassment cases, fraud cases and malpractice cases (of all kinds) as well as motions to approve transfers of structured settlements. About 3,527 involve judicial efforts to establish title to or possession of specific pieces of property often in connection with the collection of a debt. A big portion of the remainder of the cases, 13,165 involve contractual disputes or rights in real estate or other property (a fair share of which are basically debt collection cases such as mechanic's lien foreclosures and large dollar non-payment of contractual debts that aren't seriously disputed). There were 722 appeals from municipal or county courts and 72 cases to confirm arbitration awards. There were 5 public utility cases, 236 cases reviewing acts by local governments and by government officials, and 31 special district cases, 470 declaratory judgment cases, 583 injunctive relief cases, 1,484 cases classified simply as "other", 29 restraining order cases, and 334 contempt of court cases. These courts also handle divorces, child custody cases, paternity cases, probate cases, felony cases, and post-trial collateral attacks on criminal convictions. County courts in Colorado (at the time state courts with a $15,000 jurisdictional limit) had 148,425 debt collection money claims, 42,689 eviction cases, 531 cases to repossess personal property, 13,257 restraining order cases, 1,496 name change petitions, 27 purely administrative registrations of foreign judgments, and 529 cases classified as "other." These courts also handle misdemeanors and traffic violation cases. About 93% of civil cases in county courts in Colorado are debt collection and eviction cases. Overwhelmingly, the landlords and money lenders win these laws and are more wealthy than the tenants and borrowers who overwhelmingly lose these lawsuits. A very larger share of the time these cases are lost by default. In very large share of the cases in which there is a default, it is because there is no viable defense: the promissory note or credit card was not paid as agreed, usually because the debtor was unable to pay it. In eviction cases, usually, the rent was not paid on time, often for the same reason. When there is not a default, there is usually a settlement or payment plan. We focus on the very rare cases that go to trial, but those are edge cases. There are good studies that show that defendants in debt collection and eviction lawsuits secure better results for themselves when they are represented by counsel, which they usually aren't, than when they are not. But defendants in debt collection and eviction lawsuits who are represented by counsel still usually lose anyway, just on somewhat less harsh terms. So, to do any nuanced analysis of the role played by affluence and wealth in litigation, you need to start by having a fairly sophisticated sense of what is and is not a win, and this is far from obvious. In contrast, tort lawsuits for personal injury are usually brought by ordinary individuals from all walks of life who get injured due to bad luck against either other ordinary individuals backed by the resources of an insurance company to defend and settle their cases, or against property owners, or against businesses. There is typically not an affluence divide in these cases, or if there is, the injured person is less affluent, and the injured person usually secured money from the person who they claim caused the injury, either at trial, or far more often, in settlement reached in the shadow of what would have happened if they case went to trial. Lawyers rarely commence personal injury lawsuits were there isn't a good argument that their client should win. Personal injury tort cases make up a thin sliver of cases filed and judgments entered relative to debt collection and evictions lawsuits. These cases make up about 2-3% of the total court system docket (but account for about 75% of civil jury trials). There is litigation other than debt collection, eviction and personal injury litigation. But in some of those kinds of cases, like probates and divorces and bankruptcies, where determining who is the winner and who is not is even more challenging. Indeed, in many such cases that are actively litigated, everyone ends up losing and no one ends up winning. In the law and economics literature, the classic study (Leeson 2011) looked at who won disputed land title disputed in medieval England in the days of trial by combat. It turns out that back then, the wealthier party, who could afford to hire better champions in a trial by combat, usually won. The question asked feels like it is trying to build on that model and determine if that kind of law and economics finding can be applied to modern day litigation with the controlling factor being who hires the best lawyers to go to trial for them, rather than who hires the best champion in trials by combat. Many cynical people think that this is how the legal system works now. But overwhelmingly, at the threshold of who gets any relief relative to the status quo from a court in litigation, the answer is almost always the person who brings the lawsuit, 95%+ of the time, either in a settlement, or at trial, and whether the person bringing the lawsuit is usually more affluent or less affluent than the defendant is dominantly a function of what basis for the lawsuit, while whether the parties have lawyers, and if so, how good they are, are only second or third order considerations. None of this is to say that hiring good lawyers, who, on average, are more expensive than mediocre lawyers, doesn't improve one's outcomes at the margins, or that affluent people are more able and willing, on average, to hire good lawyers than less affluent people. But, to see the difference, you need to think about relative degrees of winning or losing, and you need to recognize that the nature of the lawsuit matters. Along the same lines, studies comparing people who have private criminal defense counsel (because they can afford to do so) with people who have public defenders (who are by definition indigent defendants), usually show that the outcomes at the guilt-innocence phase are very similar between the two, although public defendants pay much less attention to their clients and provide much less "customer service". The divide in those cases is not mostly on guilt-innocence outcomes, but in the ability of affluent defendants with expensive criminal defense lawyers to have more satisfying lawyer-client relationships and experiences, and to take better advantage of alternative sentencing options, rather than just getting thrown in jail or prison. To some extent, this is a long winded way of saying that the research you are looking for, in the plainest terms as stated in the question, doesn't really exist. This is, in part, because in many contexts at a shallow level, it is obvious, and in part, because, viewed more deeply, it is extremely subtle and requires very rich data to discern which makes it hard to gather and hard to compare. |
Can I take a bow and arrows on the train in the UK? I'm interested in taking up archery. Attending the closest club would require that I take the train there as I cannot drive. Would I be able to take a bow and arrows, secured in a case, on the train? The train operator is Northern Rail in the UK. | If the train operator allows it, yes, you would be permitted to do so. There are no laws specifically against the carrying of bows and/or arrows, nor is a licence required for their purchase. Bows can be carried openly with less issue, but arrows (because of their ease of use as a weapon) should be stored securely and safely, because this protects you and others from accidental injury; it prevents others using the arrow as a weapon; it is affirmative evidence for a defence of lawful purpose, if you are accused of carrying an offensive weapon. The latter is the greatest risk you may face from a legal perspective, so you should follow best practise similarly to firearms and ammunition: store and transport the bow and arrows safely, securely, separately. | Everything is allowed unless the law says it isn’t Common law systems like the USA are ‘exceptions based’ - the law permits everything except what it prohibits. So, your question is backwards - rather than looking for laws that allow it, you need to look for laws that prohibit, restrict or regulate it. There are laws that regulate this but none that prohibit it. | Doing nothing is legally safer than doing something, but you're not without hope if you pull the lever. Although you'll likely have committed murder or at least manslaughter, case law is littered with lenience in exigent circumstances, even where convictions have been affirmed. Because this is a philosophical problem, there are plenty of opinions from that perspective, but not so many from a legal standpoint. Let's assume that you're an innocent bystander, (not an employee of the railway company or the train company, etc) and have no duty to act. If you do nothing, then it is unlikely that you would be charged with a crime - you had no duty to fulfill, and therefore not negligent. There's little doubt that not pulling the lever is the safer option. More interesting is when you choose to pull the lever - then it's probable that you would have charges of murder, or at least manslaughter, brought against you by the state. What defenses does the law offer? Let's assume that you are aware that pulling the lever will kill a person. The primary defence is a legal principle of necessity: where your criminal actions are not protected or excluded by some other statute or principle, the fact that you were obliged to take this action in order to prevent some greater harm may safeguard you from penalties. There are certain elements of necessity: That you did not create the danger that caused you to commit the crime; That you ceased the criminal activity as soon as practicably possible; That you had no reasonable alternative; and The harm that you prevented was greater than the harm that you caused. I see such a defense only possibly falling over on (4), where the prevented and caused harm, in the case of human lives, are inherently very subjective. Unfortunately, each state has different rulings regarding the threshold for evidence of this defense. One of the most famous cases where necessity was attempted as a defense to murder, with remarkable parallels to this hypothetical, is that of R v Dudley and Stephens: A crew of four found themselves on a lifeboat at sea with no food and no water, and with no prospect of rescue. One of them was a child (Parker) and was nearing death and unconscious. Two of them (Dudley and Stephens), after some discussion over drawing lots, decided that the child would be killed before his natural death, in order that his blood be better preserved for drinking. The last crew member, Brooks, was silent on the matter. After killing Parker, Dudley, Stephens and Brooks fed on Parker's body. During the trial, the matter of necessity as a defense to murder was considered. The judges found that there was no common law defence of necessity to murder, and Dudley and Stephens were sentenced to death with a recommendation for mercy. The Home Secretary commuted their sentences to six months' imprisonment. This case concerns essentially the choice you're making in the trolley problem: either the four crew members were going to die, or one of them would definitely die and the others might live. It's easy to say that they should have just waited, but they didn't have the benefit of hindsight. It's also a great example of a situation where although the law says one thing, it doesn't align with our morals and ethics, and while it's a UK case, I would wager that almost every lawyer in common law countries would have heard about it. | All Four of them! Double Jeopardy is not in play if a jurisdiction can lay claim to your criminal action, so if you stand on the Four Corners and shoot a man in any of the four states, each state has a right to charge murder. In addition, the Federal Government can have a go at you because you crossed state lines while in comission of a crime. Plus the Navajo Nation, which controls the reservation land the border is on. So that six separate charges. That said, the state the dead body occupied at time of Murder would have the best case for action and the other three would likely let that state try you first. The Feds would only step in if each of the four states failed to convict, though they can step in whenever they want (they are just watching to see if you'll serve time first). Not sure at which point Tribal jurisdiction applies, but given that this is a fairly common Jurisdiction issue, I'm sure it's been worked out. | "Public space" is not a relevant criteria when considering trespass or other crimes/torts against property. The relevant criteria is who owns it and what they allow you to do on it. All land in the USA is owned by someone. That someone may be a government; that does not make it a public space - Camp David is owned by the US government; it is certainly not public. The owner of the land can decide (subject to the law) who has access to their land and in what circumstances. If they erect a fence then they are saying "You cannot access my land here" - if you ignore this then you are trespassing. This is true even if there are legitimate ways to access the land i.e. there is a place where there isn't a fence; to avoid trespass you would have to access the land from there. If you think of this in terms of a public building like a courthouse you are free to enter through the unlocked front doors but not by climbing through a window. The trespass is in the act of crossing the fence - that is the act that you have been implicitly denied permission to do. Being on one side or the other is not trespass. For the specific image that you show it is quite likely that those roads are owned by different people - the highway is probably owned by the state while the cul-de-sac is a local government road. | Can the subject actually sue me in England, or is it possible to sue only in the EU country I posted the article from, or in the US where the article is actually hosted? Yes. If the online encyclopedia is available in the UK, then you have libelled them in the UK and, indeed, in every country where it is available. They can choose to sue in and under the laws of any country where they were libelled. If the subject can and does sue in England, what happens exactly? This is laid out in the Civil Procedure Rules Am I correct in presuming that I will be notified of this by mail and asked to enter a defence? You will definitely need to be served with the Particulars of Claim, however, this may come by other methods than snail mail. If so, what happens if I ignore the matter? Will a default judgment against me necessarily be entered, or will the court duly consider the plaintiff's case, perform the bare minimum investigation/reasoning necessary to determine which arguments of theirs are (un)sound, and so possibly rule in my favour? A default judgement will be entered providing the Particulars of Claim show a cause of action on its face. The court will not examine any evidence or enquire into the veracity of the statements made on the Particulars of Claim. In short, unless the plaintiff has ballsed something up - you lose. If I do choose to respond, can I hire an England-based lawyer to handle everything remotely, or can I be compelled to physically attend the court in England? You are generally not required to attend court in a civil matter unless you need to testify. Even then, arrangements can be made for remote testimony. If the court rules for the plaintiff and awards damages, can this judgment be enforced in the EU, or would it apply only in the UK? It can be enforced in the EU. As a courtesy or by treaty, domestic jurisdictions will enforce foreign judgements in most cases. If the court rules in my favour, would I recoup my legal fees? You will probably recoup some but not all of your legal fees, say 50-60%. Costs orders are complicated - talk to your lawyer. | There are many regulations to consider, for the firearms themselves, the permits needed by potential customers, and licensing you will need as a business dealing with firearms and ammunition. Start with the Home Office: https://www.gov.uk/search?q=firearms I.e., https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/479794/Guidance_on_Firearms_Licensing_Law_Nov_2015_v16.pdf | In the US, it is illegal to sell screwdrivers to Gaza without a license, see 31 CFR 595.409. There are numerous rules pertaining to the Palestinian Authority staring here. Dept. of State has a partial list of countries and their associated restrictions, if you want "like Gaza", and note that they warn you that this is not a complete list. If you are specifically interested in weapons-related restrictions, the US Munitions List is here. There is no generic "anti-drone" system, so you would have to look at the specifics of a system to see if it is on the restricted list, or not. |
Whose is the ownership of a device bought by one party and reimbursed by another? I came across a situation recently which left me wondering what the legal outcome was. It's a little academic, since it'll never actually come to pass, but I'd be interested in hearing the legal theories behind it. The TL;DR of the story: I moved into a rental property. The existing wifi was terrible, so I spent a couple of weeks going back and forth with the landlord and the ISP to sort it out. Despite it being an ISP issue, the ISP offered us £50 to sort the issue out ourselves. I came up with a solution that stayed almost within that £50, proposed it, and the landlord and ISP were happy. Said solution involved buying a few bits of network hardware. The landlords were happy with this, but they said that instead of them buying the hardware for me with the ISP's 'contribution', I should buy the hardware and they would reimburse me up to a maximum of £60 (the ISP's £50, plus a 'goodwill gesture' from them of £10 max). Long story short, I bought the hardware for around £58. I'm still waiting on the reimbursement, but it'll come through as soon as the banks clear it. And now to the question. Whose is the ownership of these various bits of network hardware? Mine, because I bought them and just received the same amount back from the landlord (i.e. there was no transfer of ownership due to reimbursement); or Theirs, because they paid me the £58 with the intention of that paying for the hardware (i.e. the reimbursement transfers ownership to them)? | You bought the item following the instructions of the landlords, and they are paying for the item (specifically, reimbursement). So, you were acting as an agent for the landlords, and the item is theirs. Of course, you could withhold it until you get paid (unless your agreement specified otherwise). | Bill and Jane are free to enter into a contract where, among other things, each provides valuable consideration; in this case Bill provides valuable lawn mowing services and Jane provides valuable money. In week No 1 they have negotiated the terms and the contract is complete when Bill mows the lawn and Jane pays the money. If Bill turns up next week without Jane's instruction then there is no contract and Jane does not have to pay anything; I don't think this is what you are asking but I include it for completeness. If it is understood that this arrangement continue week after week then either there is an ongoing contract or, more likely, a series of independent contracts. If there is an ongoing contract, then it can be renegotiated but it cannot be changed unilaterally by Bill. That is, he cannot unilaterally increase the price to $2. If there is a series of contracts then the terms of each of those contracts will be the same based on the course of dealing. Basically, the parties have accepted over a long period of time that the rate for a mow is $1 and Bill would have to get Jane to accept the revised rate before he mows the lawn. For your example, Jane owes Bill $1 but if she wants him back next week she will have to agree to Bill's rate. | Absent any new agreement with the tenant, a purchase is normally subject to any existing lease, so you would be renting to the existing tenant until that lease expires, under its original terms, with you having all the rights and duties under it that the previous owner had. In effect, by signing the purchase agreement, you accepted a version of the original lease with your name in place of the former owner's, but with no other changes. You are entitled to the same rent that the previous owner was entitled to, and must make any repairs or perform any services that the previous owner was required to 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. | Note: IANAL Does the placement of a sticker stating, "We accept XYZ credit cards," essentially obligate a business to accept that card? It depends on whether you mean whether they are obligated to provide goods/services to someone who presents the card, or whether, having provided goods/services, they are obligated to accept the card as payment. For the first question, the answer is "no". The credit card brand could theoretically go after them, however, as names of credit networks are trademarks, so claiming to accept a card but not doing so is trademark infringement. For the second, the answer is "pretty much". Since they misrepresented their establishment, there is no mutual assent and therefore no contract. If they try to use "defrauding the innkeeper statutes", those require fraudulent intent. If you fully intended to pay for you meal by a credit card, and it was their choice to refuse payment, then you have no fraudulent intent. The only avenue I can see for them is some sort of equity argument, but that would be problematic, especially if they ask for the retail, rather than wholesale, price, and not worth the hassle of collecting. So, legally, you can just walk out, but in practice if they have a bouncer they might make trouble for you. | I'm not sure it makes sense to talk about having "jurisdiction" over an IP address, for the purposes you're discussing. If you wanted to sue the IP address itself--something that is possible under limited circumstances--then you might need to locate it for jurisdictional purposes. But I don't think that's what you're talking about. You're talking about taking civil or criminal action against the people who are using the IP address to commit crimes. What matters, in that case, is not a theoretical legal question about the location of an IP address. It's questions like: where do these people live? Where do the people downloading the illegal content live? Where are the physical servers located? ("In the cloud" is not an answer--there are physical servers somewhere making up that cloud). For jurisdictional purposes, the chair they're sitting in when they upload the illegal data, and the location of the AC power outlet the physical server is plugged into, are as important as, if not more important than, the metaphysical "location" of the IP address of the server. | It's not legal The terms that you agree when you enter a contract can only be changed if: the contract provides for variation of its terms and then, only in accordance with that procedure. This may allow unilateral changes - these are common in ongoing relationships like telephone and ISP contracts but it appears from the Kickstarter page that this was not the case here. the parties agree to vary the contract either by deed or by another contract. If by deed then the law of making deeds must be followed, if by contract then the laws of contract must be followed. You mention "around $70AUD" which leads me to guess that you are in Australia. If you were there when you entered the contract then the Australian Consumer Law will apply to the transaction and, more generally, to William Painter since they explicitly "do business in" Australia because they ship there. It is illegal to make misleading and deceptive claims under the ACL and the fines can be huge. Perhaps a note pointing this out to them and letting them know that if they waive their fees in you case(s), you wont feel the need to report them to the ACCC. | The notification that you saw is not useful legal information for you: stuff always belongs to whoever owns the stuff. It might be interpreted as saying "it doesn't belong to us", but you can't count on that (it's virtually guaranteed that at least some of the content there is owned by the website owner). A more informative statement would be "You will have to get permission from the content owner to copy their stuff", and "We're not going to spend time figuring out who owns what". You could read the terms of service (try this with Stack Exchange) to see what the site tells people. The TOS here says that if you contribute anything, it "is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license". You can then look up what that license says and learn what that allows. Websites are kind of tricky, though, because it's not hard to change the wording of a TOS, and you need to know what specific TOS was promulgated at the time a particular contribution was unleashed. Usual practice is to think it through carefully and not frequently tweak the TOS, but it's not illegal to change the TOS. Note that copyright law does not prohibit you from using other people's stuff, it prohibits you from copying. The distinction is clearer when you see a post that explains an algorithm with actual code, you read and learn and make use of that, but write your own code. As a user out there, if there isn't a clear indication that stuff posted is there for the taking, under some public license (as is the case with SE), then getting specific permission to copy, from the owner of the content (possibly untraceable), would be necessary. Now assume that you're a moderator or site-owner of some forum: presumably (hopefully) you have a TOS that addresses that situation, which says that moderators have the right to edit or delete content at their sole discretion, and also you say what kinds of posts are prohibited. Such an statement is not absolutely mandatory for all things, but it may be necessary to avoid litigation over some acts. One one end of the spectrum, it would be illegal for a forum to host child porn, stolen credit card numbers, or protected digital content. If a user were to post such stuff, the site would need to eliminate that stuff, and the poster could not legally rely on an argument of the type "That's my stuff, you have no right to mess with it". On the other hand, if a forum actually requires paid membership, then there may be a strong contractual expectation that the user is getting something of value, so you would have to watch for statements that could be interpreted as broad permission to put stuff out there without any interference. (For instance, a file-hosting service would have only minimal restrictions on content, aimed at protecting their own legal interests; whereas a political-advocacy site would have maximal interest in prohibiting the expression of views counter to the cause). Thus the SE TOS has you "grant Stack Exchange the perpetual and irrevocable right and license to use, copy, cache, publish, display, distribute, modify, create derivative works", which allows moderators to correct typos, delete offensive wording, and obliterate entire posts. If a site fails to have any such clauses in their TOS, then it might be a matter that has to be settled in court, whether they have the right to eliminate "spam" (i.e. advertising for a service, especially if the reason for getting an account was to provide an advertising platform). In light of the limited use sanctioned by the TOS, per the below comment, legal copying will be quite limited. However, "fair use" a situation where copying is allowed, regardless of what the TOS may say. (You could be banned from the site, but you could not be sued for infringement). Fair use was invented precisely so that people could make comments like "Jones advocates an absurd law, saying '...[quote from Jones]...'". Thus you can comment on a post and quote the relevant part ("The lines '[... quoting the code ...]' results in an infinite loop"). See the Fair Use FAQ for more details. |
Do weekends count as vacational days? Let's say I have 10 natural vacational days available and I'm going on vacation next week (Monday-Sunday). I always work from Monday to Friday; how many vacational days will I have left? Do weekends count as vacational days? | A vacation day is a day "off",that is a day that one is not working, that you would otherwise be working. So, if you had a seasonal job as, say, a tour guide, from January 1 to June 1, any days "off" that you have in August are not vacation days as far as that tour guide job is concerned. In your specific case, you normally work Monday to Friday and are vacationing Monday to Sunday. You will need to take five(5) vacation days, to cover Monday to Friday; Saturday and Sunday do not need vacation days, as you would have those days off to do as you'd like anyway. Or to put it another way, if you had a short, two day vacation, where you left after work on Friday, and were back in time to start work Monday morning, you would not need to take any vacation time at all. | 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. | Long story short, your employer can tell you when and how to take breaks, as long as they meet very simple conditions that don't help you. From the government's information website, Workers have the right to one uninterrupted 20 minute rest break during their working day, if they work more than 6 hours a day. This could be a tea or lunch break. The break doesn’t have to be paid - it depends on their employment contract. Employers can say when employees take rest breaks during work time as long as: the break is taken in one go somewhere in the middle of the day (not at the beginning or end) workers are allowed to spend it away from their desk or workstation (ie away from where they actually work) It doesn’t count as a rest break if an employer says an employee should go back to work before their break is finished. Unless a worker’s employment contract says so, they don’t have the right to: take smoking breaks get paid for rest breaks | According to the EEOC, in general: An employee cannot be forced to participate (or not participate) in a religious activity as a condition of employment. But how religious is this party? Simply calling it a "Christmas party" (or "holiday party") doesn't really make it a "religious activity". Many nonreligious people celebrate Christmas as a general holiday. If the party is nonreligious, then your religion is mostly irrelevant, whether or not it celebrates a winter holiday. The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion. So, they'd likely have to serve something you could eat if they're serving food, as that would be a reasonable accommodation. (But you'd have to inform them of your needs beforehand; asking them to go out and buy something during the party would probably not be "reasonable".) | Numbering is for the sake of clarity, and is not intrinsically required. If you refer to a section, you need a way to say which section you mean, and a vague description like "up there where I talked about copying" is insufficient. You can refer to a section by a title, if you need to refer to sections within the contract, as long as your titles match what you refer to them as (and you don't have two sections called "Your Rights"). | What is one supposed to do if they want to take an extended trip somewhere? Or is one basically not allowed to take such trips if they are a US citizen eligible for Jury Duty? In the US you are not required to seek permission to travel, or prove your past whereabouts to the government if you happen to miss some civic duty. They generally call up way more people than they need for this sort of reason. The length of time you are gone or where you choose to travel is irrelevant. In my experience you are given about a month heads up. If you didn't receive the notice until you returned from out of town, and they send a follow up, simply inform them of the fact that you were gone and didn't receive the notice until you returned. Jury duty is an obligation to some extent, but it is also a right and a privilege. It isn't a criminal offence you are liable for if you didn't get the notice. If it were that important to verify your availability ahead of time the notification would be sent registered mail with a signature required. | This Dept. of Labor page indicates that executive, administrative and professional employees are in the exempt category, and the corresponding regulation 29 CFR §541.200 agrees, as long as you make at least $684 per week on a fee basis or salary basis. Since apparently your pay depends on the number of hours that you work, you are not an exempt employee | In general: If the contract specifies some term (or "duration"), then it can only be modified in accordance with its own terms. When the employment contract expires any future employment term is subject to negotiation, and benefits could certainly be modified at that time. There are exceptions to this in labor law, but those vary by jurisdiction and won't be addressed here. Generally "vested" benefits like accrued vacation time or pension balances are treated like the property of the employee: They cannot be unilaterally reduced by the employer. One notable exception would be bankruptcy of the employer. I don't know where employee claims rank in Canadian bankruptcy law, but they are one of the debts that might not be paid in full. |
Do courts in a common law system ever make decisions about law without a presented case? In the United States, the Supreme Court does not make a decision about the validity of a law without a specific case presented to them. Are there any examples of common law systems in which a court is able to make a decision without actually having a case at hand? | Yes. In some common law jurisdictions, such as Canada, the United Kingdom and even some U.S. states, the government may under some circumstances refer a legal question to the appropriate Supreme Court (Privy Council in the U.K.) for an advisory opinion. These opinions are non-binding, but have large influence because they are often made by the same judges that would otherwise end up dealing with the question should it occur in a case. One common law country in particular stands out in this field: Ireland. Under Article 26 of the Irish Constitution the President may, with some exceptions, refer a bill to the Supreme Court to test its constitutionality. The referral is optional, but once made, the Supreme Court's decision is binding. The relevant portion: 3 1° In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill. [...] 3° In every other case the President shall sign the Bill as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced. This power was last used successfully in 2004. | Yes Deciding a case on a basis the parties have not raised is a denial of natural justice (or procedural fairness) and invalid. The reason is very simple, the parties have not had the opportunity to produce evidence or make submissions about C or D that might have changed the judge’s mind about them. Notwithstanding, to successfully appeal, the aggrieved party must show there were arguments that could have been raised which could reasonably have altered the outcome. That said, it’s the judge’s courtroom and they can say “That’s interesting but what about C and D?” and then the parties can make submissions about them. They do have to be circumspect and make sure that they do not become one party’s advocate - one party might be well aware of C and D and don’t want them brought up because they damage their case and they are hoping the other party misses that - and then the bloody judge come charging in with his bloody duty to wider interests of justice. Non-judicial decision makers like arbitrators, adjudicators and other tribunals need to be even more circumspect because they generally don’t have a duty to anyone but the parties. Unlike in civil law systems, the role of the judge is to decide the dispute between the parties as a referee, not to determine some objective”truth” as an investigator. To keep things simple: if the plaintiff contends that the light was red and the defendant contends the light was green then, assuming there is no evidence opening the possibility, it is not open to the judge to find that the light was amber. Similarly, if the parties agree that red means go and green means stop, it is not the judge's role to tell the parties they are wrong (I'm sure questions would be asked but if the parties are adamant ...): since there is no dispute over this issue the judge would be wrong to agitate one. Now, a judge is free to apply the law that was argued as a whole - if arguments centred on Section 14 of the Relevant Act 1875 but Section 15 is applicable and germane the judge is not wrong for applying Section 15. However, they are on shakier ground if the bring in Other Slightly Relevant Act 1956. | The Main Question when a court case is decided in Louisiana, can it establish precedent in other states that follow common law? Yes. The court decisions of a sister state are always persuasive authority. This applies even to trial court rulings and rulings from other countries that are not precedents in any U.S. state. Similarly, courts can look to legal treatises and sources like the Restatements of Law that have not been adopted or approved by any public official as persuasive authority. In theory, it would not even be improper for a state court judge in say, Texas, to quote from a Mock Court Brief of a high school student as persuasive authority. This is because the value of a persuasive authority (as opposed to in state binding authority of an appellate court) in states that follow common law, is that the reasoning of the ruling is intrinsically informative and is reliable because it comes from someone learned in the relevant law and familiar with the legal issues in question. Someone could reasonable dispute persuasive authority from Louisiana on the ground that the substantive law rule in Louisiana expressed in its statutes and prior case law, which a Louisiana court is interpreting, is different from the law in the state where the Louisiana court decision is utilized. For example, suppose that Louisiana has not statutorily adopted the equitable doctrine of laches which is a case law doctrine derived from English courts of equity which denies relief to people who make claims who have slept on their rights without taking legal action in a manner prejudicial to the defendant, even if no statutory statute of limitations applies. If a case allowing relief within the statute of limitations in Louisiana where facts justifying the application of the doctrine of laches were present in an Ohio case, it would be fair to argue that the Louisiana precedent should not be followed as persuasive authority, because Louisiana is a state that has not adopted the doctrine of laches, while Ohio is a state that has adopted the doctrine of laches. But really, this means of distinguishing a Louisiana precedent is no different from the way that a precedent from any other state would be distinguished. Louisiana court precedents are not less persuasive on the theory that a court precedent in Louisiana's court system doesn't have the same effect as a court precedent in states with purely common law legal systems. Furthermore, as explained below, while civil law systems in other countries do not afford the same status to appellate court decisions that common law jurisdictions do, Louisiana, in this regard, is closer to the common law system than it is to the civil law system, in any case. Louisiana Law Is A Complex Civil Law And Common Law Hybrid In practice, Louisiana law is more of a hybrid system, than it is a true civil law state (as it is often described as being). The Louisiana Purchase of 1803 actually preceded the adoption of the French Civil Code in 1804, although the French Civil Code had profound influence on Louisiana law prior to it becoming a U.S. state in 1812, and its early years of U.S. statehood when the federal governments role in law making and providing government services was much narrower. I. Sources Of Law Consistent with its civil law heritage, all law in Louisiana must be rooted in statute and can't be purely dependent upon common law case law. But, Its courts, unlike true civil law states, issue appellate decisions that are binding precedents in common law fashion. Unlike true civil law systems, precedent making case law from appellate courts regarding statutory interpretation is essentially the same in Louisiana as in other U.S. states with a common law heritage. Where the statutes of Louisiana provide a hook for legal rights that aren't fully explained, for example, in tort law, Louisiana courts even sometimes look to the Restatements of the Law which purport to set forth in code-like fashion the common law applicable in other states, to guide the gap filling roles of courts in applying its private law statutes. II. Civil Procedure Civil procedure in Louisiana is a mix of the civil legal process and the common law legal process. In civil procedure, Louisiana has some civil law influences, but is a common law civil procedure biased hybrid system. While it is not compelled by the U.S. Constitution, Louisiana has a right to jury trials in many civil law case. Louisiana's overall civil law system is better characterized as a whole as adversarial than inquisitorial, despite residual civil law influences. III. The Legal Profession The ethical duties of lawyers in Louisiana, likewise, now fully track those of lawyers in other U.S. states. Louisiana has almost completely abandoned any trace of the occupational framework for lawyers and the ethical standards for lawyers found in civil law countries that differ from those of U.S. common law jurisdictions. For example, Louisiana does not have the ethical rule for lawyers found in most civil law jurisdictions forbidding lawyers from representing someone in a matter in which a previous law has done work for which the previous lawyer has not be paid. Likewise, Louisiana does not have the strict regulation of lawyer contact with witnesses prior to their presentation of testimony to a court that is found in most civil law jurisdictions but is absent in U.S. common law jurisdictions. Similarly, notaries in Louisiana were originally closer to the civil law model but the role of notaries has eroded in the common law notary direction over time (not necessarily completely however). IV. Private Law The substantive private civil law in Louisiana (i.e. the non-criminal law that can be raised in lawsuits between non-governmental parties such as contract law, tort law, property law, inheritance rights, marital property, guardianship, customary units for real property boundaries, etc.) tends to track the French Civil Code adopted a year after the Louisiana purchase (and the pre-French Civil Code law that applied during French rule), rather than English common law. For example, usufructs exist in Louisiana law but are unknown in common law jurisdictions. Bit by bit, distinctive Louisiana legal concepts such as the "mystic will" have been repealed or fallen into desuetude, however. Until about the 1840s, Louisiana's laws governing slavery and interracial relationships followed the customs and practices established under French rule which were quite different from the practices of the English adopted in the colonial period in the United States. But in the decade or two before slavery was abolished in Louisiana this began to shift markedly in the direction of other southern and for a while Confederate, states in the United States and away from the French model, curtailing greatly, for example, the rights of "free people of color" in the state. This said, however, many provisions of private law that are present in other U.S. states have been adopted wholesale in Louisiana. For example, Louisiana has adopted the Uniform Commercial Code, the Uniform Fraudulent Transfers Act, the Uniform Child Custody Jurisdiction Act, and "no fault" divorce. Many parts of private law, such as the law of union-management relationships and arbitration are governed by federal law in a common law mold. Louisiana has also, in civil law fashion, statutorily codified legal concepts not present in civil law countries like trust law in order to coordinate functionally with trust law in other U.S. states. Likewise, there are many major modern legislative developments in civil law countries generally, and French law, in particular, were not imitated by Louisiana. For example, France has adopted innovated ways to recognize relationships short of marriage that Louisiana has not copied, such as civil solidarity pacts (PACS) and some minimal legal rights associated with cohabitation known in French as a concubine relationship status. V. Criminal Law Criminal law in Louisiana is much closer to the common law adversarial system than the civil law inquisitorial system, for example, in part as a consequence of U.S. Constitutional limitations on state criminal procedure. VI. Public Law Public law in Louisiana (i.e. the law governing the relationship of individuals with the government) almost entirely tracks the common law pattern and not the civil law pattern, in part, due to the influence of U.S. Constitutional law and federal statutes (e.g. 42 U.S.C. § 1983). Footnote On Puerto Rico A Hybrid That Is Primarily A Civil Law System Puerto Rico became in U.S. territory in 1898 in connection with the Spanish-American War, at a time when its civil law institutions were much more developed than those of Louisiana in 1803, has remained Spanish speaking while still subject to U.S. federal law, and is not as integrated into the U.S. legal system as Louisiana and other U.S. states in its current Commonwealth status (which may face another referendum on its status soon under a bipartisan bill passed by the U.S. House on December 15, 2022). As a result, while Puerto Rico must make some concessions to the U.S. Constitution which incorporates common law legal institutions like the right to a jury trial in criminal cases, it is much closer to the European (and in particular, the Spanish) civil law legal system than Louisiana. However, importantly, federal courts in Louisiana operate using the common law based federal rules of procedure, criminal and civil, and apply common law based substantive federal law. Note On Sources This answer is based predominantly on snippets here and there of encounters with Louisiana law, reviews of surveys of state laws in various areas, history books, historical fiction that is well researched with respect to law, new accounts, and other similar sources gathered piecemeal from memory. I'm not an expert in this area and there may be minor inaccuracies that I will correct if I learn of them, but in the land of the blind, the one eye'd man is king, so I'm offering insight into the subject greater than the vast majority of educated lay people and even the vast majority of U.S. lawyers outside Louisiana. | Generally speaking, courts take whatever time they need to write their decision and then release it close to immediately. In cases where a judge believes she has the information she needs, she may rule "from the bench," announcing a decision and entering an order for the parties to comply, and then follow up with a written order later. The research process is fairly open-ended, but legal research databases are pretty advanced, and a good researcher can generally get his hands on the vast majority of what he'll need in very short order. But practically speaking, there are few limits on how long that process takes. A litigant who was growing impatient could seek a writ of procedendo to force a court to move faster, but my experience indicates that most attorneys wouldn't attempt that move unless a decision had been pending for at least a year with no action, which would be unusual. | Appeal proofing decisions is a common practice of trial judges (and even intermediate appellate court judges and state supreme court judges) well known to practitioners and even discussed by law professors in class at times, but I'd have a hard time coming up with a reference where it was discussed. There is probably a law review article that discusses the practice somewhere. It also comes in several versions. One is to make copious findings of fact (especially on credibility) that are hard to reverse on appeal. A judicial finding that someone had an intent to defraud another party based upon his demeanor when he testified about that issue can overcome all sorts of technical objections to a claim in a lawsuit on a more strict liability basis like breach of contract. Another is to give a "soon to lose" party everything he wants procedurally, even when he isn't entitled to it so he can't appeal on procedural grounds. For example, a court might admit otherwise inadmissible evidence over the objection of the other party and then rule against the party seeking to admit that evidence anyway on the merits. Lawyers often assume that this is happening when a judge starts making blatantly incorrect rulings on procedural issues against them repeatedly in an otherwise strong case in a bench trial. A third is to provide an alternative holding that reaches the same conclusion in case for a different legal reason in the event that an appellate court does not agree with the primary holding. A fourth (mostly limited to appellate contexts) is to decide a case on grounds that make the case uninteresting to review on further appeal (e.g. finding that a factual conclusion is supported by evidence in the record, or that an issue wasn't preserved adequately in a trial court) or beyond the jurisdiction of other courts (e.g. deciding a case based upon state law so that the U.S. Supreme Court won't review it). | A judge has the authority to determine what law applies to a case and to instruct the jury accordingly, and also has the authority to determine which evidence is admissible. Presentation of a defense, in practice, involves presentation of evidence supporting a legal theory. In order to be admissible in evidence in an evidentiary hearing or trial, the evidence must be relevant to a legal theory that is in some way connected to the evidence. If no reasonable juror could make a ruling establishing that a legally recognized defense was established based upon the proposed evidence (especially if the proposed evidence is prejudicial to the prosecution case on the basis of reasoning that is not a legally valid defense) it can be excluded. For example, evidence in support of the theory that the defendant murdered the victim because the murder victim raped the defendant's sister six years ago, might very well sway a jury to acquit the defendant. So a defense attorney might want to make this argument. But, this is not a legally recognized justification for murder, so evidence in support of this defense would be excluded as irrelevant by the judge. In federal court, and in states with rules of evidence based upon the federal rules of evidence, the primary legal authority behind this is Rule of Evidence 402: Rule 402. General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible. Some states also have procedural notice requirements for certain kinds of affirmative defenses. For example, if someone is arguing an alibi, a notice of an intent to present this defense must be provided by the defense a certain number of days before trial, so that the prosecution can develop the very different in kind type of evidence needed to rebut that defense, rather than having someone acquitted due to surprise when rebuttal evidence exists but the prosecution doesn't know in advance to locate the necessary witnesses and evidence to rebut this kind of defense. | 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. | The future prospects are negligible, and the present status of such influence is non-existent. In a few cases, you may find an appellate decision citing some statement from a reputable law review. Here is an article that addresses such influences on SCOTUS (which, the authors note, have decreased over time). However, you are describing a wingnut legal theory, and courts do not rely on wingnut legal theories, they rely on what the actual law is. |
Is there a law in the US that requires you to ask someone how old they are before asking them on a date? If someone is at a bar/restaurant talking to someone, and they accidentally ask them to make plans not knowing they're under age, is there a law that requires them to know their age first (i.e. carding)? | To my knowledge and having conducted a number of searches of databases of legislation using a variety of queries, there are no laws requiring persons in the US to ascertain the age of anyone prior to asking them on a date (and actually no laws relating to "dates" at all). | The criteria for refusing service in California is the patron being “obviously drunk”. 5 150ml mimosas is not a lot, even in an hour - it has approximately the same alcohol content as 2 425ml beers. I certainly wouldn’t be “obviously drunk” after that. Only 18 year olds and over can serve or act as bartenders for on-premises consumption. Whether someone under 18 can pour drinks for someone else to serve is not clear. However, it’s probably ok as the legislative intention appears to be to put a responsible adult at the point of service. The government authority responsible is Alcoholic Beverage Control. | united-states "I know is it illegal for authorities to question a suspect when their lawyer isn’t present" This is not really true, at least in the US. The suspect must explicitly ask for a lawyer. Even saying "Maybe I should talk to a lawyer" (ie Davis v. U.S. (512 U.S. 453 (1994)) isn't enough, they have to say "I want a lawyer". Until they invoke the right, an officer can question all they want (provided they were informed of these rights, except for certain situations which are relatively complicated. See Miranda Rights). So no, an officer questioning you without a lawyer is neither a crime nor illegal. Once you invoke your Miranda right though, they have to respect that. With or without your lawyer, this is called interrogation. You can filter your responses through a lawyer, or waive your right to a lawyer and answer directly. | While it is true that cash is legal tender, this can still be overridden by mutual agreement (i.e. in a contract). So the legal tender status only matters if payment methods were not agreed upon before entering into an agreement. In other words: If a restaurant lets you eat without telling you they do not accept cash, they will have to accept cash. However, if they explicitly tell you they only accept card payments, they can insist on this later. This applies in both the United States, in Germany, and in Canada (see e.g. It may be legal tender, but more businesses are snubbing cash). So to address your points: As I understand the legality would work something like this: 1) I accept the the contract where I agree to pay with card in exchange for food Yes - however, in accepting the contract you also accept that the restaurant is "cashless" (assuming the restaurant clearly tells you so, e.g. by putting up a sign or by saying it in person). I attempt to fulfill the contract to the best of my ability, but am prevented from doing so by circumstances beyond my control Yes. Since you attempted to fulfill the contract, you did not commit the crime of theft (which requires intention not to pay). However, you still owe what you promised when entering into the agreement, which is to pay with a card. At this point I owe the restaurant the money, but since the original transaction failed, this is a debt, which I offer to settle with legal tender No. As explained above, if the agreement stipulates a specific payment method, this generally overrides the "legal tender" aspect. In short: You agreed to pay with a card, so you are required to pay with a card. If you cannot pay with a card, you have not fulfilled your part of the agreement. It is is arguable that it is not your fault, but this does not change your obligation. Now you must either negotiate a suitable alternative (cash, cheque, golden watch...), or come back to pay later with a card. Also, the business may be able to charge you additional costs, such as extra accounting work or interest because of your non-standard payment - that would depend on the details. | You have pretty well enumerated when it is legal. On the face of it it appears that the 11 year old acted illegally. So, if he is not being prosecuted, why not? Age of criminal responsibility. Below a certain age (I don't know about Alabama but in NSW it is 12) a person cannot by law be held criminally responsible because they are deemed to lack the emotional and mental maturity to distinguish right from wrong; this is particularly relevant when the same action can be legal or illegal depending on rather nuanced circumstances. Public interest. A DA may consider that prosecution of this child in these circumstances is not in the public interest. Prospect of conviction. A sensible DA may decide that there is very little prospect that a jury will convict notwithstanding that there is adequate evidence to prove guilt. This is a subset of the public interest; it is in no one's interest to spend time and money on a trial that will probably end with an acquittal. | Note that the answer to most of your questions has nothing to do with the GDPR specifically, but has to do with the legal force that an EU Regulation has. Here's a related answer on EU Regulations vs. Directives. That said, here are my answers to your specific questions: So member states can define a different age, even though the GDPR says that it should be 16. But is this an exception? Yes. Are there any other exceptions? Yes. Scanning the Regulation for instances of "Member State" is a good way to find them. In my opinion, the biggest area of the GDPR where Member States have influence is Article 6, "Lawfulness of Processing". In some circumstances, it allows Member States to specify what could be considered a lawful basis for processing. Must these exceptions be explicitly stated in the GDPR? Yes. As a Regulation, exceptions must be explicitly stated in order to be permissible because Member States have no authority to overrule EU law*. I'd like to understand to what extent the GDPR must be followed by member states, and to what extent it could be amended in national laws. "Amended" is a fuzzy term. It can mean adding, changing, or removing from the law. Unless otherwise specified, Member States could not change or remove provisions, but there could very well be additions consistent with the GDPR. *Some Member States dispute this statement when it comes to constitutional issues. | Assuming that the age of criminal responsibility in your jurisdiction is more than five (I don't know any jurisdictions where it isn't), then you can't be arrested for this. It is possible that the therapist will have to report the information, and it will appear on your record if you apply to work with vulnerable people. On the other hand, if your parents put you up for adoption aged five (but kept a sister), they will have had to explain why - and that is likely to have been recorded (unless this is so long ago that record keeping was much more lax in those days). I would recommend finding a different therapist that is more comfortable being told about these things. You might also need to consult a lawyer for a short while (they will often offer a 30 minute free consultation). | Children can enter contracts There seems to be this pervading myth that they can’t. This is weird because, if true, it would mean that a child couldn’t buy anything: a chocolate bar, a bus ride, a sandwich, because all sales involve a contract. What is true is that a contract is voidable by a minor. That is, they can walk away from it anytime until they turn 18 and for a reasonable time thereafter. They can’t do that if the contract is for “necessities” (all of the above examples are), if the contract is complete (again, all of the above) or if the contract is clearly for the benefit of the child (e.g. contracts involving the child’s education). Children do not normally need a parent’s permission or approval to enter a contract. So, the contract is binding on Mary and voidable by James. John’s involvement is irrelevant unless he is a party to the contract in some way such as if he is acting as a guarantor. |
One Identical Twin Proven Guilty An unlikely scenario but one I've always wondered about: Let's say that a murder was committed. There is a pair of identical twins. Both twins had means, motive, and opportunity for the murder. It has been proven beyond reasonable doubt that one of them committed the crime. A witness actually saw one of the twins stab someone, to death but he can't tell which one. The knife has been found, and has the twins' DNA on it. Of course, their DNA is identical, so it is evidence that one of them did it, but tells us nothing about which one. Neither twin has been able to establish an alibi. Am I correct in assuming that a conviction is impossible, because either twin could argue that the other did it? What if one twin established an alibi, would that be sufficient to convict the other? | A conviction isn't ever impossible, but it could well be highly unjust. Indeed, there is a current case where a man alleged that he was the murder, though his identical twin brother was convicted. This article indicates that identical twins are not necessarily genetically indistinguishable. Assuming there is a lack of positive evidence such as fingerprints or an alibi which clearly identifies one versus the other, then one would predict no conviction because there would be a highly reasonable doubt. See the case of Orlando Nemnhard, where one of two twins did it but the DA concluded that they couldn't prove which one, so the charges were dropped. | There actually is a practical effect to a "not proven" v. "not guilty" verdict in Scotland, but it is mostly sociological or social in nature rather than legal. If your question is, are there future legal concerns, than no. Not proven is, to be sure, an acquittal. However, it is an acquittal that the tells the public something important: that the trier(s) of fact thought the person likely guilty. That's a fairly substantial distinction. In Scotland, a criminal case may be decided either "in solemn procedure", which is simply the Scot term for a jury trial v. "in summary" or in "summary procedure" which is the U.S. equivalent of a bench trial. The difference between the two (and the divergence from the U.S. procedural vehicle) is that for lesser crimes the accused doesn't have an automatic right of a jury trial for any criminal matter. In some ways this lesser included makes up for the fact that the Scottish accused is without absolute right to choose jury or bench trial, which in the U.S. can be very meaningful from a tactical perspective. Think of how important the make-up and emotional proclivities of juries are to both convictions and acquittals. A bench trial can be beneficial to the truly unlikable defendant, or in especially brutal crimes, where juries may convict out of fear or sympathy for the victim, even if the case is weak. At the same time, they may nullify the conviction for the sympathetic defendant. Juries are notoriously emotional and bias driven. Being able to choose a bench trial where the judge will follow the evidence and avoid the emotional response of a jury can be invaluable. Just as a sympathetic defendant can appeal to the emotions of the jury for acquittal or jury nullification, on the opposite spectrum. In Scotland, lesser crimes are always (with limited exclusions) tried by a judge, while more serious allegations always (again w/ limited exclusions) get a jury trial, automatically. The defendant does not choose the type of trial he is afforded. Hence, a defense or a prosecution cannot fiddle with the balance of proof based on emotion or lack there of. They get what they get. There are various rules procedurally that differ in comparison, but since this isn't the question that is the general rule and should suffice for background. Also hugely important is the fact that in Scotland, jurors decide a case by majority vote (like a civil trial in the U.S.); hence, there are no hung juries and they don't need a consensus. So, one way or another the verdict will be given in a Scottish criminal action. Scots also get comparatively huge juries to any other country (15 jurors) and they only need 8 in agreement to reach a verdict. Tactically, the "not proven" is a lesser included verdict (like U.S. uses lesser included charges in cases that are weaker for the prosecution). This lesser included finding can be used by choice when the Prosecution has a sympathetic defendant or when the defendant is probably guilty or unlikable. If the jury thinks the defendant (called "accused") probably did the crime, but the prosecution has failed to prove the elements, they can/will issue a "not proven" verdict. This sends a big message. This, again, is typically only reserved for those cases when there is strong but not conclusive proof that someone committed a crime. They don't want to profess their innocence with a not guilty verdict, so they are still acquitted, but with he stigma of the "not proven" verdict attached. Some estimates have from 1/5 to a full 1/3 of all acquittal verdicts by Scottish juries as "not proven" as opposed to "not guilty". Not proven can also be used by judges in the bench trial (summary procedure), however it's much less common. The proportion of 'not proven" acquittals in general is higher in the more severe cases; but so then are the proportion of acquittals versus convictions. These would likely be hung juries in the U.S.. Both in the "solemn" and the "summary" acquittals, not proven is interpreted as indicating that the jury or judge, respectively, is not convinced of the innocence of the accused; in fact, they may be morally or even factually convinced that the accused is guilty, but do not find the proofs sufficient for a conviction under the elements of the crime on the jury instruction/verdict form. I look at this as similar to the adage oft used in the U.S., which is an acquittal, despite the fact that the verdict is termed "not guilty" does by no means indicate the person is in fact "not guilty", it just means the prosecution couldn't prove its case. Sociologists in the U.S., as well as legal scholars, have studied the phenomenon, and it appears that most not guilty verdicts in fact let go a guilty person. This can be intuited by the evidence the jury never saw, either by suppression from bad searches, by the exclusion of witness testimony due to procedural rules like hearsay, privilege, etc., and other forms of keeping relevant evidence from the jury to protect the rights of the accused. But in the U.S. the person can go forth and say, "Hey, I was proven not guilty!" Scotland also has another interesting rule of criminal procedure, whereby a criminal can't be convicted without corroborated evidence. What this means is that if all the prosecution has is the victim witness, by way of proof, testifying, and no physical or corroboration testimony, Scottish law requires acquittal, but often will be so by the verdict "not proven". This is huge, if you think about it. Use, for example, a rape trial. A woman testifies, saying that Joe Schmoe climbed through her window and raped her. She knows Joe - he's her neighbor. Nobody saw him climb in. But she knows it's him. He leaves no physical evidence, having shaved his entire body and used appropriate protection (gloves, condemn, etc.). She has a rape kit done. Rape is obvious, but the only proof is her testimony. Joe goes free. But in Scotland, he goes free with a stigma attached. He's found "not proven" rather than "not guilty". I think this corroboration rule has a lot to do with why this verdict system still exists. In the U.S. the trier of fact would weigh the testimony and decide if one person was substantially more believable than the other, and a verdict would issue. That is a substantial difference, procedurally. Since Scotland doesn't have the hung jury because there is no consensus required they use the "not proven" in the same way a U.S. jury uses the hung jury when one or more jurors thinks the prosecution didn't prove their case but it's fairly clear the defendant is, in fact guilty. Then, you will often get a "hold out" juror, and since the U.S. requires a unanimous verdict, the hold out hangs the jury. It's sort of the opposite of jury nullification. The person knows that the evidence fell short, but their conscience can't reconcile letting the person go free, so they will vote guilty to hang the jury, almost ensuring the prosecution gets another shot. There has been a lot of debate about this three verdict system in comparative law circles, with many legal scholars saying it's antiquated. But I think it serves an important purpose. It carries the stigma of likely guilt for those people who probably committed the crime but got off. Further, the hung jury cost tax payers millions of dollars in the U.S., and this is often the side effect of people not wanting there to be absolutely no recognition of the fact that the accused probably committed (especially serious) crime(s). The Scots, on the other hand, have found away to accomplish this without the cost and emotional toll multiple trials takes on all the players involved, from witnesses and victims, their families, the accused, and even the lawyers and the prosecutions, who have to put in all the work of a trial just to start anew. Here is a really good scholarly article that deals with this interesting phenomenon not seen in (I don't believe) any other country: https://journals.iupui.edu/index.php/iiclr/article/viewFile/17848/18019 | As for the subject matter (what can be protected), amplitude, frequency, harmonic pattern, duration etc. are all physical facts, and there is no protection for physical facts. The basic requirement is that the thing protected must be "creative". Once you have a creative composition (assuming it is a composition, where infringement is harder to establish), the question arises whether a particular other composition infringes, or is an independent creation deserving its own protection. Again, the law does not deal in technical acoustic properties, and "similarity" is dealt with in an essentially subjective manner. The find of fact, who is an ordinary observer, has to weight all of the evidence and decide whether there is substantial similarity (or striking similarity) which could be evidence of infringement (substantial similarity is not against the law, copyright infringement is). Both parties to the litigation will present testimony supporting their contention and refuting the others' contention. At some point, one side is likely to introduce expert testimony to the effect that there are only so many possible melodies, which if persuasive can overcome a feeling that two compositions are rather similar. The law only addresses the logic of that judgment, and not the scientific facts. For example, in the case of Testa v. Janssen, the legal premise is set doen that "proof of direct access is unnecessary where striking similarities between two works are present". HOw then do you know if there are striking similarities? To prove that similarities are striking, plaintiffs must demonstrate that "such similarities are of a kind that can only be explained by copying, rather than by coincidence, independent creation, or prior common source." Stratchborneo v. Arc Music Corp., 357 F. Supp. 1393, 1403 (S.D.N.Y.1973) citing a previous ruling on that point. Ultimately, the courts cannot not dictate a scientific procedure for making that determination. | In US law, there was, as far as the question indicates, no probable cause to search her phone at all, Therefore (unless there is some cause not mentioned in the question), any such search is illegal, and any evidence found in such a search, or that is found as an indirect result of such a search (pointers toward it are found in the search, and followed) would not be admissible in any criminal case against Alice. In the case of Bob, if his friends and family approach the police or other authority with a vague suspicion that Bob might be involved in the creation of illegal content That will probably not constitute probable cause for an arrest of Bob or a search warrant for his phone. Unless the accusation does prove to constitute probable cause, any evidence found during such a search would not be admissible against Bob in a criminal case. In practice, most US police would not undertake either search without better evidence than is described in the question. But some police will overstep the lines, which is what the US exclusionary rule is for. Legal procedure does not as far as I know make a distinction between "exploratory" and "confirmatory" evidence. Instead, evidence is either admissible or not. The rules for when evidence is admissible are quite complex, and vary by jurisdiction. Some of them are more traditional than logical, and some of them are addressed to particular problems that have arisen in particular circumstances. But the US Fourth Amendment protections against unreasonable searches, and the requirement of probable cause before search or arrest warrants are issued, serves some of the same purpose. Other countries have different rules, but many of them restrict the authorities to some extent from making arbitrary searches with no initial evidence. Response to the Revised Question As the question has been edited, there seems to be fairly clear probable cause to search Alice's phone, and if clear evidence of "illegal pornographic content" presumably actually child pornography, as no other kind is illegal simply to posses) is found, she can be brought to trial and perhaps convicted. The mere "suspicion" of Alice's "friends and relatives" would add little and mi8ght well not even be admissible. The facts, if any, on which those suspicions are based might be admissible, one cannot tell from the summary in the question. The case against Bob, however, remains weak. Indeed there still seems to be no probable cause either to arrest Bob nor to se3arch his phone, and the results of any search that was done would not be admissible. Probably none would be done without more evidence. The OP wrote: Thus, although the situation looks grim for both, since the evidence against Bob is confirmatory, it might be considered stronger. Not so, the case against Bob is weaker, indeed so weak that an arrest would be unlikely, and if one were made, the case would likely be dismissed before going to trial, assuming no more evidence than was included inn the question. The evidence prior to the search seems to consist only of vague suspicion not supported by any actual evidence, and so there is nothing to confirm, and no valid search would occur. That suspicion of Bob came before the search, and the search is thus "confirmatory" is not relevant. The question is, what evidence against each defendant is admissible, and does the totality of the admissible evidence amount to "proof beyond a reasonable doubt" no matter what order it was discovered in, or what idea was in the minds of the investigators, provided that they were acting lawfully so that their findings are admissible. | I'm not sure what jurisdiction you're referring to, but here are the state involuntary manslaughter laws. Broad brush, the elements tend to be: Someone was killed as a result of act by the defendant. The act either was inherently dangerous to others or done with reckless disregard for human life. The defendant knew or should have known his or her conduct was a threat to the lives of others. However, you're really backwards planning from a jail vs. army decision, so you might actually be after something like felony hit and run, which can most certainly result in incarceration. The elements of felony hit and run generally include leaving the scene of an accident regardless of fault (hit and run typically becomes a felony when someone was injured in the accident). Since the elements vary from jurisdiction to jurisdiction, it makes sense to look them up wherever the accident will take place in the book. If it takes place in the U.S. this is a state-by-state compendium. Then you can tweak the story to satisfy the applicable elements and induce the jail vs. army decision (even if army policy prohibits it, it's still pretty common fiction!). | The life sentences were based on counts 2 and 4, distribution of narcotics by means of the internet and continuing criminal enterprise. In reviewing the sentencing hearing, all of the evidence indicates that the sentence was based on the nature of his acts, and not anything he did after his arrest. There is no way to know if prosecutors would have been amenable to a plea bargain. | An alibi is a particular kind of defense strategy bearing on the burden of proof: here is the alibi jury instruction for California. The defendant contends (he/she) did not commit (this/these) crime[s] and that (he/she) was somewhere else when the crime[s] (was/were) committed. The People must prove that the defendant was present and committed the crime[s] with which (he/she) is charged. The defendant does not need to prove (he/she) was elsewhere at the time of the crime. "I had put the gun down" is not an alibi defense, "I was not in my right mind at the time" is not an alibi defense. The alibi defense is essentially a formality that clarifies the logic of "reasonable doubt" for the jury. If the defendant could not have committed the crime because they weren't there, then that is the end of the discussion. The prosecution will introduce various facts that suggest that the defendant may have committed the crime. The "reasonable doubt" instruction is widely interpreted by jurors to involve a defense obligation to disprove that evidence, which is a reason why a number of jurisdictions have adopted a different instruction based on "being firmly convinced". Reasons to doubt prosecution evidence can be weak and highly speculative, and the courts have struggled for years to find a good way to convey exactly what "reasonable doubt" is. An alibi goes way beyond merely detracting from the prosecution's case. An alibi is not an affirmative defense where you have to prove the claim by a preponderance of evidence. If you can establish that you were somewhere else when the crime happened, had no opportunity to have committed the crime and could not have committed the crime by another means, you have defended yourself against the charge (assuming that the prosecution does not successfully challenge the credibility of the alibi witness). And in California, you have to give notice that you intend to use the alibi defense. | No If she has probable cause, yes. The question is whether "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts [Bob is a thief] are probably true"? Its likely that the answer to this question is yes. None No Charlotte listens to Alice, Charlotte asks Bob questions which Bob may or may not answer. Charlotte can ask Bob to produce the receipt, Bob doesn't have to. Charlotte can ask to search Bob, Bob doesn't have to consent. If Bob tries to leave, if Charlotte has reasonable suspicion the Bob has committed a crime (which she could certainly justify) she may detain him temporarily without arrest. If Charlotte has probable cause to believe that Bob has committed a crime (which she could probably justify) then she can arrest him. |
CCP Section 209 (b) Ordered to Appear in Court, however, employer has declined to allow me to appear My employer has declined to allow me to appear in court today. I missed two jury summonses and have been issued an order to appear to explain. I am due to show today, however, my employer has a lot to get done today (big client deadlines, etc.), and has declined me request to leave. Is this legal? He mentioned a 48-hour notice requirement. What should I do? Is there an application for excusal? I do not want to be imposed monetary sanctions. | If you don't go to court the court can issue an arrest warrant. Telling the court that your employer forbade you may or may not let you avoid punishment for contempt. You are obliged as an employee to follow the lawful and reasonable requests of your employer. Telling you not to follow a summons is neither legal (technically it's an attempt to pervert the course of justice) nor reasonable. Presumably, the requirement for 48 hours notice is contractual: contracts are only valid where they are not in conflict with the law: this is. If you go your employer is under no obligation to pay you for the time you miss but it would not be lawful for them to impose sanctions. Call the court, ask to speak to the registrar, explain the situation and ask what to do. Then do that. | 1: What's the correct process to get a restraining order? The police aren't involved in the formal process, although sometimes people go to the police and are told that they have to go to a judge instead. The aggrieved plaintiff presents an ex parte affidavit or makes statement in person under oath to a duty judge (who often asks clarifying questions). If this statements states a basis for a protection order one issues with a prompt return date (a week or two). At the return date the order either becomes final if the defendant doesn't show up, is vacated if the plaintiff doesn't show up, or is tried in an evidentiary hearing if both show up. Of course, a court order is ultimately just a piece of paper and there is no legal recourse against the government if they don't successfully stop the person restrained from doing something. Also enforcement of restraining orders was a lot more lax in 1987 than it is today, and men asking for restraining orders were taken less seriously then, than they are now, by most judges. 2: Can Dan keep his adultery secret during that process? Not really. In the initial ex parte hearing, Dan can probably tell the story artfully in a way that hides the adultery, but in the adversarial hearing, if there is one, the other side (or their lawyer) can ask him under oath about the affair and he has to answer truthfully in a public court hearing setting. 3: Is it plausible that Dan's family and friends don't learn about that process? Yes. Unless he's famous enough to make the newspapers (which in a decent sized city is pretty famous), and if he initiates the process, the only person who gets formal notice before the order issues is the court, and if the court issues the initial order, the only person who gets notice is the defendant. If Dan doesn't call family or friends as witnesses and don't tell his workplace why he's at court, nobody is told. It isn't a secret. It's a matter of public record that could be subsequently discovered at any time. But there is no active means of notification of friends and family in the short term. Realistically, Dan might ask a cop or a lawyer what to do, get accurate or inaccurate information, and decide not to pursue it for fear of creating sworn proof of his affair at a hearing. Cops love to provide legal advice that they aren't qualified to dispense. Dan's concern is particularly relevant because this happened in New York State in 1987 when New York State didn't have no fault divorce at the time, and the outcome of divorce proceedings on the merits for property division and alimony and custody would have been heavily influenced by marital fault in the divorce case. Revealing an affair under oath as he might have been required to do at a hearing would have crushed him in a subsequent divorce outcome if his wife found out and decided to divorce him. | Raise the question with your employer If you believe that you are an employee and not a contractor then there is presumably something you want from your employer. This may be additional wages and entitlements that you would have or will become entitled to for past or future work respectively. Or you may have been injured and want workers' compensation. Or terminated and you want redundancy pay. Whatever it is, work it out and raise the issue with your employer. You might want to consult an accountant or union to help you. They may acknowledge that you were incorrectly classified and give you what you want. Winner, winner, chicken dinner! Or they may dispute it. If so, you need to follow the dispute resolution processes at your workplace. These typically involve informal discussions, escalating to mediation and then to a workplace tribunal run by the government. You will almost certainly want to consult a lawyer or union to help you - given that you don't know where to start the learning curve is likely to be too steep. In virtually every jurisdiction if people are employees at law they can't choose not to be. in british-columbia the relevant law appears to be the Employment Standards Act although it's not unheard of in edge cases for a person to be an employee under one law (e.g. workers' compensation) and a contractor under another (e.g. income tax). From the linked site: The overriding question is “whose business is it?” Is the person who is doing the work doing it as a person in business for themselves? If you are working "for" your own business you are probably a contractor. If you are working "for" your employer's business you are probably an employee. For example, if you are an accountant with several dozen clients, maintain your own business premises and charge for your advice based on the amount quoted rather than by the hour, you're a contractor. If instead, you have 2 clients, work from their premises at set hours and get paid by the day or week, you're an employee with 2 jobs. In edge cases these are not cut and dried - Google are Uber driver's employees. In Australia: no. In California: yes. In the UK: yes. | This sounds like a really bad communication issue. I would contact the company to find out what is up and inform them politely that they have been given more than a "reasonable" time to release the 401k. I would also inform them that they need to expedite the notice and offer to stay on the phone while they contact the plan administrator. If they give you any resistance or if the issue persist, I would inform them that they may be in violation of the Department of Labor ERISA guidelines and may be subject to fines by the Department of Labor. If you get any attitude, file a complaint with the Department of Labor (Federal). I would also call the plan administrator and ask them to verify employment since she has not been employed. That may go a bit further. Just as a personal comment, I have noticed with companies that are not doing the right thing because you are the little guy, is that filing complaints is easier than lawsuits. No company wants the Department of Labor on there back looking at their records or books. And normally, the governing agencies will motivate the company to do the right thing. One time I sent an email to the CEO of the company and within 48hrs my issue was solved. | When is a summons considered served in England if it was sent by second class post? Three business days after the date of posting. See the 1999 Amendments to Rule 99 of the Magistrates’ Courts Rules 1981 which makes no mention of the class of postage, only the relevant timeframe: (1) [...] a summons requiring a person to appear before a magistrates’ court may be served by— [...] (b) posting it to the person at an address where it is reasonably believed that the person will receive it... [...] (4) A summons served in accordance with paragraph (1) shall be deemed to have been received by the person— [...] (d) [...] three business days after it was posted [...] in accordance with paragraph (1)(b)... [non-relevant details omitted] Note that by picking a random council from Google, Oxford's Council Tax Debt Recovery Procedure which says: The summons will normally be served by second class post. It is entirely likely that this is the national norm, but all other local councils may be found via the dot.gov website, in case one would like to check specific policies for their own locality. | In Wisconsin, right after the perjury law, they have a law prohibiting "false swearing". It applies if a person: Makes or subscribes 2 inconsistent statements under oath or affirmation or upon signing a statement pursuant to s. 887.015 in regard to any matter respecting which an oath, affirmation, or statement is, in each case, authorized or required by law or required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action, under circumstances which demonstrate that the witness or subscriber knew at least one of the statements to be false when made. The period of limitations within which prosecution may be commenced runs from the time of the first statement. So even if they couldn't actually get you for perjury, they could get you for violating this law. Perjury and false swearing are both class H felonies, so you can expect the same punishment. I am going to guess that the existence of this law suggests that it was needed to cover what would otherwise be a loophole in the perjury law, but I can't say for sure. | UK: For all I know you cannot be fired unless you are hired. They must hire you. Once a job offer is made and accepted, they must hire you. If they don't, call a lawyer. I personally know someone who got hired, and when he arrived for his first day's work at the new company, he found that the whole department that he was supposed to join had been laid of. The company had to hire him. PS. "Financial difficulties" means you call a lawyer urgently. Once they are bankrupt your chances of extracting money are not good. | Go to know that you live in Washington. Per RCW 49.48.210, They must give you written notice with their evidence. Per RCW 49.48.210, section 3, you can (and should) request a review of the employer findings. Since the employer gave you the money, and you nor they saw any error until now, you may be protected under estoppel (WAC 388-02-0495). In the response letter, I would write something along the lines of " [Company Name] has paid IAW my expected rate and acted correctly when I received my money. I have also spent the money in good faith. Indeed, I still cannot see that any overpayment has actually happened. Please send me exact details why you believe that I have been overpaid, and why you believe that estoppel does not apply. Until this manner has been resolved per RCW 49.48.210, section 3, I request that you continue to pay my wages at normal rate for my time. I do not accept liability for the actions or inactions of [company name] and the claimed overpayment." Get receipt that the employer received the notice. Because it is in review, they don't have the right to garnish your wages. Challenge everything at the review. If something was changed or edited, challenge that. I would open up a new thread if they did that much. Best of luck |
Can a bank keep cleared funds against your explicit instructions? Does any legislation exist which permits or requires a bank to hold on to cleared funds against the explicit wishes of the account holder? Background I recently transferred my home loan to a new bank. When the new bank paid down the balance on the old loan, they actually sent about $2200 more than the balance outstanding, leaving the account in credit. Shortly after this occurred, I requested that the old bank withdraw the surplus amount for me, so that it could be deposited back with the new bank. They refused on the grounds that the loan account was being closed and I had to wait for that to occur. Some weeks passed, and I received a letter from the old bank, which in essence said "we're keeping your loan account open indefinitely unless you advise us otherwise in writing, if you have a credit balance on your loan you may redraw it". So I went back to the branch, and again asked for the credit balance to be withdrawn. Again they refused, and we spent some time arguing the point. Their branch manager insisted that there's legislation in place which requires them to keep the credit balance. I asked to see the relevant legislation, but of course the manager didn't comply. I left them with the following written instructions after it became clear that they had absolutely no intention of actually helping me: As far as I can tell, they've acted on exactly none of those. So my question is, does any legislation exist that would give the bank grounds to hold my funds against my explicit wishes, or is what the bank's doing essentially theft? Update It took them a few days (5 business days, to be exact), but they eventually followed all of the instructions I provided (excluding #4, as they did not charge any fees). Though based upon jimsug's answer, that may be less because of any legal obligation and more because they finally decided to do better at customer service. My letter found its way to their complaints department, which took care of things. | Regarding to your instructions concerning the funds in the account, it's hard to prove a negative. As far as I know there is no legislation that requires a credit balance to be retained. However, there may be some regulations or internal policies regarding the closure of home loans, which may preclude closure without some documentation or other process. But just because you can't cite legislation that requires you to do things, doesn't mean it doesn't exist. You don't ask the new bank to support their claims which contradict the old banks, because it works in your favour. With regard to the last instruction regarding your funds, the bank can and will provide you with a list of fees and charges applied to your account - it's called a statement. With regard to your explicit other option - is what the bank's doing essentially theft? - you can call it theft, but it's not. At worst it's conversion, the remedy for which is the recovery of the converted property, or damages equal to the value of the property. If you have attempted to resolve your complaint through the bank's internal dispute resolution processes (usually some kind of complaint process), you can also contact the Financial Services Ombudsman, who may assist with these situations. Finally, as for your further instructions, they are all void and unenforceable. 1. You cannot impose terms on the conduct of another party without their agreement. This is called a counteroffer or variance to their established terms which you will have agreed to at the time that you established the original loan. 3. You can never be compensated just for your time. | It is age discrimination, and it is legal. There is a federal prohibition against discriminating in employment provided that you are at least 40 years old. There are innumerable laws that require age discrimination w.r.t. being under 18, such as the lack of a right to vote. Contracts with minors, such as are involved with opening a bank account, are generally invalid with the exception of "necessities", education and insurance in Massachusetts. No law compels a bank to "accept" any person (to open a saving or checking account – even more so with accepting a loan application). A bank account would be a "public accommodation", which is not subject to a "no age discrimination" requirement at the federal or Massachusetts level. | He may be entitled to (part) of the deposit or he may owe you more money When you and he agreed you both entered a legally binding contract - you are obliged to sell the vehicle to him, he is obliged to buy the vehicle from you. The deposit is merely the first instalment of the payment for the vehicle with the balance being due on delivery. They are not refundable by default. He now wants to repudiate the contract and you have several options: you can refuse his repudiation and require him to complete the contract within a reasonable time. He probably won’t do this so when he doesn’t we move on to one of the other options. In essence, this is simply a warning shot that if he doesn’t complete the contract you will move on to item 2. you can accept the repudiation and sue for damages, these would include your lost rent, pro-rata of registration, insurance etc. from the time you would have sold to the time you do sell, any additional advertising, any difference in the price you ultimately get if it is lower than his offer etc. you can accept the repudiation in return for keeping the deposit in lieu of the actual damages. This in makes the deposit a liquidated damages amount and it must follow all the same rules, basically it must be a genuine pre-estimate of the damage you would suffer and not be so high that it amounts to a penalty. You can accept the repudiation and, as a gesture of goodwill, return some or all of the deposit. | Based on the advice from @user6726, here's how I disputed the charge. First, I called FedEx customer service. They declined to waive the fee, and informed me that if I didn't pay, it would go to collections. So, I waited a few months and let the collection agency send me their version of the bill. Then, I sent the following reply (paraphrased) to the collection agency, by registered mail. On date, we received a letter from your agency demanding a payment for Federal Express Canada Co. I am writing this letter to dispute this debt, as I do not believe that we owe it. The debt claimed by Federal Express Canada appears to be related to FedEx invoice n, consisting of a Clearance Entry Fee of $X. I called FedEx on date to dispute this fee. It appears that they have decided to proceed with demanding payment anyway. The facts of the case are as follows: In month, we received an unsolicited birthday gift from a relative in the United States, which FedEx left at our doorstep, with no signature required, and no indication that accepting the package would incur an obligation to FedEx. As the value of the gift did not exceed 60 CAD, the package was admitted into Canada duty free. The Clearance Entry Fee is a fee imposed by FedEx, not on behalf of any government agency. “Clearance Entry” is an “unsolicited good or service”, as defined by the BC Business Practices and Consumer Protection Act, Chapter 2, Section 11. We did not order the shipment of the package, and did not consent verbally or in writing to the “Clearance Entry” service claimed to have been provided by FedEx. Therefore, as provided in Section 12 of the Act, we have no obligation to FedEx, and FedEx has no cause of action against us. The burden of proof that the service was not unsolicited rests with FedEx, and until such proof is provided, this debt is void under BC law, and you, as a collector, must not collect or attempt to collect money from a person who is not liable for the debt. Based on Section 116 of the Act, I am requiring you to communicate with me only in writing, at the address given above. At this point, I expect that your next communication would either contain: Proof that we consented to the “Clearance Entry” service provided by FedEx, or A statement that the debt is invalid, and that we are discharged from any obligation to your agency or to Federal Express Canada in regards to this matter. In addition, please inform any credit reporting agencies to which you have reported this debt to, that this debt is currently in dispute. I will require proof that you have done this. It has been over two months since the collection agency received the letter, and we still have not heard from them. Evidently they have decided that it is not worthwhile to pursue this case. | 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. | If by invalidated you mean you do not have to pay it back, no it is not invalidated. The way a loan is supposed to work is that you are given the money and then you could spend it or use the unused portion of the money to pay back the loan. The $400 that you did not use would technically be considered payment on the loan and you would owe $300. | If you buy a house and your wife signs a quitclaim deed to you, that transfers to you whatever rights she has in the house. Similarly, if you and your wife sign an agreement that anything deposited in a particular bank account in your name would be your separate property, that would override the pre-nup as far as that account was concerned. Such an agreement could include a dollar limit per month or per year, or an explicit purpose, such as savings for a down payment. (It could be thought of as a gift to you of her share of any funds deposited.) Giving property to your parents or others with the understanding that it will be returned on your request might be seen as an attempt to evade the pre-nup, and a court might hold that the property was actually shared, if you ever do divorce. There might also be gift tax issues if the value is high enough. Whether asking your wife to agree to a quitclaim or any sort of agreement to modify the pre-nup would help or harm your marriage I cannot know, nor did you ask that. But I would think that for most people being open would work better than going behind a spouse's back. None of this should be taken as legal advice. I am not a lawyer. | Between your mother and you the bank does not care where the payments come from. If they do not get them, they can sue you, or your mother or (most likely) both of you and they will chase whichever of you has the most money and ultimately repossess the house to satisfy the debt. What matters between you is the contract or deed that you signed with your mother where you documented that you would each pay half of the mortgage. Unfortunately, agreements between family members are presumed not to be contracts. That is, the courts will not get involved to decide how much each of you owe - you have to sort that out for yourselves. A signed agreement will usually overcome that presumption. Other evidence may overcome the presumption - for example, evidence that you split the payments 50/50 for some period of time. Talk to your mother. And a lawyer. |
When is a person legally considered to be "President-elect" in regards to laws against threatening the President? There have been news stories about individuals threatening to kill President-elect Donald Trump shortly after the election, such as this man who did it over Twitter. According to the news article, he tweeted it at 1:42am EDT on the day after Election Day. However, it wasn't until 3:00am EDT that Trump secured 270 Electoral College votes (at least according to the media, since the Electoral College does not meet until later). From a legal standpoint, when exactly is a person considered to be "President-elect" regarding the laws to threaten the President? | The US legal code regarding threatening a president is 18 U.S. Code § 871 - Threats against President and successors to the Presidency. The first clause defines how threatening the president is illegal. The second clause starts off by defining "President-elect": The terms “President-elect” and “Vice President-elect” as used in this section shall mean such persons as are the apparent successful candidates for the offices of President and Vice President, respectively, as ascertained from the results of the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. So the key here is that they are the "the apparent successful candidates […] as ascertained from the results of the general elections." It doesn't define this phrase though, especially the word "apparent". It appears that the prosecutors in the case mentioned in the question are arguing that Donald Trump became the apparent President-elect when, after Election Day, voting results began coming in and he was projected to win 270 electoral votes. Given the amount of stock that most Americans seem to put into the media's coverage of who wins the election (and the fact that the person in question seems to have assumed he would be president), that's unlikely to be contested. | The witness can go outside and ask questions of the witness’ lawyers So if, for example, Mr Trump chooses to testify to the grand jury he goes in alone - no lawyers. If he wants to consult his lawyers he needs to ask to do, leave the room and consult them. If I were Mr Trump’s lawyer I would be worried that he wouldn’t know when he should do that. | 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. | Government FAQ on the Electoral College: If a winning Presidential candidate dies or becomes incapacitated between the counting of electoral votes in Congress and the inauguration, the Vice President elect will become President, according to Section 3 of the 20th Amendment. Section 3 of the 20th Amendment: If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. [...] | The warning notice is intended for viewers and participants, not for the court to make its own official record of the proceedings. Presumably, it was this court record that the judge released for educational purposes under his own Order via Twitter. In which case, there has been no contempt of court. | There is no constitutional provision which grants the President such power. I am not aware of any provision of federal law which grants such power, nor of any case where a real president has exercised such a power. Of course, the President is a citizen, and any citizen may make a Citizen's arrest Particularly for a felony. (See also this FindLaw page on the subject.) And of course, as the head of the executive department, the President could order someone who clearly has powers of arrest to make an arrest, although such an order would not be valid in the absence of legal cause to make an arrest. A comment called atention to 10 USC §252 which provides: Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion. The history for this section dates from 1861. A note indicates that a prior version was the basis of Executive order 10730, sending federal forces into Little Rock, AK in 1957 to enforce school integration there. However, this section does not explicitly increase the arrest powers of anyone, and does not grant the President personally any power of arrest. | colorado No Colo. Rev. Stat. § 1-4-304 (5) Each presidential elector shall vote for the presidential candidate and, by separate ballot, vice-presidential candidate who received the highest number of votes at the preceding general election in this state. By law, the electors have to vote for the winner of the statewide popular vote. Nobody has the authority to make them do anything else. And if they try to vote differently of their own accord, the Colorado Secretary of State may void their vote and replace them with another elector. This happened in the 2016 election, and the voiding of the vote was eventually upheld by the US Supreme Court (Baca v. Colorado Department of State). I suppose the legislature might be able to repeal 1-4-304, but the governor could veto, and a 2/3 majority of both chambers would be needed in order to override. There would likely also be court challenges as to whether the repeal could affect an election that had already taken place. | The 25th amendment §3 says Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. Nothing in the Constitution deprives the Vice President of his powers / duties when he is also Acting President. Alternatively, the VP can become acting President under §4, without presidential cooperation, by declaration of the VP and a majority of the cabinet. Then either the President asserts that there is no inability, or Congress decides there is. But: unless the president dies or resigns, or is impeached, the VP is Acting President and actual Vice President, and therefore breaks ties in the Senate. Note that under §4, the VP plus cabinet must declare POTUS unable, and must do it again if POTUS denies the inability. That means that there must still be a VP, who along with the cabinet re-affirms the disability. |
Is Monsanto still suing farmers over "gene theft"? I just saw "Food Inc" last night, a 2008 movie about the food industry. In the movie they detail how Monsanto was targetting farmers who were trying to grow their own seed and suing them. What would happen is that a neighboring farm would be using Monsanto's genetically modified seed and some of the pollen would drift over into the natural farmers soybeans and cross polinate them. Monsanto would then send PIs to find such cross polinated growths and then threaten to sue the farmer for violating their "gene patent" unless the farmer agreed to buy Monsanto seed. Is Monsanto still doing this? What is the legal basis for this? | Monsanto has never sued for mere wind-blown seed let alone inadvertent cross-pollination and they claim that they will never do so. They say: [I]t has never been, nor will it be, Monsanto’s policy to exercise its patent rights where trace amounts of our patented seeds or traits are present in a farmer’s fields as a result of inadvertent means In OSGATA v Monsanto, the CAFC noted this position. They relied on it, and thus Monsanto is estopped from judicial actions contrary to this stated position. If we rely on Monsanto’s representations to defeat the appellants’ declaratory judgment claims (as we do), those representations are binding as a matter of judicial estoppel. When Monsanto has sued, it has always been the case that the defendant has taken deliberate action to exploit the seed or traits. For example, planting soybeans intended for the food market (Bowman v Monsanto), and harvesting, storing, and replanting Roundup resistant beans discovered on his property (Monsanto v Schmeiser 2004 SCC 34, para 60-68). | 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. | From the patent angle, you will need to make sure that you are not infringing on a patented swing. That should be pretty easy at present because golfers are not patenting their swings. What Mowzer says about public disclosure probably has something to do with this. However, at least one golfer patented a swing: I would be more concerned with the right of publicity of the golfers whose swings you are selling. You can't use someone's name for commercial advantage without their permission. (I will leave this thought for another day: Can analysis of a golfer's swing, without reference to their name, be appropriation of their identity if the swing is so unique?) I am just going to rip this straight out of C.B.C. Distribution v. Major League Baseball, 443 F.Supp.2d 1077 (E.D. Mo., 2006), cleaning up some formatting and removing some citations. This is a good cite because it discusses Supreme Court jurisprudence and the New York origins of the right of publicity doctrine. The right of publicity is recognized by statute and/or common law in many states. J. Thomas McCarthy, The Right of Publicity and Privacy § 63 (2d ed.2005). A fairly recent concept, according to the Sixth Circuit in ETW Corporation v. Jireh Publishing, Inc., 332 F.3d 915, 929 (6th Cir.2003), this right "was first recognized in Haelan Laboratories, Inc. v. Topps Chewing Gum. Inc., 202 F.2d 866 (2nd Cir.1953), where the Second Circuit held that New York's common law protected a baseball player's right in the publicity value of his photograph, and, in the process, coined the phrase `right of publicity' as the name of this right." Subsequently, in Zacchini v. Broadcasting Company, 433 U.S. 562 (1977), 433 U.S. at 573, where a performer in a "human cannonball" act sought to recover damages from a television broadcast of his entire performance, the Supreme Court recognized that the right of publicity protects the proprietary interest of an individual to "reap the reward of his endeavors." The right of publicity is described in Section 46 of the Restatement (Third) of Unfair Competition (2005), Appropriation of the Commercial Value of a Person's Identity: The Right of Publicity. This Restatement provision states that "[o]ne who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for purposes of trade is subject to liability...." Relying on the Restatement, the Missouri Supreme Court held in TCI, 110 S.W.3d at 369, that "the elements of a right of publicity action include: (1) That defendant used plaintiff's name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage." See also Gionfriddo, 94 Cal.App.4th at 409, 114 Cal. Rptr.2d 307 ("The elements of the [tort of the right of publicity], at common law, are: '(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.'") To prove a violation of one's right of publicity a plaintiff must establish that the defendant commercially exploited the plaintiff's identity without the plaintiff's consent to obtain a commercial advantage. Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir.1983). | 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. | Well, actually, fair use is maximally relevant. Copyright means, put simply, DO NOT COPY. Citing or not is irrelevant (plagiarism is a whole other non-legal kettle of fish). Technically, what you describe is violation of copyright. However, under section 107 of Title 17 (the copyright law), you could attempt to defend yourself against an infringement suit on the basis that your action was "fair use". See this LSE q&a for the essentials of fair use. | 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. | 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. | Technically speaking, such emails are copyrighted by the sender. However, showing such an email to a third party, or posting it publicly in order to comment on it would almost surely be a fair use in the US. In any case, such an email would have no commercial value, and so there would be no financial damages possible. A lawsuit over such a technical copyright infringement would, in my view, be quite unlikely, and even less likely to be successful. Indeed, filing such a suit would be one of the best ways for the business to draw attention to the issue, in an example of the Streisand Effect. |
Does a patient have to pay for the shipping fee for mailing medical records from a previous doctor? I had some dental x-rays and a teeth model with a previous orthodontist in Baltimore, and the records are stored in his office. I now live in New York. In general, do patients have the right to receive their own medical records from their previous doctors? Do they have the right to receive their records for free by mailing, or do patients have to pay for the shipping fees? Is there some health-care law or policy regarding my questions? | 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. | My guess is the answer to this question is going to be in your lease. You likely signed a lease that agreed that you would pay accept this practice and spelled out what ever rights you have to challenge the billings. My guess is they are as limited as the courts will allow in Florida. And the only way to ensure access to those records would be to get the court to compel they provide you with the records. Perusal of the Water codes in Florida does not appear to directly engage this practice(I could have missed it). However it appears that there is code regulating the management of electrical limits the billing to no more than the actual costs to the customer of record(probably your real estate management company.) According the the NCSL (This refers to electrical service. I am assuming there is similar language used elsewhere for plumbing, or that the intent of the law is uniformity of these codes in all utility billings. Where individual metering is not required and master metering is used in lieu thereof, reasonable apportionment methods, including submetering may be used by the customer of record or the owner of such facility solely for the purpose of allocating the cost of the electricity billed by the utility. The term “cost” as used herein means only those charges specifically authorized by the electric utility's tariff, including but not limited to the customer, energy, demand, fuel, conservation, capacity and environmental charges made by the electric utility plus applicable taxes and fees to the customer of record responsible for the master meter payments. The term does not include late payment charges, returned check charges, the cost of the customer-owned distribution system behind the master meter, the customer of record's cost of billing the individual units, and other such costs. Any fees or charges collected by a customer of record for electricity billed to the customer's account by the utility, whether based on the use of submetering or any other allocation method, shall be determined in a manner which reimburses the customer of record for no more than the customer's actual cost of electricity. Each utility shall develop a standard policy governing the provisions of submetering as provided for herein. Such policy shall be filed by each utility as part of its tariffs. The policy shall have uniform application and shall be nondiscriminatory (Fla. Administrative Code §25-6.049). Now here is where the 3rd party comes in. The 3rd party is the one levying fees for the management on your landlord. Granted if you follow the strings ill bet you find that the billing company is owned by the same company that owns your rental management firm. So your landlord can collect no more than what it costs to provide you with the service, but part of providing the service is employing this 3rd party utility management firm. | Parents have a legal obligation to care for their minor children: it is illegal to harm a child through action or inaction. State law and associated welfare programs are complex: you can start here. If surgery is medically necessary, her insurance should cover it. If her parent do not have medical insurance, they still have the obligation of care; though various governmental programs may alleviate the problem, such as the state medical assistance program. The parents may therefore be in violation of the law, and anyone may report this to DSHS (specifically through Child Protective Services). This obligation terminates when the child turns 18 (assuming that someone does not petition for adult guardianship). Legislation is not crystal clear as far as what constitutes "injury of a child ...under circumstances which cause harm to the child's health". CPS has no authority to compel parents to pay for a medical treatment, but they can go to the courts on behalf of the child. At that point, it's hard to say what the court would order. For example, if the parents are capable of providing medical insurance and just willfully chose to not cover their child, the court could order them to get insurance. It is virtually guaranteed that the courts would not order the immediate amputation of the child's feet, and there would be no legal basis for ordering the parents to pay for the procedure in a decade, after the child is an adult. However, if you are suggesting that there is an immediate treatment (which the parents have opted to not provide, hence the prospects of later amputation), then it is reasonably likely that the courts would order the parents to provide for the treatment (if it would be possible for them; otherwise, the state may intervene and provide for the treatment). | It is legal for you to publicly distribute your medical records, and it is legal for you to publicly distribute your bills. Defamation would be a concern only if you make a false statement that does harm to someone. A medical bill is a statement made by someone else (in both senses of "statement"). | You generally are not required to share your medical details with people you don't want to. That said, the camp would also not be required to allow people who don't comply to enroll. They can't force you to divulge your information, but you can't force them to let you come if you don't, either. HIPAA deals with the ability of healthcare providers to disclose medical information to parties who aren't the patient themselves - it would be a HIPAA violation for your doctor to disclose your information directly to the camp without your consent. HIPAA has absolutely no bearing on who you choose to disclose your own information to, however - you can disclose your own information to anyone you want. | 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. | 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. | That really sucks. I've had similar experiences when handling the probate proceedings of lawyers who were not good about returning original wills to clients. I am providing an answer under general principles without researching Oregon specific accounting, record retention and probate laws, to at least give you a start although I recognize that a better answer would research these questions. The accounts/clients from her business were sold to another woman. Is it legal for us to transfer everything to her possession? Probably yes. There should be a government agency in Oregon that regulates accountants that has rules regarding that question. The linked rule seems to govern this situation. It says in Rule 801-030-0015(d) that: (d) Custody and disposition of working papers. (A) A licensee may not sell, transfer or bequeath working papers described in this rule to anyone other than one or more surviving partners or stockholders, or new partners or stockholders of the licensee, or any combined or merged organization or successor in interest to the licensee, without the prior written consent of the client or the client’s personal representative or assignee. (B) A licensee is not prohibited from making a temporary transfer of working papers or other material necessary to the conduct of peer reviews or for the disclosure of information as provided by section (1)(b) of this rule. (C) A licensee shall implement reasonable procedures for the safe custody of working papers and shall retain working papers for a period sufficient to meet the needs of the licensee’s practice and to satisfy applicable professional standards and pertinent legal requirements for record retention. (D) A licensee shall retain working papers during the pendency of any Board investigation, disciplinary action, or other legal action involving the licensee. Licensees shall not dispose of such working papers until notified in writing by the Board of the closure of the investigation or until final disposition of the legal action or proceeding if no Board investigation is pending. So, a transfer to a successor firm appears to be permitted. What if she refuses to take the documents? Her probate estate could retain them and stay open, they could be returned to clients, or there could be a rule established by the Oregon body that regulates accountants that authorizes a central depository of such records. In Colorado, for example, in the case of law practices with no successors, original wills and estate planning documents can be deposited in the records of the court with probate jurisdiction that has jurisdiction over the territory where the decedent's practice was located. But, I could not locate any provision of this kind in Oregon law. Is it legal for us to destroy/shred/etc. the documents? In many cases, yes. Some states, by statute or regulation, and others by custom, allow business records to be destroyed as a matter of course, normally one year after the longest statute of limitations that could apply to a dispute where the records would be relevant (often seven years since the longest normally applicable tax statute of limitations is six years). Destroying tax returns is usually not a big concern because a transcript of the old tax returns can be ordered from the tax collection agency where they were filed. But, business records related to purchases of property and capital improvements and depreciation, and related to divorces, can be relevant for decades after they were created, so the more honorable course of action would be to make at least a cursory effort (such as a postcard sent to a last known address of each client with a deadline for requesting a return of their file) to return the files of clients that include original business records as opposed to mere copies of tax returns. Oregon has a seven year retention rule for most purposes pursuant to Rule 801-030-0015(e) which is linked above: (e) Retention of attest and audit working papers. (A) Licensees must maintain, for a period of at least seven years, the working papers for any attest or compilation services performed by the licensee together with any other supporting information, in sufficient detail to support the conclusions reached in such services. (B) The seven-year retention period described in paragraph (A) of this subsection is extended if a longer period is required for purposes of a Board investigation as provided in paragraph (d)(D) of this rule and OAR 801-010-0115(3). The referenced rule in that rule states: (3) Requirements upon resignation. Upon resignation, a former licensee is required to: (a) Surrender the CPA certificate or PA license to the Board; (b) Take all reasonable steps to avoid foreseeable harm to any client, including but not limited to providing written notice of resignation under this section to all clients and inform all clients of where client records and work papers will be stored and of the clients’ right to secure copies of all such records and work papers at no cost to the client; (c) Maintain client records for a period of at least six years, or return such records to the client; and (d) Continue to comply with the requirements of OAR Chapter 801 Division 030 pertaining to confidential information and client records. (e) For the purpose of subsection (b) above and unless otherwise required by the Board, a resigning licensee of a registered firm is required to give written notice to only those firm clients for which the resigning licensee was the sole or primary CPA on an engagement, an engagement leader, or the client relationship manager. In practice, the consequences of destroying a record that shouldn't have been destroyed are likely to be minimal, because any recovery would be limited to the assets of the estate and there is a time limit for making claims against estates which is quite strict, and your grandma has no license to revoke. But, again, the honorable thing to do in order to honor her legacy and do right by her former clients would be to either transfer the records to a successor firm or to attempt to return them, as she would be required to do if she had surrendered a license during life. |
Is it possible to renounce all responsibility for files on a web server? (Sweden) I'm going to build a Web server that allow users themselves to upload files, video clips and so on. This will only be available in Sweden. Then my question is: Is it possible to renounce all responsibility for files on a web server or file server and put it on the User? Do you have any tips or have this be done by a professional? | 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. | OK, so you understand that clickwraps do create enforceable contracts. the person "agreeing" to the dialog can arbitrarily manipulate the contents of the agreement terms So what? I can do a similar thing with a pen and paper agreement. You send me an agreement, I tell you I accept but secretly I have changed it. Well, guess what, when this ends up in court the judge won't care if I wiped my ass with it - I communicated my acceptance of your terms; therefore that is what I accepted. Under the hood, Google can show what the HTML was that their server sent to you and the http response that you sent back. They said "Do you accept?" you sent back "yes", deal done. What you did with the html in your computer does not matter one iota; just like what you did with pen and ink terms would. | Yes, there would still be an obligation to comply with erasure requests – if the data subject can be identified, and if the GDPR applies. This is a case for Art 11 GDPR: processing which does not require identification. The pastebin site is not required to collect identifying info just in order to facilitate later deletion. If the site is unable to identify the data subjects, then the data subject rights (like access, rectification, erasure, restriction, or data portability) do not apply. Other rights like the right to be informed and the right to object do remain, though. But if the data subject provides sufficient additional information that makes it possible to identify their records, then the data subject rights apply again. In practice, this is likely going to mean that anyone with access to a paste will be able to request deletion, since the site would have no ability to verify the identity of the data subject beyond the information in the paste. None of this absolves the site from implementing appropriate technical and organizational measures to ensure the security of this data. Even though the pastes might not be directly identifying, they are personal data and are far from anonymous. Common practices like numbering pastes with a sequential ID or showing recent pastes on a homepage have to be viewed critically. My go-to recommendation is to assign a cryptographically random UUIDv4 ID to the post, so that it is practically impossible for anyone to find the paste unless they were given a link by the uploader. Your idea to delete pastes after a fairly short retention period is also good. This helps with security, and it is in line with the GDPR's data minimization and storage limitation principles: data may only be kept as long as necessary for its purpose. On the other hand, quick deletion might not be in line with the purpose of these pastes – it all depends on context. You mention that this is an US-based site. If so, there's a question whether GDPR would even apply. GDPR will apply per Art 3(2) if the data controller is offering its services to people who are in Europe. Here, “offering” does not mean mere availability of the website, but that the data controller intends the service to be used by such people, in particular if the service is somehow targeted or marketed to such people. | I believe the relevant section is 28 CFR 35.150 - Existing facilities § 35.150 Existing facilities: (a)General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not - Because of this, it seems theoretically possible that someone could complain that the youtube videos of lectures are not accessible enough to disabled persons, and therefore have them taken down. Regardless, it seems that UC Berkley decided to preemptively take down the videos in order to "reset" their online lectures catalogue and make large improvements. But yeah, nothing in the statute says they must take such videos down, but it would be a theoretical violation of the law to leave them up. | The platform will get in trouble for copyright infringement. The disclaimer that you are not liable does not work, legally, since the person suing you hasn't agreed to the TOS on your webpage. You can be sued for "secondary infringement", meaning that not only the uploader but also you the service provider are liable. The solution to this quandry is the "DMCA safe harbor", a set of rules which, if you follow them, you won't be held liable. The specific piece of law is here. The essence of the rules is that you have to have a "designated agent" who receives takedown notices: if a copyright owner finds their stuff on your page, they officially notify you, then you take the material down – expeditiously (no dawdling). You notify the uploader, they either accept the takedown or file a counterclaim, you notify the rights-holder, there's a waiting period, then the rights holder can file a lawsuit, or not. If the rights-holder doesn't file suit, you can put the material back up. You cannot rely solely on the intricate DMCA notice / counter-notice dance, because under para (c)(1)(A)(ii) of §512, you also must not be "aware of facts or circumstances from which infringing activity is apparent". | 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. | Neither the GDPR, nor the CCPA, nor any other data protection law that I am aware of, requires that when information is deleted on request, that similar information not be collected and stored in future. Under the GDPR Article 6 there would have to be a lawful basis for any processing, including storage, assuming that the GDPR applies to the directory in question. There could be a claim that such processing was lawful under article 6(e) "performance of a task carried out in the public interest". I do not know if any such claim has been adjudicated. Thus there is no need to hold a database of previously erased records to determine if a new record should be blocked as "previously deleted". The Wikimedia Foundation, which runs Wikipedia, I believe takes the position that the GDPR does not apply to Wikipedia, I am not sure of their detailed arguments. But surely articles on well-known people, such as a former US president, would be covered under the same provisions as would cover news reports and historical books about such a person. Perhaps that would also come under article 6(e) | As I understand it there is no obligation to 'triage' SARs or keep data 'just-in-case' that would otherwise be deleted as a matter of routine. Can we amend or delete data following receipt of a SAR? It is our view that a SAR relates to the data you held at the time you received the request. However, in many cases, routine use of the data may result in it being amended or even deleted while you are dealing with the request. So it is reasonable for you to supply the information you hold when you respond, even if this is different to what you held when you received the request. However, it is not acceptable to amend or delete the data if you would not otherwise have done so. Under the DPA 2018, it is an offence to make any amendment with the intention of preventing its disclosure. https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/right-of-access/how-do-we-find-and-retrieve-the-relevant-information/ |
What is the legal notation that refers to State and Federal Laws known as? I've seen legal notation in various documents that refers to a state or federal law written like this: 29 U.S.C. § 203 B I'm assuming the U.S.C. stands for United States Supreme Court, but I don't know what this notation is referred to as, and I don't know what each part means. Can some one explain this? | The term is "citation." In the citation you entered, U.S.C. refers to the United States Code, which is a compilation of every general permanent law Congress has passed that's organized by topic (and not by when it was passed). The US Code is developed by the Office of Law Revision Counsel of the House of Representatives, and is organized into (at the moment) 54 titles. The 29 is the title for the code section you cited; Title 29 deals with labor. Other titles include Title 10 (dealing with the military), Title 18 (crimes and criminal procedure), and Title 26 (income tax). There are levels of organization below the title, but they vary by title (e.g. Title 29 is divided into chapters, while Title 10 has five subtitles, divided into parts, and those are divided into chapters). The level where the actual text of the law is found is the section; when you're citing something in the US Code, you cite it by title and section (§ is a standard symbol for "section"). So 29 USC § 203(b) is section 203 of Title 29, subsection B. You don't include the fact that it's in Chapter 8 in your citation, because title and section is all you need to find it. | "Codes" are usually collections of previously existing laws. The Code of Hammurabi and the Code of Justinian were both collections of laws, gathered for easy reference. In the US, the US Code (USC) is an almost comprehensive collection of current law, much of which was passed in separate statutes before it was codified. In this contest, to codify is to include a law in the code, altering formatting and numbering to make it consistent with the rest of the code. Laws in the US are normally passed and go into effect before they are codified. In modern usage "code" is not normally used for a single law. There is also the US Code of Federal Regulations or CFR which is a collection of regulations passed by various federal agencies to implement law. They are not laws, but in many respects thy have the force of law. I believe that several other legal systems use "code" or a word that might be translated as "code" in a similar way. In a wider sense, "code" can be used to refer to an entire system of law, as "the Mosaic code" or "the Anglo-American code". It can also be used for the precepts of a non-legsal system as "an ethical code" or "the architect's code of practice". A bill is a proposed law not yet passed by a legislature. In modern US usage, codes only include statutes passed by legislatures, not constitutions. This is because codes collect the work of legislatures, but written constitutions come from different and special sources. The term "act", in modern usage, is a synonym for "statute". In historic usage not all acts were statutes, only those important enough to be routinely quoted verbatim, not paraphrased. | I'm not sure about USA law, it's probably similar to UK law. In the UK a trademark is registered for a particular business activity, and you can't just blanket register for "all" activities as that would be anti-competitive. I have a trademark "Dreamcraft" for dream interpretation and related activities. However, the name "Dreamcraft" is also a registered trademark for a company selling luxury yachts, and again for a company selling up-market craft materials. A website or organisation that is a gripe-site using the same name would not be in breach of any of these trademarks because it wouldn't be in direct competition with any of these companies. | 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. | First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept. That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows. | The general rule is, anything is allowed unless it is forbidden (and not that you can only do things that are expressly permitted). The logical structure of law may be a bit more challenging than procedural programming logic, since it may require a global knowledge and evaluation of the entire code (typically but not absolutely, the scope of the search for "unless otherwise" conditions is restricted to "in this chapter"). In other words, the law is a set of propositions which must all be true, and unlike actual execution of instructions in a sequence, law is to be interpreted simultaneously but hierarchically (that is: the order in which clauses are written is not significant). The appearance that the law is self-contradictory is largely illusory, though the resolution of the conflict may require a careful reading of the law and knowledge of jurisdictional hierarchy (federal law is superior to state law, which entails a particular resolution of the apparent conflict). Sometimes there are real conflicts, which usually result from using words in conflicting ways (note the practice of re-defining words "in this chapter/section/title"). The reason why law is not a science is that law is normative, not descriptive: it dictates what is allowed (a determination made through the political process), and does not attempt to discover what independently is. The reason why the legal process cannot be implemented in software is that software does not yet correctly interpret natural language, and law is written in natural language following interpretations based on judgments of what choices a reasonable would make. Perhaps if you propose a piece of law that you think is contradictory, it would be possible to show how the contradiction is illusory. | Congratulations, intrepid legal enthusiast or learner! What you'll need A legal dictionary, especially if you're just getting started. If you don't own one, you can try Black's Law Dictionary A little bit of patience and time. Or maybe a lot, depending on the particular case and the particular question you're trying to answer. Maybe a normal dictionary, too. Again, if you don't own one, there's plenty online. Onelook is a dictionary search engine, so it'll search a lot of dictionaries at the same time. Okay, I've got those things, now what? Alright, there's a few things you should know. Firstly, decisions of superior courts are binding only on those inferior courts within the same hierarchy. This means that you can appeal to a higher court so long as it has appellate jurisdiction. Generally, a state (meaning a country) will have a supreme or highest court, with appellate jurisdiction over all other courts - in Australia, this is the High Court of Australia, in the United States, this is the Supreme Court of the United States, and in the United Kingdom, this is the Supreme Court of the United Kingdom. Secondly, decisions of a court are generally binding only on the matter in dispute. For example, if in a case, the matter of whether the police owe a duty of care to citizens in detecting crime, a comment on whether the police had correctly parked their vehicle is not binding - it is called obiter dictum (plural obiter dicta). What we're looking for in a judgement is the ratio decidendi (plural rationes decidendi), which is the reason for the decision. This is what is binding, and would be considered in future decisions. The problem? It's not always easy to tell the ratio from the obiter. Finally, often, the only way to know whether our interpretation of a case is right is to see whether it is applied in a future case, or overruled. Examples, examples! Sure. Let's try something easy to start with. Do product manufacturers owe a duty of care to their customers? Yes. The decision in Donoghue v Stevenson [1932] UKHL 100 found that product manufacturers - in this case, a ginger beer manufacturer - have a duty of care to ensure their products are safe for use or consumption. Lord Atkin said: The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Okay, so the answer to this question is yes. How do I verify it? Get the source of the judgement. Without this, you're going to be relying on hearsay. The next best thing is a subsequent judgement that applies the one you're looking for, because if the judgement says what it's supposed to, it'll be mentioned in the subsequent judgement. I've found this one. Decide whether the matter in dispute is actually being decided. In our case, it is. But if I was quoting this from a judgement on whether product manufacturers have an obligation to transfer title for goods supplied on a credit agreement, it wouldn't be binding. Find the quote. If you've been given a quote. Otherwise, grab a cup of tea or coffee and get ready to read. A lot. If you can't find something that says, or means, what it's supposed to, it's probably not accurate. Make sure the judgement hasn't been overruled This is tricky, unless the judgement database you're using has a way of searching it. Most do. In any case, it's much like trying to prove a negative. In fact, it's exactly that. But always check whether the judgement has been overturned on appeal. Make sure the judgement hasn't been obsoleted by statute Again, this is tricky. It's proving a negative, again. And trying to find statute might be an answer for another time. Is that it? Pretty much, I think. These are at least the main points. There's a whole laundry list of things you shouldn't do with judgements, but they're more about reasoning than legal principles. It's a skill you can really only develop by using, and I'm constantly practising myself. Many discussions about cases are precisely about what their effect is. Yes, the decisions and orders are usually pretty clear-cut - for example, the decision is that the manufacturer has a duty of care, and the orders are for damages and costs to be paid. But what it means beyond that can be murky. Luckily for us, judges have become better at writing their judgements so that others can understand. Also, for more important cases, where the entire country, or world, is watching, others will interpret it for you - consider Obergefell v Hodges, for example. Not everyone can be trusted, but everyone, taken together, is a much more trustworthy source than just one person. In the end, there's not a mathematical formula for determining what judgements mean. There's some interpretation involved, some judgement. There's not always going to be one judgement that's enough to prove your matter. I'm struggling to end this post neatly so I'll just finish it with a cliff- | Yes. In some common law jurisdictions, such as Canada, the United Kingdom and even some U.S. states, the government may under some circumstances refer a legal question to the appropriate Supreme Court (Privy Council in the U.K.) for an advisory opinion. These opinions are non-binding, but have large influence because they are often made by the same judges that would otherwise end up dealing with the question should it occur in a case. One common law country in particular stands out in this field: Ireland. Under Article 26 of the Irish Constitution the President may, with some exceptions, refer a bill to the Supreme Court to test its constitutionality. The referral is optional, but once made, the Supreme Court's decision is binding. The relevant portion: 3 1° In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill. [...] 3° In every other case the President shall sign the Bill as soon as may be after the date on which the decision of the Supreme Court shall have been pronounced. This power was last used successfully in 2004. |
What are my legal risks if I break a non-competition agreement with my current employer? (UK) My contract says I cannot work for a competitor of my current employer upon termination of the contract and six months thereafter. There are no remedies mentioned in the contract. I work in a small field of cyber-security and there are not many companies in this field in the UK. I never really paid attention to this section nor imagined it would be enforced but now coming to accept an offer from a competitor. My role in the current company, they would argue, is substantial and I'm exposed to critical business decisions however I am not an executive and do not sit on the board. Assuming I will go ahead and move to a competitor: What legal risks am I exposed to? What legal risks would my new employer would be exposed to (if any)? Am I required to notify the new employer on the issue? | 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. | The parties to the contract have not changed; they are still the purchaser company and the scrap vendor. The obligations have not changed; they are presumably based on amounts of stock and monetary value. The only changes are in the name of one party and its ownership, so unless the contract permits termination for those reasons (not unheard of, if a contract has been intended to provide/avert support from/by a particular party or symbolism) the contract still stands with all its terms. A novation is not needed. | From point 4: transferring all rights and obligations of Company A to Company B Among those rights and obligations are the rights and obligations arising from Company A's agreement with Employee. Employee is therefore still subject to the agreement, which is enforceable by Company B. If the agreement is carefully drafted, it will make explicit mention of Company A's "successors in interest" or some similar phrase or phrases. Even if there is no mention, the rights and obligations associated with this agreement will transfer (perhaps unless the agreement explicitly provides that they will not, but, let's be realistic, of course it does not so provide). | You can be fired in Canada for criticizing the employer, or even complaining about the weather. There is a distinction between Termination Without Cause and Termination With Cause. In the latter case, which requires a serious reason related to the employee's conduct, you can be fired without advance notice and with no severance pay. If the employees actions are fundamentally inconsistent with their obligation to the employer or are substantially prejudicial to the business in a way that damages employer's business or reputation, they may be terminated with cause. Examples of cause would include insubordination, theft, or abusing customers. If you want to fire a person without cause (and assuming that this is an indefinite employment contract as opposed to a fixed-term contract), you have to give "reasonable notice". There is a statutory minimum, but the courts usually apply a higher common law standard which means that you need to hire a labor lawyer to know what that period is, though 24 months is apparently a relatively safe figure (not always safe). The factors entering into that decision are described here (kind of job, length of service, age, availability of similar jobs; plus, how the termination was handled). You may also owe severance or termination pay, related to length of service and wages. Here is a calculator for Ontario. This article covers some instances in Québec where social media criticism did result in successful suspension, indicating that the employee's duty of loyalty is not entirely null when it comes to social media. In the BC case of Kim v. ITU, the court found that the dismissal over social media posts critical of the company was not for cause. However, part of the company's failure in this case was that they failed to respond immediately to what they saw as inappropriate behavior (boorish Twitter behavior). Assuming that the statements made are accurate and expressed respectfully, the prospects for Termination With Cause are significantly diminished. The prospects for some disciplinary action (suspension for a period of time) remains high -- multiple terminations were modified to long suspensions. | I would recommend talking to an adult person in HR. I'm quite sure they will notice that what your manager wants to do is more than dodgy, and doing something dodgy may be in the interest of your manager, but not in the interest of the company. The best thing is to go to HR, acting as if a mistake has been made, and point out to them what your start date was, and that the new contract has the incorrect starting date, and they need to fix this mistake or you can't sign the contract. If they insist you sign it, then you DON'T sign it. If they say you will be fired if you don't sign it, then you tell them that in that case you would get legal advice. BTW. You definitely don't sign this as it is. PS. This answer was posted on workplace.stackexchange, not law.stackexchange, so please don't complain if there is no legal content. | In general, in the US, Bob may do this. If the second company is a competitor of the first and Bob has access to confidential information from his first employer, then there could be an issue. Some employers require their employees, or some of them, to agree to "exclusive employment", that is to agree not to accept any other employment while employed by the company. If Bob has agreed to such a contract, he would be in breach of it if he took a second job and could be fired if his main employer learns of this. This is not a problem if Bob gets permission for the vacation work from his usual employer. In any case, Bob is not committing a crime, even if he is violating his contract. | http://www.thisismoney.co.uk/money/experts/article-1698485/Can-I-discuss-my-pay-with-colleagues.html In short, there are no laws prohibiting or rendering such contract clauses unenforceable, but an employer cannot rely on such a contractual clause to abrogate its obligations under the Equality Act 2010. | Critique I'm technically a director of a company ... You either are or you aren't - there is no "technically" involved. ... is not currently trading ... And doing nothing can create a conflict of interest? How? You mustn’t be involved either directly or indirectly with any other trade or business competing in or conflicting with the interests of our Company. "competing or conflicting" is the key here - if the "other trade or business" can adversely affect the performance of your employer then you have a conflict, if not, you don't. are only related in such that they are both technology based but otherwise are unrelated. Sorry, but that is so vague as to be totally useless - what company today is not "technology based"? Pharmaceutical companies are technology based, so are construction companies, so are law firms but one would hardly call them "related". Solution Conflicts of interest are easy: If you don't think you have a conflict of interest and they don't think you have a conflict of interest then you don't have a conflict of interest. If either or both of you do; then you do. Tell them about it! Conflicts of interest are a problem because people think that if you are keeping secrets then you are doing it for a nefarious purpose! In 90% of cases declaring the potential conflict resolves the conflict because the other party says "That! Don't be silly; that's not a problem!" or words to that effect. In the 99.9% of the remaining 10% of cases then sensible people can come up with sensible solutions, for example: If you want to be involved with another business whilst working for us then you’ll need to get a letter from the Director of your area confirming that they’re happy for you to do this. |
Does the concept of presidential pardon have a justification in terms of separation between the executive and the judiciary? (France) First of all, I have no experience in Law, I was just "philosophically" interested by a question related to it. I hope it is not off topic. The French President François Hollande is considering granting apresidential pardon to some French woman. My question is the following: how does the concept of presidential pardon have a justification in terms of separation between the executive and the judiciary? Why, philosophically, a president or any elected politician would have a right to directly influence justice decisions as in the case of presidential pardon? What is the idea behind that? I expect that the reason may vary depending on the country where it does exist. | The simple legal answer is that the President has this power because the law gives it to them. Historically, the right of the head of state to grant pardons is a legacy of autocratic monarchical rule: this was a power that kings and queens had over their subjects. In France, this power ended with the monarchy during the French revolution but was reinstated by Napoleon, himself an autocratic monarch, and it has remained in the various incarnations of the French legal system ever since. Here is an examination of the concept in various jurisdictions. The concept of separation of powers is a much more recent concept. In particular, the tripartite separation into administrative, judicial and legislative power can be traced to Montesquieu in his The Spirit of the Laws in 1748. This Enlightenment point of view crept into many political systems, however, the specific expression of it reached full flower in the establishment of the United States. It is worth noting, that pardons at both state and Federal level are part of US law vesting in the Governor (or some other member of the executive) and the President respectively. The tripartite separation is supposed to provide checks and balances with each arm of government serving to limit the power of the other two. In this context, it is perfectly reconcilable that the executive branch should have the power to intervene and correct "mistakes" made by the judiciary just as the legislative branch does by being able to change the law in the light of judicial interpretation of existing law. In effect, the executive can correct "mistakes" in individual cases looking backwards and the legislature can correct "mistakes" in general going forward (the do in fact have the power to make laws retrospective [backwards looking] and specific but they tend not to do so). | There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order. | Nobody so far has discussed Electoral law e.g. Representation of the People Act 1983 There are various clauses that may be relevant, one of which is: A voter shall be guilty of bribery if before or during an election he directly or indirectly by himself or by any other person on his behalf receives, agrees, or contracts for any money, gift, loan or valuable consideration, office, place or employment for himself or for any other person for voting or agreeing to vote or for refraining or agreeing to refrain from voting. Subsection 2 similarly makes it an offence to offer employment to induce any voter to vote or refrain from voting but somewhat less concisely. I believe this would make such a contract unenforceable. | This is technically an open question, but there is a general consensus that Consovoy's argument is unprecedented and unsupportable. If the president can be dragged into civil litigation over private matters in the middle of his presidency, Clinton v. Jones, 520 U.S. 681 (1997), it seems unlikely that the courts would give him a pass on prosecution for a midterm murderous rampage. If Consovoy is right, though, the answer would have to be that yes, Trump could avoid prosecution. Posing the question that way sort of helps to highlight the problem with Consovoy's theory. As I understand it, Consovoy's argument is that impeachment is the only remedy for crimes committed by a president. But if the president can just kill of Congress, there's no one left to impeach him, leaving the country with no way to remove him. So again, the answer is almost certainly no. | The President has the power under Article II of the U.S. Constitution to faithfully execute the laws enacted by Congress. Any power that the President has to regulate international travel of non-U.S. citizens arises from statutes enacted by Congress that give the President (or the executive branch more generally) that authority. Immigration laws, in practice, give very substantial discretionary authority to the President, and public health laws probably also do so. I don't have chapter and verse to cite to you regarding which specific statutes provide that authority, without considerably more research, but that is the general idea. The primary statute regulating immigration is the Immigration and Nationality Act of 1965 (and more generally, Title 8 of the United States Code). It is not uncommon in the United States for there to be disputes over how much discretion a President has under a particular statute in the United States, because unlike parliamentary systems of government, the execution of laws and the passage of law is split between different branches of the federal government in the Presidential system of the United States, rather than being fused with a Prime Minster who serves at the pleasure of the legislature. | First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept. That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows. | The question largely does not come up in the US, but it does in some officially bilingual jurisdictions such as Canada. If someone ventures to paraphrase law of the US into Farsi or Spanish, that could be a kind act on their part, but it has no official status: only the law as enacted has legal weight. Though India is officially multilingual in many ways, acts of parliament must be in English – the English version is authoritative, even though translations may be made. In Canada, both English and French versions are official; so in the case of R. v. Collins, [1987] 1 SCR 265, a conflict is detected: The French version of the text, which translates could bring the administration of justice into disrepute, is less onerous than the more stringent English version, "would bring the administration of justice into disrepute", and consequently is preferable in that it better protects the right to a fair trial (invoking a separate principle of interpretation, lenity, in case of ambiguity). There is some indication that EU directives can be translated after the fact, so that the 1979 Wild Birds Directive was translated from English into Slovak some years later. In the case of the EU, the Directorate-General for Translation shoulders that responsibility. | Strictly speaking, that principle isn't even true everywhere in the US. The maxim "nulla poena sine lege" (i.e. "no punishment without a prior penal statute") was historically applicable to civil law systems, such as are found in continental Europe. In common-law systems, there was never a tradition in which a crime wasn't a crime unless it violated a penal law, because crimes themselves were traditionally defined by court precedent instead of by statute. In US federal court, the only allowable common-law offense is contempt of court. This is due to a court decision (United States v. Hudson), in which the Supreme Court ruled that federal courts do not have the constitutional authority to hear a case in which someone is accused of committing a common-law crime. Even so, and even though there is a federal contempt statute, the Supreme Court has ruled that contempt is an inherent power of any court, and statutes around it only regulate the power (but the power would be there even without a statute). At the state level, some states have explicitly passed laws saying something is not a crime if it doesn't violate the penal code (although this doesn't necessarily apply to contempt); see section 6 of the California Penal Code for an example. In other states, like Florida, common-law crimes still exist; Florida has a statute saying that any common-law offense is still a crime unless a statute has explicitly covered that same subject matter (section 775.01), and specifies a generic penalty for anything which is an offense at common law and not addressed by any Florida penal statute (section 775.02). While this is sort of statutory (as it's a statute giving the penal provision), it's also basically not (as no statute has to say "X is illegal," because it's enough that English common law makes X illegal). |
Can Clinton be pardoned without being charged or convicted? Is it possible for someone to be pardoned if they haven't been convicted or even charged with a crime? | The canonical example is Gerald Ford's pardon of Richard Nixon. | Possibly. I wonder if you mean "convicted" rather than "arrested"? There is no way that he will be "arrested" because you don't accompany him ("arrested" is when he taken by the police before a trial). On the other hand, if he plans to call you as a witness for the defence, then your absence may mean he is convicted at his trial when otherwise he would be found innocent. The final possibility is that you might act as a character witness after conviction, and your absence may mean he is sent to jail rather than fined. It may be possible for you to write a witness statement describing what happened, and to have this notarized. On the other hand, the prosecution may well want to cross examine you. I am pretty sure you can write a character witness statement (saying, if true, that it's a first offence and that you have forgiven him, etc) and get it notarized. That might persuade a court to be lenient. I think you (as a couple) need to talk to his lawyer. | If that which you describe in your comment ( Facebook post as only basis for warrantless search) is, and can be shown, to be the only basis for the search, and there was no evidence of a crime in plain view when they arrived.....then yes, it is likely the search and all evidence acquired from the search would be excludable. As to whether the individual could still be prosecuted, that depends if a case could be built independent of the evidence collected during the search. | Generally, no. The party to the action will be the State (commonwealth). The prosecutor acts as the agent of the state. The sheriff is not a party and cannot appeal. | If you read the first link, every offense can lead to arrest without a warrant. Notwithstanding, you don’t have to be arrested to be charged and vice -versa. | Yes, because the crimes are different instances. Let's remove the guilty plea and the fact that it is murder: can a person assault a person, be tried and imprisoned, then assault the same person later – and get off by declaring "Double jeopardy!". No, it's not the same crime. It's the same type of crime, and involves the same victim, but it is still a different crime. The same with your proposed scenario. (Incidentally, your first line is wrong: the woman wasn't murdered, she was thought to have been murdered). | However, in the last 233 years, only a handful of people have been prosecuted for violating this law. The census bureau has noticed that a more effective way to get everyone counted is to follow up in person if someone neglects to respond to the questionnaire. Once they follow up and the person has responded, there's no longer a basis for prosecuting. What is the point of one of the oldest laws, in which some people have cared enough to amend, but not enough to actually enforce? The possibility of prosecution is presumably thought to increase the response rate even if virtually nobody is ever prosecuted. The law also serves as a formal statement by congress that responding to the census is important, even if the executive doesn't prosecute people for failing to do so. Another thing to consider is that an element of the offense specified in 13 USC 221 is refusal or willful neglect. Without evidence of an affirmative refusal to respond, the prosecutor would need evidence of willfulness, which goes to state of mind, and that is notoriously difficult to prove. Any defendant who claims to have intended to respond but for chronic forgetfulness would introduce reasonable doubt unless the prosecutor had something to show that the defendant intentionally refrained from responding. | No The police and the office of the public prosecutor have discretion in which cases they investigate or prosecute. The court may refer an instance of criminality to them but they are under no obligation to do anything with that referral. |
How does one determine if illegal goods were accepted if an individual who has both legal and illegal source of income pays another party? Lets say that an individual, Bob, has a regular job which covers his daily expenses, but also has an illegal side job. A decent percentage of his disposable income is due to Bob's illegal activities, but he has some disposable income coming from his legal activities. Both sources of income are placed into a bank, and bob then makes payments using a credit/debit card. I'm wondering where the line is drawn for stating that someone has received illegal goods, as there is no longer a way to tell what money was legally earned and what was illegally earned. I'm wondering both in cases in which one is aware of bobs illegal activities and in cases where the receiver of the money does not know it's illegal, but could still be compelled to refund it if it were illegally obtained. A few examples of the ambiguous situations I can think of: I assume if Bob buys a single drink at a local bar this would not be ruled as spending illegal money and the bar would not be committing an offense even if the owner of the bar was aware that Bob had an illegal income source, as Bob could easily purchase a drink with his legal income. Likewise I assume if bob goes out to buy a Yacht that he could never afford with his legal income it would be considered to be purchased with illegal profits. However, what about a more ambiguous case. If bob buys an expensive fur coat for someone, which he could afford to do with his legal income, but which he likely wouldn't have chosen to spend money on if he didn't have the additional illegal income, does the coat count as profiting from illegal goods? What if Bob offers a smaller sum of money to many people, small enough that Bob could easily afford to give such a gift to one person, but the combined cost of so many small gifts adds up to an amount bob couldn't/wouldn't have been able to afford without his supplementary income? Could someone argue that the gift they received from Bob came from his legal income, but the other gifts Bob made to others was due to Bob's illegal activities, by claiming Bob was likely to give a gift to them without the extra illegal income but not to the others etc? | For the offense of receiving stolen goods, "tracing" does not usually apply. It must be the actual good stolen and not proceeds of illegal activity. Tracing could come up in an effort to impose a "constructive trust" (usually by a private party) or "civil forfeiture" (usually by law enforcement) on the proceeds of embezzlement or fraud, for example. Tracing in this circumstance is governed by broad considerations of equity law and are highly fact specific. The methods are fairly ad hoc and mostly come down to rules of reason. For example, a court might find that anything clearly purchased with clean assets that were not comingled with dirty assets are not subject to forfeiture or a constructive trust, but that the entire amount of comingled assets might be subject to forfeiture or a constructive trust up to the total amount less the amount of clean assets which were comingled. This issue came up in the U.S. Supreme Court of Luis v. United States in 2014 over whether clean funds of someone subject to fraud liability could be frozen to protect the solvency of someone who may have already squandered the dirty funds when the defendant wants to use the clean funds for an expensive legal defense of the case (SCOTUS said that assets purely traceable to clean sources can't be tied up so as to prevent them from being used in a legal defense of the case.) Tracing generally does not extend to a bona fide purchaser for value (i.e. someone with no knowledge of wrongdoing is paid fair market value for something or pays fair market value for an asset) of something from the person engaged in misconduct because there was no economic benefit from the transaction to either party's net worth. What if Bob offers a smaller sum of money to many people, small enough that Bob could easily afford to give such a gift to one person, but the combined cost of so many small gifts adds up to an amount bob couldn't/wouldn't have been able to afford without his supplementary income? Could someone argue that the gift they received from Bob came from his legal income, but the other gifts Bob made to others was due to Bob's illegal activities, by claiming Bob was likely to give a gift to them without the extra illegal income but not to the others etc? In this situation, the gifts would be a "fraudulent transfer" because absent his illegal assets, Bob would probably be insolvent (i.e. have debts in excess of his assets), and transfers made without receiving substantially equivalent value in exchange can be unwound by his creditors if he is insolvent himself within a certain number of years. His solvency at the time of the gift rather than tracing from legal or illegal income respectively, would be the relevant legal issue. Of course, if the amounts of the gifts were small, it might not be economic to sue for their return. | As described, no. Paying employees with benefits instead of money is called in kind remuneration. There are various limits on in kind payments around the world, including the US. Very generally, in kind payments are only allowed for particular industries and occupations, only allowed up to a certain dollar value, and only allowed as a certain fraction of the employee's wages. Furthermore, the value of the benefit can't exceed the actual cost to the employer - a meal that's priced at $7.25 on the menu is sold at a profit, and would be worth less than the menu price as in kind remuneration. So, given the scenario described, a restaurant employer could not replace 100% of their employee's wages with food sold for the same amount. It's too high a percentage of the wage paid as in kind payment, and the menu price equivalent of the wage would not have sufficient in kind value. A more detailed description of in kind payment laws can be found here. It's a rather long document that's not particularly well-organized, and is structured by describing various aspects of law in different geographic locations, rather than describing all aspects of the law in a location-specific manner. I was able to find US-specific law by searching the document for "United States". | It should be pointed out that smuggling doesn't just involve illegal goods but also includes legal goods that are brought in without following proper procedures such as paying required duties. https://www.findlaw.com/criminal/criminal-charges/smuggling-and-customs-violations.html False Declarations; Exporting violations; and Importing violations. False declarations can happen when a person returns to the U.S. or enters for the first time. They must declare the value of any goods they are bringing in from overseas. You can violate the law by misrepresenting the value of the goods, omitting them from the declaration form completely, or making false representations. Also, if you fail to disclose leaving or entering the country with $10,000 worth of currency, you can be criminally charged. While I am not a lawyer I could see that the authorities might have an issue with someone pulling a stunt like that in order to "test" them. Even if there is no legal issue the person could be put through a lot while they run tests to confirm that nothing illegal is being brought in and there is nothing preventing them from making the process as long and painful as they can. Something else to consider they also have rules in place for brining other legal objects on board planes if they resemble objects that are not allowed. https://www.tsa.gov/travel/security-screening/whatcanibring/items/toy-guns-and-weapons Squirt guns, Nerf guns, toy swords, or other items that resemble realistic firearms or weapons are prohibited. We recommend emptying water guns, which must follow the 3-1-1 Liquids Rule. Replicas of explosives, such as hand grenades, are prohibited in checked and carry-on baggage. TSA officers have the discretion to prohibit any item through the screening checkpoint if they believe it poses a security threat. It is also possible to be charged with selling fake drugs and the local authorities can bring those charges and it can become their word versus your word about what your intentions are. In this case you might not be intending to sell them but it would be impossible to argue that you are not trying to pass it off as fake drugs. https://www.criminaldefenselawyer.com/legal-advice/criminal-defense/drug-charges/jail-selling-fake-drugs.htm Question: I sold a baggie of aspirins that I said was OxyContin to a guy at a concert. After the show, I heard that there were undercover officers in the crowd. Could I be busted for selling fake drugs? Answer: Yes. States and federal laws make the sale of fake drugs illegal, and you can even be charged with an attempted drug sale under some laws. | 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. | If you cannot legally purchase a gun in Utah due to any restriction, such as residency, and you engage someone else to knowingly buy or gift you a gun (such as a "straw man" purchase from a dealer or private sale), that is illegal. From the same link you posted (my emphasis): Can I buy a firearm as a gift for someone? Yes, as long as the receiver is not a prohibited person and the gifting is not being used to circumvent a background check or other laws. Calling a purchase intended in place of another is a straw purchase. | According to the United States Treasury Department: Money laundering is the process of making illegally-gained proceeds (i.e. "dirty money") appear legal (i.e. "clean"). Typically, it involves three steps: placement, layering and integration. First, the illegitimate funds are furtively introduced into the legitimate financial system. Then, the money is moved around to create confusion, sometimes by wiring or transferring through numerous accounts. Finally, it is integrated into the financial system through additional transactions until the "dirty money" appears "clean." I have no idea if the $10m are proceeds of crime so we apply the duck test - "If it looks like a duck, quacks like a duck and swims like a duck; its probably a duck" A person has gifted another person $10m - there is nothing illegal about giving someone a gift, however, this is a pretty substantial gift. I am calling it a gift because there is no enforceable contract that requires repayment. There is an expectation that the receiver will invest this money for a period of time, hey, if I had $10m I'd probably invest it too. And then return it to the giver; with or without the earnings (you do not say). Again there is nothing wrong with reciprocating a gift; reciprocity is a cornerstone of most societies, however, this is a pretty detailed understanding of what reciprocity means. Quack, quack, quack - its money laundering. Many jurisdictions in the world have "unexplained wealth" laws which basically require a person to explain their unexplained wealth or have it confiscated. If it isn't money laundering it is certainly at risk of this. | That's the entire point of a summary proceeding. You're allegedly found committing an offence, that isn't worth the court's time to hear but nevertheless requires some penalty. The only way to "unambiguously deny liability" is by requesting a hearing and denying liability in the notice of this. The court doesn't care what you say to everybody else, it cares what you say on its record. The reasoning is, if you're so sure you're not guilty of an offence, why haven't you sought to argue this in court? And if you weren't committing the offence, why did the informant serve the infringement notice in the first place? The act is not silent at all on this. If you don't request the hearing and serve such notice by the date required, you are liable to enforcement action - whether you deny liability out of court is irrelevant. | Yes Yes, telling lies is generally not unlawful, much less criminal, as long as you did not intend to profit by them, and there is no specific law violated (for example it is a crime to lie to a law enforcement officer about matters materiel to an ongoing investigation). Attempting to get the scammer to send you money on false pretenses, however morally justified some would consider it, is likely to constitute fraud. |
Is it illegal for public figures to knowingly state a falsehood? Here is an excerpt from this article in the New York Times: The Supreme Court established the First Amendment principles that govern the country’s libel laws in 1964, with its unanimous decision in New York Times v. Sullivan. In that ruling, the court said that public officials had to prove that false statements were made with “actual malice,” meaning news organizations had to have knowingly published a falsehood or published it with “reckless disregard of whether it was false or not.” The standard, later extended to include public figures, set a high bar for libel and meant that people like Mr. Trump — both a public figure and soon-to-be public official — would have a very, very difficult time winning a libel lawsuit. Is it correct that the Supreme Court decided that it is illegal for public figures to knowingly state a falsehood? Are there any other laws/cases that shed light on this? | tl;dr No, N.Y. Times v. Sullivan established the actual malice standard in the context of defamation. It is not illegal for a public figure to claim the sun revolves around the Earth unless some other law intervenes (maybe something fact-dependant like fraud or lying under oath). Background Here's an example of how N.Y. Times would work in California. Under California law, slander, along with libel, are the defamation torts. See Cal. Civ. Code. § 44. The First Amendment limits California’s slander law by requiring public figures prove actual malice when they want to sue someone for defaming them. Khawar v. Globe Int’l, 19 Cal. 4th 254, 262 (1998). (The Supreme Court got involved in N.Y. Times in the first place because of the First Amendment implications on the States' defamation laws.) In turn, "actual malice" means a statement was made "with knowledge that it was false or with reckless disregard of whether it was false." Khawar, 19 Cal. 4th at 275 (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)). As to knowledge, California courts consider only actual—not constructive—knowledge. Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 398 (2001). In turn, actual knowledge "consists in express information of fact." I.E. Assoc. v. Safeco Title Ins. Co., 39 Cal. 3d 281, 285 (1985). This is a bunch of lawyer-speak, but it basically sets up a pretty high bar for the public figure who is trying to prove defamation. Again, N.Y. Times doesn't have to do with barring public figures from making non-defamatory false statements. You'd have to look to other areas of law about false representations or lying under oath for a claim against the politician. california | In the United States, at least, it's quite clear that merely arguing that the assassination of a leader would be a good policy decision is protected by the First Amendment. The United States Supreme Court addressed this question in Rankin v. McPherson, 483 U.S. 378 (1987). McPherson was a clerical employee in a sheriff's office when someone attempted to assassinate President Reagan. During a conversation about Reagan's attempts to cut food stamps and Medicaid, she told a co-worker, "If they go for him again, I hope they get him." The sheriff fired her for the remark, and she sued, alleging First Amendment retaliation. The trial court held that her remarks were not constitutionally protected, but the Supreme Court disagreed: The statement was made in the course of a conversation addressing the policies of the President's administration. It came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President. While a statement that amounted to a threat to kill the President would not be protected by the First Amendment, the District Court concluded, and we agree, that McPherson's statement did not amount to a threat punishable under 18 U.S.C. § 871(a) or 18 U.S.C. § 2385, or, indeed, that could properly be criminalized at all. ... The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. ... Debate on public issues should be uninhibited, robust, and wide-open, and may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. Note also that this case arose in the context of public-employee discipline, where First Amendment rights can be quite seriously curtailed. If the First Amendment protects the statements in that setting, imposing criminal penalties for the same speech is generally going to be out of the question. | What you reasonably believed to be true about the guilt of the rapist is moot; you could argue that you reasonably believed he was guilty, but you'll probably have to admit you didn't have the facts of the case to make a final judgement about guilt. That's what libel is: the stating of provably false facts. But mostly the problem will be that you didn't know the difference between an arrest and a conviction. People are arrested under suspicion of a crime when there is reason to believe valid evidence exists that they committed the crime, or that the evidence already exists. If it turns out that the evidence doesn't exist, the prosecutor won't prosecute, and the arrested person is released, and their arrest record expunged in some cases. And, yes, chances are very good the paper will have to print a retraction, due to a lawsuit or insistence of their own legal department. But any news or copy editor is going to add "alleged" to any such "the criminal is caught" headline, because that's one of the jobs of an editor or copy editor: to try and keep the paper from being sued for defamation by the named person who turns out to be innocent. So that libelous headline wording is rarely going to appear in print, anyway. And if you're only a journalist, you're not going to be writing the headlines; editors and copy editors do that. The separation of the writing of the article and the headline is traditional in journalism, and one of the reasons is above. If you in fact run your own paper or website and are the reporter and editor, good luck: that you didn't know the difference between an arrest and a conviction is probably the plea you're going to make to the jury or judge when you get sued for defamation and you're really hoping the civil court judgement doesn't financially destroy you. | Tortious publication of private facts is a doctrine that could get a person in trouble. There is no truth-defense to this tort. However, famous people have a hard time enforcing this one because newsworthiness is a defense and courts often find that facts about famous people are newsworthy (and most movies or books about people who are worth the effort of creation are about famous people). Right to Publicity is another. This basically says that people have a sort of trademark over their personality and it is analyzed much like trademark infringement. Of note is that this is a property right rather than a tort. | (Standard disclaimer: I am not your lawyer; I am not here to help you.) Under American common law, the distinction here would relate to the harm to B: either a damages issue or a "special harm" issue. The Restatement elements of defamation are falsity, publication, fault, and inherent actionability or special harm. See Rest. 2d Torts § 558. The last element captures the traditional doctrine that slander (not libel) is only actionable if it falls into one of four or five specific categories ("slander per se"), or if it actually causes economic injury. Your example doesn't seem to fit into any of the special categories. But see Rest. 2d Torts § 573 (imputations affecting business or office). If the statement to C is oral rather than written, and C doesn't believe it or otherwise nothing comes of the statement, B may not be able to prove special harm and therefore fail to recover anything. If D, on the contrary, avoided doing business with B, B may be able to show special harm supporting a claim. Similarly, C's disbelief or D's belief may be relevant to determining the actual damages B suffered and is therefore entitled to recover from A. | No. A governor could not be held liable in a lawsuit on those grounds. Governors in every U.S. state have governmental immunity from liability in tort (and a lawsuit for wrongful death is a kind of tort lawsuit) for their official actions, and there is no U.S. state in which this kind of lawsuit would fall within an exception to that governmental immunity. There is not private cause of action against a state government executive branch official under federal law for a violation of "Trump administration official guidelines for reducing the covid-19 mitigation." Indeed, it isn't clear that a federal statute creating such a private cause of action that purported to pierce a state law official's governmental immunity from liability, even if it were enacted, would be constitutional. In contrast, if a corporation violated such a guideline, the violation of the guideline would be evidence of negligence, although probably not conclusive evidence, in a suit for wrongful death by a non-employee brought against the corporation. | It depends on what is of evidence for. Normally, any newspaper, be it "tabloid" or "respected" or even the jurisdiction's "paper of record" would be considered hearsay; instead the source of the newspaper story should be called to testify instead. However, there are a couple of exceptions to this, beyond normal hearsay exceptions, which basically boil down to when a certain thing being published is, in fact, the information being entered into evidence. For example, in certain circumstances, the courts may accept "service by publication" for certain notices. An instance of this publication would be evidence that service by publication was carried out. Another example, your link is to a lawsuit concerning defamation; defamation requires proving that the damaging falsehood was transmitted to a third party. So entering into evidence a tabloid that publishes such a damaging falsehood is evidence that it was transmitted to a third party (namely, the public). | The purpose of that disclaimer is not to prevent reprimands or legal action. It's really as simple as it appears -- it's to inform the readers that the tweets in fact contain the opinion of the person who wrote them and are not intended to be understood as the official position as that person's employer. This is especially important for people who occasionally or frequently convey their employer's official position. It's not supposed to be some kind of magic word that causes something to happen. It's just an attempt to convey accurate information and avoid misunderstandings. |
Can I file a job discrimination lawsuit against a company that repeatedly rejects me? Context: I've been working as an IT specialist for > 15 years (some years full time in the office and last few years as a freelancer) and have a higher education degree in IT. I have Asperger's and comorbidities of a bipolar and anxiety disorders. I had job several interviews in a US company (I'm not a citizen nor resident of US, but they knew that and the job was supposed to come with H1B visa), and they repeatedly rejected me for no apparent reason (for at least 3 times). Q: Is it possible to file a lawsuit against them for job discrimination? | You can file a lawsuit of course. The question is whether you have any evidence whatsoever that they didn't hire you because of illegal discrimination. As you say yourself, they didn't hire you "for no apparent reason". It is entirely legal not to hire you "for no apparent reason". Without evidence of illegal discrimination that court case will go nowhere. Consider that there are jobs where 100 people apply, and a dozen people are interviewed. Getting not hired three times, when 12 people got interviewed, is just normal. If the same 12 people were interviewed at each job, then you and eight others were rejected each time, because there were 12 good enough to be interviewed, but only one job. Not being hired three times is nothing. Maybe instead of thinking of lawsuits, you might think of some training to do better in interviews. So not only do you not have any evidence of illegal discrimination, it's not even reasonably likely that there was illegal discrimination. Are you really claiming that all the three times where you didn't get the job you were the best possible applicant that was there? Did you check who got the job? Maybe it was a gay black jewish woman in a wheelchair who was just exceedingly good at her job? The point is really: Belonging to some protected class doesn't give you a right to get the job. It gives you a right not to be rejected because you belong to that protected class. It doesn't give you a right not to be rejected for any other reason. And being rejected without being given a reason is no proof, not even an indication, of some illegal discrimination going on. The most obvious and common reason for rejection is that out of all the applicants, you were not the best. | For a definite answer, Bob should ask his tax advisor. German freelance status ("Freiberufler") is a bit difficult to navigate, because legally speaking, this status can only be applied to contract work that requires a university degree, everything else is a regular business ("Gewerbe") that is taxed differently and requires you to join the chamber of commerce. This has become a bit murky as there are freelance software developers without a degree (who should be careful about using the word "engineer") and the tax office seems to accept that, but I'm not entirely sure they are as lenient towards entertainers (which YT would fall under). The way I understand the Blue Card FAQ, freelancing is not allowed for Blue Card holders, I'd consider that the bigger problem (but that's an immigration issue, not a tax issue). | It is. Part 2 Chapter 1 Section 8 specifically says "People who are not married or civil partners do not have this characteristic." In practical terms, a claim for unlawful dismissal would not have to rely on this Act or this Characteristic. Many company handbooks refer to avoiding discrimination on "marital status", so the claim could be made that the company had acted against policy. Not as strong as national law, but likely to succeed in absence of other factors. Single people who were expected to cover shifts that people with a family consistently avoided could argue constructive dismissal on "making unreasonable changes to working patterns or place of work without agreement" grounds. And cases of sexual harassment are as likely to refer to Sections 11 or 12 of the Act as to Section 8. There appears to be some interest in this - north of the border if not in England and Wales - and perhaps less jurisdictionally in Bella De Paulo's article for Psychology Today, which concludes "All serious forms of prejudice and discrimination go through a similar process of going unrecognized, then getting dismissed and belittled once people start pointing them out, and in the best cases, eventually getting taken seriously. Ruth Bader Ginsburg noted that when she was first appointed to the Supreme Court, the other judges did not think gender discrimination existed. ..." | Discrimination in employment is legal For example, you can discriminate to hire the more qualified or experienced candidate over less qualified ones. What you can’t do is discriminate on the basis of a protected category: The Alberta Human Rights Act (AHR Act) prohibits discrimination in employment based on the protected grounds of race, colour, ancestry, place of origin, religious beliefs, gender, gender identity, gender expression, age, physical disability, mental disability, marital status, family status, source of income, and sexual orientation. If it’s not on the list (or a proxy for something on the list), you can discriminate on it. | If the requirement is imposed by an employer, then the basis for an exemption, if any, would be whatever the employer choose to allow, unless some applicable law required some particular exemption. Such mandates are not common. Indeed I do not recall hearing of any such absolute mandates. But an employer could choose to impose one, and I have heard (and read) discussions of hospitals, for example, requiring COVID-19 vaccinations to be taken by employees when available. If an employer mandates a vaccination, it is up to the employer to decide when, and if, an exemption is warranted. It is up to the employee to decide whether to comply by accepting the vaccination or refuse at the risk of being fired. I do not know of any law which would specifically require an employer to grant exemptions in particular circumstances. A law might exist, or be passed, requiring such exemptions. If the employee had a particular medical condition which makes a vaccination si9gnificantly more risky for that employee than for an average person, and if that condition was considered to be a disability (not all or even most medical conditions are so considered) then the Americans with Disabilities Act (ADA) would require the employer to offer a "reasonable accommodation" to the employee, if one is available. Exactly what accommodation is "reasonable" is a fact-based determination, and would depend on the reason for the mandate, the cost and burden of the accommodation on the employer, and the degree if risk to the employee with and without the accommodation. In some cases no accommodation is found to be "reasonable", and in such cases the ADA does not mandate any accommodation at all. The ADA generally specifies whet must be done when an employee has \ a disability, but dopes not specify exactly how a disability must be proved. A medical certificate is common, but njot invariable, iof an employer questions the existence o a disability. The ADA would not require an exemption for a "Religious/Philosophical" objection. Soem state laws protect religious scruples in various particular employment situations. In some but not all states objections on such grounds for vaccinations otherwise required for school attendance are honored. The exact grounds accepted vary from state to state. A specific state would need to be listed for a more specific answer to be given, and I am not aware of any state that has such a requirement for exemption from a private employer's vaccine mandate. Addition: It seems from comments that some employers, such as hospitals and the military, already require vaccinations for some diseases. This seems reasonable to me, and does not change my answer otehrwise. | If the DA decides to press charges (we don't know) and if he is convicted (looks like a solid case), the problems are not just the sentence itself. There might be a probation period with conditions like drug tests and counseling, with penalties if he misses them. It is legal to discriminate against people based on prior convictions. While California has some restrictions on when employers may ask, they can make it one part of their assessment. | Education level is not an FHA protected category. However, whenever you give one broad group preferential treatment over another, you'll raise eyebrows. Someone might argue, for example, that while your incentive does not explicitly mention a protected category like race or sex, it might disproportionately impact one group in a protected category over another. In fact, the Supreme Court in 2015 addressed this question in Texas Department of Housing and Community Affairs v. Inclusive Communities Project. They found (albeit by a 5-4 vote) that disparate impact could, under certain circumstances, be the basis for a discrimination claim under FHA. The Wikipedia article on this subject is informative. As for your case, it really depends on what you are trying to accomplish with the policy, and what you reasonably predict it will do. For example, given that in most areas, white people more often have graduate degrees than black people, then if this policy did in fact end up advantaging white tenant over black tenants, someone might claim that you are in effect discriminating on the basis of race. I would not want to be on the defending end of that claim. In general, if you want to be safe from FHA's wrath, you need to evaluate each applicant on their individual merits as a tenant, not their membership in some group. Whenever you treat one person differently from another person, you should have a reason that clearly derives from your business interests as a landlord, and you should write it down. Legal questions aside, it seems like a really bad idea to offer incentives like this. I can't imagine it achieving any legitimate business goal, and I can easily imagine it making tenants or applicants feel cheated and devalued. And when people feel cheated and devalued, even if they haven't legally been wronged, they often seek legal redress. Or slash your tires. The fact that grad degrees would not be required under your policy isn't relevant. In the eyes of the FHA, any disparate treatment on the basis of a protected category is discrimination. The only real question here is whether this is disparate treatment on the basis of a protected category. | 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. |
Is there a way to open source license my music? I own all components of the songs- beat, samples, vocals. I want anyone to be able to use it for any reason without my permission (I have my reasons). | 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." | 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. | 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. | Yes, a work with no license is All Rights Reserved, reserved meaning the creator of the work. Who is the creator of the work ? Everyone who contributed it, unanimously. Yes. If people contributed any copyrightable part of your work, in theory you cannot add any license or grant any right to use/reproduce/whatever the work without their unanimous agreement. That's very cumbersome, and almost nobody really does that, but it's what the law is. Big serious companies and repos require contributors to waive their rights on the code they contribute, by agreeing to a contributor's agreement. For example, python/cpython requires you to give your contribs a license allowing the python org to do essentially what they want with it, even though you retain copyright over them. If your project is not so serious, I suggest it should be enough to make the license clear, and that by contributing people are agreeing to place their contribution's code under the license. If it's a free license, that's all you need. | A song with the same melody and different lyrics is a derivative work. It does not matter whether the song is to be sung for money, or not. The copyright owner still retains the rights to the melody, and can deny anyone permission to use it in a derivative work. Furthermore, using the derivative song to make a statement does not restrict or reduce the rights of the copyright holder. Refer to Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), below. See: Derivative work Derivative works can be created with the permission of the copyright owner or from works in the public domain. (...) The copyright for the derivative work only covers the additions or changes to the original work, not the original itself. The owner of the original work retains control over the work, and in many circumstances can withdraw the license given to someone to create derivative works. And: Why is parody considered fair use, but satire isn't? As the Supreme Court explained in Campbell v. Acuff-Rose Music, Inc., “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.” Also: Mechanical license Within copyright law within the United states, such mechanical licenses are compulsory; any party may obtain a license without permission of the license holder by paying a set license fee, that as of 2018, was set at 9.1 cents per composition or 1.75 cents per minute of composition, whichever is more, which are to go to the composition copyright holder. (...) In American law, US Code Title 17, Chapter 1, Section 115(a)(2) states: "A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work ..." thus preventing mechanical licenses being used to make substantially derivative works of a piece of music. (...) For example: Puff Daddy wants to sample the opening riff from “Every Breath You Take” by The Police. (...) He is free to hire musicians to reproduce the Police's sound, but he cannot copy from any phonorecord with only a mechanical license. | I am not a lawyer; I am especially not your lawyer; this is not legal advice; if you want legal advice, hire a lawyer. Idk. But probably not. The YouTube terms of service seem to prohibit this pretty clearly: You agree not to distribute in any medium any part of the Service or the Content without YouTube's prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player)... You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate. Now, were YouTube itself licensing the videos in question under the CC license, they might be prohibited from enforcing that term: You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material. though I'm not sure if the language in question would apply. However, it seems likely that in most cases, YouTube is using the material in question under the license to which users agreed when they created their accounts, and therefore is not bound by the term in question. All that said, it's entirely possible that the clause in the YouTube ToS prohibiting downloading does not apply for whatever reason (unconscionable in a contract of adhesion, browsewrap agreement doesn't form a contract to begin with, it's superseded by either some other agreement (part of the API EULA, etc), it's contrary to some law in your jurisdiction, etc). Just to be very clear, though, there is no COPYRIGHT CONCERN preventing uses like the one you mentioned. | 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). | No. That clause does not give other users a licence to reproduce the work (other than what is necessary to access or use it) or create derivative works. The copyright owner has the exclusive right to do those things. (See 17 USC 106.) The clause you quote only indicates that other users can "access" (download for viewing) your "information" and use it, too. It doesn't give away any of your exclusive copyright in the work. You do grant Facebook a licence to do certain things with your work in section 2.1 of the Terms of Service, though. |
Copyrights owner rights in case of DMCA – user block Recently I started to sell my digital items in the web and faced with the piracy. Pirates fraud my files from the market, upload them to the file hosting services and posts the links to warez web sites. I emailed to the file hosting companies and request them to remove the files. Also I request the file hostings and warez websites to block the users that violate the copyright low and TOS of the online services where they posts my files, because I think it's more efficient way to fight with the piracy. I had a different value of success and now I have a several question. When I say "I" I mean any copyright owner in my situation. 1. Have I the right to request services to block the users that violate the copyrights and TOS? 2. Have I the right to request a report from a warez site or a file hosting service about the blocked users? 3. How many time have a file hosting or a web site to block the user? For example: I got an answer that my files was removed and if I know a user url how soon should I see that the user is banned (if such message is technically available)? 4. If I can't get a report about the blocked users how should I achieve the thieve's accounts blocks? 5. The service ignore my DMCA request – don't answers me. What should I do to proceed with removing my content? 6. The service ignore my request to user blocks – don't say "YES" nor "NO". What should I do to proceed with the users blocks? Thank you very much, I highly appreciate your help! | You have the right to request anything you want, but there is a very limited set of things that you can have a legal expectation of them doing. The service provider has no obligation to block a user. You can likewise request a report, and from a pirate site I would expect no response. There is no legal requirement that a pirate site block an offending user after a certain number of offenses. There is no direct way to compel a pirate site to ban a user. Indirectly you might accomplish that end if you take legal action against the site, which causes them to ban a user in order to protect themselves If a DMCA request was not "proper" (the correct legal form) they will not perform a takedown, and may not inform you that they won't. Make sure your takedown request is legally correct and actually delivered to the correct person. If they still ignore your request, they will have lost the "safe harbor" provisions, and you can theoretically sue them. Since the pirate site presumably only hosts a link to elsewhere, their making public such a link is not itself copyright infringement, so you need to be going after the ISPs who manage the actual host sites. The pirate site might still be a contributor to infringement, along MGM v. Grokster lines. A standard defense against infringement would be "We had no idea", and ignoring DMCA takedown notices is clear proof that they did have an idea. That's basically what DMCA takedown is about: saying what it takes to use the "We had no idea" defense. | In such a case the person who bypasses the terms knows that use of the site is conditioned on agreement to the terms, and has taken an explicit action to continue past the terms and use the site. I suspect that if a dispute were to arise where this is relevant, it would be held that taking such action was legally equivalent to clicking "I agree". But I don't know of any court case on this point, and i can't be sure what a court would do. If having intentionally bypassed the terms, such a person tried to raise his or her lack of consent to the terms as a defense to some obligation imposed by those terms, such equitable concepts as "unclean hands" and estoppel might be raised, since such a person, in effect, leads the other party, the site owner, to believe that s/he has accepted the terms, I suspect that such a person will be treated as having accepted them. If this becomes at all common, I suppose that the designers of such sites will in future store a record of such consent being given, and not allow the user to proceed unless it has been. | It is legal, and good policy, because the later explanation could create conflicting policies and notions as to what the "agreement" is. The TOS is probably created by a lawyer who interviewed the website owner to figure out what they wanted, then wrote legal language to do that. If you ask tech support how to interpret the TOS, you probably are not getting a legally-correct statement (assuming that the tech support guy isn't also a lawyer). Rather than take a risk that a customer would defend their action in court by arguing "they said I could!", the website may elect to not make promises that they don't want to keep. Instead, if you want to understand the agreement, you hire your own lawyer, then propose a hypothetical action, to see how the law interprets the language of the agreement. For example "can I rent out my Netflix password so that other people can use it?". The lawyer would then read the TOS and relevant cases law, and would advise you whether this is allowed under the TOS (it is not). Alternatively, you could read up on relevant aspects of the law and figure it out yourself. Website TOS is basically driven by copyright law, the technical necessity of some kind of automatic copying in order to use a web page, and the legal requirement that you can't copy without permission of the copyright holder. The TOS is the set of conditions that you must satisfy in order to be permitted to use the site. So many questions reduce to issues of copyright law and permission to copy *can you legally "permit" the copying of materials you upload?). | It turns out that there is no difference between the ethical answer and the legal answer, in this case. The law recognizes the property right which a person has when they create a thing, such as a font, and that right is encoded in the law of copyright. The relevant US federal code is contained in Title 17, which you can read (essentially identical laws exist in virtually or perhaps actually all countries). The important thing to understand is that there is not a distinction between "privately" trespassing on a person's property and "publicly" trespassing on a person's property. The violation of the owner's property rights comes from taking the material without consent. There is a legally-recognized exception to the owner's rights, in the form of "fair use", which is widely misunderstood to mean "if it's not for profit, the property owner has no legal protection". Simply taking and using someone else's IP non-commercially is not "fair use". | From the perspective of US law: Scenario 1: Removing the watermark is perfectly legal, obviously. You own the copyright. Scenario 2: Abandonware is not really a thing in the US when it comes to copyright (and the Wikipedia article you linked says this.) Even if the company went out of business, the copyright almost certainly went to somebody - the former owners, the creditors, etc. As far as the Internet Archive goes, they are taking advantage of an exemption in the DMCA's anti-circumvention provisions, along with the copyright exemption found in 17 USC § 108. But both of these exemptions require you to be a "library or archive" to take advantage of them, and you are not a library or archive, so you cannot take advantage of either. As a practical matter, if the software is really abandoned it's unlikely that anyone will actually come after you for infringement, but that's not quite the same as it being legal - you could be on the hook for up to $150,000 in statutory damages per work infringed, if the owner does sue you. You could attempt to claim fair use, of course. If the image is abandoned you might get a favorable result on factor 4 of the fair use test (the effect on the market for the original) since there's no market if nobody can find the owner. But it would depend on the other factors; that alone wouldn't get you fair use. Scenario 3: I'm not sure where you get the idea that downloading a copyrighted image to your desktop is somehow protected. It isn't automatically legal to save a copy of something just because it's on the Internet. And the existence of a watermark may indicate that someone wanted to prevent the file from being copied. The website containing the image will likely have terms of use, which may indicate whether or not you're allowed to make a copy. For example, Stack Exchange's TOS says in part: Subscriber may download or copy the Content, and other items displayed on the Network for download, for personal use, provided that Subscriber maintains all copyright and other notices contained in such Content. | There is no general prohibition against taking down material, even non-infringing material, which is posted by some person, but there is a risk to the service provider. Abstracting away from the specifics of github, a Provider has some agreement with the User whereby User rightfully makes Stuff available on Provider's site. Arbitrarily removing Stuff (in violation of the usage agreement) may cause damage to User, who may sue Provider, and Provider will avoid that if possible. DMCA protects Provider from copyright infringement suits by Victim, providing the proper DMCA procedure is followed, and it allows Provider to remove Stuff without fear of getting sued by User (17 USC 512(g)). This protection is not available if the takedown notice is not proper. (As a case in point, the entire series of Harry Potter books is still out there freely on the internet, because only the rights holder can demand a takedown, and the rights holder seems to not be concerned). | Criminal liability is triggered by guilty knowledge. The people who run OnlyFans may know in general terms that it is probable that some illegal images exist on their servers, but so does everyone who allows the public to upload stuff. If that was illegal then the senior management of Google and Facebook would be liable to arrest on the same grounds and the Internet as we know it could not exist. Once the company becomes aware of a specific file that contains such material they need to remove it. If they fail to do so then they become liable. OnlyFans has been doing this: [OnlyFans] provides templates for each successive warning - explaining why material has been removed, and that failure to comply with terms of service may result in the closure of the account. [emphasis added] The site operators also become liable if they have a general policy of tolerating illegal material. This is a grey area; a prosecution would have to prove that the toleration was an active policy rather than merely ineffective moderation. There doesn't seem to be any evidence to support such a claim. Permitting an account to continue after deleting an offending file is not toleration of the offending file. The BBC report does not allege that the OnlyFans policy of multiple warnings has been applied to cases of underage content; rather it talks about cases of incest, bestiality and exploitation of vulnerable adults (such as homeless people), and only where the accounts were particularly popular. The linked articles do report cases where accounts have been set up advertising content by minors, but they were shut down as soon as the company was notified of them. The second article also quotes its source as saying that lots of such accounts get closed down all the time; there doesn't seem to be any evidence of toleration of that material specifically. So in conclusion it seems from the available evidence that OnlyFans have been complying with the law. It is telling that the BBC article specifically does not say that they have done anything illegal. If the BBC had found unambiguous evidence of illegal conduct by OnlyFans management then they would certainly have highlighted this. | 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. |
How can I start my own university in Azerbaijan? I couldn't find much information for Azerbaijan but it looks like I need some sort of license from the government. How can I start my own university in Azerbaijan and what do I need to do so? | The Law on Education is here, and Article 16 states the licensing and accreditation requirements. The duration of the license depends on who is applying: Private and municipal educational institutions founded by the individuals and legal entities of the Azerbaijan Republic are issued special permits (license) for a 5-year period. The educational institutions founded by the foreign individuals and legal entities are issued special permits (license) for not less than 3 years. Articles 22-23 apply to universities. The executive agencies in charge of licensing are the Ministries of Education and Economics, the former being most in charge. As you can see they only speak in broad terms about their obligations and powers, and do not say what their legal requirements or process is, suggesting it is highly discretionary. | I suspect this relates to the UK TV Licencing provisions as listed here, Specifically : Can I watch TV on my mobile phone without a TV Licence? If you’re using a mobile device powered solely by its own internal batteries – like a smartphone, tablet or laptop – you will be covered by your home’s TV Licence, wherever you’re using it in the UK and Channel Islands. However, if you’re away from home and plug one of these devices into the mains and use it to watch live on any channel, TV service or streaming service, or use BBC iPlayer*, you need to be covered by a separate TV Licence at that address (unless you’re in a vehicle or vessel like a train, car or boat). I've said "I suspect" as I don't know for certain what Starbucks are doing, but it looks like this is means that either they are not providing you with use of their Licence at those premises, or that they don't have one for those premises (particularly likely if they're not in the UK, also possible if they are). Without mains power connection (ie. batteries only) it would be the user's home Licence that was relevant. TV Licencing is covered by Part 4 of the Communications Act 2003. [Edit : The official source of the summary at my first link can be found at Schedule 1 paragraph 2(c) of the Statutory Instrument. Thanks to Carcer for the comment.] | Without a license, you have no right to copy or distribute someone else's work. Suppose you copy or distribute against the terms of the license. Either you didn't agree to the license, and therefore had no right to do as you did; or you did agree and still violated the terms of the license anyway. By the law of the excluded middle (accepted or not accepted), you infringed either way. | 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. | It is not correct to say that "Gutenberg is banned in Germany". A German court ruled that Project Gutenberg (US) could not provide copies of 18 works to addresses in Germany. PGLF (the foundation that runs Project Gutenberg) decided to block all access from Germany, because similar claims might be made about other works, leading to added legal expense in Germany. PGLF is said to be appealing the German Court's decision. Many works in the PG collection are clearly out of copyright in Germany, under German law. Providing those works would not infringe German copyright. As long as the PG license is complied with (and it is quite permissive) I see no legal problem with such works, but anyone planning to start a business or service reproducing such works would be wise to consult a lawyer with knowledge of copyright law in that person's country. Note that there are PG affiliates in several countries, including Germany and Australia, that operate under their own local copyright rules, and are run separately, and have different collections of works. | You don't just want to ask, you are required to obtain a license (or in other terms: the OK of the author*). Your game is based on a book. That makes your game a derivate work. Under berne convention, any signer state has to make sure that the author* has the right to authorize any derivate. That includes translations, films, or games. Without a license, you violate copyright law. It doesn't matter if your game is free. To stay safe, you need to obtain a license. Quite some authors would be happy to cut a deal, license or guidelines for fan-projects. As an example, the late Sir Terry Pratchett OBE has specific guidelines on what is ok and what not. Ask your author* about these questions and consult a Lawyer! Only then make your fan project! * This means the author, their estate or whoever they assigned their rights in the work to. Some examples: For that teenage wizard in a private castle charter school that'd be a certain J.K. Rowling. For those hairy-halflings running all over the continent hunted by orcs that'd be the J.R.R. Tolkien-Estate. And for those space wizards using blades from solid light that'd be The Walt Disney Company or one of their subsidiaries. | in japan operation of an unmanned airborne vehicle, aka UAV, aka Drone, inside a city might be legal, if a special license is obtained: Drones may not be flown in the following manners without special permission from the Minister of Land, Infrastructure, Transport and Tourism: 150 meters (492 feet) above ground level; near airports; above densely inhabited areas, as defined by the Ministry of Internal Affairs and Communications. This means in reverse, that you could have such a special license, but that license needs to be obtained for each operation 10 days prior, may only be done in daytime and within line of sight between drone and operator. However, city centers are densily inhabited areas, so the default is banned. However, in the countryside, flying a UAV does not require a special license, as long as the general other rules are followed (150 m above ground, 30 meters of any obstacle, daytime only, line of sight, etc). Among the requirements is also a total ban on alcohol at the control. As a result, the operation as depicted is not lawful under the ordinary laws as they operate in our world, unless the drone operator has special permit. | A "limited license housing agreement" may be an interesting attempt to get around landlord-tenant laws, typically associated with official student housing (e.g. this from Queens College CUNY). This facility near WMU is not overtly related to the university, but might be subcontracting for the university. At any rate, there is no special provision under Michigan law that exempts landlords from the provisions of the law in case they declare the contract to be an agreement as opposed to a lease. It is possible that this is copy-and-paste law that erroneously relies on provisions in landlord-tenant laws that exempt university housing agreements from provisions of a state's landlord-tenancy law. You do not need to be informed that you should / could consult an attorney before signing a legal document: this knowledge is presupposed. It is also assumed that when you sign a document, you read the document. It is reasonably likely that the lease contained language like the following (from the above contract): I have carefully read, fully understand and voluntarily sign this Housing Agreement. Once fully signed, this is a binding contract and is intended to be enforceable under its terms. I have had the opportunity to seek independent legal advice The disclaimer "This Housing Agreement is not a lease and no tenancy, leasehold, possessory or other property interest in any specific apartment or bedroom is created" has dubious legal status. The rights given by the landlord-tenant act cannot be waived, under the Truth in Renting Act, so saying "this is not a lease" does not make the lease not a lease. In Michigan there is a duty on landlords to mitigate loses when a premise is abandoned. The case Fox v. Roethlisberger, 85 N.W.2d 73 mentions such a possible duty in the context of tenancy is often cited on the web as establishing such a duty, but I disagree. Froling v. Bischoff, 252 N.W.2d 832 however establishes that there is such a general duty for any breach of contract (and even applies it to breach of a rental agreement). So whether or not you call it a lease, there is still a duty to mitigate losses. In the scenario where you abandoned the unit and the landlord waited until the end of the year to file an action for breach of contract, they could have failed in their duty to mitigate their losses (but see Fox v. Roethlisberger, where landlord did make an effort to re-rent, and simply was not able to for 9 months). |
Before his arrival at St Helena, was Napoleon legally a prisoner of war? I would like to know whether in law Napoleon was a prisoner of war when he surrendered himself to the British after the Battle of Waterloo, did he retain that status up to the point when he was landed at St Helena and did his legal status change at St Helena because it belonged to the East India Company rather than the British government? Napoleon surrendered himself to the HMS Bellerophon on 15 July 1815. He was transported to the southern coast of England and eventually set sail for his imprisonment at St Helena on HMS Northumberland on 7 August. He reached St Helena on 1 October. I think two treaties are relevant. First, the Convention of St Cloud was signed on 7 July 1815. This signified the end of hostilities and allowed the British and Prussian troops to freely enter Paris. Napoleon surrendered himself after this date. More importantly (I think), the Treaty of Paris was signed by Britain and France on 20 November 1815. Article 10 of this stated: “All Prisoners taken during the hostilities, as well as all hostages which may have been carried off or given, shall be restored in the shortest time possible.” A search of news stories in the London Times suggests in practice the British government did not start releasing French prisoners until late December 1815: “Government gave directions in the course of last week, of the agents of the prison depots at Forton and Dartmoor (Captains MOTTLEY anti SHORTLAND) to provide vessels and send home all the French prisoners that are under their charge. Yesterday those in confinement at Forton commenced being shipped, either for Havre or Cherburgh. (The Times, 26 December 1815, p 3). The relevance of all this is that Napoleon arrived at St Helena on 1 October, BEFORE the Treaty of Paris was signed. Since St Helena belonged to the East India Company, I suspect the island lay outside the jurisdiction of British courts AFTER the Treaty was signed. In other words, once he had been taken there, the British authorities were no longer obliged to release him according to the terms of the Treaty of Paris. It may be that that this was an important motive for sending Napoleon to St Helena, not just because it was very isolated. | Napoleon was never a prisoner of war, since he surrendered, as you say, after the conclusion of hostilities. If a label is necessary, he was probably a prisoner of State; but the important point was that in Rochefort he surrendered not, as in 1814, to the Allied Powers but to the British Government specifically: he dictated a letter on 13 July 1815 to George III including the lines "I come, like Themistocles, to throw myself on the hospitality of the British people. I put myself under the protection of their laws". (Since the French government had declared several of Napoleon's followers traitors and written to one of his staff "The interests of the State and the safety of his person make it absolutely necessary [for Napoleon to leave France as soon as possible]" and the Prussian and Russian governments would cheerfully have hanged him [no citation, but the behaviour of the occupying armies leaves little doubt], it is probable that this was less a grand gesture and more a necessity.) It is clear from his correspondence that Napoleon was envisaging some sort of genteel retirement like that of his brother Lucien, who was living in a country house under the supervision of a single police inspector; but this was never realistic, and the captain of the Bellerophon wrote specifically "I have no authority to agree to any such arrangement...I cannot enter into any promise as to the reception he may meet with" [from the British Government]; Napoleon decided to surrender nevertheless. It is interesting that Lord Liverpool (the Prime Minister) decided not merely not to imprison Bonaparte in the Tower as the newspapers were suggesting, but not to allow him to set foot in England: whether this was to avoid legal complications or to prevent a possible rescue attempt will never be known. But is is clear that after 15 July 1815 Napoleon had placed himself entirely in the power of the British Government, to be imprisoned or dealt with as they pleased. [Quotations as in Cordingly's Billy Ruffian, since it is to hand; but the best treatment of those days is Gilbert Martineau's Napoleon Surrenders.] | Is it legal to cross the channel in a private rowing boat or sailing boat? Yes. Can he land on any old beach, or does he have to go to a port to identify himself? It depends. Who is on board, where did they come from, what have they got in their pockets, etc. This may be helpful Notice 8: sailing your pleasure craft to and from the UK When arriving direct from a country outside the EU (the Channel Islands are regarded as outside the EU for this purpose), you must phone the National Yacht line on Telephone: 0845 723 1110. You will need to inform the Yachtline if any of the following apply: etc etc Since France is in the EU, whether you need to phone the NYL to report your departure from the UK depends on a complicated bunch of conditions you can read in the link above. Maybe the French have similar rules? The RYA say Some countries specify ports of entry (ports where one may lawfully enter a country), which should be used by a vessel arriving from abroad. It is often a requirement that you proceed directly to such a port of entry on entering territorial waters. A vessel arriving in a country from outside its customs territory should fly the Q flag until it has been given clearance from the authorities. Even once clearance has been given, some countries may ask to inspect the vessel’s papers periodically, for example at each port of call. and so on. | As a matter of law, the Duchy is correct, because a superior court of record agreed, and dismissed the arguments made on the other side. The cited claims from Republic come from a case in the First-Tier Tribunal (EA/2010/0182) about whether the Duchy was a "public authority" for the purpose of the Environmental Information Regulations 2004. The FTT said that it was, since either the Duchy or the Duke were carrying out certain functions of public administration (as the harbour authority for St Mary's Harbour on the Isles of Scilly), and whichever one it was, the Duke was in charge of the Duchy; and meanwhile, the Duchy appeared to have some elements of legal personality, as cited in the question above. This decision was appealed to the Upper Tribunal, The A-G for the Prince of Wales v the IC and Mr Michael Bruton [2016] UKUT 0154 (AAC), which disagreed as to the Duchy being a body with its own separate identity - see paragraphs 71-102 - and reversed the ruling below. The basic issue is that the Duchy of Cornwall was brought into being by a royal charter of 1337. It predates modern common-law or statutory developments about bodies corporate, income tax, corporation tax, and so on. It also precedes the not-exactly-modern developments of the limited scope of royal authority and the prerogative, norms of statutory construction, the Crown as separate from the royal person, and other apparatus of constitutional monarchy. It is true that it sits uncomfortably in the modern world, as a sui generis feudal creation that is not something we would create today. However, as a matter of law, the UT said that what counts is what the Duchy is, not what it ought to be. Figuring out the law means looking at the actual law as opposed to ancillary indications, such as what Duchy officers have said from time to time, or administrative actions of the Health and Safety Executive. Parliament has had the opportunity to consider the position of the Duchy several times and has so far declined to change it. The charter of 1337, which was deemed to be an Act of Parliament by a court case in 1606 (!), grants land and privileges to the Duke of Cornwall, whoever that might be from time to time, and with a reverter to the Crown when there is no Duke. The UT found that this "creates something that has similarities to a trust, but without trustees" (there was a nascent body of law relating to trusts in 1337, but it was nowhere near its modern flourishing). Unlike with the creation of the Duchy of Lancaster, this charter does not incorporate the Duchy as an entity in its own right - the "Duchy" is just a word used to describe the possessions of the Duke or King held under the charter. If it is a separate entity then that is not because of the charter. The UT examined various of the claims made in the FTT but rejected them, saying that "such examples cannot create such an entity or body and each investigation of the submissions based on them that took place before me showed such statements or implications to be wrong (e.g. that the Duchy owns Highgrove was shown to be wrong by the production of the Land Certificate)." It also rejected the idea that the people who administer the Duchy could be regarded as some form of partnership or unincorporated association, finding that they had not come together in that fashion. It said that therefore, the only remaining route to the Duchy being a corporation would be if the other primary legislation dealing with its management had created it as such by "necessary implication". Those Acts, of 1844, 1863 and 1982, deal with accounting and management for the Duchy of Cornwall. From their context and content, the UT said that they seem to envisage the property in question as belonging to the Duke (not the Duchy) as "the legal owner of the assets etc. comprising the Duchy estate", and that "the relevant officers and employees work for the Duke, or the Duke’s guardian when he is a minor, or the Sovereign when there is no Duke, and not for an entity or corporation called the Duchy." Therefore: [T]he Duchy of Cornwall or the Duchy is no more than a name that has been used correctly to describe the possessions of the Duke of Cornwall (the Duchy estate), or to the Duke (or his title), or collectively and conveniently to describe the officers and persons who from time to time act for and on behalf of the Duke as the owner of the Duchy estate. Save to the extent that it is a reference to the Duke as a natural person the Duchy of Cornwall has no legal personality and is not a person, body or entity that has its own functions and powers or a separate identity of its own. Although this was not before the UT, it would seem to follow for tax purposes that if the Duchy is not a body corporate, then it is not liable for corporation tax under the Corporation Tax Act 2010 - see section 1121, which defines "company" for that and the companion Corporation Tax Act 2009. It also does not fall within section 443, "Companies controlled by or on behalf of Crown", firstly because if it's not a company, then that section fails immediately, and secondly because "Crown" here refers to the Crown in the sense of governmental public functions, not the Queen (or her family members) personally. | The US courts (including the US Supreme Court) do not have an army or even a police force under their direct control, except for a few court bailiffs. Ultimately, if the executive simply defies the courts, the only remedy is a political one. A court can order a person held unlawfully to be released from detention, but the jail/prison authorizes might ignore such an order. A court might order DACA applications to be accepted, and if they are not, might rule that deportations or other negative actions are unlawful. A court might hold persons who defy its orders in contempt, and send marshals to jail such persons. But if the executive branch in an organized way defies such orders, there is no judicial power to compel obedience to court orders. This is why the judiciary has famously been called the "least dangerous branch" of the government: it cannot actually do anything without at least the tacit cooperation of the executive. Cherokee Case (Worcester v. Georgia) There was a reference in the comments above to the the Cherokee Indians case, Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). In that case the US Supreme Court, in a decision written by Chief Justice Marshall held that the Georgia laws purporting to seize Cherokee lands were invalid as violations of Federal treaties. President Jackson was strongly displeased by this ruling. He was supposed to have said: John Marshall has made his decision, now let him enforce it. It appears that President Jackson probably did not say that, at least not publicly. But in fact Jackson did not take any steps to enforce the decision, and the decision was in fact not enforced. The lands were seized, and the Cherokee were forcibly relocated across the infamous trail of tears. This event shows that a court ruling (proper or improper) may have no effect if the executive branch refuses to obey or enforce it. | The "letter" you quote says more than what Ionos says publicly, the latter not mentioning any date. The most obvious possibility is Treasury Department sanctions against Russia: while the sanctions don't necessarily prohibit servicing and any all Russian nationals or residents, Russia is subject to sanctions and that's what the TOS says. A problem is that the TOS refers to a "country subject to U.S. Treasury Department embargo restrictions", which is not legally defined. Here is the Treasury Department's explanation of that point (which is that there are very many types of restrictions: there is no legal category of "embargo restrictions"). One could then argue, in one's breach of contract arbitration hearing, that the clause cannot reasonably be interpreted the way the company (possibly) intends it to be. The force majeure clause does not seem relevant unless they see some way in which the invasion of Ukraine makes it impossible for the company to fulfill the contract with Russians. | It is possible in principle, in the US, under the Bureau of Prison Treaty Transfer program, so that one could serve your time in Australia for example -- but not New Zealand, which isn't part of a bilateral or multilateral treaty with the US: here is the list. Canada and Australia are on the list via the Convention on the Transfer of Sentenced Persons. New Zealand is (by choice) not a participant. | I haven't found any cases where this defence has worked. I strongly suspect that that's because it never has. Every piece of advice I've read on this unsurprisingly suggests you'd be a fool to attempt to rely on this defence in court, including some cases in which defendants have attempted to rely on it and have failed. There are a couple of Freedom of Information requests to the government which state very clearly that it won't work: https://www.whatdotheyknow.com/request/statute_law_4 https://www.whatdotheyknow.com/request/consent_of_the_governed The last link is particularly clear on the matter: every citizen of the UK tacitly consents to be governed, according to Blackstone. And this one makes it even clearer: https://www.whatdotheyknow.com/request/18097/response/56511/attach/html/3/TO%20255452%20TO09%205866.doc.html Under the doctrine of Parliamentary Sovereignty, Acts of Parliament override common law. So it simply wouldn't be possible to argue that you choose to live under the common law alone; no court in the land would allow it, as it's a cornerstone of our legal system that Parliament is sovereign, and therefore that statutes enacted by Parliament will 'trump' the common law. Parliament derives its sovereignty from the fact that the current government is elected and therefore represents the citizens of the UK, and for this reason, Acts of Parliament take priority over case law. On that basis, it wouldn't be possible for a citizen to argue that they choose not to abide by statute: their consent is tacitly assumed. Based on all the above, then, I would say no: the 'common law' defence will never hold water if relied on in court. | Is this unique to the USA, or now common elsewhere? No. It is common throughout the developed world. How long has this been done, as opposed to keeping all the inmates constantly locked in their own cells and only seeing each other when eating in a dedicated eating place or when brought outdoors once a day for an hour or so? Before the late 18th century, imprisonment was not a punishment - it was a place where you were held while awaiting trial or punishment: execution, corporal punishment, humiliation or transportation. However, it was not uncommon for prisoners who had been acquitted to still be held because they couldn't pay the cost of their pre-trial imprisonment. The 1779 Penitentiary Act introduced solitary confinement, religious instruction, and a labour regime. These types of prisons were not actually built until the 19th century and saw increasing use as the death penalty became applicable to fewer and fewer crimes. These types of prisons spread across the western world and it is this 100+-year-old image that you are thinking of. However, for some reason, solitary confinement and individual prayer seemed to cause no improvement in the moral state of prisoners. Therefore, since the early 20th (yes, 20th) century most prisons had communal mess halls and recreation yards for use on the weekend. In most, prisoners worked during the week, around the prison or outside in things like quarries and road construction. Starting in the late 20th century "hard labour" was largely done away with and prisoners were offered work or education opportunities. They were confined to their cells at night in medium-security and higher-level prisons but low-security prisons often work on an honour system and cells are not locked. Developments such as day-release and weekend detention have influenced prisons. Many northern European countries have literally open prisons where you are free to come and go so long as you spend the nights there. Only the worst of the worst are kept in super-max prisons and only the worst of them are kept to their cells and isolated from the rest of the prison population. Those are the people who get 1 hours recreation only. That said, prisoners have rights and their physical and psychological well-being are the responsibility of the State. Doctors and psychologists examine prisoners and balance risks to society against the rights of the prisoner. I've worked inside super-max prisons as a contractor and they are bleak and scary places but most inmates are free to roam around the grounds and other common spaces. I've also worked in low-security prisons and they are very different - still not nice places but spartanly comfortable. If you get sent to such a prison, can you choose to get a normal cell if you don't want anything to do with these violent, crazy people? Or are you forced to endure that living nightmare and constantly be on guard? You're a prisoner. One of your punishments is having your freedom of choice taken away from you. The system will tell you where you sleep, where you eat, where you can go and when you can go there. If you are a "violent, crazy" person then you will be in a super-max prison with other "violent, crazy people". If you are a white-collar criminal, you won't be. |
Does the president of the United States have the power to edict laws to prevent the followers of a specific religion from entering the United States? Does the president of the United States have the power to edict laws to prevent the followers of a specific religion from entering the United States? If Donald Trump is elected president, will he have the power to ban Muslims from entering the United States? | The president has the power to issue an executive order, which must either be supported by the Constitution or by some act of Congress. If a president were to apparently overstep his authority, someone would have to sue him and the Supreme Court would decide whether he did have that authority. For example, Truman thought that he had the power to nationalize steel mills, but Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 determined otherwise. There have been few cases where courts have overturned an executive order. Matters of immigration are not outside of the executive power of POTUS. Obama issued a dozen orders aimed at stopping deportation of illegal immigrants. The matter ended up in SCOTUS, which tersely declined to overturn the lower court ruling (that he didn't have that power). Congress can restate the law to clearly take away a power (assuming it is not a constitutional power, and immigration is not a constitutional power / duty). In this sense, the president can "write laws" the same way that various federal regulatory agencies can "write laws", or how courts can "write laws". The subject matter of such laws is limited, so while an act of Congress is limited only by the Constitution, executive-branch law has further underlying statutory limits. Only Congress can unilaterally pass a statute: the power to write law is available to pretty much all branches of government. As for immigration statutes, 8 USC 1182 provides the general hook for such a presidential decree – the code would require major rewriting to clearly take away that power. It has to be remembered that Congress creates laws and cannot enforce them: the executive branch enforces them. Any law whatsoever restricting immigration therefore involves the president. | The Indiana constitution is phrased differently to the US constitution in such a way to exclude pre-emptive pardons: (Indiana) The Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment (US constitution) he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. (my emphasis) The Indiana constitution explicitly states that the Governor may grant pardons after conviction and does not give the Governor the power to grant pardons before conviction. By contrast, the Supreme court has judged that the President may issue pardons after commission, that is after the offence has been committed, and potentially before the arrest, trial, conviction or punishment. They can't issue pardons for crimes not yet committed. The scope of pardons issued by the Governor is limited; this power is subject to regulation by law issued by the Legislature, and (if there is no regulation giving sole power of pardon to the president) the Legislature may form a council to review pardons. The council's advice and consent must be sought. In fact, the Legislature appoints the Parole Board to this role. So the Parole Board gives advice and consent to pardons issued by the Governor. In practice, therefore, the Parole Board makes these decisions, as Governors rarely refuse pardons recommended by the Board. Generally, though, pardons are rare, Mike Pence granted only three during his tenure as Governor. References: Constituion of Indiana Guide to pardons in Indiana | Under Article VI of the US Constitution, the federal constitution and valid federal laws are the supreme law of the land, and judges in every state are bound to apply them regardless of anything in the laws or constitution of any state.* If a state legislature passes a law banning same-sex marriage, a state court is required under the federal constitution to instead apply the federal constitution (as interpreted by the US Supreme Court in Obergefell v. Hodges) and rule as though same-sex marriage is legal. When it comes to a federal court, things are even easier: a state cannot command a federal court to do anything. A federal court’s authority is laid out in Article III of the federal constitution and in federal statute, which (per Article VI) is supreme over anything in the laws or constitution of any state. There have been times where states attempted to challenge federal supremacy. Normally, this is handled by going to federal court. Decisions in state courts can ultimately be appealed to the US Supreme Court, which can reverse them if they incorrectly applied federal law. Most of the time, that’s the end of matters: when a federal court rules, state officials comply. Occasionally, that’s not enough. If a state disobeys the orders of a federal court, they can be enforced by federal agents. If even that isn’t enough, the President can deploy the armed forces to uphold federal authority. * There are situations which are more complicated, like when something is a federal crime but not a state crime. I can do more research on that if you want, but for now I’m going to leave it at “it’s more complicated.” | Your gut feeling is reasonably close, but not precisely correct. The Constitution sets the baseline rules for the powers of and interactions among the branches of the federal government, as well as the powers of and interactions between the state and federal governments. With only one exception (the dilution of a state's representation in the Senate), the Constitution can be amended to basically anything. It can make anything legal and it can make anything illegal. It generally addresses fairly high-leval legal principles, but there's no reason that it couldn't be amended to include a 9,000-page law specifically addressing every conceivable aspect of the regulation of nuclear energy. As it stands now and as it always has, the Constitution permits the federal government to write laws only with respect to certain topics. The states, meanwhile, retain authority to write laws on virtually any other topic. There are a variety of legal and historical reasons why prohibition took the form of a constitutional amendment while drug laws are handled legislatively, but one important consideration is the scope of Congress's power to regulate "interstate commerce." At the time of prohibition, it was not clear that Congress could regulate commercial activity that took place entirely within a single state. So if you grew all the ingredients for your whiskey in Kentucky, and you distilled those ingredients in Kentucky, and then you sold your whiskey in Kentucky exclusively to residents of Kentucky, it seemed that your conduct was outside the reach of Congress, and that any attempt to regulate it would be vulnerable to a constitutional challenge. The solution, therefore, was to amend the constitution and give that authority to Congress. About a decade after prohibition ended, though, the Supreme Court decided that the power to regulate interstate commerce includes not just transactions that cross state lines, but also any conduct that “exerts a substantial economic effect on interstate commerce” Wickard v. Filburn, 317 U.S. 111, 125 (1942). This broadens the Commerce Clause authority to cover virtually any economic activity. So even if you buy marijuana seeds from your next door neighbor, plant them in your own back yard, grow them for strictly personal use in your own home, and never sell anything to anyone, the courts will hold that your conduct affects the interstate market for marijuana, and is therefore subject to federal regulation. This standard substantially lowers the bar for Congress to act without a constitutional amendment, which is a big part of the reason there hasn't been an amendment to address narcotic use. | It's not clear what the big deal is. Congress has already passed vast numbers of laws for POTUS to enforce, and has left the details of implementation up to the executive branch. The main limitation is that you need a Congress to fund any new federal government projects. The Constitution anticipates this problem, and there are clauses regarding filling vacancies (clearly applicable to the dead). Assuming that zombies are rioting in the streets, POTUS can invoke the National Emergencies Act, issuing an executive order to call out the National Guard. | The US Constitution Art. 1 §3 cl. 4 says The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. No clause of the Constitution limits how a person can vote in the Senate (or the House). Congress has not enacted any legislation that addresses this question, and nothing in the Constitution empowers Congress to limit the right to vote. Art 1 §5 cl. 2 says Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. That is, the Senate can set up rules for how it will conduct business. The Senate is not empowered to exclude a member's right to vote, they with a supermajority they can expel a member (or convict and remove a vice-president, given an impeachment from the House). It should also be remembered that the VP is not a member of the Senate, the VP has a limited right to vote which is granted by the Constitution, and which cannot be taken away except by constitutional amendment. Harris would therefore be empowered to vote for herself, under the tie-breaker clause. | Yes The rule against prosecuting a sitting President is not a law, it is a Justice Department opinion and policy. The justification for it is that dealing with a criminal case would be severely distracting to the President, and thus harmful to the nation. Besides, the opinion goes on, any serious issue can be dealt with by impeachment. That reasoning obviously does not apply to a former President. Article I, section 3, paragraph 7 of the US constitution says: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (emphasis added) This clearly contemplates the criminal prosecution of a former office holder, after such a person was removed by an impeachment. There is no exception for a President. Therefor a President can be criminally charged and prosecuted for actions during the presidency, provided that the evidence to establish probable cause is there, and that a Grand Jury indicts said former President. So far as I know there has never been a case where such a thing was done. President Ford's pardon of President Nixon stopped any Federal prosecution of him. I think there have been cases were former US Judges, after impeachment, were criminally prosecuted. But that is not quite the same thing -- no one claims that sitting judges are immune to criminal charges. To be clear this would not apply just to issues that a President had been impeached for. A former President is no different from anyone else in this respect. Any such person can be prosecuted if there is probable cause, and convicted if there is proof beyond a reasonable doubt of criminal violation of some law, even if the violation occurred while the president was in office. | There are many different kinds of laws, and many different ways of violating them. The main two are (1) criminal law, which generally addresses violations that injure the government's interests; and (2) civil law, which largely addresses violations that injure private parties' interests. Some conduct can violate both sets of laws: If you steal something from a store, the government can put you in jail for theft, and the store can sue you for the value of the item you stole. If you punch someone in the face, the government can can put you in jail for assault, and the person you punched can sue you to pay for their hospital bills. If you grope a woman in a dressing room, the government can put you in jail for sexual assault, and the woman can sue you for battery. Donald Trump falls into that last category. Jean Carroll has sued him for battery, but the government cannot prosecute Trump for the crime because enough time has passed that the criminal statute of limitations has expired. Moreover, a civil trial cannot subject someone to jail time because such a deprivation of liberty requires greater procedural safeguards -- jury unanimity, proof beyond a reasonable doubt, etc. -- that do not always apply to civil trials like this. Trump's status as ex-president has no bearing on the penalties the court may legally impose on him. |
Why do television actors have to give permission for the use of old footage of their characters? Inspired by this question on SciFi&Fantasy.SE. The background is that Terry Farrell, an actress on the series Star Trek: Deep Space Nine, left the show on bad terms after the sixth season. The following year, the series finale featured several montages of clips from old episodes, but Farrell's character was notably absent, despite her long involvement with the show. When asked about the reasons for this, pretty much everyone agrees that it was a matter of permission; they needed Farrell's permission to use the clips, and couldn't get it. In the words of Ronald D. Moore, one of the show's main writers: In order to use a clip of someone from a previous episode, you first have to obtain permission from the actor in question. I'm inclined to take Moore at his word, since he is involved in the industry and I am not, but I was surprised to read this; I would have thought the studio would retain full rights to use their old episodes in any way they see fit. So, I was hoping Law.SE could help clarify my understanding. What legal grounds (if any) are behind this requirement? Aside: since I have only a passing familiarity with the legal profession, plain English explanations of any citations is greatly appreciated | This is the result of a contractual term in the standard agreement for TV actors: http://www.documentary.org/feature/fair-use-reuse-and-lawsuits (see section 'CLIPS WITH ACTORS'). Generally speaking, TV actors do not own copyright in the film in which they appear. The actor does not make the film and so the actor does not get copyright. However, the standard agreement for a TV actor contains a clause requiring the studio to get the actor's permission to re-use the film for another purpose (such as creating a nostalgic montage in a later season). If such permission is not obtained then the actor can sue the studio for breach of contract. | In the United States, you almost certainly do. The most on-point case is Castle Rock Entertainment Inc. v. Carol Publishing Group, 150 F.3d 132 (2nd Cir. 1998). That was a case dealing with Seinfeld, where a publisher printed and sold The Seinfeld Aptitude Test, a book of Seinfeld trivia. The publisher argued that the questions and answers were simply unprotected facts about the show, not copyrightable expression, but the court concluded that the facts were merely restatements of the expressive works of the show's creators. Although the book was in some senses transformative, the court found that the transformation was "slight to non-existent": [T]he fact that The SAT so minimally alters Seinfeld's original expression in this case is further evidence of The SAT's lack of transformative purpose. To be sure, the act of testing trivia about a creative work, in question and answer form, involves some creative expression... However, the work as a whole, drawn directly from the Seinfeld episodes without substantial alteration, is far less transformative than other works we have held not to constitute fair use. A major part of the problem in that case was that the facts suggested that the publisher was not looking to create an educational or critical work revolving around Seinfeld, but rather to provide Seinfeldesque entertainment to Seinfeld fans. There is some discussion in Castle Rock suggesting that certain behind-the-scenes facts might change the analysis, but from what you're saying, it seems doubtful that you'd have a different outcome. | 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? | It is legal, and good policy, because the later explanation could create conflicting policies and notions as to what the "agreement" is. The TOS is probably created by a lawyer who interviewed the website owner to figure out what they wanted, then wrote legal language to do that. If you ask tech support how to interpret the TOS, you probably are not getting a legally-correct statement (assuming that the tech support guy isn't also a lawyer). Rather than take a risk that a customer would defend their action in court by arguing "they said I could!", the website may elect to not make promises that they don't want to keep. Instead, if you want to understand the agreement, you hire your own lawyer, then propose a hypothetical action, to see how the law interprets the language of the agreement. For example "can I rent out my Netflix password so that other people can use it?". The lawyer would then read the TOS and relevant cases law, and would advise you whether this is allowed under the TOS (it is not). Alternatively, you could read up on relevant aspects of the law and figure it out yourself. Website TOS is basically driven by copyright law, the technical necessity of some kind of automatic copying in order to use a web page, and the legal requirement that you can't copy without permission of the copyright holder. The TOS is the set of conditions that you must satisfy in order to be permitted to use the site. So many questions reduce to issues of copyright law and permission to copy *can you legally "permit" the copying of materials you upload?). | The question as worded implies that if something is a parody it is automatically fair use or allowed in US copyright law. This is a myth. First of all, in a copyright context, the term "parody" is somewhat limited. In that sense, a "parody" is a new work which comments on the original (often but not always by mocking or ridiculing the original). A mere alternate version which modifies the form of the original, perhaps humorously, but not to comment on the original or perhaps on much of anything, is not a parody. A new work which modifies the original to comment on something else, but not on the original, is a satire. Of course many works may be both parodies and satires in this sense. See this law.se Q&A for extensive quotes from Suntrust Bank v. Houghton Mifflin Co 268 F.3d 1257 (The case of The Wind Done Gone vs Gone with the Wind) and discussion of what is and is not a parody in US copyright law, and when a parody is fair use. A parody, because it comments on the original, will often be found to be a fair use of the original. But not always. The full four-factor analysis must still be done, and the results are never certain until a court has passed on the specific case. See this law.se Q&A for more on fair use. I can't tell from the question whether the modified song is truly a parody in the sense used in copyright law. If not, it probably isn't fair use, although it might be for other reasons. By the way, a song written for a television show or video to be distributed commercially is a commercial use, even if a non-profit corporation is involved, and even if there is an educational purpose. Note that fair-use is a strictly US legal concept. Even if something is fair use under US law, it may be copyright infringement under the laws of some other country. | Their code, their rules A copyright holder is free to offer their work under none, one or many licences. They can, at the same time, use their own work however they see fit without regard to the licences they have given/sold to others (except, they can only give one person an exclusive licence). As an analogy, let’s say I own a fleet of cars. I can drive my cars anytime I want. I can let Jim drive my cars anytime he wants for free. I can let Mary drive a specific car on Thursdays and only within 10km of the depot. I can let Joe drive my cars providing he pays me $50 a day. And I’m not going to let Fred drive them at all because Fred’s a jerk. Each of those is a different licence. | It is not clear to me how you "use" a mythological entity, and I take no position as to the divine consequences of any unauthorized uses, but you are entitled to incorporate then in your own intellectual creations for two reasons. First, any imaginable copyright on original texts (e.g. the Bhagavad Gita) has long since expired. Not all texts are of such certifiably ancient provenance, so there may be contemporary texts created by a practitioner of Ásatrúarfélagið which is protected. Second, names (Amitāyus, Zaraθuštra, Ngai) are not protected by copyright, so you can use names. | It's possible that CAD has a separate licence from the authors of ABC that allows them to produce a closed source copy. If not, they have no right to distribute CAD. However two wrongs don't make a right, and so you don't get to violate the copyright of CAD.* Unfortunately, unless you are one of the authors of ABC, you have no standing to sue the authors of CAD. You can only notify the authors of ABC and hope they do. If the authors of ABC don't have the resources to pursue the matter, you may be out of luck. That's one of the reasons the FSF gets copyright assignments for their projects. * It turns out that this is a much more debateable issue than I first thought. Some courts have held that an unauthorized derivative work is not copyrightable. |
Are there recommended steps for preparing for a divorce mediation meeting? Are there recommended steps or approaches (worksheets?) for preparing for a divorce mediation meeting? Should the mediator get any background information about the situation, or can/should the mediator function with no knowledge of the specifics of the charges and counter-charges? If background information is in order, who provides it. What is the role of the Guadian ad Litem (GAL) in a mediation meeting? Does the GAL take an active role on behalf of the offspring or just reply to inquiries. | Usually and ideally, a GAL would take an active role in parenting questions, while taking a secondary role in property division and maintenance with the primary concern being that the economic arrangements are sustainable and don't subject the child to hardship when with the other parent (e.g. many divorcing parents fail to realize that maintaining two households will result in more child related expenses than one). I will assume that you are asking from the perspective of a party to the divorce and not from the perspective of a mediator, although the phrasing is not entirely clear. Some basics: Have a good command of the facts about your finances, your ex's finances, and the children's schedules and needs (assuming that there are children). For example, it would be good to have school calendars as far forward as they are available, to know the children's medical providers, and to have a firm command of their extracurricular activities, their friends and the requirements of any childcare providers. Often child support worksheets will be mandatory for a settlement to be approved, so get those worksheets and fill in the facts you know already. Bring a calculator so you can consider new assumptions and evaluate financial proposals accurately. If you think you have received inaccurate disclosures, be prepared to explain in detail what you think is inaccurate and why you think that this is the case. If domestic violence has been an issue, there are restraining orders that are or have been in place, there are abuse or neglect allegations present (including emotional abuse of a spouse or children), or the co-parents have had trouble coordinating and reaching decisions without outside assistance, be prepared to explain these situations in factual detail so you can avoid summarizing the situation in a vague way. Bring anything you might need to refresh your recollection about relevant facts with you to mediation. If you haven't received full disclosure of your spouse's finances, insist on receiving that, ideally before going to mediation and absolutely before reaching a deal. Spend time considering possible resolutions of property, maintenance and parenting matters in advance. Very early on in mediation each of you will be asked what you want and mediation shouldn't be the first time that you have thoughtfully considered the question. Spend time thinking about what you need on a non-negotiable basis to survive - to be able to meet basic needs for food, shelter, clothing, health care, etc. for you and your children, and also about what your ex needs and how your ex can achieve it. Proposing ways to achieve objectives that your ex hasn't considered that are viable is a good way to get a resolution. Ideally, attend a parenting class (mandatory in many jurisdictions before getting a divorce that involves children) before attending mediation. Keep in mind that children are not prizes or bargaining chips and that you need to consider their needs as well as your own. Your kids love both of you even though you can no longer manage to live with each other. Do not utilize the children as sounding boards for mediation stances and do not try to use them as decision makers or conduits for communication between the co-parents. Recognize that in most states, marital fault is irrelevant, and that starting a new relationship is natural and routine, even if it makes your skin crawl that your ex is starting a new relationship. Take an attitude of focusing on what the deal does for you rather than what the deal does for your ex. This is about you getting what you need, not about making your ex worse off. Be prepared to walk away from mediation without a deal if necessary, because your ex won't accept a reasonable deal. Maybe half of mediations end without a settlement. Recognize that it may be possible to reach partial resolution (e.g. splitting up tangible personal property; figuring out how holidays will be handled with the children; agreeing on schools that children will attend; figuring out who, if anyone, will continue to live in a marital residence; stipulating to the value of particular assets; stipulating regarding each party's income; stipulating regarding what is and isn't separate property where you can agree; agreements to disclose information), without resolving all issues. Partial resolutions reduce uncertainty and make it easier to prepare for and conduct a permanent orders hearing on the remaining issues. Even if you can't afford to hire a lawyer to represent you in the entire case, pay for an hour or two of a lawyer's time to evaluate what kind of property division, maintenance award and parenting arrangements are within the range of the possible and likely if you go forward to a permanent orders hearing. Be prepared to put the terms of anything that is agreed to at mediation in writing. Mediators will usually tell you if they need forms signed, payments made, or a "mediation statement" in advance. Do everything required on time. A "mediation statement" is a summary of the key facts and your position on a fair resolution and could be a couple to a dozen pages depending upon the complexity of the case. Be clear in a mediation statement about what is O.K. to share with the other side and what is for the mediator's information only. When a mediator asks for a mediation statement the main reason for doing so is to save time that the mediator is charging you per hour for 50-50. A mediation statement can make getting the mediator up to speed on the facts more efficient and less likely to omit important facts and the mediator needs to learn the key facts to be effective. | What kind of contract would that be? One about... arbitration? One about "I hereby relinquish my claim for payment of X?" --- children cannot be taken away from their father, no matter what. - OP That contract is void in germany because this contract not only violates public policy, it tries to modify something that is regulated by law into a way that does offer less than the law demands as a minimum. That's not allowed in Germany. Further, a clause that gives custody to the father by default is also Sittenwidrig in Germany, and thus void under §138 BGB. So would be a clause that gives it to the mother by default by the way. In a case of controversy, only a court order can assign guardianship. And only the court can take guardianship away. When the kid is born its guardianship gets assigned to the parents as guardians by §1626 BGB. While it is possible to give your partner guardianship if you're not married under 1626a BGB it is explicitly impossible to assign guardianship for any compensation to either party (e.g. the mother or the new guardian may not receive anything other than the guardianship in the specific paper) under 1626b BGB. Thus a contract that does anything else in addition to guardianship, like a prenup, voids at least the guardianship clauses. And you have to tell the court about that assignment of guardianship under ($1626d BGB). Now comes the kicker: §1628 BGB forces the parents to apply to the court to solve any problems of huge impact, such as guardianship: So technically, mediation results are fully non-binding and you can not mandate it. Also, since all marriages are through the state, it needs a formal instrument of the state to be dissolved. The only three ways that the state ever allowed this to be done after WW2 were a) annulment through a court, which only was possible till 1998, or b) divorce through a court, c) death of one of the marriage partners. Yes, it takes a judge to divorce a marriage under $1313 BGB or one of the two married to die. Because you can't divorce without a filing in court, a clause that demands to divorce in some way that is not including §1313 BGB, that clause would be void. It might be legal to have a clause that demands to try to solve issues in arbitration before filing for divorce or sorting the belongings in such a way, but it can't supplant the court requirement. | You seem to have put a lot of thought into this - which is good. However, the short answer is: There is no legal solution. To address your points: And legally, my future wife has the right to divorce me even if I did nothing wrong (no-fault). Yes (at least in most jurisdictions). And then, according to the US Census Bureau [1], mothers usually get primary custody (unless she is on drugs or abusive, which she isn't). And according to the Indiana Parenting Guidelines [2], babies only get one night per week with the non-custodial parent. And even as a teenager, only alternating weekends. Here, it depends. What you describe is indeed what happens often, but not always. Rules vary a lot, and change, but there is an increasing trend to have joint custody in case of a divorce. The details vary, but joint custody can extend to joint physical custody or shared parenting, where both parents take turns looking after the child. This is possible in the United States. In practice, in case of separation the parents will have to work out a parenting plan - ideally together, or in court if needs be. What the result is will depend on circumstances, and on the opinion of the court what is in the children's best interest. This may or may not mean joint physical custody. Child support payments are based on custody, so I would need to pay her child support. And since she always planned on her husband financially supporting her, then I would need to pay her alimony too. And because of imputed income, I couldn't afford to take a lower-paying job with more flexibility. Again, this depends. For example, with joint physical custody, there may be only small or no child support payments if both parents care for the children about equal time. And even if child support is due, there may be no alimony payments if the mother can work (even if she chooses not to). Again, a lot depends on the specific case and jurisdiction. Also, while it is not possible to reduce child support in a pre-nup (because theses payments belong to the child), you can (to some extent) limit alimony payments in a pre-nup. Is there any way out of this situation? How can I ensure, starting now before my children are born, that their primary caregiver is me? Here we are leaving legal territory. The short answer is: There is no way to ensure this, certainly not using legal means. The only good approach is to get to know your partner first, and make sure you have similar views on how to approach parenting. If she wants to be a stay-at-home mom, and you want to share both work and parenting (such as in a shared earning/shared parenting marriage) then you need to think (and speak) about how to reconcile these views. You may find that you are just not compatible on that point. Then take appropriate consequences. To put it plainly: In my opinion, if you do not trust your partner to respect your wishes on parenting together, she is probably not the right person for you to have children with. | This is complicated. This is state dependent, and as of time of writing, you haven't disclosed what is the relevant state. This is something you should hire/retain a (divorce) lawyer, and discuss with them. The law can be messy; divorces are always messy. The answer is the most common answer in law: it depends, on specific facts. See above, get a lawyer. The first question is "is the money in this investment account a shared asset that I have any claim to". The answer is "it depends". What state are you in, and where did this money come from? Depending on various factors, the answer might very well be "no", in which case, this money (and it's loss) may not affect you at all. If you do have some claim to this money, then it gets even more complicated. "Can this asset be retrieved in a court proceeding and say that he was squandering money?" Maybe, kinda. Technically no (because of the way you phrased that). I'll explain. In a divorce, "shared" assets are divided equitably (Note "equitably" does NOT mean "equally") based on numerous factors, often on a case-by-case basis, and which factors depend on the state. (Therefore, the lawyer you retain should be licensed in the state you/your husband are filing for divorce in). Before your divorce, both sides have (in general) the right to use shared property. They do not have the right to intentionally damage or destroy said property. One complication/grey area is normal use that degrades or damages the value of said property. For example, imagine a classic sports car. Many people drive them for fun; this is normal use. On the other hand, using a classic sports car decreases the value. Is using the sports car unreasonable damage? This is a fact based determination to be made based on specifics. Can this asset be retrieved in a court proceeding [if I] say that he was squandering money? (correction to what I think think you meant). Maybe, but probably not. You can say whatever you want in court, but what matters is what you can prove, as you are the bearing the burden of proof due to making the accusation (and you must prove it to the standard required by the court in your case for your particular motion/accusation, which might be the standard of "the balance of probabilities/more likely than not" or "clear and convincing evidence", or something else; it's complicated, fact dependent and state dependent, so get a lawyer). You don't need to prove that he lost money. If he was day trading before, the fact that he was day trading after the separation is not held against him; day trading is risky, therefore you have to prove that he intentionally lost money (and, potentially, that he intentionally lost money to deny money to you in the divorce, as opposed to e.g. tax loss harvesting). I would recommend hiring a divorce lawyer and discussing it with them. | The appropriate course of action would be to demand an evidentiary hearing, present evidence, and appeal the judge's ruling if it is contrary to the evidence in the record. Abandoning your attorney because the judge is sounding ominous would be foolish indeed. You can't do anything about the judge or about DSS. | There is no public place to “file” that. When privilege is claimed and the other side challenges it then the person claiming privilege needs to establish somehow that the attorney client relationship exists and is pertinent to the question. In the normal course of things there would be an engagement agreement in the attorneys files. And not everything communicated between a client and attorney is protected by the privilege. It only covers legal advice and specifically does not cover discussions planning criminal activity. | It's always going to be a fact-specific situation, but the first step is to conduct whatever factual investigation is feasible to disprove your belief. If your investigation indicates that your belief is correct, you send a cease and desist letter. If that doesn't work, you proceed to litigation. | Yes. There is a special attorney-client confidentiality rule (at least in most U.S. jurisdictions) that requires an attorney to keep confidential and protects with the attorney-client privilege, information disclosed when an attorney and client are in the process of evaluating whether they want to establish an attorney-client relationship. If enough relevant information is exchanged, this information can also create a conflict of interest that would prevent the attorney from representing the opposing party in the same dispute. The ethical rule in states that have adopted a version of the Model Rules of Professional Conduct is Rule 1.18: Duties to Prospective Client (a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing; or (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client. |
Under US law, do US citizens have to state their citizenship to foreign entities? If a foreign country's company or other organization that is not the US government asks if I'm a citizen of the US, am I required to state that I am? I understand that any and all penalties that the foreign entity can enforce upon me for lying would be my responsibility, but I am a liable for anything under US law? I was looking for a basic general answer to this under US law, but if you want a specific case here we go: Expats have always been required to register any foreign 'bank account's that run a balance of over $10,000 in any given tax year. What the IRS calls a 'bank account' is at times a mystery. Regular checking and savings are of course bank accounts. But, sometimes pension accounts and even certain kinds of life insurance can be seen as bank accounts if certain conditions are met. In 2010, Congress passed FATCA which took effect in 2014. This made it mandatory for foreign banks to report the balances on all accounts held by US citizens that exceed $50,000 or risk heavy penalties of 30% withholding on foreign exchanges. Most countries complied. What this means is that a bank, a foreign entity is basically forced to report full personal details as well as balances of anyone that meets those guidelines. This is a lot of extra work, so banks and other entities offering similar financial implements have started to reject US clients. Some expats that were caught unaware of these requirements have been slapped with massive penalties (50% of a year's balance). This has led to a spat of US citizens forfeiting citizenship and the US state department in turn making it more difficult and expensive to forfeit citizenship. So, given the above situation. Couldn't one not disclose they were a citizen of the US considering the bank does not require one to do so to normally open an account? Answering truthfully may mean the account is rejected or closed at a later date. Meaning that one might lose potential benefits or have to pay penalities with the bank or insurance company for early withdrawal. It could also mean one more account that the expat has to remember and report every year or face penalties. | It depends partly on where you are. If you're in the foreign country and they have a law compelling you to answer any questions asked by their government or some company, they you have to answer the question. Whether lying has any legal repercussions depends on the laws of the country, so you'd have to narrow it down a bit. If you're in the US, the only context where you can be compelled to answer a question is when ordered to do so in court (giving testimony), and you have 5th Amendment immunity from being forced to testify against yourself. If you are granted immunity from prosecution, then they can compel you to testify (answer the question). If a foreign entity asks you whether you are a US citizen, you can decline to answer. You can also make up any answer you want, and generally not run afoul of US law (though you could run into problems in that country). There are state and federal laws about making false statements in official investigations, which would not be applicable to what you describe. There is no general law that says you must always tell the truth. However, making a false statement could be part of the crime of fraud, so it would depend on the context of your statement, i.e. are you misrepresenting your citizenship in order to get something of value. In light of the topical update, again there may be country-specific penalties in country for lying about citizenship, and tax evasion is against the law here, which is true whether or not you lie. FATCA specifies a duty to disclose (sect. 6038d), which is not tied to truthful reporting of citizenship (in other words, there is no point in lying to the bank because non-reporting is still a crime). But: this law probably brings the lie with the scope of 18 USC 1001 ("Martha's Law"), which makes it a crime to conceal a material fact "in any matter within the jurisdiction of ...the United States". This means and has been held to mean not just that you can't lie to federal officers, you can't lie to anyone who reports your information to the federal government. FATCA also says "we don't care if it's a crime to report being an American in that country", so inconveniences certainly are not a defense. | That will depend on the specific provisions of Turkish law (in the example case) and the provisions of the tax treaty between Turkey and the US. The Turkish resident will probably have to file with Turkey. To what extent s/he will get credit for taxes paid to the US, and indeed to what extent income from a US company is taxable under Turkish law will depend on the specifics of Turkish law and of any treaty, and may well be different in a different country. | Given that you're centrally keeping customer financial assets, you're looking at a banking license. At that point, the question is not whether you need a lawyer, but how many. "Note that the issuer/bank would not itself offer currency exchange". Neither the Fed nor the ECB do, and quite a few smaller commercial banks also do not offer currency exchange. Doesn't matter, still banks. How many of the banking laws apply would depend on the customers, and services offered to these customers. So far you've only excluded currency exchange, which means that pretty much every banking law might still apply. You seem slightly hung up on the digital part. That's not how the law works. You'll need a banking license where you're operating your bank, not where its infrastructure is located. And yes, not meeting the requirements for registering a bank (whether financially, regulatory, or legally) will stop your idea in its tracks. This is one of the cases where "talk to a lawyer" might not be the appropriate response, but "hire a legal team". | This is less of a compliance question, and more of an infosec question. On one hand, you want to be able to restore access to an account to users who have lost their access. On the other hand, you must prevent unauthorized access e.g. from hackers. These factors must be balanced. Whether you'll fulfil a data subject access request will generally follow the same criteria as deciding whether you'll reset someone's access credentials, so I'll mostly discuss identity verification in general. Trying to validate names is generally pointless from a security perspective, since the name on the account might not be real, or because validation documents like scans from a passport can be easily forged. When a service has identity validation measures like requesting a copy of photo ID, or requesting a photo of you holding up a validation code written on paper, that doesn't actually help validating that the person requesting access is the account owner, but that the person requesting access appears to be a natural person, and now documents about their identity are on file. A lot of information like names, birthdates, or addresses is also not at all secret and could be easily guessed by a malicious actor. Most websites work by equating access with control over an email account. If you can receive a password reset code over email, you have access. In effect, this delegates the responsibility of account recovery to the email or OAuth provider. So the issue is what happens when someone loses their email account, which is not entirely uncommon for accounts that are multiple years old. One reasonable (and likely GDPR-compliant solution) is to deny access when someone loses their account. Quite a lot of services operate this way. A milder form of this is to email the old address that someone is trying to take over the account, and turn over the account only if you have other evidence of ownership and there has been no reply over multiple weeks. Since this is part of an identity verification measure, I don't think the GDPR's normal 1 month deadline would apply. However, this approach is very risky: an attack can succeed through the mere inaction of the true account holder, and it would arguably be a data breach if you give access to the wrong person – safer for erasure requests only. Also, emails like “click here or we'll delete your account” look a lot like spam (I get a lot of those about alleged problems with my Paypal account). A potentially more reasonable approach is to use questions about the account to verify ownership. When did they create the account? When did they last use it? Can they answer questions about non-public content of the account? (But don't let an attacker choose the questions!) You see some older sites that ask the user to select a “security question” for recovery purposes. But this isn't a best practice – they are frequently the weakest link in an authentication system. If the user answers truthfully, the answer may be easy to guess or discover for an attacker. E.g. the infamous “what is your mother's maiden name” question is horrendously insecure in the age of Facebook. If the user provides a more secure answer, that is essentially just another password that's even easier to lose than an email account. High-value accounts typically offer a secondary authentication method as a fallback. E.g. my bank can send me new access codes via physical mail. GitHub can optionally link a Facebook account for recovery purposes. But these measures would be overkill for most cases. Especially collecting a physical address for the sole purpose of offering account recovery would likely violate the GDPR's data minimization principle, though it may be fine when the user opts in with freely given consent. To summarize: what you're trying to do is extremely difficult, because you've need to balance different security aspects: keeping malicious actors out, and letting legitimate account owners in. Whereas I'd resolve that by denying any account recovery or subject access requests, other approaches exists with other risk profiles. The GDPR requires you to perform reasonable identity verification measures, but what is reasonable depends on the business context and is ultimately an infosec question. | Why is a business allowed to refuse a customer? Because also freedom of contract is a right. Except for discrimination on the basis of protected categories, a person or entity is entitled to discretion on whether or with whom to do business and enter contracts. The last sentence in your post reflects a misconception of "completely different set of values and laws" between the USA and members of the EU. Clearly there are many differences, but a comparison of the Wikipedia link you posted and, for instance, 42 U.S.C. § 2000e-2 reflects an overlap of protected categories in the laws of the Netherlands and of the US, such as religion, sex, race, or national origin/nationality. One would need persuasive evidence to support a finding of unlawful discrimination in the two examples you have experienced. Assuming the bank responded to your GDPR inquiry truthfully, the bank's refusal to open an account might have stemmed from profiling or decision-making that (1) does not precisely require specific data about you, and/or (2) uses information the bank does not need to log for purposes of compliance with the GDPR. Note that the GDPR does not outlaw algorithmic decision-making. Since legislation in the EU (as in the US) portrays an approach of market economy, both bank and landlord are entitled to made decisions on the basis of their inner policies for risk management. The policies might be unclear to you, but that does not necessarily mean they contravene principles of equal opportunity. | Yes, so long as you are still a US citizen, it does not matter if you no longer maintain residence in the United States. If you no longer have any sort of residence that can be claimed as a current residence, you simply register at whatever the last residence you used was when you lived in the United States (even if someone else lives there now). You would then have an absentee ballot mailed to you overseas. However, if you don't maintain any sort of residence in the United States, you will only be eligible to vote for federal offices (president, senate, house). You won't be allowed to vote in state or local elections. The keywords you'll need for voting are: UOCAVA, which is a program that allows for easier voting overseas (in some cases the ballot can actually be emailed to you and you are only responsible for printing it out, filling it out, and mailing it back). FPCA, which is the form you fill out. It actually doubles as a registration and an absentee ballot request, so you only have to fill out one form. The absentee request is good for all elections in the calendar year it is submitted, so you only have to fill it out once for both the primary and the general. | Based on Irish law, specifically the Irish Nationality and Citizenship Act 1956, can I live abroad after naturalizing as an Irish citizen and retain my citizenship just by filling that form? Yes, subject of course to factual disputes. The statute (as amended) provides that this revocation is not possible when the citizen has "registered annually in the prescribed manner his name and a declaration of his intention to retain Irish citizenship with an Irish diplomatic mission or consular office or with the Minister": Revocation of certificates of naturalisation. 19.—(1) The Minister may revoke a certificate of naturalisation if he is satisfied— (a) that the issue of the certificate was procured by fraud, misrepresentation whether innocent or fraudulent, or concealment of material facts or circumstances, or (b) that the person to whom it was granted has, by any overt act, shown himself to have failed in his duty of fidelity to the nation and loyalty to the State, or (c) that (except in the case of a certificate of naturalisation which is issued to a person of Irish descent or associations) the person to whom it is granted has been ordinarily resident outside the State or, in the case of an application for a certificate of naturalisation granted under section 15A, resident outside the island of Ireland (otherwise than in the public service) for a continuous period of seven years and without reasonable excuse has not during that period registered annually in the prescribed manner his name and a declaration of his intention to retain Irish citizenship with an Irish diplomatic mission or consular office or with the Minister, or (d) that the person to whom it is granted is also, under the law of a country at war with the State, a citizen of that country, or (e) that the person to whom it is granted has by any voluntary act, other than marriage or entry into a civil partnership, acquired another citizenship. To be precise, filing this declaration does not protect the citizen from revocation of naturalization under another subsection of section 19(1). But if we assume that the annual declarations were all filed promptly (or that there is a reasonable excuse for any failure to file promptly), and that there is no dispute about this, then it is plain from the statutory text that the minister has no discretion to revoke the certificate of naturalization under 19(1)(c). If it were a country like UK or New Zealand, it would straightaway revoke citizenship by claiming misrepresentation of the intention to reside. This is not necessarily true. If there is a reason for the decision to leave, the naturalized citizen could seek to rebut any presumption that there had been misrepresentation. In the case of Ireland, filing the annual declaration does not protect the naturalized citizen from denaturalization under 19(1)(a), so even if the declarations are filed, it could be necessary to show evidence that there was a genuine intention to reside in Ireland at the time of naturalization, and that the intention changed subsequently. If that intention did not in fact exist, then the minister could assert that the certificate had been obtained by fraud, and if the naturalized citizen is unable to rebut that assertion, the minister could revoke the certificate under 19(1)(a). Also see Part IV of the statute for other ways in which Irish citizenship may be lost. In practice, I don't think it is presently very common for countries that generally tolerate (or explicitly permit) multiple nationalities, such as Ireland, the UK, and New Zealand, to seek to denaturalize their naturalized citizens who move abroad. Denaturalization seems to be largely confined to politically sensational cases such as those of terrorists. Since Ireland is a party to the Convention on the Reduction of Statelessness, one way to protect your Irish citizenship may be to renounce your other citizenship(s), if that is possible. However, I do not see any related provisions in the 1956 act linked above. | Yes, depending on the local registration laws of the country in question, when you have a residence in that country. You can also be a resident of multiple countries under the same conditions. You can also be considered a non- resident citizen of your own country. In the European Union, Residence Laws are national laws only for periods up to 3 months are there generel EU Laws So to answer the question under what conditions is someone from Belgium, France or Italy considered a resident, you must look at the countries residence laws (if they have one at all). Note: This has nothing to do with residence permits. A resident permit only allows a foreigner to stay in a country. A foreigner must still fulfill the local Residence Laws, where they exist, as a citizen of that country must also do. Belgium: Moving to Belgium | Belgium.be Belgians who are returning home If you were registered at an embassy or consulate, and are now definitively returning to Belgium, it is in your interests to notify them before you leave. In principle, you should report to your new municipality within eight working days of your arrival in Belgium. After confirming your main place of residence you are recorded in the national register. Your new municipality will notify the municipality where you had your main residence before you moved abroad. If this municipality still holds your administrative records, they will forward them to your new municipality. As soon as you have been registered the procedure starts for issuing a new identity card. Foreign nationals The free movement of persons applies within the European Union, making the residence rules for EU citizens much more flexible than those for the citizens of other countries. "Free movement" also applies to countries in the European Economic Area (EEA): in addition to the EU states, these are Norway, Iceland and Lichtenstein. However, there are transitional rules for certain new EU Member States. Registering with the municipal authorities If as a foreign national you wish to stay in Belgium for longer than three months, you must report to the municipality in which you are staying within eight days of your arrival. You must be registered on the National Register; and for that you must have an actual place of residence in this municipality. both Belgians and Foreigners share the common procedure of registering with the municipal authorities France: France residence Wikipedia France utilizes a national identity card (carte nationale d’identité sécurisée or CNIS), an official non-compulsory identity document. The address information on the card is merely derived from other documents like electricity bills. There is no requirement to notify change of address, which leads to the situation that the current address is often verified by showing bills relating to the current home.[citation needed] Registering your residence abroad - France If you are an EU citizen, you don't need to register after 3 months in France. All EU citizens have the right to live and settle in France However, you can get a residence permit if you wish. Registration at their place of residence is voluntary (3rd Country) Foriegners Arrival in France | France-Visas.gouv.fr What you need to do in France Long-stay visa with the obligation to apply for a residence permit If the visa issued to you is a long-stay visa indicating an obligation to apply for a residence permit, you must complete this process within two months of arrival and contact the prefecture of your place of residence. Registration at their place of residence is mandatory Italy: The Immigration Portal (Translated to English) EU citizens who intend to settle in Italy, or in another European Union state, no longer have the obligation to request a residence card but, after three months of entry, it is necessary to register in the registry office of the municipality of residence ; no formalities are required for stays of less than three months. Italy - Residence of individuals An individual who moves to Italy must apply for registration with the Record of the Italian Resident Population in the municipality (comune) where they intend to reside. At the end of the stay in Italy, the individual is required to apply for the cancellation of their name from the Record of the Resident Population. While registered, you are considered to be a tax resident. An Italian citizen who transfers to a foreign country has to cancel oneself with the Records of the Italian Resident Population and has to register with the Records of the Italian resident abroad, the Anagrafe Italiani Residenti Estero (AIRE). Note: The first paragraph is for all persons, where as the second is specific to Italian citizens Italian citizens who fail to register with AIRE while abroad, often face huge tax bills when returning. Conclusions: The conditions can differ radically between countries, depending on the local resident laws (where they exist). In Belgium you are considerd a resident while registered in National Register In France you are considerd a resident when registered at the local prefecture, which is only mandatory for 3rd Country Foriegners In Italy you are considerd a resident while registered at the local Record of the Italian Resident Population in the municipality (comune) Assumptions should never be made, since the non compliance of local residence laws can have consequences. Resident registration - Wikipedia Africa Americas Europe Belgium France Germany Italy Russian Federation United Kingdom Asia and Oceania |
Can quantum mechanics and the fabric of spacetime be a viable defense to battery (or an offense that requires making contact)? This might sound off, at first, but bear with me as I explain. As a thought I have had for sometime, and then later brought to light by other people like in this article, it is not possible to actually touch anything or anyone. The sensation of touch is fulfilled essentially by electrons repelling where the waves pass through. Given this is the case, there are many laws which do not have a clear definition of what touch actually consists of, instead focusing more on the action and implied state of matter making contact with matter (which is not possible) and what matter can be (an object, person, etc.). Given that touch is not possible except under the theory of nuclear fusion where the state of an atom is fused with another atom both requiring an enormous amount of energy of an inconvenienced amount, and releasing under the theory, an unending source of energy, it is safe to say that this doesn't happen in (for example) a fist fight (even though the participants may feel like it had]). In court, means, motive and opportunity must exist beyond a reasonable doubt. In a case involving a physical contact allegation, wouldn't quantum mechanics and spacetime eliminate the possibility of means? | tl;dr No, it won't be a viable defense. Background Touch has an established interpretation at common law. The common law is judge-made law. If an offense involving touch existed at common law, then the meaning of touch is "defined" by the judicial opinions themselves. As the comments have noted, you'll be able to find hundreds of years worth of opinions where judges have, by example, determined what qualifies as touching. Putting your hand on someone, yes. Spitting on someone, yes. Blowing from a distance, no. These examples make up the common law definition of touch. But how, you may ask, would the common law evolve to include new information? The answer is clear. Say Jill purposely hits Jack in the face with a shovel. When appearing before the judge, she says, "we have a new understanding of atomic proximity, so technically the atoms in the shovel never made contact with the atoms in Jack!" The judge will say, "that's interesting, but it seems irrelevant to what we're trying to accomplish with the law: Jack still had to go to the hospital. Judgment for Jack." Now the common law has incorporated the new information (...at Jill's expense). Touch isn't defined at the atomic level when interpreting a statute. Some offenses are defined, not by judges, but by statutes enacted by legislatures. If the language in the statute is ambiguous, courts have to interpret its meaning. This is often done by looking at the purpose of the statute or by looking at the plain meaning of the language. Statutory interpretation: purpose Where a court does not employ the plain meaning approach, it will often look for evidence of the drafter's intent. In this case, the court would ask what the purpose of a law like battery is. They'd probably conclude it has to do with preventing harm and offense. In fact, they probably included things like that in the statute itself. So they'd wonder if defining contact at an atomic level would help to prevent harm and offense; that seems unlikely. In so doing, the court may analyze the legislative history. It may look at events that happened around the time the law was enacted: did the legislature propose it because people were hitting each others' faces with shovels? It might even appeal to the state of the common law at the time the statute was enacted for the proper definition. Statutory interpretation: plain meaning First, it might help to look at an example from District of Columbia v. Heller, 554 U.S. 570 (2008). There the Court was tasked with interpreting some Second Amendment text. In doing so it said, "we are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings." Id at 576-77. Statutory interpretation also makes use of this plain meaning approach. As stated by the Court, "where the language of an enactment is clear, and construction according to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended.” United States v. Missouri Pacific R.R., 278 U.S. 269, 278 (1929); see also Black's Law Dictionary (10th ed. 2014). This is bolstered by the practice of explicitly defining words with technical meanings in a definitions section of the statute. For example, Article 9 of the Uniform Commercial Code employs a number of terms in a technical sense, and 9-102(a) defines 81 words that are intended to take on a technical meaning. Another example is the Illinois battery statute, 720 ILCS 5: 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 or (2) makes physical contact of an insulting or provoking nature with an individual. The statute doesn't have a technical definition for "physical contact." So under plain meaning we'd construe it in its common sense. Merriam-Webster's Dictionary (a favorite of U.S. courts) defines touch as, "to bring a bodily part into contact with especially so as to perceive through the tactile sense." That definition implies that tactile sensation is what triggers (2), not any atomic concept of proximity. If you're interested in further reading, proper interpretation of the term "physical contact" came up in the insurance contract setting in Mount Vernon Fire Ins. Co. v. Busby, 219 Cal. App. 4th 876 (2013). united-states | Under U.S. law, a U.S. court can assert jurisdiction sufficient to enter a binding judgment (called "long arm personal jurisdiction") if the events giving rise to the lawsuit took place in the state where the state or federal court in which the suit is brought is located. Generally speaking, modern U.S. law allows the service of the summons and complaint that gives the court jurisdiction over the defendant if the events giving rise to the suit took place in the state, to be served anywhere in the world (or even in outer space, for that matter). But, the practical reality is that serving someone with process from a U.S. court in another country would be difficult and expensive, and enforcing the judgment if you win could likewise be difficult. There are also a couple of other problems specific to small claims court: Many small claims courts do not have the full jurisdiction that the U.S. Constitution allows them to have by virtue of the statutes that authorize them and their contemplation that proceedings take place predominantly or entirely in person. It isn't uncommon for the statute authorizing a small claims court to limit its jurisdiction to defendants that live in the same county. Most small claims courts are only allowed to enter money judgments subject to some very narrow and idiosyncratic exceptions. Most small claims courts do not have jurisdiction to order specific performance of a contract to sell a car, even though they could award money damages for breaching the contract to sell the car if those money damage could be demonstrated convincingly. These barriers particular to small claims court could be solved by filing suit in another state court that has broader jurisdiction. (The federal courts would probably not have jurisdiction over this case even if there was "diversity of citizenship" between the parties because the amount in controversy would probably be less than $75,000 unless it was a very fancy car indeed to be worth that much used.) Different consideration would apply if these facts and circumstances arose outside the United States, depending upon the jurisdiction in question. | The above is not quite accurate. First, assault. The correct definition is "a threat or physical act that creates a reasonable apprehension of imminent harmful or offensive contact." Therefore, no attempt at a battery is necessary. Rather, simply making someone subjectively believe that you are about to commit a battery against them is enough for an assault charge. Please note the following two points. One, that apprehension does not mean fear. Apprehension means that the victim has to believe that the actor's conduct will result in imminent harmful or offensive contact. Two, it's not necessary that the victim believes such conduct will actually be effective - rather, he only has to believe the conduct is "capable" of making the contact. I can't tell if by "other security personnel" you mean, in addition to bouncers, say, security at concerts or if you mean private security guards, such as ones who guard warehouses or other businesses. Nonetheless, for the warehouse/business "guards," they do not have a special privilege above or beyond what any random person may do. That is, you may use force to the extent you reasonably believe necessary to prevent a felony, riot, or serious breach of the peace. You may use deadly force only if it appears reasonably necessary to prevent a "dangerous felony" involving risk to human life, including, for example, robbery, arson, burglary. However, if the private security personnel are operating under authority vested to them by local ordinance or the state legislature, then their rights (and also any attendant restrictions, such as those provided to citizens under the Fourth Amendment) would apply instead. So where's the difference? It comes about at the standard a situation must meet to allow use of deadly force. A police officer can use deadly force to effectuate an arrest based on a reasonable belief that a suspect has committed a felony involving the risk of physical harm or death to others (murder, manslaughter, kidnapping, rape or burglary) or if there is substantial risk that the suspect was dangerous to the point that he may cause serious physical harm or death to someone if the arrest were delayed. On the other hand, as a private citizen, you may only use deadly force when attempting to effectuate an arrest if the suspect did indeed commit such a felony. Police can base their action on a reasonable belief and even if that belief is wrong, they will be safe from prosecution. A private citizen actually must be right about the suspect having committed the requisite crime. No matter how reasonable the belief was of a private citizen regarding a suspect, if that suspect did not actually commit the crime, the private citizen who used such force will be subject to prosecution. Bouncers are afforded no more rights than private citizens. They can issue verbal warnings, ask a patron to leave the establishment, check identification, refuse entry, call the cops, protect bystanders from violence, break up fights, and respond with equal force if necessary. They may not strike an individual with a punch or kick, push or physically toss someone out of the establishment, restrain them using chokeholds or other submission techniques, or use weapons or pepper spray. | 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. | 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 | I suspect that you would not be convicted in the present case, because the jury would be sympathetic to the plight of the person being dragged out and unsympathetic to the behavior of the draggers. However, we should set aside the emotional elements of a jury trial and focus on legal principles. The basic question is whether a person has the right to use force to defend against an unlawful battery: "a person is privileged to use such force as reasonably appears necessary to defend him or herself against an apparent threat of unlawful and immediate violence from another". This right to defense also extends to defense of others. But it has to appear to be to unlawful, which is to say, you have to reasonably believe that the force used against the victim is unlawful. If a couple of thugs try to drag a person away, then an observer probably has a reasonable belief that this is an unlawful battery. But if a couple of police officers are observed dragging a person away (arresting him), apparently acting officially, the force used (up to a point) is apparently lawful and would not constitute battery of the victim. For defensive force against police to be lawful, the forced used by the police must be excessive. The outcome then depends on what a reasonable person would conclude (this is where the jury or judge makes a rather subjective decision). If a reasonable person would conclude that the assailants are acting lawfully in arresting the person, then a higher bar must be clear to justifiably use force in defense of others. Wearing a jacket that says "Police" favors the "appears lawful" side (though if you happened to know for a fact that the person wearing the jacket is not a police officer, then the "police exception" would not be applicable). In the relevant case, the facts point to the appearance of a lawful arrest (even if were to turn out to be judged unlawful). In the case that this is an apparent arrest, it would have to be the case that a reasonable person would find the force used to be excessive. Generally speaking, force used by officers is held to be reasonable, except in some cases where it is not. See for example the matter of Eric Garner, where the officers involved were not indicted. On the third hand, in this case, it might matter what the actual legal status of the "officers" is (they are not Chicago police). | 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. | If I read this correctly, (and more context would support this, but I don't have time to do research at the moment; I also don't have the book in question, so I'm only basing off of the provided snippet) then it appears two different (higher court) justices making rules, not only to guide their own judgements before them, but for reference for lower court justices to base their rulings against. Note that these two cases appear to have taken place about 3 decades apart, and in two different countries, albeit with related legal codes. The Purple is "identical" to the Green, because their wording is near enough identical between the two passages. I don't think "dumbness" or lack of distinguishably is implied. Rather McRae's rule is Conditions Green AND (logical "and") Condition Red, while the British rule is just Condition Green. The orange text suggests that, under the rule in Associated Japanese Bank Ltd v Credit du Nord SA, Condition Red need NOT be shown. I.e., you don't need to show that a party is responsible for convincing the other party of an unreasonable falsehood, to prevent the first party from using the doctrine of "common mistake". It also suggests that the rule from McRae does impose Condition Red. Essentially, the text is describing two different (non-exhaustive) tests for determining when the doctrine of "common mistake" can be invoked. |
Can I waive the "slayer statute" in my will? In most jurisdictions, a killer cannot profit from their crime, i.e. if someone kills someone else, they cannot inherit from them. If I create a will, can I specifically ignore the slayer rule? Can I leave my assets to certain persons regardless of whether or not they caused my death? Please include case law or statutes (if they exist). I am interested in answers for any jurisdiction within the United States, but answers in other jurisdictions are acceptable too. | No. This is not a provision that the testator or testatrix (i.e. the person writing a will) may waive in advance. But, the slayer statute does not get invoked unless an interested person invokes it in a probate proceeding after a death, and if no interested party wishes to invoke it, the will would be given effect anyway (just as it would in a case where no one could prove that someone was a slayer). Some states apply the slayer statute to will substitutes, and some do not. Similar laws that revoke dispositions upon divorce are pre-empted for interests in employee benefit plans subject to ERISA, but the U.S. Supreme Court has declined to resolve the issue. See Egelhoff v. Egelhoff, 532 U.S. 141, 152, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (pre-empting divorce revocation statutes, but declining to decide whether ERISA preempts state statutes forbidding a murdering heir from receiving property as a result of the killing) (cited as good law in Kennedy v. Plan Administrator, 555 U.S. 285 (2009) at footnote 14); Wasserman v. Schwartz, 364 N.J.Super. 399, 836 A.2d 828 (2001) (circumventing ERISA pre-emption). But see, Herinckx v. Sanelle, 281 Or.App. 869, (Oregon App. October 26, 2016) (Oregon slayer statute pre-empted by ERISA and reviewing variations in state slayer statutes). A notable comprehensive review of the California and common law rules regarding how the slayer statute applies in murder-suicide cases where the victim and suicidal killer own property in joint tenancy is found in In re Estate of Castiglioni, 47 Cal.Rptr.2d 288, 40 Cal.App.4th (Cal. App. 1995). The murder-suicide scenario is also addressed in depth in the case In re Gleason, 947 N.Y.S.2d 761, 36 Misc.3d 486 (Surrogate's Court 2012). Also, the definition of homicide that qualifies under the slayer statute sometimes covers only certain forms of homicide. For example, it might apply in cases of murder or manslaughter, but not in cases of negligent homicide. Alaska, for example, takes the minority position that unintentional homicides suffice to invoke the slayer statute, subject to a manifest injustice exception. In re Estate of Blodgett, 147 P.3d 702 (Alaska 2006).1 There is unsurprisingly little or no case law on an intentional waiver of these provisions, and assisted suicide would often not qualify as an eligible homicide although this would vary from state to state. But see, Colorado Proposition 106 (adopted by voters November 8, 2016) as it pertains to insurance benefits. A Sample Statute The currently effective section of the Colorado Revised Statutes (modeled on the Uniform Probate Code, which is highly influential to legislative drafters and in courts with common law rules, but is not actually adopted verbatim by a majority of states) which are applicable to this issue reads as follows: § 15-11-803. Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations (1) Definitions. As used in this section, unless the context otherwise requires: (a) "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument. (b) "Felonious killing", except as provided in subsection (7) of this section, is the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter, as said crimes are defined in sections 18-3-102 to 18-3-104, C.R.S. (c) "Governing instrument" means a governing instrument executed by the decedent. (d) "Killer" is any individual who has committed a felonious killing. (e) "Revocable", with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate himself or herself in place of his or her killer and or the decedent then had capacity to exercise the power. (2) Forfeiture of statutory benefits. An individual who feloniously kills the decedent forfeits all benefits with respect to the decedent's estate, including an intestate share, an elective-share, an omitted spouse's or child's share, the decedent's homestead exemption under section 38-41-204, C.R.S., exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed his or her intestate share. (3) Revocation of benefits under governing instruments. The felonious killing of the decedent: (a) Revokes any revocable (i) disposition or appointment of property made by the decedent to the killer in a governing instrument, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the killer, and (iii) nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and (b) Severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common. (4) Effect of severance. A severance under paragraph (b) of subsection (3) of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership. (5) Effect of revocation. Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent. (6) Wrongful acquisition of property. A wrongful acquisition of property or interest by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from his or her wrong. (7) Felonious killing; how determined - time limitations on civil proceedings. (a) Criminal proceedings. After all right to appeal has been waived or exhausted following the entry of a judgment of conviction establishing criminal accountability for the felonious killing of the decedent, such judgment conclusively establishes the convicted individual as the decedent's killer for purposes of this section. (b) Civil proceedings. Notwithstanding the status or disposition of a criminal proceeding, a court of competent jurisdiction, upon the petition of an interested person, shall determine whether, by a preponderance of evidence standard, each of the elements of felonious killing of the decedent has been established. If such elements have been so established, such determination conclusively establishes that individual as the decedent's killer for purposes of this section. (c) Time limitations on civil proceedings. (I) A petition brought under paragraph (b) of this subsection (7) may not be filed more than three years after the date of the decedent's death. (II) Notwithstanding any provision of subparagraph (I) of this paragraph (c) to the contrary, if a criminal proceeding is commenced in a court of this state or in another jurisdiction against an individual for the felonious killing of the decedent, a petition brought under paragraph (b) of this subsection (7) may be filed so long as the petition is filed no later than one year after all right to appeal has been waived or exhausted following an entry of a judgment of conviction, or a dismissal, or an acquittal in the criminal proceeding. However, if the death and the possible culpability of the slayer for the felonious slaying of the decedent is not known to the petitioner within the three-year period of limitations established pursuant to subparagraph (I) of this paragraph (c), the accrual of the action under paragraph (b) of this subsection (7) and the possibility of the tolling of the running of the three-year period of limitation under subparagraph (I) of this paragraph (c) shall be determined according to the principles of accrual and tolling established by case law with respect to similar limitations established under section 13-80-108, C.R.S. (d) Judgment of conviction. For the purposes of this subsection (7), a "judgment of conviction" includes a judgment of conviction on a plea of guilty or nolo contendere, or a judgment of conviction on a verdict of guilty by the court or by a jury. (8) Protection of payors and other third parties. (a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a felonious killing, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party has received written notice as described in paragraph (b) of this subsection (8). A payor or other third party shall have no duty or obligation to make any determination as to whether or not the decedent was the victim of a felonious killing or to seek any evidence with respect to any such felonious killing even if the circumstances of the decedent's death are suspicious or questionable as to the beneficiary's participation in any such felonious killing. A payor or other third party is only liable for actions taken two or more business days after the payor or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this subsection (8) shall not be sufficient to impose liability on a payor or other third party for actions taken pursuant to the governing instrument. (b) The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a claim of forfeiture or revocation is being made under this section. The written notice shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. (c) Upon receipt of the written notice described in paragraph (b) of this subsection (8), a payor or other third party may pay to the court any amount owed or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payor or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payor or other third party shall file with the court a copy of the written notice received by the payor or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payor or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payor or other third party discharges the payor or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court. (d) The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. (e) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section. (9) Protection of bona fide purchasers; personal liability of recipient. (a) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (b) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted. 1 The other four states and District of Columbia arguably adopting the minority position that negligent homicide invokes the slayer statute are as follows, from footnote 5 of the dissent to the Alaska Supreme Court's decision cited above. The District of Columbia slayer statute covers homicide resulting from grossly negligent conduct. See Turner v. Travelers Ins. Co., 487 A.2d 614, 615 (D.C.1985) (explaining that the slayer statute covers "unintentional killing derived from reckless or grossly negligent conduct"). Louisiana's slayer statute covers all criminal homicide. In re Hamilton, 446So.2d 463, 465 (La.App. 1984) (holding that slayer statute "was intended to include situations such as that presented by this case, where a beneficiary does not intentionally and feloniously cause the death of the insured but is nonetheless held criminally responsible for that death"). North Carolina's common law slayer rule prohibits inheritance after any wrongful homicide. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563, 567 (1975); Matter of Estate of Cox, 97 N.C.App. 312, 388 S.E.2d 199, 201 (1990). The continued application of this common law rule has been criticized in light of a slayer statute barring only intentional killers from inheriting. N.C. GEN. STAT. § 31A-3; see also generally Julie Waller Hampton, The Need for a New Slayer Statute in North Carolina, 24CAMPBELL L. REV. 295 (2002). Kentucky Revised Statute § 381.280 bars inheritance from those convicted of any felonious homicide. "Reckless homicide" is a felony. KRS § 507.050. Kentucky defines "reckless" as "a gross deviation from the standard of conduct that a reasonable person would observe." KRS § 501.020. Reckless homicide in Kentucky is therefore equivalent to criminal negligence in Alaska under AS 11.81.900(a)(4). Kansas Statute § 59-513 states that "[n]o person convicted of feloniously killing, or procuring the killing of, another person shall inherit." Involuntary homicide under Kansas law extends to "killing of a human being" committed recklessly, during a misdemeanor, or "during the commission of a lawful act in an unlawful manner." KS ST§ 59-513. This arguably could extend to grossly negligent conduct, especially as KS ST§ 21-3201 explains that "[t]he terms 'gross negligence,' 'culpable negligence,' 'wanton negligence' and 'wantonness' are included within the term 'recklessness' as used in this code." A federal district court has held that Kansas's slayer statute does not apply to negligent homicide, and there appear to be no state cases interpreting the scope of the statute or applying it to negligent homicide. Rosenberger v. Nw. Mut. Life Ins. Co., 176 F.Supp. 379, 382–83 (D. Kan. 1959) (explaining that "the intent of the legislature in enacting the statute must have been to give effect to the common-law rule"). The Kansas slayer statute is essentially unchanged since Rosenberger. | No state prohibits the executor of a will from being the sole beneficiary. There are generally rules in the various states that the executor must be over 18 and not judged incompetent; there may be rules against felons or non-residents being executors. A person could be excluded as executor in some states (e.g. Texas) if there is a conflict of interest, but being sole beneficiary is not a conflict of interest. | I am not a lawyer; I am not your lawyer. You do not cite a jurisdiction so this makes it very difficult to get a definitive answer. What follows is for Australia but the general principles are common law and would be applicable to other common law jurisdictions except where statues apply or case law has diverged. In the first instance, it seems that you were not party to any arrangement to pay for the electricity. So on the face of it you are not party to any contract requiring you to pay. Even if there was such an agreement: family, domestic, social and voluntary agreements (which this would be) are presumed not to be intended to legally bind the participants. Whether this presumption would be overturned would depend on the specific facts. On the face of it, there is no legal obligation to pay. Your options are: Do nothing; this puts the ball in their court, they can: Forget about it (it would then be over) Attempt to sue you with little prospect of success (which would cost them and you a lot more than $50 irrespective of who won) Do something illegal like beating you up (you really need to assess this risk) Tell everyone they know (in person and on social media) what a skiving prick you are (you could probably sue them for damages but that's not really going to happen, is it?) Pay them what they are asking Offer to pay them something less. Option 1 is likely to break any relationship you have with the person, Option 2 is likely to preserve it and Option 3 could go either way. Ultimately, like most legal questions, this is not about the law; it's about relationships ... broken ones mostly. | I think it's important to keep in mind the essence of your actions. @Mowzer gave a great answer on the matter in hand, but I'd like to add a point of view. Is it illegal to eat while driving? Like pointed out by @Mowzer, if no law prohibits it, it's allowed by default (lots of countries have this premise). But what about the consequences of your actions? Maybe there's no law against eating in the car, but there sure is one in my country that specific says that you are not allowed to drive without using both hands in the wheel. The only exception to this rule is to take out your hand from the wheel to use the stick to change gears. Another point of view to add is the liability. Let's say you're minding your own business while driving and a lunatic trying to commit suicide jumps in front of your car. It's a pretty straight-forward case, you have no reason to be blamed. Now, let's add to the same scenario your snack; with a small change, you are now facing a accident that may have been caused by reckless driving (another thing commonly illegal). To sum up, the law is not really like math that have axioms that determine true or false statements without any distinguishment. That's why every case is single handled in the law by it's particularities. | Yes For example, s270AB of the south-australia Criminal Law Consolidation Act 1935 says: (1) Where— (a) a person attempts to kill another or is a party to an attempt to kill another; and (b) he would, if the attempt had been successfully carried to completion, have been guilty of manslaughter rather than murder, he shall be guilty of attempted manslaughter. Relevantly in SA, voluntary manslaughter occurs when a victim dies as the result of an offence that would otherwise amount to murder, but the defendant’s liability is reduced because of the presence of mitigating circumstances, such as provocation. So, in circumstances of provocation (say) where the accused shoots at the victim but misses, attempted manslaughter is a possible charge. Most likely this would be charged as attempted murder but downgraded where the defence of provocation was made out. | This will depend on the exact wording of the will. If the will is well-drawn, it will provide alternative recipients in case the primary recipient of a bequest dies before the testator (will-maker) does. But as a general rule, if A makes a will leaving particular property to B, but B dies before A does, that bequest is void. If the will specifies an alternate recipient, the property goes to the alternate. If not, or if all specified alternates die before the testator does, the property becomes part of the residual estate of the testator. (The residual estate is that part which is not subject to a specific bequest.) The testator can specify a line of descent for a bequest: "I leave my house to Joan and her heirs". In that case, if Joan died before the testator, the house would go to whatever person or persons inherit from Joan. This was once a somewhat common form of bequest, but now is much less common. A will normally includes language leaving the residual estate to some person (or several people) or some entity (it can be an organization, such as a church or a charity). This is often done with language such as "I leave all the rest of my estate to ..." OR "Everything not include above i leave to..." or "I give all the remainder and residue of my estate to...". The executor does not choose, but rather follows the directions of the will on who gets the residue of the estate. I am not sure what happens if the will does not name a residuary legatee, or if the person so named dies before the testator. That will depend on the specific law of the jurisdiction. In the US, this means state law, and will vary from state to state. The comment by Dale M says that assets not provided for in the will are inherited as if the person was intestate, that is, as if the person had no valid will. The law in each jurisdiction specifies exactly what rules are followed in the case of intestacy. In general this is that property goes first to the teatator's spouse and children, but if there are no living spouse and children, to more distant relatives. Eventually, if no relatives close enough can be found, property escheats, that is, goes to the government. The exact rule varies by jurisdiction -- in the US by state. | You are talking about "joint tenancy." I am familiar with bank accounts having multiple owners characterized as "Joint tenants with rights of survivorship" (JTWROS). This keeps the account out of probate: a death certificate simply removes the name of any owner who dies. But a probate court afraid that a deceased may not have enough assets to satisfy debts can still freeze the account for the duration of probate. These really are not tools for estate planning. For example, you can't use them to avoid gift or estate taxes. Also a JTWROS account is fully exposed to the liability/creditors of every owner. So no, a JTWROS does not shield assets from creditors. Finally, encumbrance of or distribution from a JTWROS account requires the consent of every owner. Any unresolved disputes are probably headed to court. | 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. |
How could the Electoral College and electors be replaced by a popular vote? Curious here. What are the concrete, finite set of steps that would be required to "do away" with the Electoral College in the United States (all states/provinces/etc.), and to institute an election system based on popular votes? I'm mainly talking about the Presidential race but this could be genericized to any vote that is handled by state electors. I know it would almost likely never happen, I get that. But anything is possible. I'm wondering how, specifically. | This would require an amendment to the Constitution of the United States of America. The process is specified in Article 5: Article. V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. The "mode of ratification" has until now always been by state legislatures rather than by conventions. That's unlikely to be different in this case. | The United States would be one such country. I'm sure it is not the only one. In the case of countries with constitutional courts there is basically no one to second guess their interpretations which is also true when the apex court in a country provides an opinion. Since no one can overrule many of these courts, they are allowed to do what they want. | For the US, the Uniformed and Overseas Citizens Absentee Voting Act provides that just about any US citizen living abroad who has previously resided within the US is entitled to vote in federal elections as though they still lived at their last US address, provided they'd be eligible to vote if they still lived at that address. If you're overseas on duty in a uniformed service of the United States or as a spouse or dependent of such a person, it's based on your legal residence instead. This is a right of US citizenship; dual citizenship doesn't affect it. This State Department website has details; there's a special process you can generally use instead of the state absentee process. UOCAVA applies to all federal elections (including primaries); state and local election eligibility is up to the state. For Canada, citizens of Canada living there seem to have the right to vote regardless of any possible loyalty issues with another country. Canadians living outside Canada for over five years can't vote, but if you live there it seems as though it is allowed. So, the answer is seemingly "yes." For a definitive answer, contact the US consulate and Canadian election officials. | The Supremacy Clause makes Federal laws superior to state laws and even state constitutions, but that is only true for Constitutional federal laws. If Congress passed a law seeking to restore the effect of the now overruled Roe decision, there would be a question as to what provisions of the constitution empowered Congress to do so. Such a law might be challenged, and if no convincing source of congressional authority to pass such a law was cited, it could plausibly be overturned. One supposes that the members of the majority in Dobbs would be reluctant to see that decision superseded by a new Federal law. One hopes that they would take a principled stance, and only overturn such a law if there was good legal reason to do so. Without seeing the text of such a law, and the constitutional arguments for and against it, there is no legitimate way to judge if it would be within the power of Congress. As a political matter, I doubt that the current Congress will pass such a law. | I would argue the Constitutional basis of these actions would be the Constitution itself, namely Article II, Section 4: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. and Article I, Section 3, Clause 7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Note also, that as Hamilton explained in the Federalist Papers, the Impeachment process was a check brought over from England (it predated the formation of Britain by several centuries) as a check on Executive (read Monarchal) power of royal appointments, including Judges. So, to answer your questions directly: Serving out one's term or resigning is not a shield to impeachment, otherwise one could simply play "whack-a-mole", appointing the same individual repeatedly (which is also why future barring of the individual from governmental office is an option). The purpose of impeachment is, per Hamilton, to react to "political crimes"; "mundane" crimes are to be handle by the normal judicial system. Nixon did famously resign rather than be impeached, but he was barred from running again anyway, having served two terms as President. Congress at that time chose not to continue the impeachment process after his resignation (note that disqualification is an option, but not required, punishment that can be levied by Congress in the event of impeachment). See Article I, Section 3, Clause 7, quoted above. | The newly elected Congress does all of the work in electing a new President. Under the 20th Amendment, the newly elected Congress takes office on January 3. Then three days later, on January 6, 3 USC § 15: Counting electoral votes in Congress, requires the new Congress to meet in Joint Session to count the electoral votes. If this session does not produce a President or Vice President, there is what is called a contingent election. In a contingent election the House begins immediately to choose a President from among the top three electoral college vote getters, while the Senate chooses a Vice President from among the top two electoral college vote getters. Both Houses use majority rule. The House votes by state, so a majority is 26, while the Senators vote individually, so a majority is 51. If the House does not pick a President by Inauguration Day, January 20th, the Vice President serves until a President is picked. If neither a President nor a VP has been picked by the 20th, the Presidential Succession Act applies, and the Speaker of the House, President pro tempore or a cabinet officer serves as Acting President. It wasn't always done this way: The 20th Amendment was passed in 1933 to take control over elections away from the lame duck Congress. Before the 20th A was adopted, the terms for P, VP and Congress all ended on Inauguration day, March 4. That meant the lame duck Congress had to deal with electoral matters. By giving Congress and the P/VP different expiration dates, the Amendment meant new Congress could deal with the election. Setting the election counting date after the new Congress was seated (on January 6), meant only the new Congress could. | First, there are many versions of Robert's Rules of Order: here is an early free version. §26(c) suggests a procedure for creation of a committee to draft resolutions, and §53 contemplates other (standing) committees. Nothing therein suggests that there are restrictions on the right of a member to vote, in terms of a mandatory adjournment. However, RRO is not a Universal Organizational Bylaws, so in order to have any force, it must be adopted as part of the bylaws (in whole or part). It especially cannot dictate who is eligible to vote – that is a detail that has to be in the organization's bylaws. | It depends on whether state law allows the use of drop boxes. Many states do -- in 2016, a little over 15% of ballots nationally were returned to drop boxes. Several states require drop boxes; some specify how many are required. (As far as I can tell, no state requires a drop box in every precinct.) For example, Washington, which is a "vote by mail" state, allows voters to either mail ballots back, or return them to a drop box. The law requires the county to provide: "a minimum of one ballot drop box per fifteen thousand registered voters in the county and "a minimum of one ballot drop box in each city, town, and census-designated place in the county with a post office.* In Washington general elections, between 40-50% of ballots are returned to drop boxes -- in 2016, 57% were. Predictably, the use of drop boxes has been in the news recently. |
What would it take to replace the electoral college system? It seems electoral college debate comes back every election these days. What would be needed to replace/remove this system? An amendment? ratification? Is it even possible? | The election of the president (and VP) is a function most directly of Article II Section 1 Clauses 2 - 4 of The Constitution and the 12th and 23rd Amendments. Sections 2-3 of the 14th Amendment would probably have to be rewritten, since they also refer to there being "electors". A single constitutional amendment would suffice (and nothing less than an amendment would): the wording would of course depend on what system you wanted to replace it with. In doing this, it should be decided how to deal with the fact that electors cannot vote for both a president and vice-president from the elector's state (per the 12th Amendment): that might indicate an intent to prevent the president and vice-president from being from the same state, or it might mean that the intent was that if that happens, then that state's electors can't vote for their two favorite sons. In repealing the 12th, you can decide what you want now. There is a proposal to effectively nullify the Electoral College, the Popular Vote Compact, which has been enacted in a few states. The basic idea is to make it a statutory requirement at the state level that all electors must vote for the winner of the popular vote at the national level, regardless of the outcome in the particular state. The idea is that when enough states agree to the scheme such that they hold a majority of electors (which can change over time, so to be stable you need more than a simple majority), then they vow to vote for the winner of the national election. However, this also needs to be backed up with more compulsory faithful voting of electors, since compact or no compact, only 1 state seems to be able to actually prevent an elector from voting however he wants. | Call, write, or visit the office of your legislative representative. This page can help you figure out who that is. They have the ability to introduce a bill into the legislature that would change the law, and that's the best way to change a law like what you're trying to do here. Be sure to tell the legislator exactly what you think should be changed (e.g. "We should change section ABC of the Texas Property Code, < citation>, to say that 'no landlord can charge a fee of more than X for Y in Z conditions,' or something similar.") Then concisely summarize your reasons why. Consider consulting politics for more strategy on who and how to ask to increase the probability of success. Be sure to give some consideration to the reason why the landlords charge such fees and the costs they have to incur associated with lease assignments/changes. Try to craft a proposal that addresses those concerns, perhaps in some alternative way, and communicate the degree to which you think you understand and have addressed those opposing views. Also try to think about what new challenges or issues would arise if your proposal went into the law. The job of your representative and/or their staff includes listening to (a concise presentation of) your concerns and how you think the law should be changed, and representing those views in the legislature. S/he also has other constituents, including landlords, to answer to as well, and has to balance those potentially opposing interests before deciding what (if anything) to do. The degree to which you think the representative listens and represents your interests may determine whose campaign you support (including who you vote for and what you say to your friends/neighbors/family) in the next election. Another strategy is to negotiate with your next landlord to take those fees out of your lease agreement, and then the contract which governs your specific agreement might be changed to address this concern. If you want to change the law for everybody, you might have to convince a lot of people that it's a good idea. If you want to change the "law" for what affects you personally, you might only have to convince one person (your own landlord) that such a change is a good idea, at least in your case. | Sort of The 25th Amendment is crystal clear that the VP and a majority of the cabinet can declare in writing to the president pro tem of the Senate and the speaker of the house a presidential inability, whereupon the VP becomes the acting president. The president can then immediately transmit in writing his declaration that there is no inability, and then he resumes his position as president until the VP and majority of cabinet (not necessarily the same members) again declare a disability, within 4 days. If that happens, then Congress decides the matter. There is a 28 day period for a super-majority of Congress to make that decision, plus 48 hours for assembling of Congress is not in session. The problem is that the amendment says that the president resumes his powers unless something happens within 4 days. It does not say that he must wait 4 days to see what the VP response is. If the VP does not counter-respond immediately, then it is possible, but not guaranteed, that the president regains power until the VP reaffirms the disability. This is a question that would have to be decided by SCOTUS. In the presumably short interim, there would be serious constitutional questions as to the legality of the actions of either POTUS or VPOTUS. | The location of your residence entrance is irrelevant for the law, what matters most is your "street address", i.e. mailing address. That is the address (therefore city) that you use for voter registration, and basically how you identify "where I live". If you lives 5 miles out in the country in an unincorporated area, you'd still use Needles (e.g.) as you mailing address: but you would not be able to vote for a mayor of Needles, just based on your mailing address. Both municipalities might claim jurisdiction based on the physical location of the property, especially for matters of building code. It should not be possible for both municipalities to tax the full value of your property, but they could split the assessment proportionally. The cities themselves are not collecting the tax, the county is (though property straddling a county line raises an interesting question). | There is nothing wrong with this requirement. The teacher or professor isn't requiring you to change your opinion. Instead, the requirement is simply to marshall evidence in favor of an opinion that you may not hold. Being able to do this is a valuable rhetorical skill (and a skill which lawyers must routinely employ). For example, in competitive debate, you often do not have the freedom to decide whether you will be arguing in favor or against a resolution, and may not even know which side you will be advancing until moments before the event starts. Freedom of conscience does not extend to freedom from understanding people who disagree with your deeply held belief. UPDATE: Requiring a whole classroom of students (possibly many classrooms of students) to advocate with multiple representatives for a bill does seem problematic, in terms of election laws and probably in terms of the legal requirements that apply to the university, and also possibly in terms of "forced speech", because in requiring the advocacy to be submitted to the official and take a particular position, goes beyond the "let's pretend" veneer that applies in most debate contexts. | Perhaps. The relevant law is assembled into notes on 3 USC 102. The original act of 1963 defines President-elect in this manner: (c) The terms 'President-elect' and 'Vice-President-elect' as used in this Act shall mean such persons as are the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. There is no specific statutory provision directing the Administrator of the GSA to ascertain who is that President-Elect. The administration is apparently taking a position similar to that taken by the Clinton administration, that states determine who has been elected, and the states have not officially determined who has been elected: nor has a candidate conceded. If a court orders the Administrator to make the ascertainment, I expect that the administration would appeal the ruling up to the Supreme Court. This letter, addressed to the Administrator, gives the legal rationale. | This is the problem with democracy Sometimes you lose the vote and have to do things you don't want. | Election procedures are generally a matter of state law, so the process will be different from one state to the next. In Colorado, the law in question is Colo. Rev. Stat. § 1-11-101: If at any general or congressional vacancy election ... any two or more persons tie for the highest number of votes ... for representative in congress ... the secretary of state shall proceed to determine by lot which of the candidates shall be declared elected. The question then becomes how the secretary of state will "determine by lot" who is the winner. As far as I can tell, this process is not established by statute, nor has the secretary of state promulgated any administrative regulations establishing a system for drawing lots. In other states, it typically comes down to something quite random: flipping coins, drawing names from a hat, dealing poker, etc; I assume the secretary of state could choose any of these. The answer could be different for other races, though. Both chambers of the General Assembly would vote on a joint ballot to decide a tie in a race for governor, secretary of state, treasurer, or attorney general. This also assumes that Bob and Alice are facing off in the general election, not the primary. In a primary, tying candidates get to choose their own tiebreaker. If they can't agree on one, the secretary of state chooses by lot. |
What is "reasonable wear" (4 years and 4 months) when comes to deposit return for the property? I was renting a flat for 4 years and 4 months. I'm registered with http://www.depositprotection.com/ In accordance with your tenancy agreement some of these works are deemed to be rechargeable. In my understanding it is a convoluted way of saying that I need to pay for it. My first initial reaction is: ARE YOU FREAKIN' KIDDING ME? Then I realised I should ridicule them: £416.52 for "treat for urine in lounge strong smell" (I'm not a lawyer but it may suggest there was a strong urine smell in my lounge) I've recorded a short video on the last day of property: https://www.youtube.com/watch?v=vwtHnI1ZQtM (58 second walkthrough) All clean, all looking good, and I feel unhappy-to-say-at-least that they want £2231.87 repairs on the property that was £600 a month. Here is a snippet from the tenancy agreement: 4 years and 4 months - I left it clean and within the reasonable wear - the main issue - who decides what is the resonable wear? Shall I put it on fire instead? (damage by fire excepted) Can you please advise what is the recommended way of disputing these charges? What happens if I just ignore them, forfeit the deposit (in region of £600) - will they chase me to the court for the remainder? | While I am a U.S. attorney, the U.K. and U.S. are essentially the same on these issue in practice: "reasonable wear and tear" is a classic issue of fact to be decided by the judge (unlike the U.S. there are never juries in U.K. landlord-tenant disputes) based upon the evidence presented to him and his or her good judgment if the case goes to court. There won't be a lot of case law that is specific enough to provide guidance in your particular case (if any) because cases like these aren't worth appealing and creating case law on and because the law intentionally vests judges with great discretion on these issues and only intervenes in appellate decisions when a judge is deeply out of line. The legal definition of "reasonable wear and tear" is basically vacuous and don't provide much meaningful guidance. I know you are joking, but no, do not set it on fire. You will find yourself incarcerated for arson, with a felony criminal record and a restitution judgment in the amount of the damages and a fine and court costs as well, and your credit record will be screwed and no one will rent to you ever again if they find out by doing a cursory background check. Your mum probably won't even invite you to Christmas dinner this year. If they charge your security deposit and you don't think you owe it, you would have to sue them for a return of the part of your security deposit you don't owe, knowing that you face a risk of paying their legal fees if you lose, but will get your fees if you hire a lawyer and win (caveat: there are more nuances to fee shifting in the U.K. courts than I spell out here which are rather technical). If they say you owe more than your security deposit and you don't pay, they can sue you for the balance, knowing that they face a risk of paying your legal fees if they lose, but will get their fees if they win. In practice, it doesn't really make economic sense for either party to hire an attorney because the amount of the fees is so high relative to the amount of money at stake. The security deposit is 2-4 hours of legal time, and the amount claimed is maybe 7-14 hours of legal time, neither of which is sufficient to address the respective issues economically in a fully litigated hearing. Short of going to court, you can provide them documentation and your video to show that you are right and to discourage them from docking your security deposit (in full, anyway) or suing you, ideally A.S.A.P. before they are too committed to taking legal action. You could also propose a compromise and see if you can get them to agree to it with neither party facing the risk of going to court. | B and C have a contract with A In return for paying 3 months rent, B and C will remove A from the lease. This has all the required elements to be a contract. B and C have fulfilled their obligations and A hasn’t. B & C could sue A for damages. They would need to prove that there was such an agreement and that they agreement was a legally binding contract. Is this agreement written down? Was it witnessed by impartial third parties? What evidence of this agreement do you actually have? If A says they agreed to X, yet B & C say they agreed to Y: what evidence exists to show who is right and who is wrong? Failing to fulfill the obligations of a contract is not fraud. For there to be fraud, B & C would have to prove that A never intended to comply by the terms of the agreement. Given that the terms of the agreement are somewhat ambiguous, this would be very difficult. This seems to be more of a case where [Hanlon's Razor]: "Never attribute to malice that which is adequately explained by stupidity." That is, A's actions are more likely to be the result of a misunderstanding (by A, or B & C, or both) than a deliberate plan of deception. The landlord is not involved - they removed A from the lease at the request of A, B & C; they’ve done what they’re required to do. | If the landlord has a right to charge a late fee (and that late fee is not a penalty) then that right accrues from the instant that the rent is late i.e. any time after 5:00:00 pm precisely if that is the time stated in the lease. If only a day is stated then it would be midnight. For case law on the penalty doctrine see PACIOCCO & ANOR v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [2016] HCA 28 which involved a challenge to a bank charging late payment fees on credit cards. | Since you bought these online the Consumer Contract Regulations are going to be in effect here (if the price of the goods was over £42 anyway), (legislation) Where your cutting the tags off and wearing them outside for an hour comes into play is that would probably be considered "excessive handling" and they might be able to make a deduction from the amount of the refund. Your business can make a deduction from the value of the goods if you consider the customer has handled the goods excessively. You can’t deduct monies from the refund simply because the goods have been removed from the packaging or because the goods have been tried on or checked. In essence, distance selling purchasers are entitled to handle goods in the same way that they would in a normal retail store. That therefore includes touching the item or trying it on. Since no retail store is going to let you cut the tags from a pair of shoes and walk outside for an hour in them I'd say that test is probably met here. How much can they deduct? As the CCR puts it (emphasis mine): (9) If (in the case of a sales contract) the value of the goods is diminished by any amount as a result of handling of the goods by the consumer beyond what is necessary to establish the nature, characteristics and functioning of the goods, the trader may recover that amount from the consumer, up to the contract price. Which is likely where the "saleable condition" aspect is coming from - if they aren't in a condition where the retailer can sell them on they've essentially lost their full value. If the retailer makes returned goods available for sale on the site at reduced prices (like the "Amazon warehouse" deals) then a deduction of the difference in sale price between that and full retail is more likely. | If this is a typical private sector tenancy, then it would initially be a fixed-term one year'assured shorthold tenancy' a type of assured tenancy. The Housing Act 1988 says: If an assured tenancy which is a fixed term tenancy comes to an end otherwise than by virtue of— (a) an order of the court of the kind mentioned in subsection (1)(a) or (b) or any other order of the court, or (b) a surrender or other action on the part of the tenant, then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling-house let under that tenancy and, subject to subsection (4) below, his right to possession shall depend upon a periodic tenancy arising by virtue of this section. So if the tenancy was not renewed then it would be replaced with a periodic tenancy. This has different rules to the fixed-term tenancy. Whether renewing the tenancy is necessary or not depends on whether either party strongly prefers the fixed-term tenancy to the periodic. | 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. | The beginning of the tenancy is defined in section 45(2) of the Housing Act 1988 as: the day on which the tenancy is entered into or, if it is later, the day on which, under the terms of any lease, agreement or other document, the tenant is entitled to possession under the tenancy. (This applies to the statutory instrument because it is made under section 21B of the 1988 Act, and definitions carry over from primary to secondary legislation in this way.) The definition probably matches what people would expect. Section 21B, and the 2015 Regulations, just say that the landlord has to give this information to their tenant. But it follows that if the tenancy has begun, then the landlord's obligation also begins. It binds from day 1. Therefore, the government is justified in saying in the booklet: The landlord, or the letting agent, should give the current version of this guide to the tenant when a new assured shorthold tenancy starts. Because of all the other paperwork involved, it's most common for the booklet to be given as part of the bundle of documents when the tenancy agreement is signed - so, along with the inventory and so on. This is typically not too distant in time from when the tenant is entitled to actually move in, and landlords will often only sign on the day itself even if the tenant has completed their part of the formalities earlier. Perhaps your doubt is about whether it is "OK" for the landlord to provide the booklet before the actual start date of the tenancy, as opposed to waiting until the tenancy is in effect. In the same way, we could imagine a prospective tenant wanting to see the energy performance certificate well before agreeing to sign anything. Does the landlord have to give them another copy on day 1 of the tenancy, even though it's the same as the copy they already have? In fact, there are specific different rules for those other items of information. The most recent gas safety certificate must normally be given "to any new tenant of premises ... before that tenant occupies those premises" (SI 1998/2451 reg.36(6)(b)) The EPC must be given to any prospective tenant at the earliest opportunity, and in any event must have been given to "the person who ultimately becomes the buyer or tenant" (SI 2012/3118 reg.6, and compare the definition of "prospective tenant" in regulation 3). The EICR must similarly be given to new and prospective tenants before they occupy the premises (SI 2022/312 reg.3(e)). So these are meant to be given before the tenancy begins. They are part of what the prospective tenant should know before deciding whether to sign the agreement. The government's model tenancy agreement has checklists for landlord and tenant in relation to these documents, plus the "How to rent" booklet. That is consistent with the idea that the tenant is meant to have this information on the day that the tenancy is to begin, whether that's because they're just being given it now, or because they've already seen it. Armed with all the knowledge, they can now proceed to signing the agreement. Indeed, the content of the "How to rent" booklet makes it less useful if it's provided after the agreement has started. A lot of the material is about searching for a property, making sure that you are prepared to sign, and avoiding bad behaviour by potential landlords. Even though it would meet the letter of the law to only get this information after signing (but still on the day), it also meets letter and spirit to get it on the day, before signing. Or if you had it even earlier, it would be a bold argument to say that the landlord hadn't given you the information just because they emailed it to you a week before the tenancy actually began - especially if you have checked the appropriate little box on the tenancy agreement to say you received it. Nonetheless, because the only practical consequence for landlords is their ability to serve a s.21 notice, it's also common for them to play it safe and send another copy of the booklet before sending the notice itself. They will also often send updated copies as they arise, even though the regulation doesn't require it; some insurers ask for this just to really cement the chance of making a proper s.21 notice. I'm not aware of judicial precedent on early delivery of the booklet, but we can get some guidance from a recent Court of Appeal decision on s.21A, Trecarrell House v Rouncefield [2020] EWCA Civ 760. This case examined the nature of breaches and remedies that prevent serving an eviction notice. The conclusion was that if the tenant received a gas safety certificate "before or with" the s.21 notice, then the landlord has fulfilled their obligation - they are not irreparably in breach just becuse they did not give that information at the beginning. What matters for the Housing Act is that the tenant received it by the time that it was needed for the s.21 process. Likewise, it would seem that if the tenant had the "How to rent" booklet from the landlord before the beginning of their tenancy, then the landlord is not in breach - because the tenant has the information the whole time even though the act of giving the booklet predated the tenancy itself. | 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. |
Do revenue share agreements have to meet minimum wage? Let's say my company hires a contractor. They work on revenue share. If there is not enough revenue to where their share would be greater than or equal to minimum wage, is the company required to cover the difference? What if this is a full-time employee, opposed to a contractor? | Anyone who is an employee as defined in the federal Fair Labor Standards Act of 1938 (FLSA), 29 USC 201 et seq.(or parallel state minimum wage laws) and is not within the scope of an exemption to the minimum wage law, must be paid minimum wage. The relevant question is whether or not the person is an employee who is not exempt from the minimum wage requirement as defined in the FLSA. The question is a mixed issue of fact and law in which the characterization given to the relationship by the company and the person doing the work is one factor, but not the only or the controlling factor, in determining employee status. The exact nature of the work governs whether the FLSA's minimum wage requirement applies or not. For example, "employee" is defined for puroses of the FLSA at 29 USC 203(e) to exclude "any individual employed by an employer engaged in agriculture if such individual is the parent, spouse, child, or other member of the employer’s immediate family" and certain kinds of volunteers. Piecework pay is allows under certain limited circumstances by 29 USC 207(g) when the usual result is that reasonable workers earn the minimum wage. Tipped employees (which is a form of revenue sharing) also receive special treatment. Most of the exemptions are found at 29 USC 213. Most relevant to your question is 29 USC 213(a)(1) which includes an exception for an "outside saleman" who is paid on a straight commission basis, and 29 USC 213(a)(5) and (a)(6) which contain exclusions for certain farming and fishing occupations. Straight commission compensation without regard to the minimum wage is generally not permitted with regard to an employee who is an "inside salesman" (e.g. someone who works at a retail store in a mall or at a phone bank for a telemarketing company), or for anyone other than an outside saleman in non-agricultural jobs. Independent contractor status generally depends upon the degree of control that the company has over the manner in which the work is performed, the assignability of the contract to do the work, and the extent to which the worker does work for many different companies on a contract basis while complying with employment related laws for the contactor's own employees (e.g. worker's compensation). The working for many different companies on a contract basis prong of the test is frequently controlling in practice. Six of the main factors considered by the Labor Department in determining independent contractor status are discussed in Fact Sheet #13. A true independent contractor may be paid on a revenue sharing basis without regard to minimum wage, although in practice, if this results in the independent contractor earning less than minimum wage, there will be strict scrutiny of the practice. Typical independent contractor arrangements that would be allowed would include an attorney working on a contingent fee basis, or an independent broker or realtor working on a straight commission bais. More often than not, a true independent contractor is someone you couldn't even imagine being an employee subject to minimum wage laws of the company in light of the overall relationship and often this will involve a business to business contract, rather than a business to a non-professional individual contract with only personal services involved. There are some safe harbor provisions that if met can insure independent contract status, but it is very common for someone who legally is an employee to be misclassified as an independent contractor in an attempt (often futile if the matter is pressed by regulatory or tax officials) to avoid compliance with laws incident to the employment relationship. | Unless your contract, whether individual or collective, has a clause requiring this compensation you are out of luck. Sometimes one of the “benefits” for a company’s move is to leave behind workers who are not 100% committed to the company in that they would not move or commute a long way to keep their job. 30 miles isn’t very unusual where I live. In the U.S. most employment is on an "at will" basis. That means you can quit anytime you like without notice and you can be fired at any time for almost any reason or no reason, as long as the reason is not one of the protected reasons. | Is sales person required by law to give a copy of signed contract at the time you sign up for service? No. If I would ask for copy of all documents from that company are they required by law to send her these copies? No. Is there a law that mandates process on how contracts should be signed in California? There are many, however, they relate to specific classes of contract. In general, it is not a requirement that a contract be signed or even written; verbal contracts are totally legitimate. Given that every single transaction where money changes hands in return for goods and/or services is or is part of a contract it is not feasible that they all be signed. Have you bought a cup of coffee today? Did you sign a contract when you did? Here's the thing Your friend has learned several valuable business lessons: the first is some people in business will rip you off. If you are a consumer then you have (some) legal protection, however, if you are in business then the courts and the legislature expect you to look after yourself. Your friend has signed a contract. Pretty much, any court will consider that what they signed would be the entire contract unless there was compelling evidence to the contrary. Her word that the sales rep said there would be no break charges would not on its own be compelling evidence. Your friend has an obvious incentive to lie. Here is the second lesson: don't sign anything unless and until you have read and understood it; hire a lawyer if you need to in order to understand it. Now, either under the contract the company is legitimately allowed to charge these fees or it isn't. Without having a copy of the contract you have no way to tell. Thus the third lesson: always keep your own copy of everything you sign. What your friend can do is: nothing. Don't pay the bill, write to them saying that she disputes that she owes them any money at all. If you want to be provocative, suggest which court would be most convenient if they want to prove the debt. Odds are this will go no further. If they do proceed with a summons then they will need to state their case. At that point she can request through the court a copy of the contract they are relying on. If their claims are legit she can simply roll over. | Notwithstanding in this case takes its ordinary meaning - "despite": Despite anything to the contrary contained in this Agreement, any provision of this Agreement which provides for me to assign any of my rights to a Work shall not apply to any invention developed on my own time without using equipment, supplies, facilities or trade secrets… Without having the text of the rest of the relevant parts of the contract, my initial interpretation is that the effect of this, is that you would not need to assign your rights to Works produced in your own time without connection to your paid employment. Also, if this was subordinate to the other clauses you mentioned, then it would have little or no effect. Finally, the general legal principle is that works produced in your own time with no connection to your employment (resources, knowledge or otherwise) are not assigned, unless specifically stated. That is, the contract would generally explicitly state that works produced in your own time with no reliance on your employment are assigned to the Employer. However, such a term is almost certainly unreasonable and could be challenged in court if the employer ever attempted to enforce it. | I believe that under federal law, the franchise owner cannot avoid overtime in this way. A similar case was considered by the Labor Department in 2005 (FLSA2005-17NA): This is in response to your request for an opinion concerning the application of the overtime requirements of section 7 of the Fair Labor Standards Act (FLSA) to employees who work at two different health care facilities operated by one management company. It is our opinion that all hours worked at any of the facilities must be combined for the purpose of calculating hours worked under the FLSA. The letter explains the logic pretty clearly, with citations. When an employee is "jointly" employed by two or more employers, then the hours are all combined for overtime purposes. 29 CFR 791.2(b) explains how "jointly" is determined: Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee's services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Paragraph (1) applies: the two employers (the two restaurants) have an arrangement to share the employee's services (the owner is explicitly dividing their hours). Paragraph (3) also applies: both employers are under common control, since the same person owns both. They certainly are "not completely dissociated". The same logic would seem to apply even if the two locations are different restaurants, or different types of businesses. The 2005 letter explains further: Factors that are relevant in finding joint employment include, for example, whether there are common officers or directors of the companies; the nature of the common management support provided; whether employees have priority for vacancies at the other companies; whether there are any common insurance, pension or payroll systems; and whether there are any common hiring seniority, recordkeeping or billing systems. These also seem likely to apply in your hypothetical cases. | 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. | If a contract sometimes uses the wrong name, is it still valid? Yes. It is valid as long as the contract as a whole permits identifying the parties (unequivocally) and ascertaining their role with respect to the contract. Using "Contractor" and "Consultant" interchangeably despite only the former being explicitly defined seems a bit sloppy, but it does not by itself alter or invalidate the meaning of the contract. The excerpt you reproduce is self-explanatory. Its first sentence identifies the parties, and there are only two. Thus, there is no reasonable way to dispute that the second sentence means "Contractor shall indemnify Company", since a clause of the sort "he will indemnify himself" makes no sense. Moreover, the legal definitions of Indemnitor and Indemnitee (Black's Law Dictionary) clearly make reference to "the person" (who protects or is protected, accordingly) and "the other" (that is, not to self). | Is there any sort of implied expiration date for a contractor's completion for medium size contractor jobs (< $10k)? Absent a provable deadline, the question would be whether the delay is reasonable (or habitual) under the circumstances. The contractor's presumption that he can do whatever he wants regarding unspecified aspects of a contract is inaccurate. Those matters can still be decided on the basis of contract law and/or under principles of equity. See also the Restatement (Second) of Contracts, which is frequently cited by U.S. courts, at §235(2) and §243 regarding non-performance of a contract. Will my verbal complete-by date hold up in lieu of any written complete-by date? It depends on each party's credibility. Proving that he essentially ignored your follow-up requests will make it harder for him to credibly refute your assertion about the verbal deadline. In case none of your follow-up efforts (or none of his responses) are in writing or if he denies that you repeatedly called him, you might want to subpoena his phone service provider --if the matter goes to court-- and file as evidence the resulting production of records. |
What Wi-FI SSID names are forbidden in France? I have many Wi-Fi networks located in France and got quite concerned reading that an 18-year-old man from Dijon (France) was convicted for "praising terrorism" and was given a suspended sentence of three months in prison because the SSID of his Wi-Fi network was "Daesh 21." What Wi-FI SSID names are forbidden in France? Ideally I would like to have an exhaustive list to ensure none of my Wi-Fi networks sends me to jail. | The law does not say. It is up to the judgment of the judge to determine what constitutes "Le fait de provoquer directement à des actes de terrorisme ou de faire publiquement l'apologie de ces actes". I would not have predicted that the act constituted "faire publiquement l'apologie", but if that expression can reasonably construed as meaning "indicating approval of", then I understand the conclusion. The law does not mention SSIDs, that simply falls under the penumbra of "publicly approving of terrorism", and there isn't a specific list of forbidden acts. Analogously, Holocaust denial is against the law in France, and there is not a specific list of things that you can't say, there is a general rule from which specifics can be inferred. Publicly saying "Free Kurdistan!" could be construed as supporting PKK and thus approving of terrorism, but that would be quite a stretch. Using the SSID Pkk21, on the other hand, could be a problem. | Is there any official law that prohibits the use of tritium in France? Yes: it's the French decree 2002/460 of 4 April 2002. It does not mention tritium by name, but this article explains why it is now prohibited: The French authorities have just published decree 2002/460 of 4 April 2002 concerning general personal protection against the dangers of ionizing radiation. Having as its aim the transposition into French law of European directive 96/29 Euratom of 13 May 1996, which lays down basic standards concerning the health protection of the population and workers against the dangers resulting from ionizing radiation, the decree prohibits any intentional addition of artificial and natural radionuclides in consumer goods, as well as the import and export of such goods. Exceptions may be granted to ensure the safety of consumers (for example for diver's watches). No exceptions are made however for decorative pieces (jewellery and watches in general). It follows from these provisions that the use of tritium and other radioluminescent products of the same type for the hands and pointers of watch dials is now prohibited in France. It is now necessary by law to use other luminescent solutions. Source Dated 23 May 2002 | You are processing the users IP address in order to carry out the translation to a physical location (see my comment for the technical issues with that) and an IP address is most certainly considered personal information, so yes under the GDPR you are going to need a published policy because you are both data controller and data processor. You need to inform the user of what you are doing, and you need to tell them of the legal basis for the processing (there are several under the GDPR, of which consent is only one - but in your case its going to be the easiest to justify). If you use a third party service for the location translation, you also need to inform the user of that and make available the third party services data processing policy. | Breach of GDPR France, Italy and Greece fined Clearview AI 20 million Euros for the following breaches: Unlawful processing of personal data (breach of Article 6 of the GDPR) Individuals’ rights not respected (Articles 12, 15 and 17 of the GDPR) Lack of cooperation with the CNIL (Article 31 of the RGPD) https://techcrunch.com/2022/10/20/clearview-ai-fined-in-france/ https://techcrunch.com/2022/03/09/clearview-italy-gdpr/ https://techcrunch.com/2022/07/13/clearview-greek-ban-order/ | You wrote: As far as I believe, it is permitted under GDPR to record and store non-anonymized web server access logs, as these can be useful for security reasons. True, Recital 49 GDPR: The processing of personal data to the extent strictly necessary and proportionate for the purposes of ensuring network and information security, i.e. the ability of a network or an information system to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted personal data, and the security of the related services offered by, or accessible via, those networks and systems, by public authorities, by computer emergency response teams (CERTs), computer security incident response teams (CSIRTs), by providers of electronic communications networks and services and by providers of security technologies and services, constitutes a legitimate interest of the data controller concerned. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communication systems. You asked: My question is whether this anonymization process counts as processing personally identifiable data under GDPR? IP addresses are personal data in some cases, so yes, you're processing personal data. Then, these anonymized logs will be fed into an analytics tool to provide stats on unique visitors, page hits, etc. These are purposes considered compatible with initial purposes according to Article 5.1.(b): Personal data shall be (...) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for (...) statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes (‘purpose limitation’); As a matter of fact, you might be required to anonymize the data for those purposes, see Article 89.1: Processing for (...) statistical purposes, shall be subject to appropriate safeguards, in accordance with this Regulation, for the rights and freedoms of the data subject. Those safeguards shall ensure that technical and organisational measures are in place in particular in order to ensure respect for the principle of data minimisation. Those measures may include pseudonymisation provided that those purposes can be fulfilled in that manner. Where those purposes can be fulfilled by further processing which does not permit or no longer permits the identification of data subjects, those purposes shall be fulfilled in that manner. If I were to anonymize the logs and continue to use them exclusively for security reasons, would that change anything? No, you would be processing data in a manner compatible with initial purposes (ensuring network and information security). Or does it not matter what I do with them once they are anonymized? Yes, it does. If you're not using them for "archiving purposes in the public interest, scientific or historical research purposes or statistical purposes" then you're using them for purposes incompatible with initial purposes. You would need to find new legal basis for processing. does this extra anonymization process on top then take it over the line meaning that consent and a privacy notice would be required? It depends on what you want to do with anonymized data. In your case, for security purposes or security and statistical purposes, you don't need the consent and there is no requirement for the privacy notice (but sure, it would be nice to publish one). For other purposes it might be different. | I think that there won't be any trouble from Germany, but the US could be a problem if the girl reports the case to authorities. In that case, further details would depend on the state in question. As far as Germany is concerned, there are two sections in the penal code that could be relevant here: § 176 StGB - Sexual abuse of children § 182 StGB - Sexual abuse of juveniles To make things more complicated, we would also have to take into account juvenile penal law and whether Germany would have jurisdiction in the first place. 1) Jurisdiction: I'm not sure whether this case would fall into German jurisdiction under § 3 StGB as the case could be deemed to be committed in the US. However, in that case, Germany could still assume jurisdiction under § 5 item 8 StGB. 2) Since our guy was only 18, it would be at the discretion of the court to decide whether juvenile criminal law or regular criminal law is to be applied. In the former case, the sentence would be lower (if there is a sentence at all). But then we still have to figure out whether our guy broke a law in the first place. So first of all, let's take a look at § 176 StGB: “Section 176 Sexual abuse of children (1) Whoever performs sexual acts on a person under 14 years of age (child) or has the child perform sexual acts on them incurs a penalty of imprisonment for a term of between six months and 10 years. (2) Whoever causes a child to perform sexual acts on a third person or has a third person perform sexual acts on the child incurs the same penalty. (3) In especially serious cases, the penalty is imprisonment for a term of at least one year. (4) Whoever 1. performs sexual acts in the presence of a child, 2. causes the child to perform sexual acts, unless the act is subject to a penalty under subsection (1) or subsection (2), 3. influences a child by way of material (section 11 (3)) or information and communication technologies a) in order to cause the child to perform sexual acts on or in the presence of the offender or a third person or to have the offender or a third person perform sexual acts on the child or b) in order to commit an offence under section 184b (1) no. 3 or under section 184b (3) or 4. influences a child by showing pornographic images or depictions, by playing pornographic audio recordings, making pornographic content available by way of information and communication technologies or pornographic speech incurs a penalty of imprisonment for a term of between three months and five years. (5) Whoever offers or promises to supply a child for an offence under subsections (1) to (4) or who arranges with another to commit such an offence incurs a penalty of imprisonment for a term of between three months and five years. (6) The attempt is punishable; this does not apply to offences under subsection (4) nos. 3 and 4 and subsection (5).” Since the girl is 15 years old, this section is probably not relevant. However, to know for sure, we would need to know her exact age when contact started. If she was only 13 years and 11 months and contact lasted 1 year and 2 months, then § 176 might be relevant after all. That takes us to § 182. “Section 182 Sexual abuse of juveniles (1) Whoever abuses a person under 18 years of age by taking advantage of a predicament by 1. performing sexual acts on that person or having said person perform sexual acts on them or 2. causing the person to perform sexual acts on a third person or to have sexual acts performed on them by a third person incurs a penalty of imprisonment for a term not exceeding five years or a fine. (2) A person over 18 years of age who abuses a person under 18 years of age by performing sexual acts on that person or having that person perform sexual acts on them for a consideration incurs the same penalty. (3) A person over 21 years of age who abuses a person under 16 years of age by 1. performing sexual acts on that person or having that person perform sexual acts on them or 2. causing that person to perform sexual acts on a third person or to have a third person perform sexual acts on that person, and thereby exploits the victim’s lack of capacity for sexual self-determination, incurs a penalty of imprisonment for a term not exceeding three years or a fine. (4) The attempt is punishable. (5) In the cases under subsection (3), the offence is prosecuted only upon request, unless the prosecuting authority deems there to be a special public interest in prosecution which calls for ex officio intervention. (6) In the cases under subsections (1) to (3), the court may dispense with imposing a penalty pursuant to these provisions if, having regard to the conduct of the person against whom the offence was committed, the wrongfulness of the act is minor.” § 182 para. 1 StGB applies only to cases where the offender takes advantage of a predicament. I seriously doubt there's a predicament involved here. § 182 para. 2 StGB only applies for sexual acts for consideration, i. e. when money is being paid. Since apparantly there was no payment involved in this case, no problem here and we can go on to para. 3. § 182 para. 3 StGB only applies to cases where the victim lacks the capacity for self-determination and the offender is at least 21 years old. Neither is the case here. Summary: As far as Germany is concerned, there's no trouble to be expected under § 182 StGB. § 176 StGB might cause problems but only if the girl was under 14 when contact began. (You stated that she's 15. This could mean that she just turned 15 but was 13 years and 11 months when contact began.) As far as German law is concerned, it looks like our guy was overly cautious and there was no need to cut contact. From the US perspective, however, things will probably be different. I'm not familiar with US law but we would probably need to know the state in question. | Mongolia apparently has a list of banned words (list is NSFW) that websites can't use. And according to this State Department report: Additionally, the regulation requires Web sites with heavy traffic to use filtering software that makes the user Internet Protocol addresses of those commenting or sharing content publicly visible. The report also says: The law places the burden of proof on the defendant in libel and slander cases, and both defamation and insult are criminal charges. NGOs reported that these laws were used more frequently than in previous years to control the press. Canada is probably a better choice, even if it isn't perfect. | 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. |
How can I declare independence from the United States and start my own micro nation? How can I take back my sovereignty from the American government and start my own micro nation? I've read about starting a foreign company with my name in all caps but I want a lawyer's answer. | 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?. | First - do it all with an operating agreement in writing; always - no exceptions! Second - what you are describing in fairly simple for any competent lawyer to draft. The voting section of the operating agreement needs to include a provision stating something to the effect that until a Trigger Event occurs, Big Member will have 90% of the voting power of all membership interests; following the Trigger Event, Big Member and Little Member (assuming no other members join the LLC in the interim) will each own 50% of the voting power. The operating agreement (including this provision) is executed at the inception of the LLC, and will be self-executing, that is - when the trigger Event occurs, voting power should automatically shift without the need for any additional action. Have your lawyer make sure there's no hitch in the applicable state LLC law; that equity interests don't shift on the Trigger Event (that would cause tax problems) and, of course, don't forget to (very clearly) define the Trigger Event.... | 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.) | You don't need to "report" it to anyone in the US or do anything else. The US doesn't have any national registry of marriage. Any marriage or divorce conducted anywhere in the world is automatically recognized anywhere in the US (with some exceptions like polygamous marriages); the same is true in many other countries. How does the U.S. find out, for tax or insurance purposes? Obviously there's a little box that says [] Married but how would they know if I lied if I'm not registered in the United States? They don't, and don't need to. (The same is true for marriages in the US -- they don't directly "know".) You are required to use an appropriate filing status for your marriage status at the end of the year for each year's tax returns. If you don't, you are committing fraud. There are lots of things that you can intentionally lie about on tax returns, and they may not immediately "find out"; but when they do, you are in big trouble. Am I legally required to report it when I return? No. Would the Canadian/provincial government inform the U.S./state government? No. | I wouldn't be surprised to see other states and jurisdictions with similar statutes. Fortunately, in the United States, there is a safe harbor against demands for state income taxes: For every dollar of taxable income, you can only be taxed by one state. (This was affirmed by the Supreme Court in 2015 in Comptroller of the Treasury of Maryland v. Wynne.) Therefore, if you show that the LLC (or its members if it's a pass-through) paid taxes to another state on the income in question (e.g., by sending a copy of the tax return), that's legally the end of the matter. | Yes. This would require the consent of Congress and the accepting U.S. state, but Puerto Rico's consent would not be constitutionally required (although it would be prudent to obtain and probably would be obtained as a matter of custom and fairness). New York States has floated the possibility of annexing Puerto Rico since it is the single most concentrated destination of Puerto Rican migration to the mainland historically and has a large and politically well organized Puerto Rican community and would favor the expansion of Democratic political party power that this annexation would entail. Contiguity is less of a concern for Puerto Rico since it is an island in any case. Florida would be another natural candidate, but its conservative/purple political makeup would probably oppose such an annexation even though geographically it would be a more natural annexing state. In a similar vein, there have been proposals to annex all of the District of Columbia except the federal mall to Maryland subject to the same formal requirements. Either annexation would be a compromise. It would give these territories full statehood status and full representation in the U.S. House but would deny Puerto Rico and the District of Columbia, respective, their own two seats in the U.S. Senate which would favor Democrats more than mere annexation would. | According to CENDI, yes the US government is able to claim copyright on works internationally. The law in question which makes US government works public domain in the US (17 U.S. Code § 105) only does so within the confines of US copyright. Since copyright protection is on a per-country basis, there's no reason that the US government couldn't assert IP rights under foreign copyright law (though I didn't go looking for an example). While the Berne Convention generally requires countries to provide foreign works the same protection as domestic works, I can think of two general reasons why US government works wouldn't fall under copyright protection in some countries: The country simply doesn't apply copyright protection to any government works (don't know how common this is). The country applies the rule of the shorter term. If they do, they aren't required to provide a longer term of protection than the country of origin does (which is nil in this case). | 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. |
Who is liable when a turning car "interferes" with bicycle going straight? (Pennsylvania) Pennsylvania Vehicle Code section 3331e states that Interference with pedalcycles.--No turn by a driver of a motor vehicle shall interfere with a pedalcycle proceeding straight while operating in accordance with Chapter 35 (relating to special vehicles and pedestrians). It's not particularly clear to me what counts as "interference" in this case, and where liability lies when a cyclist going straight hits a car turning. If we assume that both the driver and the cyclist have a green light, the cyclist is in a bike lane that becomes dashed as it approaches the intersection, and road conditions mean the cyclist could not safely merge left into the car lane, I can think of several scenarios- A car wishing to turn sees a cyclist in front of them proceeding straight, and accelerates to pass the cyclist and makes the turn inches in front of the cyclist, but screeches to a halt to avoid hitting a pedestrian in the crosswalk. A car had started making a turn when the cyclist was a distance behind, then stopped to wait for pedestrians to finish crossing in the crosswalk. The cyclist sees this and has time to stop, but in a fit of rage decides to ram the car instead. The same as above, but the cyclist is distracted (a roadside billboard for 50% off lycra pants) and doesn't notice the car in time. The same as above, but the cyclist was visible (or should have been visible) to the driver when the driver started turning, and was close enough behind that the cyclist would have reasonably had trouble braking in time (PA law requires that bicycles be able to stop from 15mph in 15 ft on clean, dry pavement). The first two seem reasonably clear (the first the car is at fault, the second the cyclist), but the other two I'm less sure about. Can anyone help me understand who's liable for any damages that occur? Does it matter if it's the car that's damaged or the bicycle that's damaged? | Can anyone help me understand who's liable for any damages that occur? Yes, a judge. Seriously, in almost all cases in a collision between a turning car and a straight traveling cyclist, the car will be held responsible on the basis that the turn should not be commenced unless and until it can be completed safely. If the car has to stop during the turn, the turn shouldn't have been commenced. The only exception would be if evidence could be provided that the cyclist collided deliberately. Does it matter if it's the car that's damaged or the bicycle that's damaged? No | I live in MD near DC, and have been ticketed by the cameras in both DC and MD. At least for speeding and red-light violations (and I think for all camera detected violations) these are just fines, not true moving violations in that no license points are assessed, and there is no impact on insurance, provided the ticket is paid, unlike what would have happened had an officer written the ticket in person. One can contest the ticket, but it is not likely to be worth the time and trouble. This policy of not assessing points is precisely because there is no assured way of determining who the driver is with current technology, although cameras that can see the driver through the windshield and match him or her against a database by facial recognition may be coming. Currently a human reviews the images in an effort to rule out false positives and certify that an actual violation is shown. The name and title of this person is shown on the notice I get, at least from MD. What one can do "proactively": do not speed or go through red lights pay all camera tickets promptly (or file the paperwork to contest them). If unpaid beyond the deadline they turn into more serious violations that do carry points, just like failing to attend a court date. | In California, the law for public bridges and highways appears to be as follows (emphasis mine): CA St & Hwy Code § 30843 (2017) Any person who operates a motor vehicle over a toll bridge or toll highway crossing and the approaches thereto constructed or acquired by any bridge and highway district, at the entrance to which appropriate signs have been erected to notify traffic that it is entering upon a toll bridge crossing or its approaches and is subject to the payment of tolls beyond the sign, is guilty of a misdemeanor in each of the following cases: (a) If the person refuses to pay the tolls. (b) If the person turns, or attempts to turn, the vehicle around in the bridge, approach, or toll plaza where signs have been erected forbidding the turning. (c) If the person refuses to pass through the toll gates after having come within the area where signs have been erected notifying traffic that it is entering the area where toll is collectible or where vehicles may not turn around and where vehicles are required to pass through the toll gates for the purpose of collecting tolls. So it appears the "last exit before toll" signs are sufficient. It doesn't say anything about posting the actual cost of the tolls. | I took my car to the mechanic to have a squeaky brake looked at. I was told it would cost $30. The mechanic fixed whatever the problem was. When I was checking out, they could not find a $30 brake-work item in their computer so they billed it as Tire Balancing $30. Or some such thing. Meh, accounting. This is not how the law works. The prosecution needs to prove every element of the crime you are charged with. They need to prove you did not signal. The way this usually works is the cop takes the stand and testifies, and you can cross examine him. Then you can testify if you want to, and can be cross-examined. There might be other evidence against you also, like a dash cam. Assuming there is no other evidence, and that the officer did not prove every element of failing to signal, you do not need to testify. You can tell the judge that the prosecution failed to make the case and ask to have the charge dismissed. Of course, if the judge thinks they did make their case, then you lose. On the other hand, you could take the stand and testify, and subject yourself to cross examination. Just a word of warning, if it's your word against a cop's word, you will lose. Your best bet is to get discovery, get the dash cam, and show that you did signal. Be aware, if you get too saucy, the prosecution can add charges. So they could add the speeding charge, but of course, (see above), they then need to prove it. | Interesting question! I believe all of the examples can be addressed by the following rules: A vehicle on a roadway has the right-of-way over a vehicle not on a roadway. Therefore, the vehicle leaving a parking lot always yields to a vehicle in a parallel road. Absent another rule, the vehicle on the right always has the right-of-way. So if two vehicles are leaving adjacent parking lots, the left one waits for the right one to go if there is any potential conflict. Of course, not enough people know these rules, so in practice if you can't get the vehicle with the legal right-of-way to take it I teach drivers to be as decisive and cautious as possible: I.e., take the right-of-way, but not so fast that you can't avoid the other vehicle if it decides to go after all, because legally you will be at fault in a collision. (Though it's anyone's guess how police and insurers would settle the tricky scenarios you illustrate.) | 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. | The hitting by itself would not be too bad (though the police would likely take a close look because of the two scratched cars – was the driver drunk or something?), but the subsequent running constitutes a crime under § 142 StGB (official but non-authoritative translation). The maximum sentence for this is imprisonment for three years, but a first-time offender would most likely be sentenced to a fine corresponding to a few months’ income, if there are no aggravating circumstances. | Under Canadian law, causing the death of human being is homicide. If the homicide is "culpable", it is an offense (crime). In the described scenario, it might be culpable homicide if the death was due to "criminal negligence". That would be the case if in doing a thing, the person "shows wanton or reckless disregard for the lives or safety of other persons". We've now reached the end of what statutory law has to say about the question. Court cases take us a bit further in understanding criminal negligence. The wisdom of the courts is distilled to ts essence in jury instructions, which say The Crown must prove beyond a reasonable doubt that the accused's conduct showed a marked departure from the conduct of a reasonable person in the circumstances; and that a reasonable person in the same circumstances would have foreseen that this conduct posed a risk of bodily harm. R. v. Tutton is an example: the court finds that The phrase "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross negligence in the objective sense. It requires some degree of awareness or advertence to the threat to the lives or safety of others or alternatively a wilful blindness to that threat which is culpable in light of the gravity of the risk assumed. Ultimately, though, the fact-finder must evaluate the behavior against a highly subjective standard as to "what a reasonable man would do". I cannot imagine a scenario where shoving a person realistically could lead to them falling into traffic and getting killed but there the shoving was ordinary horseplay. Pushing a person in the direction of oncoming traffic is abnormal behavior that shows shocking disregard for the probable harm caused to another. But perhaps there is some innocent scenario where this was really just a tragic outcome. So the answer is, it could be culpable homicide, or not, depending on the facts. To be classed as murder (rather than manslaughter) the person has to intend to cause death (§229), which is missing from this scenario. |
Is it legal to lend out your computer with licensed software installed on it? A company in Europe has temporarily given some of its computers with licensed Microsoft Visual Studio 2010 Premium to a company in Asia. The European company is the client of the Asian company and the software is used for developing a web application for the client. Microsoft now insists the Asian company is making unauthorized use of the licensed software because the licenses are country specific and geographically limited. Microsoft now demands a separate purchase of the licenses by the Asian company; just uninstalling isn't good enough. This will cost $5999 per user. Can licenses really be this limiting? I edited my old question, because it was seeking specific legal advice. I hope its fine now. | 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. | Generally, such sanctions prevent certain sorts of transactions in goods and services with nationals or entities of the nation under sanction. The exact list of transactions prohibited or restricted varies. If Open source software were being provided as a service, so that the recipient paid directly for a license, or for customization or configuration work, or for some sort of consulting or assistance, such transactions could be banned or restricted by a sanctions regime, but might not be. (If the sanctions included that particular class of transactions.) However, if it is merely a matter of an open source product being published, for anyone to download, install, and use, I don't see how that would be barred or restricted by any sanctions of the sort recently in use. | If you aren't including those libraries, then yes because it's entirely your own work. If you are publishing those libraries, then no because their licenses will limit how you can do that. GPL's and MIT's main features are restricting how you can distribute software that includes the licensed code, and they don't allow the "do whatever you want" of public domain. | 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. | Only if you ask Valve for permission first, and they agree in writing. I'm not a lawyer, but when I was reading through the Subscriber license you linked, this stuck out to me: You are entitled to use the Content and Services for your own personal use, but you are not entitled to: (i) sell, grant a security interest in or transfer reproductions of the Content and Services to other parties in any way, nor to rent, lease or license the Content and Services to others without the prior written consent of Valve, except to the extent expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use); (ii) host or provide matchmaking services for the Content and Services or emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services, use of a utility program or any other techniques now known or hereafter developed, for any purpose including, but not limited to network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks, websites or services, without the prior written consent of Valve; or (iii) exploit the Content and Services or any of its parts for any commercial purpose, except as expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use). The part that I've bolded is probably the part that makes this against the Terms of Service, since in order to post these sorts of automated messages to their service, you'd need to use a "utility program" to "emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services". I doubt that Valve would ever agree, since such a program could very easily be used to create spam bots that works bombard users with unsolicited advertisements, but maybe Valve would be willing to cut deals with AAA video game companies to let them deploy tools to automatically manage their store pages. | It depends on what you are selling to the enterprises. You could be selling just a licence to use the program, and retain all the rights on the source code. You could be selling the rights to the source code. For #1, the source code is yours and you can do what it pleases with it1. In fact many programs offer both an open-source licence (which usually forces the user to make its changes to the code publicly available) and a commercial one (which allows the user to keep the modifications of the source code for themselves). For #2, the source code is no longer yours so it is not up to you to decide what to do with it. 1I am assuming no other agreements imposing limits on those; for example that none of your contracts to your customers have a clause forbidding you from making the code available to the public. | The price is not one of the terms and conditions of the CC-SA license. You may chose to attach a price to a derivative work (which you have the right to create under license section 3.b). But any person who receives the derivative work legitimately (from you or from someone who got it from you, directly or indirectly) must get it under the CC-SA license, and has the right to redistribute it, and may do so at no charge if that person so chooses. Also, you may not impose any copy protection or other technological measure that would prevent exercise of the reuser's rights. Whether selling a work that may be redistributed freely is good business is your decision. | 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. |
Can I work on patent-infringing software in private, then release it when said patent expires? This is not a scenario I'm actually going through; this is just a thought I had. The situation proposed in this question is entirely hypothetical. Suppose some algorithm -- for this post, let's say something compression-related -- is patented in the United States. But the patent is going to expire within a year. I want to add this algorithm to an established project of mine, which is open source and sees both personal and commercial usage. Is it legal to privately develop a feature for this project that infringes upon this patent, but withhold releasing it until the day after the patent expires? For the sake of this post, assume the following: All Git commit history is available and commits are signed; once the patch is released it will be known that I (and possibly others) have worked on this infringing feature while its patent was still active. I might or might not have announced my development of this patch; I didn't exactly go on a big media blitz about it, but I could have dropped a vague hint (or even an explicit confirm) via Twitter or similar. I never outright lie about it, though. The infringing patch is not publicly accessible until the day after the patent expires, but it (or some parts of it) might still have been transmitted to other parties, either for collaboration purposes (e.g. with a friend, storing the patch on his personal server) or when seeking help on support communities like IRC, mailing lists...or StackExchange. The patch is tested and feature-complete upon release. | The whole purpose of a patent is that the contents of the patent becomes public knowledge, in exchange for a time limited monopoly. Therefore you are allowed to do anything, since you are not just allowed but expected to examine the patent in order to improve on it, except that you need a license to sell or give away products implementing the patent as long as it is valid. The only thing to be careful about is that by publishing source code, you might be enticing others to infringe on the patent, so I'd recommend not to do that without advice of a lawyer. PS. With software, the interpretation of "making" software in patent law may be a bit surprising. There was a major case between Microsoft and AT&T about that. The software developer isn't "making" the software. The build engineer putting everything together isn't "making" the software. The CD manufacturer making a million copies isn't "making" the software. The person installing it on their computer is the one who makes it. | Unless you have a legally valid IP right related to the specification that statement is meaningless. When a software license is granted it is based on the copyright of the code. The copyright of the spec. just stops people from copying the spec - it does not protect the information in it. You can restrict copying of the spec. under copyright, you can make up a name for the spec (like USB or Bluetooth) and get a trademark and only allow the trademark use in limited cases(doesn’t stop implementation of the spec), or get a patent that would be necessarily infringed if something complying with the spec was created and used, sold, made, etc. or you can keep it secret and only show it to people who contractually agreed with your terms. | united-states If they have a contract with the employee which specifies that such IP is assigned to the company at creation, such a contract is valid until and unless a court holds that it is void. It might be held void as against public policy,. or as being "unconscionable", but it might well not be so held. An even broader contract, which claimed any and every kind of IP created by an employee, even if crated during off hours and not at the work site nor with company resources is more likely to be held void, but even this is not certain to be held void. In the absence of a contract explicitly assigning such IP to the company, the company might attempt to apply the rule that makes works created by an employee within the scope of employment works-made-for-hire (WFH). This is in 17 USC 101 (the definitions section of the copyright law). This would affect copyrights, but not patents or other IP. There is very little US case law interpreting the "scope of employment". But there seems some reason to believe that work that was not assigned by the employer, not intended to benefit the employer, not used by the employer, not done within usual working hours nor using company resources, and not of the specific type normally assigned to or carried out by the employee, is probably not "within the scope" of the employee's employment. If that is so, the work would not be WFH, and only an explicit written contract, signed by the employee (or the employee's authorized agent) could transfer the copyright. | In my opinion, you are totally free to publish the information. There are two areas of law that can be cosidered - private and public law. In the private law area, you can be liable for revealing trade secrets, but only if you agreed to keep them by a contract. Trade secrets do not exist by themselves (there are minor exceptions, eg. in competition law, but those do not concern us), they must be protected by contracts. Another private limitations, like libel laws, won't apply here. This is not uncommon, but not in cars - you can find clauses like these in software license agreements. Then there is the public area. Is there any regulation, any policy of the state, that prevents you from publishing it? I am not aware you whole legal code of your state, but I doubt there is. It would be a harsh limitation of freedom of speech. Even if the modification could lead to illegal effect (like, modifying toy weapon to kill by rising its power...) it would be only illegal under very rare circumstances. To conclude it - freedom of speech can be limited only if there is sufficient public interest to do so, and I don't see any. | The fact that a developer is showing off work that he/she has done for other another company doesn't imply that that developer owns any copyright to the work. In Canada, see the Copyright Act, § 13 (3): Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright and § 13 (4): The owner of the copyright in any work may assign the right... In the US, see 17 U.S.C. § 201 (b): In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. and § 201 (d): The ownership of a copyright may be transferred... "What rights should and should not be attributed to the developer?" That is a business decision to be made on a case-by-case basis. Advice about the prudent balance of copyright between an employer/client and employee/contractor is legal advice. "Is it okay to use this projects as part of the developer's portfolio?" If the developer can link to public use of a product that he/she developed for a company, then the developer is not violating copyright by simply advertising that they worked on the product and linking to, without reproducing, the work. If the developer for whatever reason maintained copyright ownership in the code and other assets, it would not be copyright infringement to reproduce those as part of the portfolio. If the developer did not maintain copyright ownership in the code or assets, reproducing those may be copyright infringement, dependent on whether the copyright owner allowed the developer to reproduce those elements, or if the reproduction is fair use. There may be other laws or contracts implicated, though: non-disclosure agreements, trademark law, among others. | No. That clause does not give other users a licence to reproduce the work (other than what is necessary to access or use it) or create derivative works. The copyright owner has the exclusive right to do those things. (See 17 USC 106.) The clause you quote only indicates that other users can "access" (download for viewing) your "information" and use it, too. It doesn't give away any of your exclusive copyright in the work. You do grant Facebook a licence to do certain things with your work in section 2.1 of the Terms of Service, though. | If you do, can you build/run it without being bound by said license? No, you cannot. Because there is no way to "build/run" it without making a copy. You copy the sourcecode, before you can run your compiler. That is the copy you are making, not copying the file that results from this process. A valid question might be, are you bound by the license? Well, that is up for lawyers and a court to decide, but in all countries I know, copyright is automatic for anything worth copying. And the copyright holder can grant licenses to people to allow things. So arguing you are not bound by a specific license would mean you would argue that you are bound by the legal default, which in most countries is "You cannot copy that. At all. Unless you have explicit permission". That argument would sound like "I stole all 10, because the offer of buy-one-get-one-free was not legally binding". Maybe it wasn't. But that doesn't mean you get to do something unrelated illegal instead. Now, there are many exceptions for "personal use". You can sing any song in the shower. I would assume you can compile any program there, too. You just cannot use that program for anything worthwhile, the same way you cannot record your song in the shower and sell it. | 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. |
Can a Californian be in legal trouble for physically restraining a dangerous child not his own? Here's what I witnessed some time ago: There is a large ground level chess set set at an outdoor mall, with squares about 2x2 feet and pieces 2-3 feet high, about 5 lbs each. This chess set is usually used by small kids, 2-5 year old, who move the large chess pieces, make around themselves, pretend to ride the horses, etc. One day a much bigger kid, 10 year old or so, apparently elated by the lack of supervision, ran into that chess playground, and started throwing the 5 lbs chess pieces with force across the chess set in random directions, sometimes missing the toddlers by inches. The thrown pieces would sometime bump the other pieces around the toddlers, sometime miss a toddler's head or leg by inches, etc. This lasted for at least 5 min. And in those 5 min of quite dangerous bombardment not a single adult would attempt to restrain the minor. Some parents would take their toddlers out of the chess board games despite their protests; some would get closer to their kids within the chess board while watching the 10-yo, apparently with intent to intercept a chess piece if it would fly at their kid; some adults would just watch what's happening from the benches. And nobody would interfere with the apparently dangerous youth, not physically, and not even verbally. I gathered from the conversations nearby that the adults were just afraid to restrain the youth for the fear of being accused later that they were doing something illegal against the minor. The parents were more afraid to be branded abusers of that child than of the physical harm said child would do to their own kids. Thus the question: how realistic where their fears in the state of California? If an adult physically restrains a child and claims that the child was a danger to others can the adult have legal problems? | If an adult had physically restrained the miscreant brat, they could be sued for / charged with battery (which does not mean "beating up", per Cal Penal 242, it is the "willful and unlawful use of force or violence upon the person of another". In either case, there is a defense that can be mounted, the "defense of others" defense, to the effect that the person had a reasonable belief that it was necessary to prevent physical harm to others. Which means, the jury would imagine themselves in that situation and guess how likely it is that someone might get hurt. Lofting 5 lb chess pieces at a 2 year old could poke out an eye, especially since they haven't learned to duck at that age – however, I question (as would an opposing attorney) the characterization "quite dangerous". At any rate, it would depend on the level of danger posed. There is also a "proportionality" requirement for the defense of others defense: "The defendant used no more force than was reasonably necessary to defend against that danger" (CalCrim instruction 3470). The battery might not have been necessary, since simply getting between the criminal and his victims could have been sufficient. As to whether there would actually be a lawsuit, that depends in part on the mind-set of the parents. Assuming that the level of force did not rise above simple bodily contact, it is unlikely that a jury would vote to convict / find liable, but certainly not impossible. If under those circumstances the results would not be in serious doubt, then it is unlikely that the person would be prosecuted (the prosecutor wouldn't bother with such a case). We may also assume that a decent attorney would persuade the offended parent-client that it is not a good use of their money to pursue he matter. Still, the risk is not negligible, since you don't know whether you'll have bad luck with the jury, or whether the child suffers from eggshell skull syndrome and then you would be is serious trouble. I don't think the fears are unrealistic, though they may be improbable, and they could be definitive for people who live in fear. | Yes. The principle caselaw is R v Hayward (1908) 21 Cox 692 A husband and wife had an argument that led to the husband chasing his wife out into the street. The wife collapsed during this altercation and died. Whist the husband did not physically touch her, he did shout threats at her. The wife was found to have been suffering from an abnormality of the thyroid gland that neither was aware of that meant that fright or shock could cause death if combined with physical exertion. The husband was charged with manslaughter. [...] The husband was found guilty of manslaughter. No actual proof of violence was necessary as long as the defendant’s unlawful act, which was the threat of violence, caused her fright leading to her death. The criminal law acknowledges that an assailant must take their victim as they find them... Source And... The defendant chased his wife out of the house shouting threats at her. She collapsed and died. He did not physically touch her. She was suffering from a rare thyroid condition which could lead to death where physical exertion was accompanied by fright and panic. Both the defendant and his wife were unaware she had this condition. Held: The defendant was liable for constructive manslaughter as his unlawful act (assault) caused death. The egg shell (thin) skull rule applied. He was therefore fully liable despite the fact an ordinary person of reasonable fortitude would not have died in such circumstances... Source | The test for child abuse is a broadly worded "standard" that is applied in the discretion of the judge or jury, as the case may be, on a case by case basis. But, it is very unlikely that this would considered to meet the test for abuse. Federal legislation provides guidance to States by identifying a minimum set of acts or behaviors that define child abuse and neglect. The Federal Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C.A. § 5106g), as amended by the CAPTA Reauthorization Act of 2010, defines child abuse and neglect as, at minimum: "Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation"; or "An act or failure to act which presents an imminent risk of serious harm." While the risk of serious emotional harm in this case is real (in the view of many reasonable people), in practice, authorities would surely consider it to be hyperbole and not within the scope of child abuse, even if actually heartfelt. Further, due to the existence of the free exercise clause of the First Amendment to the U.S. Constitution, conduct which might otherwise be considered abuse, is generally only treated as such in the most extreme situations of dire threats of physical harm, when credibly justified by a parent's religious beliefs. This is because the ability to raise one's children in accordance with one's religious faith is an implied component of the constitutional free exercise of religion right. A basic review of the case law as of 1989 (which hasn't changed all that much since then) can be found in this 1989 law review note (an uncredited law review article written by a third-year law student who is an editor of the law review) entitled "When Rights Clash: The Conflict between a Parent's Right to Free Exercise of Religion versus His Child's Right to Life" 19 Cumb. L. Rev. 585 (1988-1989). Sometimes this exception is implied in interpretation, but many states have express statutory exclusions for religiously motivated conduct that would otherwise constitute child abuse or neglect related to medical care (that would color how a case like this one is interpreted). | In the US, the details are determined at the state level. The term "abandonment" is used very broadly, and can include a situation where a parent leaves a child without making contact for a period of time (which may result in termination of parental rights, but not a punishment). "Abandonment" as it applies in Washington state is explained here. There is what is known as a "safe haven" law, which allows a newborn (under 72 hours old) to be transferred (anonymously) to a qualified recipient (health care employee, medic, etc.), and not be liable under the criminal laws. This does not include dumping the infant in the snow. Under RCW 9A.42.020, the parent would be guilty of criminal mistreatment in the first degree if their action "causes great bodily harm to a child or dependent person by withholding any of the basic necessities of life" (note that the law is not specific to children), and this is a class B felony. There are multiple grades of mistreatment, so if the action "creates an imminent and substantial risk of bodily injury" or "causes bodily injury or extreme emotional distress manifested by more than transient physical symptoms", this is 4th degree mistreatment, which is a misdemeanor. There are, in parallel fashion, laws against abandonment of a dependent starting at RCW 9A.42.060, punished as a class B felony down to a gross misdemeanor. The maximum penalty for a class B felony is $20,000 and 10 years in prison, and for a simple misdemeanor it is 90 days and $1,000. In case death results, the discussion could move to the homicide statutes. Homicide by abuse is when, with extreme indifference to human life, the person causes the death of a child or person under sixteen years of age, a developmentally disabled person, or a dependent adult, and the person has previously engaged in a pattern or practice of assault or torture of said child, person under sixteen years of age, developmentally disabled person, or dependent person. and this is a class A felony. If a person "recklessly causes the death of another person", this is manslaughter in the first degree (class A felony), but if it is "with criminal negligence", it is manslaughter in the second degree (a class B felony). Manslaughter charges are predicated on there not being an intent to kill. If the intent was to actually kill the child, this would be first degree homicide, where the punishment is life imprisonment. Additionally, first degree homicide can be found if "under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person". State v. Edwards is a relevant case, where a person was charged with both second degree murder and homicide by abuse, and the issue came up that "extreme indifference to human life" is not a self-evident expression. It turns out that case law in Washington interprets this, as applied to first degree murder, as meaning "indifference to human life in general", not "indifference to the life of the specific victim". After a lengthy review of principles of judicial interpretation, the court upheld the trial court's refusal to give the first-degree murder definition of indifference, that is, it is up the the jury to decide what constitutes extreme indifference, for homicides other than 1st degree murder. | She has no legal right to your stuff, and every legal right to the apartment. The only way adjudicate such a conflict of rights is with a restraining order. A temporary order would expire in 3 weeks. Item 14 in the petition requests exclusive use, possession, and control of the property. However, that path of restraints is tailored to domestic violence, so item 27 has you describe the alleged abuse: Abuse means to intentionally or recklessly cause or attempt to cause bodily injury to you; or to place you or another person in reasonable fear of imminent serious bodily injury; or to harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, keep you under surveillance, impersonate (on the Internet, electronically or otherwise), batter, telephone, or contact you; or to disturb your peace; or to destroy your personal property. Note that the description refers to destroying your personal property, not pawing through it. It's really impossible to know if the judge will exercise his discretion to include "reasonable fear of destruction (or theft) of personal property", since the ex-roommate has no further interest in the apartment. There is an alternative path of a harassment restraining order, which does not require a defined domestic relationship (such as ex-roommate), where "harassment" is violence or threats of violence against you, or a course of conduct that seriously alarmed, annoyed, or harassed you and caused you substantial emotional distress. A course of conduct is more than one act and that seems even less likely. | So I can block children under 13, but I can't tell them that? You can tell them after they fail, you cannot tell them on the asking screen. Then what is the correct way to block children under 13 to access my website and still comply with COPPA? I agree with you that it is odd that they recommend using a cookie but they do!* So you have a entry page with a simple question, "Please indicate your age" and then block based on the response. That's it. Note that the rule is neutral. This means that you do not need to disguise your purpose or try to trick people into entering their correct age. *I think that what is happening here is that any parent who wants to complain to their legislator can be met with the response, "If your kid is so sneaky that they are using different computers to lie about their age what do you want us to do about it?" The fact is, this scheme keeps innocent kids from seeing stuff they shouldn't; the sneaky ones are going to find a way. | 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. | An individual does not have authority to "issue" a restraining order. In the U.S. only judges can issue such orders. The guidelines and policies for obtaining a restraining order vary by jurisdiction, although in the end a judge can issue any order he wants. So in theory you might be able to find a judge who will issue an order for any or no reason. In practice I'd be surprised if many judges would abuse their office to gratuitously harass people in this fashion, though there are probably a few amusing/disturbing examples out there to the contrary. |
After purchasing an item, then being issued a refund the item then arrived I purchased an item at distance (in this case online), this item did not arrive until 2 weeks after the end of the delivery window. Towards the end of that 2 week period the seller was kind enough to offer me a refund, an offer which I accepted. However the original item has now arrived, more than 2 weeks late. Given that I now have my money and the item, am I legally obliged to do either of the following? Return the item Pay the seller the refunded amount In case it has any bearing on the answer, the item in question has value of the order of £5. | You would not be required to do either of the things you state (unless you explicitly agreed to do so). What, strictly speaking, you need to do is to advise the seller that the original goods arrived and ask them if they want to collect them, have you return them at their expense or abandon the goods to you. (In all likelyhood they will give the goods to you because the cost of them recovering them is to high). Although I'm not in the UK, I believe the Sale of Goods Act 1979 applies. Strictly speaking, as you have not paid for the goods, they still belong to the seller - but you do not have to pay to return them. | "Fraud" requires an intent to deceive. In cases like this I would fall back on the saying, "Never attribute to malice what can be explained by incompetence." Practically speaking: the email you received from them is an amendment to their Terms of Service. I.e., your contract with the company starts with their standard Terms of Service, and is modified by any agreement you reach that explicitly supersedes the ToS. Based on your description it is your credit card company that is in violation of its duty to adjudicate chargebacks. If you refuse the charge, and present the email agreement and evidence of A's "failure," then the card company has no grounds to impose the charge on you (unless the merchant in its response to the chargeback can convincingly argue that the email agreement is invalid). | As I said in my comments, "It was your choice to ask for a refund because you chose to assess the events as a safety risk to yourself and the airline." The airline did not assess a risk and as a result cancel the flight and issue refunds. The airline did not disregard advisories or laws pertaining to the terrorist acts that took place and result in legal triggers that mandated the airline cancel the flight and give refunds. If a city or country is classified as a war zone - by that country itself or some international body, or by the US State Department - then there are triggers that either suggest or mandate flight closures, through a myriad of laws and jurisdictions. It is solely your perception of the risk to yourself and the airline that you are using as a reason to ask for a refund. You have made a decision on your own and simply don't have a case for a refund. http://www.turkishairlines.com/en-int/travel-information/legal-notice/terms-amp-conditions/cancellation-refund | I assume this is a used car, and that your sales agreement doesn't have a 'time is of the essence' clause that specifies a specific deadline. In that case, they will have 'reasonable time' to perform the work. Unfortunately, there is no legal definition of what would be reasonable (the time necessary to repair a locomotive is much longer than the time needed to repair a torn screen door). Rather, the question would be, given the nature of the time, what you be typical, what would be surprising or shockingly long, and what extenuating factors are there. If you happen to know a lot of mechanics, you can get a ballpark figure. Let's say that it has been 3 weeks, then that is probably unreasonably long, so you could sue them for breach of contract. If it has less than a week, it's not so clear. You might simply ask then when they will get the problem fixed. | No, it does not. There is indeed a 2-year guarantee for all goods, but "goods" is defined to be a "tangible movable item" according to Directive 1999/44/EC Article 1, subsection 2(b). In less legalese, a physical item; software doesn't count. While there has been discussion about extending this protection to software, I'm not aware of this having been done yet. Even if it were, determining whether goods are "faulty" ultimately comes down to whether it conforms to the contract of sale (Article 2). I think it's likely that vendors in this area would put a disclaimer for unforeseen security vulnerabilities, or something to that effect. | If you were to seek legal recourse for breach of contract (their Terms and Conditions), the best outcome you could hope for would be "making whole", and since they have already offered this a court could award you what the retailer already offered, but make legal costs on both sides the plaintiff's liability (ie. you), since you could have taken the offer and avoided court. The Terms and Conditions associated with the discount code mean that you won't be able to return the gift cards for cash. It will be argued that by using the code, you agreed to those terms and conditions. The second paragraph of their reply looks like an attempt to scare you, but it has legal merit. By using the unauthorised code you could be considered to have made false representation when you entered into the contract. This could render the contract void, and if they could demonstrate it had been done deliberately to gain money it could meet the threshold for fraud (which is what the police would possibly investigate : if it can be shown that you were aware the discount code didn't apply to you it would constitute making "a false representation ... to make a gain for himself" [sub-paragraphs 1-5, paragraph 2 of the Fraud Act 2006]). You may be able to argue that the voucher websites misled you (though it sounds like you, I and the retailer already know that's not true), but since the retailer has offered to repay what you paid there are unlikely to be any damages - and, unless the voucher site took commission from your transaction, a contract between you and the voucher sites would be difficult (possibly impossible) to establish. In the circumstances, returning what you originally paid is a good offer. | Return it If you are unwilling to enter the contract then you can return the device for a refund. | 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. |
Users Over-Funding Accounts Legal Implications? Some users of my company's service overfund their account in anticipation, I guess, that they will be using those funds over time. How an I to deal with those funds? Is it fair to assume that most of those funds will be used over time and I can use those funds? Are there any rules of thumb on this? Or, perhaps, users forget about their funds in which what is my responsibility to notify them about that? Do I need to put those funds in a type of "escrow" account to be sure it is available for them should they ask for a refund? | 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 have not logged in for a few days, come back Marketing in the way it is formulated. Transactional only if it is mandatory for the contract, such as a reminder that the service is due to end. Check out this new feature (encouraging people to use the platform) Marketing. Welcome to the system, here is how to get started Transactional, it is like giving the Handbook to a device. Here is a report of your activity on our platform for the last month Transactional, possibly mandatory for some services anyway (banking) You are halfway through your goal, keep going! Marketing in most cases (if goal is set by the company), but can be transactional if it is a service for tracking your own progress. The Rule of thumb is: Whenever you want the user to do something, it's most likely marketing. Whenever you inform them of something that has happened or will soon, it's most likely transactional. | If you do not get anything from this "contract", and all it says is that you will pay someone a sum of money "on demand", it does not meet the basic requirements to form a contract, and in particular, there is no consideration being received by you. It would therefore not be a contract and would have zero legal force. If you do receive consideration, demonstrating that you signed the contract under duress will require specific legal advice, and you need a practicing lawyer in your jurisdiction. | Yes, you can. An excellent example is this very website - at the bottom of this page you will find a series of links in the footer, one of which is "Terms of Service". I think you will agree that most people using the Law SE are making no money from it or paying no money to use it and yet the terms of service sets out in black and white what a user of this site can do, and what the repercussions can be if they breach the ToS, so it serves a purpose as an excellent example for your question. | It is rather unclear what the facts are, and the legal answer would depend crucially on those facts. My understanding is that you bought a domain from a provider, and they allowed you to use a web server for some period. It also appears that you don't have a clear understanding of the contract, which may have been made online and you might not have retained a copy of the agreement (which would allow you to look at the terms). The assumption that failing to pay substitutes for explicitly cancelling a service is incorrect. If under the contract you agree to pay a certain amount per year, then you have been racking up charges for some time, and you would need to actually cancel. Ultimately, they could take you to court to force you to pay what you owe, although usually there are less drastic intermediate steps. In court, they would produce their documents to show that you owe money, and your attorney would somehow counter, perhaps by alleging that you had a good-faith belief that the contract had been terminated. It is possible that they simply messed up and failed to send you an invoice earlier, which could explain the lack of invoice. At any rate, the fact that you haven't gotten an invoice does not legally entitle you to avoid paying for the service, whether or not you use it. On the premise that they haven't taken back the domain (seems like they didn't), you can legally use it. However, if you do use it, then that would trash any claim that you believed the contract had been terminated (to argue "I thought it had been canceled" entails "and thus I didn't use the service"). | If you are given a paid job, and you do the work, then "consideration has been provided", and 1682 will not apply. As to "referral fees" those sound more like kickbacks, but it depends on what, if anything, the person gets for the fee. | Yes, there is a reasonableness limit, and this is especially true in consumer transactions. If you were given an estimate and the final bill is a lot more than what you were expecting, you can dispute it. The final price should be ‘reasonable’. The law doesn’t say what counts as reasonable, so you’ll have to agree it between you. You should consider: the estimate you agreed to [if there was one] any changes, and why they happened anything that happened that was beyond the control of the trader, like bad weather or the cost of materials going up https://www.citizensadvice.org.uk/consumer/getting-home-improvements-done/problem-with-home-improvements/ When it comes to work itself, the act states that a tradesman or professional has a 'duty of care' towards you and your property. Any standard or price you agree must be honoured. But if it isn't agreed in advance the work must be done to a reasonable standard, at a reasonable cost, and within a reasonable time. So if you haven't fixed a price, you don't have to pay a ridiculously high bill. All you have to pay is what you consider 'reasonable' and invite them to sue you for the rest. Be careful though, in some circumstances when you are withholding payment you may have a claim made against you by a supplier if you are in breach of contract. What's a reasonable amount would be what similar tradesmen would have charged for the job. So get a few quotations. https://www.bbc.co.uk/programmes/articles/1fdlwC9xzyxjCpWMlsCGG3j/supply-of-services NB that article refers to The Supply of Goods & Services Act 1982, which was partially superseded by the Consumer Rights Act 2015. | If the lawyer has legitimate concerns, his first port of call would be the ICO https://ico.org.uk/. Before the ICO will take his complaint further he'll have had write to you expressing his concerns and received a written response that presumably he is unhappy with, and wants to take the issue further. Most companies have a data compliance team who will have policies and procedures to log breaches like this and decide what course of action to take in response. Not every breach needs to be brought to the attention of the ICO, and they have a handy self assessment tool to see if you should report the breach. https://ico.org.uk/for-organisations/report-a-breach/ In your situation, I don't think this constitutes a serious breach which will require investigating. It's simply an admin error. If it is unlikely to pose a risk to any of the individuals they will say something like: You should keep an internal record of the breach as detailed in Article 33 (5) of the GDPR, including what happened, the effects of the breach and remedial actions taken. The definition of risk according to the ICO is: "This risk exists when the breach may lead to physical, material or non-material damage for the individuals whose data have been breached". So in this case I'd assume a simple apology (Bcc'd :) ) and a record of what happened, how it happened, and the action taken to prevent it happening again should suffice. |
What legal course is there with a bad neighbor? I have a very bad neighbor. What legal recourse do I have? I feel like I'm stumbling in the dark. I find myself at a loss for an appropriate Stack Exchange site. Perhaps "workplace" or "parenting" are in the same vein, but I'm trying to figure out what to do (legally) about a terrible neighbor, so it isn't either of those... And Stack Exchange doesn't have a "interpersonal problems" site. Since legality is a concern, Stack Law seemed the logical choice to ask a question. Any better suggestions on QA forum and tags is appreciated. I say my neighbor is bad because he: frequently calls false noise complaints on neighbors resulting in police action. stands in front of the building in a menacing way as people enter/exit. hates black people. hates Middle Eastern people and Muslims. constantly pounds on the floor/walls/ceilings. screams curses at children. Continues to park in handicap parking despite not being handicap, and receiving very expensive parking tickets. And to add to the list, I suspect he's been putting nails in my car tire, always on the same tire, on the inside wall of the tire; I just replaced my 5th tire in 3 months. Despite several complaints to apartment management from 4 different residents, he has not been evicted, and most of my neighbors, whom I was friends with, have moved -- breaking their leasing contract to get away. I want to place hidden cameras on my vehicle to catch him putting a nail in my tire. I've approached my management several times to voice my concerns only to be stonewalled, which makes me wonder if there is something else going on, like witness protection (or they are just as terrified of him as everyone else). It may also be that each time the apartments contact him to voice their concern, he physically goes over there and basically has a tantrum, but without making direct threats. Most of the apartment staff are tiny women (shorter than 5ft). When I asked if I could install a hidden camera to watch my car, I was told by management they wouldn't give permission, but also weren't not giving permission, and wished me luck trying to catch him on film. If I install a hidden camera, is it legal, and could I contact the police/evict him/file a restraining order? Would that even be considered legal evidence, or would I be liable for unlawful surveillance? Is there some sort of legal incentive I've not clearly communicated to management to evict him? If he actually is insane, what sort of liability for his actions does he have? I'm really just stumped and would like some advice from someone not emotionally close to the situation which could help guide my actions. | I am sympathetic to your problem but there is probably not a legal solution: at least not an easy or cheap one. To help you clarify a whole mish-mash of issues I will address each of your points. frequently calls false noise complaints on neighbors resulting in police action. If the person genuinely believes that these complaints are valid, even if they do not end up being substantiated, he is within his rights to make such complaints. If you can document an ongoing pattern of unproven complaints this might amount to harassment and you could then seek a court order that he stop the harassing behaviour. However, if even a few of these complaints are proven this would become much harder. stands in front of the building in a menacing way as people enter/exit. He is entitled to stand wherever he likes in whatever "way" he likes. This is only an issue if the person entering/exiting has a reasonable fear that he will he will visit actual harm upon them, o, of course, if he actually does visit physical harm upon them. If so, then this is assault and can be reported to the police or be the basis of a civil action. hates black people. So, he's a bigot - this is not actually illegal. Discriminating against someone on the basis that they are black is illegal, hating them on that basis isn't. hates Middle Eastern people and Muslims. Ditto. constantly pounds on the floor/walls/ceilings. It can't be "constantly" - it might be often or even frequently, if you intent to take legal action hyperbolic language is not going to aid your case. To make a real complaint about this you would need to diarise each occurrence. Notwithstanding, unless he is damaging someone else's property or is violating a noise ordinance this is not illegal. screams curses at children. Clearly reprehensible behaviour: not clearly illegal. Unless this is assault (see above) or qualifies as offensive behavior under the criminal code wherever you are (unlikely) then he can scream whatever he wants at whoever he likes. Again, a pattern of such behavior may constitute harassment. Continues to park in handicap parking despite not being handicap, and receiving very expensive parking tickets. This is illegal and he is being punished for it. Unfortunately the expression Don't do the crime, if you can't do the time. has a corollary: if you are willing and able to take the punishment then you do as much crime as you want. And to add to the list, I suspect he's been putting nails in my car tire, always on the same tire, on the inside wall of the tire; I just replaced my 5th tire in 3 months. This is a crime. If you can get evidence to prove it then you can report him to the police and/or sue him for the damage. You have stated in your comments that you will be asking another question specifically about filming him, so I won't address this here. Is there some sort of legal incentive I've not clearly communicated to management to evict him? That depends on if any of his actions are actually grounds for terminating his lease and, if they are, the landlord wants to do so. A remote landlord who is getting his rent on time and not having their property damaged has no incentive to evict a tenant: no matter how annoying they are to others. It is possible, that you have a case for breaking your lease and/or suing your landlord for damages as you are not getting "quiet enjoyment" of the property. A suit along those lines may resolve the matter because either you or he will be evicted. Consult a lawyer. If he actually is insane, what sort of liability for his actions does he have? The same as anybody else. Liability for civil wrongs is an objective test of what a reasonable person would be liable for: it is not based on the specific characteristics of the person. | As you say, the roommate who was there "did not equate the sound of a running toilet with wasting water". That, I am afraid to say, is negligent: normally, when you hear constantly flowing water, you do something about it. Somebody has to pay for the water, and assuming the water is in your name, that is you. You could yell at the roommate, but legal negligence is irrelevant to the water bill. However, if there were any resulting damage (for example to wiring or walls), that is where the question of negligence would come up: you probably would be found liable for damage to the building that resulting from letting the condition persist. But unless the fill valve broke at the tank and leaked water onto the floor (which would be clearly obvious) there won't be any damage that you are liable for. I assume that the leak developed from an old part giving out. This would be normal wear and tear, for which you would not be responsible (assuming you didn't cause the problem, for example by putting concentrated bleach in the tank). You you are saying that the landlord is trying to charge you for the repairs, and on this point, the landlord is on thin ice. A landlord cannot just make up rules about assigning liability for damage: that is a matter to be determined by the courts. A tenant can do things to a fill valve that can cause a leak; and the seal has to be replaced every few years. The tenant is not liable especially for routine replacement of the fill value seal, and does not become liable because they failed to inform the landlord in a prescribed manner. Not reporting a leak within 24 hours does not contribute to the underlying failed part. You could probably contest the legality of that bit of maintenance clause 24, in that the landlord cannot unilaterally declare who is responsible for damage. At the trial, both sides will present relevant evidence, and the judge / jury will decide whether the tenant's negligence caused the seal to fail. | You have a third option: Sue the district for violating state or local law. There are lots of recent news stories about people doing just this and winning. The US Constitution Can't Help You: The school district is not violating your constitutional rights by installing lights at the stadium. The only constitutional protection remotely connected to your situation is the "takings clause" of the 5th Amendment. It says, "nor shall private property be taken for public use, without just compensation." Unfortunately, the "takings clause" only applies if there is a "taking." A "taking" is generally understood to be exactly that -- you lose your property. The loss can be literal -- the government takes title to your house and turns it into a football field or freeway on-ramp -- or figurative -- the disturbance from the football field or on-ramp is so pervasive that your property becomes worthless. Since having the lights on will not destroy the value of your property, the takings clause does not apply to you. As one Justice said in a related case, the lesson here is simple: "the federal Constitution does not prohibit everything that is intensely undesirable." State or Local Law Might Help You: Even though you don't have a constitutional claim, depending on what state and city you live in, you may have a claim under state or local law. (These might be statutes, regulations, ordinances, or even your state constitution.) For example, in 2010 a group of home owners in Atherton, California who lived near the local high school sued when the school announced plans to install stadium lights. The suit claimed the lights violated local height limits, and that the night games would violate noise ordinances. The suit, plus a savvy pr campaign, got the school to agree to limits on night games. Atherton is not alone. All the way across the country, in Greenwich, Connecticut, neighbors upset about stadium lights sued and got an agreement about the use of lights. A search using high+school+lights+neighbors+sue turns up plenty of other examples. You will have to talk to a local attorney to find out what state or local laws you can use. | The law regarding landlords and tenants is Iowa Code Ch. 562A. Part 2 (§562A.27 et seq.) states the legal remedies available to a landlord. §562A.27 specifically spells out the remedies for material non-compliance with lease terms. The gist of that and related sections is that if a person is in violation of a lease, there is a legal process that has to be followed, and if successful, the sheriff will forcibly evict the tenant (though §562A.27A, the clear and present danger section, shortens the process – still, it's not immediate and it does require legal notice etc.). Under the law, you (apparently) have become a landlord and have an unwritten tenancy agreement with the tenant. I assume based on your description of the facts you have a long-term written agreement with the property owner. By allowing this person to live with you, you have entered into a landlord-tenant relationship, which limits your rights. The police will not respond to this situation – a legal squabble – whereas if someone broke into your residence and was trespassing (and you complain in a timely manner, not allowing the person to trespass), the police would respond and not require a court order. §562A.9(5) states that in lieu of a specific term of tenancy, in the case of a roomer paying weekly rent the tenanct period is a week, otherwise it is a month. §562A.6 defines "roomer": basically, if you are a "roomer", so is your sub-lessor. By agreeing to let the person stay with you, you have become a landlord and sub-lessor, thereby subject to the restrictions on landlord actions. That means you have to take the person to court to get rid of them. Failure to pay agreed-on rent is certainly sufficient legal cause, and any monthly lease can be terminated by the landlord after giving legal notice (30 days advance notice). | You can read about your rights as a California tenant at http://www.dca.ca.gov/publications/landlordbook/catenant.pdf This is rather ridiculous: 1) No judge will evict someone for paying rent by mail. (I assume you have the new landlord's address.) 2) If the landlord cashes the check you mail then he's not going to be able to claim you didn't pay the rent. If he actually refuses to cash your mailed check then that's all to the good for you. 3) You can ignore any requirements imposed by the new landlord that aren't in the lease, just as the landlord could ignore any new requirement imposed on him by you. Even some terms in a lease can be ignored, because not all terms in a contract are legal. (This is especially the case in tenant-landlord law.) If you think there will be trouble then use certified mail. | The answer depends in part on your relationship to the HOA, and your lease. Normally, you would have no direct relationship to the HOA, instead your legal relationship is with the owner (who has a relationship to the HOA). The owner of the condo has a legal obligation to follow certain rules, the violation of which will result in a penalty (imposed on him). You presumably are leasing the place from an owner, so the HOA won't impose any penalty on you, since you have no direct connection with the HOA. You then have to look at your rental agreement, to see what obligations were stated, whereby you have to follow the HOA rules. If there is a clause that says "You must follow the rules", then if you don't, it's possible you can be evicted by the owner. If there isn't such a clause, the owner would suffer the consequences of your rule-breaking. You can try to sue the HOA if someone gets hurt, but that would be a waste of your time and money since the suit would be dismissed (the HOA is not responsible for injuries that you are legally responsible for). Whether or not you should try such a lawsuit is between you and your attorney. You can try to fight the HOA (politically), within limits, e.g. by writing letters, or speaking to the HOA or board of directors, as long as they allow it (since you aren't a homeowner, they don't have to listen to you). Again, whether you should do this is between you and your attorney, and anyhow that's not a legal question. You could not, however, sue the HOA to force them to change the rules. | I gather that the numerous ramifications you outline are merely contexts and that your main concern is about the application of contract law (contract law in the U.S. does not really vary among states). Thus, I will not really delve in the intricacies of --for instance-- privacy or copyright issues arising from the commercial use of a person's likeness that you mention in one of the scenarios. As a starting point, one needs to bear in mind that: a contract is an exchange of considerations under terms and conditions entered knowingly and willfully by the parties, which can be evidenced by the parties' subsequent conduct (that is, not just by signing a document); and a contract is unenforceable if it contravenes public policy and/or the covenant of good faith and fair dealing. Accordingly, the questions are (1) whether a person knew or reasonably should have known about the terms & conditions at or by the time of those events which trigger obligations pursuant to the contract; and (2) whether the provisions therein are unreasonable, illegal, or tantamount to a penalty, especially in the event that the party breaches or repudiates the alleged contract (see the Restatement (Second) of Contracts at § 356(2)). The scenario of house for sale entails various difficulties as per contract law and otherwise. Here are some of those issues: Are visitors properly (including "beforehand") notified about the "walkway clause"? If not, the contract is void because it cannot be said that visitors knew about & accepted that condition. Does the house provide alternatives for lawful & informed visitors to safely avoid the walkway? If not, then the seller/owner might end up incurring premises liability with respect to those visitors who get injured in making their reasonable effort not to trigger the "walkway clause". Is the house owner realistically able to prove that use of the walkway by lawful & informed visitors is sufficiently "inconsistent with the offeror's ownership of offered property" so that triggering a house sale is a reasonable consequence (see Restatement at §69(2))? Is the owner-imposed mortgage rate compliant with state law pertaining to granting of credit & loans? These exemplify only some of the burdensome complications when trying to enforce "contracts" which are extravagant or quite one-sided. Lastly, as a side note, the presumption that a person reading the poster and walking in the intended area does not thereby receive consideration is not necessarily accurate. As an example, the "intended area" could have been devised by an entity in the business of enjoyment and recreation, such as a private park. The person who deliberately walks in (regardless of whether he read the poster) certainly receives a consideration, which is the amusement or recreation for which the park was designed. | 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. |
Argentina: Is it permitted to shoot a knife-wielding intruder to my property with a handgun? I'm wondering how can I defend against an intruder in my house if I legally possess a handgun. I'm in Argentina. Supposing the intruder doesn't possess a firearm himself but is wielding a deadly melee weapon such as a fighting knife or sword like weapon. Can I shoot if the intruder is running towards me? What if he slowly tries to approach me and says no to my warning? (E.g., "Please don't go near me or I'll shoot you.") Let's suppose the intruder doesn't possess nor claims to have a firearm, only a melee weapon. Edit: This is the criminal code of Argentina, it's a official website. "Codigo Penal" means "criminal code", as the comment requested. | It looks like this is covered by article 34 of the criminal code you linked: ARTICULO 34. - No son punibles: [...] El que obrare en defensa propia o de sus derechos, siempre que concurrieren las siguientes circunstancias: a) Agresión ilegítima; b) Necesidad racional del medio empleado para impedirla o repelerla; c) Falta de provocación suficiente por parte del que se defiende. Se entenderá que concurren estas circunstancias respecto de aquel que durante la noche rechazare el escalamiento o fractura de los cercados, paredes o entradas de su casa, o departamento habitado o de sus dependencias, cualquiera que sea el daño ocasionado al agresor. Igualmente respecto de aquel que encontrare a un extraño dentro de su hogar, siempre que haya resistencia; English (my translation, no guarantees): ARTICLE 34 - Not punished are: [...] Someone who acts in self-defense or in defense of their rights, as long as the following circumstances apply: a) illegitimate aggression b) a rational need for the means used for preventing or repelling the aggression c) a lack of sufficient provocation on the part of the defender It is understood that these circumstances apply with respect to someone who during the night defends from a housebreaking or a breach of the enclosure, the walls or entrances to their home, or the home of their dependents, no matter what damage is caused to the attacker. Reading these rules, which look quite similar to the law in most other countries, I'd say shooting an armed intruder would be covered. It would probably already be covered under the general rules ( a) to c) ): There is an illegitimate aggression, and shooting is necessary for stopping the agressor, because no milder means is practical in the situation. Additionally, the last paragraph would apply, which provides additional protection to someone defending their home, so even if a judge decided that normally shooting someone attacking with a knife is not necessary for protection, it would still be ok for home defence. | The UK has particularly strong (indirect) restrictions on self defense. Askthe.police.uk appears to be an official police agency. As a police agency, they can only give their version of what the law is, but they could be mistaken. They say "The only fully legal self defence product at the moment is a rape alarm". This by itself does not mean that pepper spray and the like are definitively illegal: There are other self defence products which claim to be legal (e.g. non toxic sprays), however, until a test case is brought before the court, we cannot confirm their legality or endorse them. If you purchase one you must be aware that if you are stopped by the police and have it in your possession there is always a possibility that you will be arrested and detained until the product, it's contents and legality can be verified. One can infer that they somewhat disapprove of pepper spray: There are products which squirt a relatively safe, brightly coloured dye (as opposed to a pepper spray). A properly designed product of this nature, used in the way it is intended, should not be able to cause an injury. The underlying theory seems to be that the dye will frighten the assailant so it might be useful. Nevertheless, they do not fully endorse spray dye: However, be aware that even a seemingly safe product, deliberately aimed and sprayed in someone's eyes, would become an offensive weapon because it would be used in a way that was intended to cause injury. This underscores the point that "intent" determines the criminal nature of the act. If you accidentally spray a dye into someone's eyes, that probably would not make the thing an offensive weapon. Moreover, if at the moment of defending yourself with dye you intentionally spray it into someone eyes, that does not make it an offensive weapon (see below on per se offensive weapons). The difference between pepper spray and dye lies in the outcome that you expect, that pepper spray will cause actual and non-trivial physical discomfort, and it's foreseeability (the point of having pepper spray is to injure). The police are not making any definitive "rulings" (only a court can make a ruling), and they warn The above advice is given in good faith, you must make your own decision and this website cannot be held responsible for the consequences of the possession, use or misuse of any self defence product. Possession of other weapons (mostly knives, also weapons for beating people) is more clearly illegal, due to numerous acts enacted by Parliament over the years. The gov't. prosecutor offers useful details on their (current) policies and the underlying laws. The underlying authority for these restrictions seems to be the Prevention of Crime Act, 1953, which outlaws having an offensive weapon in a public place, and an offense weapon is simply defined as any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him A brick or an egg could be an "offensive weapon", if a person intends to use it to cause injury. It is more difficult to see how an egg could cause injury, but actual injury is not required under the law, only intent to injure. It is thus a bit surprising that the police would be so bold as to say that a "rape alarm" is fully legal, but this may refer to a specific thing, the "Personal Guardian", which silently notifies the police, and is not a loud whistle (which could injure a person). Intent being crucial to the determination of "offensive weapon" status, CPS points out that where a person uses an article offensively in a public place, the offensive use of the article is not conclusive of the question whether he had it with him as an offensive weapon within section 1(1) of the Prevention of Crime Act 1953. If you use a chain or stick offensively, that does not establish that you had it with you as an offensive weapon. You crucially had to previously intend to use it as an offensive weapon: as they say: Having an article innocently will be converted into having the article guiltily if an intent to use the article offensively is formed before the actual occasion to use violence has arisen. There are a number of per se offensive weapons: those made for causing injury to the person i.e. offensive per se. For examples of weapons that are offensive per se, see Criminal Justice Act 1988 (Offensive Weapons) Order 1988, (Stones 8-22745) and case law decisions. (Archbold 24-116). The Criminal Justice Act (1988) (Offensive Weapons) (Amendment) Order 2008 came into force on 6th April 2008 with the effect that a sword with a curved blade of 50cm or more (samurai sword), has been added to the schedule to the Criminal Justice Act 1988 (Offensive Weapons) Order 1988 but sticks and chains would not be included. Spices are not likely to be shown to have a per se purpose of causing injury to others; but carrying pepper powder with the intent of throwing it in someone's eyes (for whatever reason) and thus injuring them fits the definition of "offensive weapon". Pepper spray even more clearly fits that definition (you don't use pepper spray in curry), and has resulted in arrests. In fact, the Firearms Act 1968 (S5) (b) specifically makes it illegal to possess any weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or other thing | The Missouri trespass law is here. The police will not detain a person for expressing himself, even repeatedly, though a court order to stay away would change things. The law says A person does not commit the offense of trespass in the first degree by entering or remaining upon real property unless the real property is fenced or otherwise enclosed in a manner designed to exclude intruders or as to which notice against trespass is given by: (1) Actual communication to the actor; or (2) Posting in a manner reasonably likely to come to the attention of intruders. You can also use purple paint markers. There is also a law against stalking which prohibits unwanted communication that may be threatening, intimidating, frightening or causes emotional distress to another person. However, you need to petition the courts for an order of protection. If granted, violating the order would be a felony, and more likely to get the attention of the police. Getting an attorney is the simplest immediate solution, since I expect that purple paint won't mean much to him. | washington Under the laws of Washington State, USA, a dog can be considered a deadly weapon. See State v. Hoeldt, 139 Wash. App. 225 (2007). Hoeldt allegedly released a dog which attacked a police officer, and was convicted of second degree assault with a deadly weapon. He appealed, claiming that a dog was not a weapon for purposes of the assault statute. The Court of Appeals upheld the conviction: Because a dog is an instrument that can be used to cause death or substantial bodily harm, we hold that a dog can be a "deadly weapon" under RCW 9A.04.110(6). | New Hampshire is a "constitutional carry" state. The term "constitutional carry" is not a legal term but, rather, a catchphrase used to describe states that have adopted, either by statute or state constitution, that no permit is required to carry a gun either openly displayed or concealed. The phrase comes from a belief among many that the constitution is a permit to carry. New Hampshire passed its constitutional carry statute in 2017. Prior to this date it was permitted to carry a gun openly (not concealed) without a permit and had been legal to do so since the founding of the state. The Federal government originally passed The Gun-Free School Zones Act of 1990 which prohibited the carrying of a firearm within 1,000 feet of a school. This act was found unconstitutional by the U.S. Supreme Court in 1995 (United States v. Lopez). Subsequently, the Federal government amended the law by adding the language, "...a firearm that has moved in or that otherwise affects interstate or foreign commerce..." This law has not been overturned and is still active. Here are two of the several exceptions to the Federal restriction: The individual is licensed to carry a firearm by the State in which the school zone is located The gun is unloaded and locked in a container There are other exceptions related to law enforcement officers, permission of the school, etc. These exceptions are independent; if one is licensed there is no need to unload the firearm and lock it in a container. The first exception listed, an individual licensed to carry a firearm by the State, generates a fair amount of controversy. Many states license individuals to carry concealed firearms within their borders by recognizing, or granting reciprocity, to the licensee's home state's firearms license. Many people believe this is a grant of a license by the State to the individual to carry a firearm. The ATF disagrees with this position and has taken a position that only licenses issued by the State in which the school is located are valid as it relates to the Federal school gun safety act. Further reading on this particular issue can be found in the paper, "Federalism Implications of Non-Recognition of Licensure Reciprocity Under the Gun-Free School Zones Act." The New Hampshire legislature has been working on a bill (as of June, 2019) prohibiting the carrying of firearms on school property. Governor Chris Sununu has previously indicated he would veto a series of gun-control bills headed to his desk via a spokesperson's statment, "the governor is not looking to make any changes to existing gun laws." The bill as written, prohibits the possession of firearms on school property, it does not prohibit firearm possession near school property. (The bill does appear to allow a firearm in an automobile being used to pick up or drop off a student at school.) The bottom-line for firearms around schools in New Hampshire: There is no state requirement to be licensed to carry a firearm openly or concealed There is no state prohibition from carrying firearms near a school There is a Federal prohibition from carrying a firearm within 1,000 feet of a school without a license There is no Federal requirement that a firearm carried near a school be concealed You can expect to be interviewed by law enforcement if you are openly-carrying firearms near a school. It is perfectly legal for law enforcement to approach you and engage in a voluntary interview. You can expect many such engagements if you make it a practice to openly carry firearms near a school. You can make people nervous if you are openly-carrying firearms generally, and you will absolutely make people nervous if you openly-carry firearms near a school.* New Hampshire still issues Pistol and Revolver licenses and one should have such a license if carrying a firearm within a school zone. As it relates to knives, New Hampshire is very liberal as its laws apply to knives. There are few, if any, restrictions on knives. In 2010, New Hampshire passed a law removing some of the restrictions on the types of knives that could be carried. *I do not have a specific citation to provide regarding the expectations of a law-enforcement interview when openly-carrying a firearm near a school. This statement comes from my experience as one who is licensed to teach concealed carry courses and firearms laws in Louisiana and Arizona. I am not an attorney and I am not licensed teach the laws of New Hampshire. I recommend speaking with a competent attorney who specializes in firearms law in New Hampshire to learn what is legal and, just as importantly, what is reasonable. | Bob can probably print the firearm for personal ownership if Bob is not prohibited from possessing a firearm himself, but after that it gets problematic. This is ignoring any potential safety violations and liability issues or patent violations which might arise. According to an ATF spokesman quoted in this article : it is legal for Americans to build their own firearms without a license so long as they are not prohibited by law from possessing firearms, the firearms are legal to own, for personal use, and not for sale or transfer to others. Whether the gun parts are printed, created by other ways of manufacturing, or legally purchased from a licensed dealer has no impact on whether it is legal for an American to build a gun for personal use, though some states like California have placed additional requirements on the process. So transfer of ownership is possibly problematic. It's notably not a way to avoid normal firearm possession restrictions : Knight [the ATF spokesman] emphasized it is not legal for felons or somebody otherwise prohibited from possessing firearms to build their own guns under any circumstance. "Title 18 of the United States Code, section 922(g) prohibits several categories of persons (i.e., persons convicted of a crime punishable by imprisonment for more than a year) from possessing firearms in or affecting interstate commerce," Knight said. "Title 18 of the Unites States Code, section 922(d) prohibits persons from disposing of any firearm to a person the transferor has reason to believe is prohibited from possessing firearms under federal law." Finally there's a rather crucial point to note about the design of such firearms : He said the Undetectable Firearms Act of 1988 outlaws the manufacture or possession of firearms that can pass through a walk-through metal detector or X-ray machine commonly employed at airports without being detected. "A person or manufacturer cannot produce an undetectable firearm as prescribed in Title 18 of the United States Code, section 922(p)," he said. So making a weapon that's undetectable by a metal detector is not allowed (at least according to the ATF). | Illinois has a "Castle Doctrine" which includes dwellings and other qualified buildings, but not a general "Stand your Ground" doctrine. Normally, to claim self-defense one has to show that they were not able to retreat and had to use force, but in Illinois you do not have a duty to retreat if you are preventing criminal interference with a dwelling or with real property that you or a family member owns, or you have a legal duty to protect (see Ill Code 720-2 and Ill Code 720-3). In order to use deadly force in any case, it must be to prevent a forcible felony, which is defined as (720 ILCS 5/2-8): "Forcible felony" means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual. So, assuming you have no legal duty to protect the 7-11, you would not be justified in using deadly force against rioters merely on the basis that they were committing a forcible felony against the building. On the other hand, if you were in the store or could see someone in the store being attacked, you may be able to successfully defend deadly force used to protect yourself or that person. | I think it would depend on how a jury viewed the "challenge" to her audience. The general rule for self-defense in Texas is that the person needs to reasonably believe that force is immediately necessary to protect herself from someone else's use of force. I think a jury would find it reasonable to believe that someone forcefully attempting to steal your gun was planning to use it against you. More importantly, the law generally presumes that that belief is reasonable if the person is being robbed, assuming that she isn't otherwise engaged in criminal activity. Since openly carrying an AR-15 is -- as far as I know -- legal in Texas, I think she'd probably be fine. But: The law also says that the use of force is not justified when a person consents to the other person's use of force, or if the person has provoked the other person. So now you have the question of whether the student's challenge constitutes a provocation or consent to the use of force. I think you can make a decent argument for provocation, which means that "the defendant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting injury." Neal v. State, No. 12-14-00158-CR, 2016 WL 1446138, at *11 (Tex. App. Apr. 13, 2016). You might also make out a decent argument for consent, which doesn't necessarily seem to require that the parties exactly spell out the rules of engagement, just that there is some kind of agreement between the two parties. In one case, for instance, a defendant tried to argue that a fight had gone beyond the rules because one party used a chokehold and knocked the other out. But the court said that the only actual rule agreed to was that there would be no weapons used. Padilla v. State, No. 03-07-00513-CR, 2008 WL 5423139, at *2 (Tex. App. Dec. 31, 2008). That makes me think that as long as there's consent to some kind of fight, you don't necessarily need rules, though you do need to abide by them if you agree to them. So what's the scope of consent in this case? If we say that she's agreed to the use of force by challenging people to take something from her, and she hasn't said how you can do it, can you do it by any means you choose? I don't think a court would let someone shoot her to get it, but maybe they would be allowed to pry it out of her hands. So all of that is a long way of saying that this is a tricky question, and that any decision would probably depend a lot on the specific facts of who she was talking to, what exactly she was saying, how she was carrying the gun, and so on. |
If you commit a crime in an airport, are you tried under maritime law? Airports occupy an interesting legal grounds, wherein they are not technically a part of the country they are in (hence tax-free purchases in duty-free), and yet still must obey some set of laws. By international agreement (though the exact name of the treaty or treaties escape me), any land (or water for that matter) that is not occupied or claimed by some sovereign nation, and is therefore not under the jurisdiction of any sovereign nation — such as space, unclaimed islands and the middle of the Pacific — is under maritime law. Does maritime law therefore apply to crimes committed in airports? Even more interesting, can someone who commits a crime in an airport physically located within a country he or she is not allowed to be in (no visa for example) be removed from that airport (and therefore allowed into the country) to stand trial? Update: After some additional research, it seems international airports, embassies and certain war-risk areas (i.e. the Green Zone in Iraq, also known as the International Zone of Baghdad) contain specified areas defined as international zones. These zones are not so much unclaimed as designated independent of the country they're in largely for purposes of diplomacy. Because of the, ahem, fuzziness of the law governing them, I'd be very much interested in an answer to the question, even if the wording on the question may have been a bit confusing to the first few people to see it. | For purposes of criminal law, in practice, airports in the United States are treated as part of the territory of the state (or district or territory) that they are a part of and of the United States. The scope of maritime criminal jurisdiction is defined at 18 USC 7. It states: 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. (2) Any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line. (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. (4) Any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States. (5) Any aircraft 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 any State, Territory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. (6) Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property aboard. (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. (9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act— (A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and (B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities. Nothing in this paragraph shall be deemed to supersede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title. Often, law enforcement at an international airport is provided by a county sheriff or municipal police department in addition to the TSA (including air marshalls) which has narrower jurisdiction, in contrast to places like Indian Reservations and federal parks, which while within a state are outside state and local law enforcement jurisdiction (although the assimilative crimes act applies state law in many such circumstances). They are definitely not subject to maritime jurisdiction in the United States. Duty free status usually arises from a definition particular to tax treaty and not a global sovereignty definition. | Edits added below to outline Florida's laws based on OP's comment Jurisdiction does matter but here is a general answer regarding "stand your ground" laws. States that have so-called "stand your ground laws" each have their own language concerning the law. "Stand your ground laws" are often misunderstood but, generally, just mean that a person has no duty to retreat when using deadly physical force for purposes of self-defense or the defense of others. Your examples are more akin to "castle doctrine" laws which I touch on below. Note that all of these laws vary by jurisdiction. I've provided partial examples from Arizona, New York and California. Using deadly physical force for purposes of self-defense or defense of others is complex law and even a complete example from any particular jurisdiction will not be able to cover all circumstances. Each case will be determined by a judge or jury based on the facts of that particular case. Arizona's "stand your ground" statute, as an example, states: B. A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act. "Stand your ground" simply means that a person doesn't have to first attempt to retreat before resorting to the use of deadly force. Arizona's statute regarding justification for self-defense states (emphasis mine): A. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force. B. The threat or use of physical force against another is not justified: In response to verbal provocation alone; or To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or If the person provoked the other's use or attempted use of unlawful physical force, unless: (a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and (b) The other nevertheless continues or attempts to use unlawful physical force against the person. Note the phrase, "extent a reasonable person." This means that the actions of a person using deadly force will be measured against what a "reasonable person" would do in similar circumstances. Some states have a duty to retreat, particularly when in a public place, before using deadly force. New York, as an example, has a "duty to retreat" before using deadly force except in specific circumstances (emphasis mine): A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor; or (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or (c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20. Castle Doctrine Laws typically refer to what one may do in their own home when it comes to the use of deadly force. Some states have extended the "castle doctrine" to include personal automobiles as well. California's "castle doctrine" statute, as an example, states that if one is in their own home and someone "unlawfully and forcibly" enters the home one can presume that the person in his or her residence "held a reasonable fear of imminent peril of death or great bodily injury": Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. As used in this section, great bodily injury means a significant or substantial physical injury. In California's statute both the resident and the person using force to gain entry have to know or have reason to believe that an unlawful and forcible entry occurred. If a person simply entered an unlocked home then the resident would have to have some other reasonable reason to believe that they were in imminent peril of death or great bodily injury. Wikipedia has a reasonable entry on the adoption of "stand your ground" and "castle doctrine" statutes and gives a state-by-state breakdown of both. Note that these laws have seen a lot of change recently and any particular entry for a state may not be accurate. Florida's self-defense laws Florida's "Use or threatened use of force in defense of person" states: 776.012 Use or threatened use of force in defense of person.— (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. (2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. Florida outlines the cases where use, or threatened use, of force is justified. Notice that in the law Florida specifically states that the person threatened does not have a duty to retreat. Florida also specifically states that a person has a "right to stand his or her ground" if the person is in a place where he or she has a right to be and is not engaged in criminal activity. Florida statute also specifically outlines the right to use self-defense within one's home and vehicle. Florida has a "castle doctrine" similar to what was outlined above and similar in nature to New York's and California's laws: The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; Florida has a longer list of exemptions related to who may have used force to enter a home including ownership interest in the property or vehicle, children and grandchildren, the person who engaged defensive force was involved in criminal activity and law enforcement officers. Florida's Justifiable Use Of Force is chapter 776 discusses when force can be used. There was an attempt by the Florida legislature in 2019 to change the standard by which use of force could be justified from "reasonably believes" force is necessary to "a reasonably cautious and prudent person in the same circumstances would objectively believe" force was necessary. The bill was withdrawn in May, 2019. | In general this is protected by the first amendment. It is not in general a problem describing how one can one can do something illegal. But there are special cases to be careful with. You might want to do some research into the limits on free speech. It would be hard to provide an answer that fully covers all your different cases and you would need to be more specific about what illegal activity you want to describe. In describing how to do something illegal, you might accidentally share information that you are not allowed to share. When you post things online, this can be considered as publishing or exporting. Therefore certain export restrictions might apply. Also, It is illegal to publish bomb making manuals, with the knowledge or intent that this information be used to commit a federal crime of violence. See https://www.law.cornell.edu/uscode/text/18/842. There are restrictions on publishing material relating to cryptography without having an export license. Granted, this isn't necessarily related to publishing things that are illegal, but just to give an idea about how publishing/exporting knowledge can causes problems. See https://en.wikipedia.org/wiki/Export_of_cryptography_from_the_United_States ITAR (International Traffic in Arms Regulations) sets restrictions on what you can publish about arms. What you publish can't be “directed to inciting or producing imminent lawless action.” See for example https://en.wikipedia.org/wiki/Brandenburg_v._Ohio. One might imagine that you could get into trouble if someone interprets what you do as inciting or producing a lawless action. It might sound obvious, but you want to make sure that you have the right to share the information that you have. The information that you are providing might be copyrighted in some way. | Might depend on where you are. I think it's illegal in North Korea. In the US, it is legally encouraged, by the Commercial Space Launch Act of 1984, especially the part that says "Congress declares that the general welfare of the United States requires that the Administration seek and encourage, to the maximum extent possible, the fullest commercial use of space". Previously, Congress passed the Communications Satellite Act of 1962, which first expressed an interest in allowing commercial flights, but there was substantial opposition to non-government entities in space. There are a number of legal private space adventures from numerous countries. As Nate Eldridge points out, you still need government (FAA) permission. So it's legal to blast yourself into space in the same sense that it's legal to drive or to open a business. | In Germany, nuclear weapons are considered weapons of war, which are heavily regulated. In particular, under § 17 KrWaffKontrG, it is prohibited to develop or produce nuclear weapons or trade in them or acquire them from or leave them to another person or import or export them or transport them through the territory of the Federal Republic or in any other way take them into or out of the territory of the Federal Republic or in any other way exercise the actual control over them (my translation). Exceptions apply only to nuclear weapons controlled by the governments of NATO members, not to individuals. If you happen to come into the possession of a nuclear weapon without breaking the law yourself (e.g. if you inherit it from someone who illegally built it), it can and certainly will be confiscated under § 24 KrWaffKontrG. | Of course Unless you waived your right to go to court in the contract. For example, if the contract contains an arbitration clause, disputes must be arbitrated, you cannot use the courts. It is also possible that an English court may not have jurisdiction. For example, if the contract had a choice of forum clause requiring disputes to be resolved in the courts of the UAE, then an English court would possibly defer to that and refuse to hear the case. Whether you will succeed depends on the terms of the contract and whether the airline had a duty to provide you with accurate information. It is quite likely that the contract contains disclaimers as to the accuracy of information given. These may succeed in defeating your suit. | The private organizations, in difference to international organizations (the organizations, members thereof are the countries) or the countries are not subjects of international law. They are also not a subject of criminal laws, so they technically can't break the law. The people can. If the actions of such organizations will break some laws, the people staying behind that organization will be made responsible. Either it will be single individuals, or the whole organization might be declared criminal (such as mafia or a gang) and there everyone, including stakeholders or casual employees/contractors might be subjects to interrogation, arrest and sentence. As for the problem you describe, when the organization made something illegal under one jurisdiction, and the stakeholders are sitting in other country, where such actions are not illegal, they might only partially be safe. They might be arrested not only in the country where the legal actions are taken, but also in third countries, that have extradition agreements with that country. | International Humanitarian Law applies to all armed conflicts The Geneva Conventions are a part of the overarching body of this law. It applies to all armed conflicts, not just declared wars. An armed invasion by R of U is a conflict to which IHL applies irrespective of if it is a declared war or not. BTW, declared wars outside Africa and South America are virtually unknown since WWII |
Do I have a right to British citizenship? I currently have a dual-citizenships. I am German and Spanish. However, I was born in the UK and moved to another country at the age of three. I would like to know if I have a right to British nationality. At the time I was born (1988), my parents had already worked and lived in the UK for 6 years. Neither of them has British nationality. I found this website: https://www.gov.uk/types-of-british-nationality/british-citizenship In it it is stated that if I was born in the UK after 1 January 1983, I have a right to British citizenship, if either my mother or my father was 'settled' in the UK when I was born. These are my questions: 1. Are my parents considered to have been 'settled' at the time of my birth? 2. If I have a right to british citizenship, may I apply for it without renouncing to any of the other two? | You are already a British citizen. This will not impact your German nationality (I don't know anything about Spanish Nationality Law): (1) Prior to 2000, EC nationals were considered 'settled' when exercising Treaty rights in the UK. They did not have to apply for indefinite leave to remain to be considered settled. As you were born in the UK to at least one parent who was exercising Treaty rights in the UK and hence 'settled' for the purposes of the British Nationality Act 1981, you acquired British citizenship automatically at birth. You do not need to, and should not, apply for naturalisation or registration, but instead for confirmation of British citizenship OR a passport (or alternatively, a certificate of entitlement to the right of abode). NOTE: of course, the situation of EU/EEA nationals in the UK is now different under the 2006 Regulations, implementing Directive 2004/38/EC, which introduced the concept of "permanent residence". There was no equivalent to this at the time of your birth, in 1988, when all EC nationals exercising Treaty rights were 'settled'. (2) You will not lose your German nationality. First, you are already British anyway, as set out above. Second, the previous answers are all wrong as a point of law. The German 'option model' requires persons born in Germany to non-German parents to decide which citizenship they wish to keep once they come of age. This never applies where one of the parents is German. It is not true, therefore, that Germany never accepts dual nationality. Equally importantly, a German national who acquires the citizenship of another EU/EEA country will not lose their German citizenship (although, as set out under (1) above, this does not affect you anyway since you are already British, even if you may currently lack a document to prove your status as such). | The 2018 Data Protection Act specifically implemented the GDPR EU Regulation in the UK - while the regulation itself was directly binding it required member states to create their own legislation for implementing the details - setting up the required supervisory and accreditation bodies etc. The various 'opening clauses' in the regulation also provided the means for the members states to implement specifics in local legislation (so long as that legislation exceeded the minimums set out in GDPR). At the end of the Brexit transition period the UK was no longer a member state (and it's citizens were no longer EU citizens), keeping the DPA 2018 as was would have actually meant that UK citizens weren't eligible for the very protections it was intended to provide them! Therefore the basis of the law needed updating (as well as certain minor provisions that no longer made sense) hence the "UK GDPR" provided a substitute. The fundamentals are the same and crucially it also codified the necessary basis for the UK's data protection laws to have what is referred to as "adequacy" - which means that the EU considers the UK GDPR/DPA to provide "essentially equivalent" levels of protection and therefore data is allowed to continue to flow between the UK and the EU. | Yes 15 USC 1501, which is part of the Lanham Act, the basic US trademark law, provides in subsection (a)(2) that: (2) The application [for registration of a trademark] shall include specification of the applicant’s domicile and citizenship, the date of the applicant’s first use of the mark, the date of the applicant’s first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark. This clearly implies that the applicant may have a citizenship other than US, or else ther ewould be nbo point in specifying the citizenship in the application. subsection (e) of the same section provides, in relevant part: If the applicant is not domiciled in the United States the applicant may designate, by a document filed in the United States Patent and Trademark Office, the name and address of a person resident in the United States on whom may be served notices or process in proceedings affecting the mark. This makes it cleat that an applicant need not be resident in the US., 15 USC 1141a provides that: (a) In general The owner of a basic application pending before the United States Patent and Trademark Office, or the owner of a basic registration granted by the United States Patent and Trademark Office may file an international application by submitting to the United States Patent and Trademark Office a written application in such form, together with such fees, as may be prescribed by the Director. (b) Qualified owners: A qualified owner, under subsection (a), shall— (b)(1) be a national of the United States; (b)(2) be domiciled in the United States; or (b)(3) have a real and effective industrial or commercial establishment in the United States. 1141a (b2) and (b)(3) make it clear that an applicant need not be a national (citizen) of the US. The USPTO's page "Trademark FAQs" lists under the heading "General - Trademark Help - Getting Started - Other" the following Q&A: Must I be a U.S. citizen to obtain a federal registration? No. However, your citizenship must be provided in the application. If you have dual citizenship, then you must indicate which citizenship will be printed on the certificate of registration. | I recently came to the shocking realization that the GDPR does not apply to natural persons who are not EU citizens. This conclusion is mistaken. Where is it stated in the GDPR that the GDPR only applies to EU citizens? It is not stated anywhere because nationality is irrelevant to the GDPR. The GDPR protects "natural persons" based on their location "in the union," not on their nationality, and it applies to data processors and data controllers that undertake "activities [through] an establishment ... in the union." In addition to the recital quoted in the question, this is specified in article 3, which establishes the regulation's "territorial scope." For a complete discussion of this matter, consider the EDPB's guidelines 3/2018 on the territorial scope of the GDPR which also provides examples of GDPR protections for people who are not EU citizens. Who does the GDPR refer to as legal persons? "Legal person" generally denotes natural persons, corporations, partnerships, government entities, and so on. | Question: Do I need a EU passport or EU ID card to legally work in the EU (or establish that I have the right to work in the EU)? Or is a certificate of citizenship sufficient? Legally, your right to work is not contingent on this and there is no Europe-wide rule that makes holding any document mandatory. Importantly, if you do start working anyway, you are not committing a crime and cannot possibly be banned or forced to leave the country. You do have the right to work from the day you became an EU citizen and if any doubt arises down the line, you should be able to clear it up later. In practice, employers are sometimes supposed to check you are allowed to work (and for that would require some proof of your citizenship) but they don't necessarily need a passport or ID. What's typical on the other hand is that you have to provide an official proof of address (in the countries where you have to register your address with the authorities) and the local social security, insurance, or national tax number. Both of these will require dealing with the authorities and will be considerably more difficult, if not downright impossible, without a national ID card or passport (in fact it can even be difficult with a passport). I worked in multiple EU countries and I don't recall always having to present my ID to employers. I recall at least one instance (in Germany) where I could start working without one (it had just been stolen) and another one (in the Netherlands) where I started on the day after I arrived, without official address nor tax number (BSN). In both cases, I was expected to solve these issues within the first month and you risk a fine if you don't register within a week or two but it was neither illegal nor impossible to start working before all the formalities were completed. None of this means I would be completely comfortable about being months without a passport. But the main issue for you will be entering the country and what your employer's HR department is prepared to tolerate, not any sort of legal obligation to hold a passport to work. Note that in one of the cases I described above I went to the local consulate to get an emergency passport. It wouldn't have been possible back in my country of citizenship but there are some special procedures when you reside abroad. These rules change all the time and depend on your country of citizenship but that could be worth a try. | Yes, in most jurisdictions citizenship or residency is not a pre-requisite for standing. However, be aware that there are plenty of jurisdictions where the practical effect of being non-native gives you effectively no chance of winning. "Fair" in some countries means their citizens always beat foreigners. | england-and-wales An adopted child can apply for their birth records once they are 18 years' old. There are different processes for doing this depending on the particular circumstances, and if they were adopted before 12 November 1975 they will need to attend a counselling session with an approved adoption advisor first. Source (detailing the different processes) Legislation | The non-citizen is responsible for themselves. If you do not marry within 90 days, the visa expires, and the non-citizen is no longer legally present, thus will have to leave the country. |
Could Ross Ulbricht from Silk Road not get life sentence? Ross Ulbricht was the creator and operator of Silk Road, the first modern darknet market, best known as a platform for selling illegal drugs, until his 2013 arrest. From the criminal complaint, Ross Ulbricht get double life sentence (sentencing hearing). After he was arrest in the library, could he have done ANYTHING to don't get life sentence? If he declared himself guilty, could he get less time? | The life sentences were based on counts 2 and 4, distribution of narcotics by means of the internet and continuing criminal enterprise. In reviewing the sentencing hearing, all of the evidence indicates that the sentence was based on the nature of his acts, and not anything he did after his arrest. There is no way to know if prosecutors would have been amenable to a plea bargain. | Every State in the union has some form of involuntary mental health hold. Regardless of whether or not the patient claims it was an accident, it is incumbent upon the hospital or facility where the individual is held (which is typically at least 72 hours) to do an in-depth analysis of whether the person is a danger to themselves or others. While in this scenario it may've been an inadvertent overdose, the empirical evidence suggests it could have been intentional as the practitioner cannot see into the thoughts and motivations behind the patient's actions. Even taking the patient at face-value, addiction to the extent of overdose is also a mental health issue, which may cause a person to be a danger to themselves. From a clinical perspective, it is much more likely than not that one of the two scenarios occurred, versus a truly mistaken overdose. One would need to mistake their actions numerous times in a day to take so much as to overdose. If you look at it from the inverse perspective, if the facility failed to keep a person who'd just overdosed, or the first responder failed to initiate a hold and the person later died, minimally they would be liable if sued by the family in an action for wrongful death. The unfortunate facts are that if a person was set on committing suicide, it unlikely they would be forthcoming with that fact, for this very reason (the mandatory hold), so a person's word cannot be the determining factor. Even if someone was not intentionally trying to take their life, having taken enough Xanax to cause medical overdose would suggest the potential that even if not suicidal, the individual was at a minimum abusing the medication by taking much more than prescribed (or in a way that is contraindicated - such as with alcohol or other depressants) and potentially suffering from benzodiazepine addiction. Either way, if the hold was not initiated or cut short - and then someone ended up dying from an overdoes - the responsibility and potential liability is the same. A person who is suicidal can reassess what may be a snap decision, or have a chemical imbalance stabilized, or a severe addiction identified in that amount of time. For the person who ctually takes so much medication as to mistakenly cause overdose, this is certainly inconvenient; however, 72 hours is a short time in the grand scheme of things to potentially save a life. The law will nearly always err on the side of safety and prevention. | Yes. This is clearly kidnapping. It is probably not a terribly aggravated sub-type of kidnapping, but it is kidnapping nonetheless. It is probably a felony. The fact that the victim does not press charges, or ratifies the conduct after the fact, does not change the fact that a crime was committed. The police decision to arrest the ex-boyfriend was entirely proper. It was not a false arrest. They had probable cause to believe that a crime was committed by the ex-boyfriend, and, in fact, a crime actually was committed by the ex-boyfriend. In the United States, the prosecutor has full authority to prosecute the ex-boyfriend to the full extent of the law for felony kidnapping for his conduct, over the objections of the victim. The decision to prosecute or not is entirely in the discretion of the prosecutor who brings criminal charges on behalf of the state and not the victim. Often the police and prosecutors will honor a victim's wishes, and this appears to be what happened in this case, but they are not required to do so, and could change their minds and bring charges in the future against the ex-boyfriend within the statute of limitations, if they wanted to do so. (This analysis does not apply in countries with Islamic law, but the facts of the question suggest that Islamic law does not apply in this jurisdiction.) | Potentially, yes - especially if its the government you lie to in your CV/resume or course of work. Wayne Simmons, a regular Fox News commentator who claimed to have worked for the Central Intelligence Agency for almost three decades, was arrested on Thursday for allegedly fabricating his agency experience. CNN Money reports that Simmons appeared in court on Thursday, where he faced charges of major fraud against the United States for falsely claiming to be a former “outside paramilitary special operations officer”—a padded resume that federal officials say he used to successfully gain government security clearances. https://www.motherjones.com/politics/2015/10/wayne-simmons-cia-arrested-fox-news/ Simmons claimed to have been an "outside paramilitary special operations officer" for the CIA from 1973 to 2000. Not only did he use that claim to get guest appearances on Fox News, but the government claims he used it to gain security clearances and a defense contractor gig that included advising senior military personnel overseas. He's now being charged with wire fraud, major fraud against the United States, and making false statements to the government and could face 35 years in prison. https://blogs.findlaw.com/law_and_life/2015/10/can-you-get-arrested-for-lying-on-your-resume.html Making false or fraudulent statements also may be punishable by fine or imprisonment. https://www.usajobs.gov/Help/working-in-government/fair-and-transparent/signature-false-statements/ | Both the police and the courts are likely to look at the situation as a whole, rather than adopting any policy specifically in relation to drivers or owners. For example, it's unusual for people to rent cars to their friends for months on end. That might suggest there is something untoward about the arrangement. Is there evidence of the commercial arrangement, or is the owner pretending to have rented the car out for months, when in reality they had stashed the drugs then let a friend borrow the car for a day? It would also be unlikely for a drug dealer to stash a large amount of drugs in a car then lend the car out on a long-term basis, so if the car is out of the owner's hands, that would tend to suggest the drugs belong to the person in possession of the car (and not the owner). But if the amount of drugs were small, typical of personal use, then it becomes more credible to imagine they could be forgotten by the car owner before lending the car to a friend. Police intelligence might also have a bearing. Does one party or the other have known links to the drugs trade? Also, is the lifestyle of one or the other, in particular, inconsistent with known sources of legitimate income? My point with all these questions is to highlight how sensitive the issue is to the fine details of the circumstances, and that it's impossible to give a strictly general answer. | While it seems like a simple question, the answer is somewhat complicated. As is frequently the case for "white collar" misconduct, There are several civil and criminal legal theories that could be applied, depending upon the nature of the offense, at both the federal and state levels (e.g. how was it done and what is the relationship of the offender to the victim). The penalty will generally be specific to the legal theory under which punishment or compensation is sought. One of the more obvious ones (if the stolen files are legitimately classified as trade secrets) is violation of the state's trade secret law: If a court finds that a defendant has unlawfully taken a plaintiff's trade secret(s), it may impose the following penalties and remedies: Criminal Penalties: Unlawfully taking a trade secret (defined above) constitutes the crime of larceny in Massachusetts and is punishable by up to five years imprisonment, or by a fine of up to $25,000 and up to two years imprisonment. See Mass. Gen. Laws ch. 266, § 30. Damages: A court can make a defendant pay money damages to the plaintiff in an amount up to twice its actual damages. See Mass. Gen. Laws ch. 93, § 42 Injunctive Relief: Massachusetts law gives a court the power to restrain the defendant from "taking, receiving, concealing, assigning, transferring, leasing, pledging, copying or otherwise using or disposing of a trade secret, regardless of value." See Mass. Gen. Laws ch. 93, § 42A. It appears that a court could order you not to publish a trade secret if it found that you had unlawfully taken it from the plaintiff. The First Amendment to the U.S. Constitution may limit the court's authority to do so, however. Another would be a civil action for conversion of intellectual or intangible property, or a criminal action for theft or sale of stolen goods. Depending upon the means by which the files were obtained, it might implicate common law fraud and criminal fraud offenses (including wire and mail fraud), and state and federal laws involving computer crimes. Another legal theory could be tortious interference with contract or tortious interference with business prospects. Less aggressively a common law constructive trust could probably be imposed on the digital files and the proceeds from them, and the person receiving the proceeds of the stolen files could be sued for unjust enrichments/restitution. In many cases, it would be a civil and criminal federal copyright law violation (if the victim owns the copyright and the files are copyrightable material). The proper offenses and hence the available remedies, would depend to a significant extent both legally and from a practical and litigation tactics perspective, on the means by which the digital files were obtained. | I can't comment on what the legal situation would be in your home country, but as a matter of U.S. law, the hypothetical scenario you've described is not illegal. First, because you aren't a U.S. citizen and because you aren't operating in the United States, the U.S. government probably has no jurisdiction over you, your website, or your conduct. Even if it did, the most relevant statute, 18 U.S. Code § 1017, would not apply. The statute prohibits the "fraudulent or wrongful" use of the FBI's seal. But "fraudulent" and "wrongful" generally refer only to conduct where one uses deception or other means to obtain money, property, etc. to which they have no lawful entitlement. United States v. Enmons, 410 U.S. 396, 399 (1973). Because you aren't using the seal to obtain anyone's property through deception, this use would not fall within the statute's proscriptions. Even if the government sought to prosecute you, you would have a valid First Amendment defense. The First Amendment protects the right to free speech, and it does not allow statements to be criminalized merely because they are false. United States v. Alvarez, 132 S. Ct. 2537 (2012). This outcome should be unsurprising to most U.S. observers. I think most people would agree that the U.S. obviously cannot prosecute a Hollywood producer for making a movie dramatizing the FBI's efforts to shut down the Pirate Bay, even if it displayed the FBI's seizure message on a monitor in the course of the movie, and even if it showed the seal being used on a completely fictional website. The hypothetical you're describing is not materially different. In both cases, the seal is being used to falsely create the impression -- for entertainment purposes -- that the FBI has shut down a website. Saying false things for entertainment purposes is not a crime in the United States. | The answer is more law than it is computer science. You can't tell if a Ponzi scheme is a Ponzi scheme by looking only at individual transactions in the scheme. The individual transactions involve buying something, selling it, entering into loan or investment contracts, and the like. What makes a Ponzi scheme a Ponzi scheme is that the promoters make their money primarily from the investors and individuals acting as sub-promoters in the scheme and not from end users of whatever is being nominally promoted by the Ponzi scheme. Only by analyzing the finances of a purported Ponzi scheme can you determine that it is indeed one. The individual transaction documents and transactions can be facially legal, but still be an illegal Ponzi scheme if the economics of the scheme as a whole are illegal. (Similarly, it is impossible to tell if an anti-trust violation is illegal simply by looking an individual transactions carried out in furtherance of the anti-trust violation. You can't tell if goods are being sold below cost to damage competition, for example, just from a single sale of goods transaction in isolation.) In contrast, many of the transaction at Silkroad were illegal in isolation - buying or selling controlled substances or child pornography or whatever else was forbidden to sell to the counterparty in the transaction. If you can just look at a single transaction and determine that it violates the law, it is much easier to develop the probable cause needed to do a fuller investigation or to make arrests. |
Copying Another Computer Program's Design I'm coming over from Stack Overflow because I cannot find any answers to my questions there, so I'm asking here. I've created a computer program that looks similar to Steam's (www.store.steampowered.com) This is what Steam's Client looks like: Here's what mine looks like: I could not find any patents on their design (Maybe I missed some). I don't know if this would cause any troubles with them considering I made mine completely from scratch using completely different styling and images (even different website inside the client that is mine). No reverse engineering was done either. The only thing I'm afraid about is copying their menus word-for-word. I wanted to do this to give customers a similar feel to what they are used to (I've seen many programs do this; however, Valve is a huge company. Is what I'm doing illegal if I sell / release a product like this? | I realize it has been eight months, but I believe I can offer an opinion. Given the nature of the question, please keep in mind that I am not a lawyer and my opinion is no substitute for professional legal counsel. [Preparing this post has been an educational experience and my opinion should in no way be interpreted as expert opinion] Assuming you have not infringed on any patents, the relevant legal challenges Valve could try include breach of contract, copyright infringement, and trade dress infringement. Breach of Contract The potential breach of contract occurs because the Steam client setup application requires you to accept a contract of adhesion (The License) before the software can be installed. I could not find a copy of The License online in plain text (this is separate from the Steam Subscriber Agreement, which you also agree to by accepting The License), but you can read it any time by running the Steam client setup application which is available at [redacted due to low rep - the Steam website]. These so-called "shrink wrap licenses" are of questionable legal value, depending on how the licensee assents to the contract. People often bring up Specht v. Netscape Communications Corp. In that case, the only reference to a license was on the download webpage, and it was only visible if the user scrolled down past the download button - Netscape argued unsuccessfully that clicking the download button indicated assent to the terms of the license. The Steam client setup application has a prominent dialogue box showing the terms of The License and requiring your explicit assent before installation can continue. A more relevant case may be ProCD, Inc. v. Zeidenberg, where the Seventh Circuit ruled that a license agreement was valid where the licensee had to click on a dialogue box assenting acceptance to the agreement. In short, you may be required to defend yourself under the terms of The License. If the licenses are thrown out as unenforceable, the prosecution would probably move towards copyright infringement. Section 1 Paragraph C of The License states (emphasis added): Except as expressly set forth elsewhere in this License Agreement, you may not, in whole or in part: copy, photocopy, reproduce, translate, reverse engineer (with the exception of specific circumstances where such act is permitted by law), derive source code from, modify, disassemble, decompile, or create derivative works based on the Program. Now you assert that there has been no reverse engineering, that you made yours "completely from scratch using completely different styling and images (even different website inside the client that is mine)". You may be challenged on these claims in court, for example comparison of source codes could rule out reverse engineering. I will touch on derivative work status later. Note that under Section 5, the provisions of Section 1 Paragraph C do not apply after you have uninstalled the Steam client software. This means in the case that you [can prove you had] uninstalled the Steam client software before making your own client, you would have a defense to breach of contract under Section 1 Paragraph C. However... The License also includes the terms of the "Steam Agreement", viewable online at http://www.steampowered.com/agreement. The Steam Agreement takes effect when you register for your Steam account. Section 2 Paragraph G of the Steam Agreement echoes the above referenced Section 1 Paragraph C of The License, and even survives termination of the Steam Agreement (your steam account being cancelled). Now assuming you can provide defense against reverse engineering, you may need a defense against the charge that your work is a derivative work. Your case may be pretty strong if you can show that your client was indeed written from the ground up - which rules out the possibility of deriving your program code from Steam's code as literary copyrights go. The prosecution could try saying you have copied the audiovisuals of their program, but your program was written "from scratch using completely different styling and images". Eventually prosecution may have to move into trade dress infringement. Copyright Infringement In a case of alleged copyright infringement, the first order of business is to prove there is a copyrighted work to begin with. The work in question is the Steam client by Valve Corporation. Again, I am not an expert but I could not find any copyright registration for the Steam client (http://www.copyright.gov/records/ -> Post-1978 Records -> Search by Name "Valve Corporation"). Copyright registration is required before infringement suits can be filed. Valve can register after infringement occurs but they will be limited to actual damages and profits. Nevertheless Valve does claim copyright over its product. A notice is posted on The License and Steam Agreement, and from the client itself the Help menu contains a command "Legal Info" which opens a webpage containing a copyright notice. Since 1979 it has not been necessary to post a copyright notice, but a notice helps break a defense of innocent infringement. You imply that you copied elements of the Steam client "to give customers a similar feel to what they are used to [the Steam client]". In your specific case innocent infringement may not be a valid defense. It seems you are most concerned about copyright infringement over the menus. An extremely relevant case is Lotus Development Corp. v. Borland International, Inc. In that case the First Circuit held that the menu heirarchy for Lotus 1-2-3 (the progenitor of virtually all menu heirarchies today) was uncopyrightable as a "method of operation" under U.S.C. 17 Section 102(b). We think that "method of operation," as that term is used in [U.S.C. 17 Section] 102(b), refers to the means by which a person operates something, whether it be a car, a food processor, or a computer. Thus a text describing how to operate something would not extend copyright protection to the method of operation itself; other people would be free to employ that method and to describe it in their own words. Similarly, if a new method of operation is used rather than described, other people would still be free to employ or describe that method. We hold that the Lotus menu command hierarchy is an uncopyrightable "method of operation." The Lotus menu command hierarchy provides the means by which users control and operate Lotus 1-2-3. If users wish to copy material, for example, they use the "Copy" command. If users wish to print material, they use the "Print" command. Users must use the command terms to tell the computer what to do. Without the menu command hierarchy, users would not be able to access and control, or indeed make use of, Lotus 1-2-3's functional capabilities. If specific words are essential to operating something, then they are part of a "method of operation" and, as such, are unprotectable. This is so whether they must be highlighted, typed in, or even spoken, as computer programs no doubt will soon be controlled by spoken words. The Supreme Court affirmed the decision with an even court (Judge Stevens recusing), so no national precedent was set. Nevertheless the ruling has not been overturned - the First Circuit goes into great detail explaining their decision, and I do recommend reading the ruling. We have already discussed derivative works and reverse engineering with contracts, and the same defense would apply under copyright law: source code comparison. Trade Dress Normally things like design and layout are left to patent law. A desperate prosecution, however, may claim that by copying their "look and feel" you infringe on their trade dress. The relevant text is part of U.S.C. 15 Section 1125(a) (emphasis added): (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which- (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. (2) As used in this subsection, the term "any person" includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity. (3) In a civil action for trade dress infringement under this chapter for trade dress not registered on the principal register, the person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional. Defense against such a claim would be showing that the elements of Steam's "look and feel" were adapted because of functional reasons - see example rationale in the previously mentioned Lotus v. Borland. Overall, so long as you did write the program from scratch and there are no patent violations, you have in my opinion a strong case. There may be moral questions about unfair competition (why should you be allowed to capitalize off Valve's work put into the Steam client?), to which I would point out that your product does not appear to be in direct competition with the Steam client. Without direct competition or confidence in evidence of IP infringement it is quite unlikely Valve will file suit against you. If you would rather avoid even the possibility of legal action, you could always contact Valve directly and ask for a license. | Affirmative authority that this particular use (incorporation of the format of another program's textual data files into your own program) is protected is somewhat elusive in the US system; however there's a lot of observable evidence that reverse engineering data file formats without a license is widespread. My sense is that this would be analyzed under the same rubric as other kinds of reverse engineering and/or fair use. I'm sure there are others here who are better able to clearly and concisely explain that law than I am. However there may be limits — it seems Microsoft was able to prevent VirtualDub's use of the ASF format by patenting it. That said, it's hard to see how an unencrypted, unencoded ASCII data file file could be patentable (i.e. where the ASCII strings are the data, generated in response to user input, and the format is just their order and separators, etc). For the European arena, there is recent authority in SAS Institute Inc v World Programming Limited that the format of a program's data files are not protected by copyright when reverse engineered without the source code. The following is from the digest and application of the CJEUs decision by the English court that referred it, in its subsequent judgment: The judgment of the CJEU On 29 November 2011 Advocate General Bot delivered his Opinion on the questions referred... Questions 1-5 The Court dealt with these questions together. It interpreted this court as asking "in essence, whether Article 1(2) of [the Software Directive] must be interpreted as meaning that the functionality of a computer program and the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and may, as such, be protected by copyright in computer programs for the purposes of that directive": see [29]. Having referred to recital (14), Article 1(1) and 1(2) of the Software Directive, Article 2 of the WIPO Copyright Treaty and Articles 9(2) and 10(1) of TRIPS, the Court went on: ... 39. [...] it must be stated that, with regard to the elements of a computer program which are the subject of Questions 1–5, neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program for the purposes of Article 1(2) of Directive 91/250. 40. As the Advocate General states in point 57 of his Opinion, to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development. 41. Moreover, point 3.7 of the explanatory memorandum to the Proposal for Directive 91/250 [COM(88) 816] states that the main advantage of protecting computer programs by copyright is that such protection covers only the individual expression of the work and thus leaves other authors the desired latitude to create similar or even identical programs provided that they refrain from copying. 42. With respect to the programming language and the format of data files used in a computer program to interpret and execute application programs written by users and to read and write data in a specific format of data files, these are elements of that program by means of which users exploit certain functions of that program. 43. In that context, it should be made clear that, if a third party were to procure the part of the source code or the object code relating to the programming language or to the format of data files used in a computer program, and if that party were to create, with the aid of that code, similar elements in its own computer program, that conduct would be liable to constitute partial reproduction within the meaning of Article 4(a) of Directive 91/250. 44. As is, however, apparent from the order for reference, WPL did not have access to the source code of SAS Institute's program and did not carry out any decompilation of the object code of that program. By means of observing, studying and testing the behaviour of SAS Institute's program, WPL reproduced the functionality of that program by using the same programming language and the same format of data files. 45. The Court also points out that the finding made in paragraph 39 of the present judgment cannot affect the possibility that the SAS language and the format of SAS Institute's data files might be protected, as works, by copyright under Directive 2001/29 if they are their author's own intellectual creation (see Bezpecnostní softwarová asociace, paragraphs 44 to 46). 46. Consequently, the answer to Questions 1–5 is that Article 1(2) of Directive 91/250 must be interpreted as meaning that neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs for the purposes of that directive." Regarding the idea that the user has rights to access their output of a program held in a proprietary data file format there is some additional discussion in the that might be helpful in paragraphs 48 - 62 (of the CJEU opinion), discussing the right of a licensee to 'study and observe' the 'underlying' 'ideas and principles' of a program to accomplish 'acts of loading and running necessary for the use of the computer program.' | Copying is illegal, creating an identical work by coincidence isn't. If it is not a criminal case, then a court decides whether it is more likely that the identical work was created by copying or by coincidence. Creating an identical work through a random process isn't going to happen, claiming this would be an awful defense. On the other hand, it is quite possible that two software developers using very stylized code adhering to struct coding conventions can produce quite large bits of identical code. Your links titled "metadata" and "hash" don't actually link to a description of metadata, or the description of a hash, but to a description of torrent files, which is something totally different. Systematically distributing files whose only purpose is the illegal duplication of copyrighted works should not be done without consulting a lawyer, as has been said on other threads (whether posting links to copyrighted files is legal). The chances that a random process will generate a file identical to an existing copyrighted file of say over 100 bytes are virtually zero. If there is an illegal copy of a copyrighted file, and you claim that you created it through a random process and coincidence, you will lose, and deservedly so. | It's really your client that should be asking these questions. Writing the app is perfectly legal. So you can enter a contract with that client to write the app and deliver it to them, ready to be put on the Google Play store or the App Store (entering a contract needs to be done carefully, obviously). I'd make 100 million percent sure that the contract states clearly that you have zero responsibility if the app is rejected or removed for non-technical reasons, and that the legality of actually selling and running the app is also not your responsibility. The reason is that I very much suspect that running the app might be illegal, and that the chances of getting it permanently on one of the stores are rather slim. And solving those problems is outside of what a software developer can competently do. | 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. | "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. | Yes, this could become an issue Trademark infringement occurs when you use another’s trademark in a way that could cause confusion to the consumer. Is it possible that people will be confused that your company produced a game of the same name? Yes. Is that trademark infringement? Possibly. Would a company like Bethesda take you to court to find out? Possibly. Can you avoid this risk by choosing a different name? Yes. Does this cost anything? No, as a new business your ‘brand’ has zero value right now. Should you choose a new name? Well, it’s your business - make a business decision. | united-states Functionality in general is not protected by copyright, although it may in some cases be protected by a patent. As the question noted, there are many IDEs and creating another one generally similar to those is not a violation of anyone's IP rights. The "look and feel" of a piece of software has been held by US courts to be protected by copyright. Broderbund Software. Inc., v. Unison World, Inc., 648 F. Supp. 1127 (N.D. Cal. 1986), was a relativcly early case in which the visual display elements of a software program were held to be protected by copyright. In the decision it is said that; On the “Choose a Font” screen, no mechanical or practical factor compelled [defendant] to use those exact words (“Choose a Font”). He could have written: “Select a Font,” or “Indicate a Typeface Preference,” or “Which Type Style Do You Prefer,” or any combination of these terms. . . .The bottom line is that the designer of any program that performed the same functions as “Print Shop” had available a wide range of expression governed predominantly by artistic and not utilitarian considerations. Another relevant early case was Digital Communications Associates, Inc. v. Softklone Distributing Corp., 659 F.Supp. 449 (N.D. Ga. 1987). In this case, the Defendant "oftklone intentionally set out to "clone" or copy the functionality and interface of the popular program Crosstalk XVI (I was a user of thwt program many years ago). The court wrote: In the instant case, however, the arrange- ment of the status screen involves consider- able stylistic creativity and authorship above and beyond the ideas embodied in the status screen. It cannot be said that the idea of the status screen, i.e., using two symbol commands to change the operations of the computer program and reflecting that fact on a screen listing the computer program’s parameters/commands with their operative values, could not have been expressed in a large variety of ways. The defendants have never contended that they could not have arranged the parameters/commands in a wide variety of patterns without hampering the operation of their program. and found copyright infringement on that basis. Section 310 of Copyrightable Authorship: What Can Be Registered by the US Copyright office, says: The U.S. Copyright Office will not consider the so-called “look and feel” of a work. Invoking a work’s “feel” is not a viable substitute for an objective analysis of the work’s fixed and creative elements. See 4 MELVILLE & DAVID NIMMER, NIMMER ON Copyright § 13.03[A][1][c] (2013) (criticizing the use of “feel” as a “wholly amorphous referent” that “merely invites an abdication of analysis”). The question asks: How far can I go in copying the user interface before it becomes copyright infringement ? There is no clear bright line on this matter. The more one copies interface elements and choices from a specific source, the stronger the case for infringement is. Using elements and choices that have become common industry practice in multiple works froim multiple developers and companies is probably safe. Clearly and extensively imitating the visual appearance and interface of a single specific work of software might well be infringement. One would be wise to consult a lawyer with experience in copyright law, and specifically "look and feel" issues, beforign publishing such a work of software. This issue is discussed extensively in Look And Feel In Computer Software (1993) by Jack Russo & Jamie Nafziger, published by Computerlaw Group LLP, which seems to be a law firm specializing in computer law. The Law of Look and Feel by Peter Lee (Professor of Law and Chancellor’s Fellow, University of California, Davis.) & Madhavi Sunder (Senior Associate Dean for Academic Affairs and Martin Luther King, Jr. Professor of Law, University of California, Davis.) is a 60-page law review article dealing with this topic. There is far more detail in these publications (and many others to be found on the net) than I can summarize in an SE answer. Configurable Interfaces The question asks whether the use of a configurable interface which could, but does not by default, imitate an existing interface would be infringement. I have not been able to find any case on point, or any discussion in a reliable source of this issue. Therefore, I am going to speculate. If there is a single choice between overall "themes" or "shells" and one of them imitates the interface from a protected program without permission, that would probably be legally the same as if the program shipped with that interface. It might or might not be infringement, depending on the details, as discussed above. If there are many settings, but the program is shipped with instructions advising a combination of settings that imitate another interface (or the developer or distributor provides such advice to users), that would probably be legally the same as if the program shipped in that configuration. If the developer provides a few preset configuration files which control these interface settings, and one such file results in settings that imitate another interface, that would also probably be legally the same as if the program shipped in that configuration. If there are many settings and there is no particular guidance or advice to a user on what combination to use, nor any predefined settings file, but users must discover (if they choose) a group of settings which imitate another interface, that is probably not infringement. I repeat that this section of the answer is based on general principals, but not on specific case law, nor on specific legal scholarship, and a court faced with this issue might rule otherwise. Before implementing this as a business plan, one might be wise to consult a lawyer with IP expertise. |
Why would a plaintiff settle for less after winning a case? In the news right now is Hulk Hogan settling with Gawker for $31 million. This is a significant drop from the original $140 million judgement. What motivations would Hogan have for accepting this settlement? Why wouldn't he just demand the full amount? My first guess was that Gawker may just not be able to pay the $140 million, but even in that case wouldn't Hogan still get the $31 million that Gawker is able to pay? | Because of the appeals process. By settling now he: Gets the money now rather than in 2-3 years when the appeal finishes Gets $31 million rather than whatever the appeals court decides (which may be considerably less) | The note you have quoted does not accurately summarise the decision, which is available on BAILII. What happened was: IOC agreed to sell 5,000 tons of salt to Mumtazzudin. Atlas paid IOC for the salt on behalf of Mumtazzudin. Because Atlas paid, Atlas received the bills of lading. Thus, the salt was pledged to Atlas to secure the money owed by Mumtazzudin. Atlas endorsed the bills of lading over to Chabbra for value. In other words, Atlas sold Chabbra the right to be repaid by Mumtazzudin, and to take delivery of the salt as security for the debt. Mumtazzudin persuaded the shipowner to hand over the salt without presenting the bill of lading. Chabbra sued the shipowner for conversion (destroying the value of its security). What does “refused to redeem the pledge when the bills of lading were tendered to them by Chabbra” mean? Chabbra, as the pledgee of the bills of lading, was entitled to possession of the salt, until Mumtazzudin “redeemed the pledge” by paying Chabbra the amount originally advanced by Atlas. But Mumtazzudin managed to get the salt without the bills of lading, so it refused to pay Chabbra. Why would a savvy seller even transact with buyers who couldn’t pay for the transaction upfront? The alternative may be that the sale is not made at all. However, that is not what happened in this case – the seller got paid. | Under U.S. law, this is only actionable is you make this statement knowing that it would not "support the continued creation of X" and that instead, you had already completely abandoned that product and you were, for example, planning to change lines of work and become a lumberjack instead. Even in that case, common law fraud is hard to show, because you would need to show how that statement which related to how the profits will be used, rather than what you are actually receiving, could cause you damages in that narrow transaction. But, many states have deceptive trade practices acts that protect consumers by allowing the attorney general, local prosecutor, or a private individual or class of plaintiffs to sue if representations such as these are made when they are known to be false. Typically, these lawsuits provide for minimum statutory damages, attorneys' fees award, and when cases are brought by a public official, injunctive relief (ordering the advertising with that pitch to cease) are authorized. For example, saying this when it is false would be actionable in California and Colorado. A fairly common fact pattern is that someone will sell stuff at an above market price saying that "profits will help me pay for my cancer treatments" when in fact the person doesn't have cancer. This could even constitute criminal wire and mail fraud, for example. Sometimes, competitors can also sue you under the Lanham Act (which primarily governs federal trademarks), for false advertising about something that could unfairly undermine their sales if what you are saying isn't true and is causing their sales to drop. On the other hand, if you sincerely believe that what you are saying is true when you say it, and your belief is not so unreasonable that no reasonable person could believe that under the circumstances, then what you are saying is legal. Usually this is true, and if it is, ultimately, you will be fine. Although nothing can prevent you from being sued on a non-meritorious basis. In between are cases where this is true (you will be supported, but perhaps only get 5% of the profits while the rest are garnished for a lawsuit), but your statements were still misleading at the time you made them and you knew it. Those cases get resolved on a case by case basis. Outside U.S. law, your mileage may vary. Legal regulation of commercial speech varies significantly from one country to another. These statements might not be O.K. for example in a Communist regime on the Chinese or Korean model. | As I understand it, you can pretty much sue anybody for anything. The question, of course, is would you win the suit? All the lawyers here can correct me, but I believe in order to win, you would have to Show standing, that is, they're your comments and not someone else's Show that it's a deliberate act, and not just someone accidentally clicked the wrong checkbox. Show that it was an act by the agency and not by Facebook, for example. Show that you've been singled out for your viewpoint (they allow some people's comments) Show that there is no other reason to delete your comments (they're obscene, or advocate for an illegal act, for example). I'm probably missing something else. The real question is, even if you could demonstrate all these things, would it be worth it? You may spend $1,000's and you might not recover your legal fees. The case might take years. | A settlement is fundamentally a contract where parties A and B promise to do certain things (one of them being "stop litigating"). A court order is an enforceable order to do something. A contract cannot be directly enforced (where force is used to make a person comply), it requires a court order for actual enforcement. The conditions of a contract might be enforceable, but you can't get the sheriff to come out based just on a contract. It appears that you got to the "facilitation" phase where the parties talk about the issue and the CRT case manager talks to the parties in neutral terms, aiming for an agreement. If you don't reach an agreement, the Tribunal Decision Process escalates the matter. Under the decision process, the CRT member makes a decision, and it can be enforced in court. They state that "For a $25 fee, the CRT can turn your agreement into an order, if both parties agree that an order should be issued. This is called a “consent resolution order”." I suppose that you did not go through that step, and you only have an agreement. So you would need a separate court process to get a court order. Because everything that you did in this negotiation phase is confidential, if you want CRT to give you something that is enforceable, you have to present the case from the beginning, since they don't have access to what has happened before. The problem in your account is that a settlement has to be reached by yourselves – possibly with the assistance of the CRT case manager. I assume you did actually get a settlement (agreement) with the landlord, but have not filed for a consent resolution order. It may be that the case is too old for you to just pay the $25, and it does require agreement by the other party. Read their FAQ about how cases end. | It sounds to me like the parties made proposals with an intent to draw them up and formalize them but didn't intend to form binding agreements. The first agreement sounds vague. The second was committed to writing, suggesting that the written deal was to be the real agreement, and not executed. In the last case, it doesn't appear that there was an agreement because there was no meeting of the minds on the essential term, which was the price. Going to court is expensive. It is expensive whether this is litigating underlying disputes or trying to enforce an alleged oral settlement that is disputed. Also, settlement discussions that don't result in a resolution are not admissible as evidence in court. Making a deal would be nice, but Dave's concept of what constitutes a deal seems to be out of touch with reality. | Strictly speaking, if party X agrees to indemnify party Y for damage Z, then X is only agreeing to pay Y for realized damages Z. Example: I agree to print something you wrote about about Acme. In exchange, you agree to indemnify and defend me against any defamation claims by Acme. Acme sues me for defamation. Since you agreed to defend me, you have to provide a legal defense against Acme's lawsuit. If you didn't agree to indemnify me, and Acme wins a judgment, you wouldn't be obligated to pay the judgment. If you only agreed to indemnify me, you could choose to let the lawsuit run its course without providing any legal defense. Indemnification only requires you to pay any judgment Acme might win. | In general, the perpetrator can be sued by anyone who suffered harm as a result of his actions. The fact that he's also being prosecuted criminally doesn't change that, nor does it matter whether or not the victim is a "celebrity". The perpetrator could, for instance, be sued by any or all of: the victim himself, for his pain and suffering and loss of earnings the victim's club, for the financial loss due to the player not playing the victim's medical insurer, for the cost of his care. However, even if any of these plaintiffs win their case and are awarded some huge sum of money, it doesn't help them if the perpetrator doesn't have the money. They can only actually collect what the perpetrator has, and possibly some fraction of his future earnings (which are not likely to be very much if he is in prison). So unless the perpetrator is quite wealthy, it's unlikely they would go to the trouble and expense of a lawsuit. |
What is the legal status of hentai Japanese visual novels and manga in the US depicting minors? My common sense says no. If someone took a piece of paper and a pencil and drew some very detailed pictures of 2D anime people. It feels insane that that would be enough to constitute felony possession. This entire wikipedia list suggest otherwise: https://en.wikipedia.org/wiki/Legal_status_of_cartoon_pornography_depicting_minors#18_USC_1466A where it looks like several individuals were convicted only on the possession of drawings. Certainly, if an artist is using technology to image real minors into his artwork, then that would be a common sense violation of the law. But that doesn't appear to be the case. Clearly there must be some line separating safe and illegal between the extreme examples. | One relevant US law is Title 18 Chapter 110. Using real children in porn is against the law, as is most anything connected to it (permitting children to do it, distributing, buying...). Under the definitions (18 USC 2256(1)) “minor” means any person under the age of eighteen years. The possible hook for cartoons is via the definition of “child pornography” which is any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where— ... (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. My guess is that hentai doesn't satisfy this definition, since I hear that the characters in a cartoon don't actually look like real people. However: there are also general laws against obscenity in some jurisdictions, and in US v. Whorley, it was held that you can still be convicted of receiving obscene material (Japanese child porn cartoons) – SCOTUS refused to hear an appeal. Most cases that are prosecuted also involve real child porn, or plea bargaining. In light of Whorley, it hasn't been definitively determined that hentai is against the law, but the first step has been taken. | Yet I publicly wear shirts with copyrighted designs all the time. I'm unclear about this; do you mean T-shirts you have made yourself using copyrighted images or T-shirts you have bought? If the former then it is a prima facie breach and you could be sued by the copyright holder. You would probably not be as it would be impracticable. If the latter then there are 2 possibilities: The manufacturer/distributer/retailer chain all hold valid licences to put the image on a T-shirt and display it in the usual way so there is no breach involved. The manufacturer/distributer/retailer chain does not hold a valid licence in which case there is a breach and the copyright holder would target, say Wall-Mart rather than you. what about displaying ... works of art in my yard? Notwithstanding that it can be viewed from a public space, your yard is not public; therefore this is not public display. | In general, using content provided by another who incorrectly posted it under a permissive license, such as a CC license, does not grant a valid license from the real copyright holder. That is, if A writes some code (or a song, or creates an image, or whatever else), it is protected by copyright. If B then posts it to the web, with a statement that it is released under a particular license, without having obtained permission from A, then B's "release" is of no value, because B had no rights to grant. If C downloads and uses this content, relying on B's license, then A could take legal action against C. C would probably be considered (in the US) an "innocent infringer" which reduces the minimum statutory damage amount, but does not otherwise change C's legal position. A could, if it chose, bring suit and possibly obtain a judgement including some damages. But to return to the practical case of code posted on one of the SE sites. Given the comparatively short code sections usually posted, and that they do not usually form a complete working program, and given further the stated educational purpose of SE, it is likely that in US law such a posting would constitute fair use, and in the law of other countries fall under one or another exception to copyright. That is a general conclusion, the details would matter. I have not heard of a case similar to that suggested in the question. I find it unlikely that an SE poster would post copyright-protected code without permission, that is valuable enough to be worth an infringement suit, and substantial enough and having enough effect on th market for the original to be outside the protection of fair use. Such a situatiion is, of course, possible, even if unlikely. Note that a cease-and-desist letter is not a court order, and is really only a threat of court action. its only legal effect is to put the recipient on notice, so that continued infringement is not without awareness of the copyright claim. To have legal effect the claimant must actually bring an infringement suit, which is not without cost. | You don't seem to be distinguishing properly between "original artwork" and photographs of it. A 19th-century painting will be out of copyright, so you can set up an easel copy it yourself, or even take a photo if the owners don't mind; your copy can be used however you please. However, other people can't use your photograph without your permission. Similarly, if you want to reuse a photograph used in an art book, the important thing is the copyright on the photograph, not the painting. | Jurisdiction: Ohio. What charges might this kid face? Let's deal with each individually. Possession of Child Pornography Based on the facts contained in your narrative, the suspect is guilty of possession of child pornography. Here is the relevant code statute. (2907.323 Illegal use of minor in nudity-oriented material or performance.) There might or might not be a problem with the admissibility of the evidence under the circumstances. This defect can be cured if the prosecution obtains a search warrant for the suspect's computer as possession alone meets the statutory threshold. Aggravated Robbery In Ohio, aggravated robbery is not a strict liability (i.e., statutory) crime. Therefore, mens rea (mental state) of the offender can be a legal defense. In this case, the suspect can argue duress as an exculpatory and/or mitigating factor. Here is the relevant code section. Murder As you pointed out in your narrative, the facts suggest the suspect killed in self-defense and, therefore, is not guilty of murder. | Photographs of objects other than flat artworks, including pretty much all the things you list except in some cases oil paintings, involve creativity and originality in composition, positioning, lighting, and other aspects, and each such photo would be copyrighted by the photographer (or the photographer's employer in a work-made-for-hire situation). Such photos (or copies of them) could be sold if the copyright owner chooses to, just like any copyrighted work. If the object being photographed is itself a work of art, and if it is recent enough that it is still under copyright protection (See this chart for US rules on copyright terms), then the photo would be a derivative work, and the permission of the copyright holder on the original would in theory be required. But such a requirement could only be enforced by the copyright holder on the original work filing suit, and if the work is not clearly identifiable this might not be likely. If the photographer knows the name of the original artist, and the work seems likely to be still in copyright, an attempt to secure permission would be at least good practice, and quite possibly legally essential. For a flat (2D) work of art, such as a painting, if the photo attempts to reproduce the original exactly (a "slavish copy" ), then under the Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) decision, the photo will not be original and so will not be protected by copyright. See this question and its answers for more on Bridgeman A photo of a painting on a stand, showing the painting and its frame, and not trying to just reproduce the painting exactly, will not fall under the Bridgeman rule. This answer is quite US-oriented. Much of it will apply in any country which adheres to the Berne Copyright Convention but the details may vary, and if a different jurisdiction is intended, that should be stated. | If I lock you in a room without access to anything and tell you "Write a novel" and you write a novel with characters, you have copyright in the work. But it's not absolute: If you use your own characters, you own all the copyright in the work, but not in the idea, as ideas are not copyrightable, see Feist v Rural. If you use someone else's characters extensively (as in more than a short hommage/cameo), you very likely make a derivate. You own a copyright in your part, as in the expression of the story or pictures you created, but you do not gain property interest in the existing characters' expression. Since the copyright to the characters lies with the owner of their IP, you need their OK to release (and also to even make) your work - as with the owner of a copyright is the sole right to decide on distribution and creation of derivates under 17 USC § 106 (2). Also remember that making an unlicensed derivate work risks having nothing you can sue for in case the original copyright owner lifts your ideas and scenes-a-faire parts and adapts them for their own derivate, see Anderson v Stallone The strange case of fanfiction chains... Now, there is a strange situation when a work is based on a work which is based on a work... Then, publishers and editors start with red ink and the result is, that what people know as Twilight now has nothing to do with the fanfiction it started as (It wasn't Vampires in the original draft), and 50 Shades of Grey ended up striking any and all supernatural from it, despite it having been a Twilight fanfiction originally. By making own characters and own expression of the world, there could be no copyright infringement. US law vs Egypt law? Both Egypt and the US have signed the Berne convention, meaning that copyright is very very similar in the broad strokes that the right to allow or disallow derivates is with the copyright holder. Also, since Ben10's copyright owners are to the best of my knowledge in the US (Cartoon Network Studios & Men of Action Studios), they will sue in a US federal court. | In NSW Australia this is covered by Division 15A of the Crimes Act 1900 which deals with Child Abuse Material. Under Section 91FA a "child" means a person who is under the age of 16 years - the situation you describe would be between consenting adults in NSW. “Child abuse material” can be text or images that are sexually explicit and would be “offensive” to a normal person (which means offensive to the particular jury) Assuming Jane is 15 or less, however, prima facie the image would be child abuse material and under Section 91H "A person who produces, disseminates or possesses child abuse material is guilty of an offence." The punishment is up to 10 years in jail. Section 91H provides a number of defences, the most relevant to the circumstances you describe being: that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material. that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it. (for possession only) If, considering all the circumstances of the relationship, Joe doesn't know and could not reasonably be expected to know Jane's age then he can use the defence under S91H(1). If he did not request the picture and as soon as he was aware of Jane's age, deleted it, then he can use the defence under S91H(2). The outcome is not so rosy for Jane: she is guilty of both production and dissemination of child abuse material and (assuming she knows how old she is) faces up to 10 years in jail (14 if she is under 14) and registration on the Sex Offenders List for life. It is admittedly unlikely in the circumstances that the state would prosecute her and, if they did, it is very likely that the judge would rule that no conviction be recorded. |
Can I file a small claims suit against a company that is shutting down? This summer I did freelance work for a very early stage startup. We had a contract for an 8 week project wherein they should have paid me half of the fee after 4 weeks, and the rest after 8 weeks. Four weeks came and went, and I received no payment. When I contacted them they said that they had issues with one of the founders, and asked me to pause the work. Since then (it's been 5 months), they have avoided all contact with me and I have yet to be paid. I finally got a hold of them last week and was told that they are in the process of shutting down the company, and was offered about 20% of the payment owed for the first 4 weeks. My question is - what will be the likely outcome be if I file a suit in small claims court? I know that the company has not been shut down yet, but they mentioned that it will be done by the end of the month. Should I rush to file a suit before the end of the month? Will it make a difference? | Suing them and winning may not be that difficult, and you can generally sue a business even if it ceases to operate as a going concern. Collecting the judgment you win, however, is likely to be very difficult. Still if you are going to sue, the sooner the better, because outside of bankruptcy, the general rule is that the person who is first in time to actually seize the available assets of a company with more debts than assets is first in right to those assets. Also a squeaky wheel is often the one that gets the grease. "Shaming" companies on social media often works for going concerns, but is rarely effective when a company is actually going out of business soon. There are special remedies available against recipients of improperly diverted funds when funds are deliberately sucked out of the organization without receiving anything in exchange for its money (this is called a "fraudulent transfer"), but those cases are expensive to bring and hard to prove. Often in the case of a legitimately failing business, operating losses and not improper diversion of funds from the company, is the reason that it doesn't have enough money to pay all of its debts in full, so this remedy is not available. Winning a lawsuit simply gives you a piece of paper stating that the defendant owes you money which you can then use to seize money and property from the defendant and/or people who owe the defendant money, if you can find either of those things. But, you can't get blood out of a turnip, and the alternative formal collection mechanism (forcing an involuntary bankruptcy) requires the coordination of multiple significant creditors and may not provide much better results if the company has genuinely run out of money, although unpaid wages are often entitled to priority in bankruptcy up to a certain dollar amount which is a preference that is not generally available outside of bankruptcy court. There are sometimes laws that can be invoked to hold people affiliated with the management of a defunct business personally responsible for unpaid wages (sometimes the Fair Labor Standards Act (FLSA), and sometimes state wage claim acts). And, very rarely in egregious cases that affect lots of people where there was an intent to stiff you before you finished earning new wages at the company, a local or state prosecutor will prosecute a company or its officers for "wage theft". Finally, "freelancers" often have far fewer rights in efforts to collect wages than true employees, so a mere independent contractor is in a weaker position and should consider that fact when deciding whether or not to settle. Bottom line: consider seriously accepting a settlement because the cost of collection and the unavailability of assets to collect from once it goes out of business may make a bird in the hand worth more than two in the bush. | This is an increasingly common practice in the UK for dismissals, especially for reasons of redundancy. What is going on here is that they are attempting to enter into what until recently was known as a compromise agreement, and is now termed settlement agreement. Normally, when you are made redundant, you are entitled to statutory redundancy pay (amount depends on age and length of service; see https://www.gov.uk/redundant-your-rights/redundancy-pay). You can take this and do not need to sign anything. However, sometimes companies make slightly more generous offers in exchange for you agreeing not to take them to tribunal/court or discuss/disclose certain matters. This would often involve more money and an agreed reference. These agreements only have legal standing if you have taken legal advice from a person qualified to give it. The UK's national conciliation and arbitration service ACAS has information on settlement agreements at http://www.acas.org.uk/index.aspx?articleid=4395 Therefore the employer is offering to pay legal fees because they need you to get advice before you sign a document which protects them. They are suggesting solicitors because they know of solicitors willing to do this work for the price they are willing to pay. Some companies will do this for every dismissal and have a have a standard package for enhanced redundancy. Other companies decide for each case. Before you proceed to arrange a solicitor, you should check: That you are free to choose another solicitor who will do the same for £500. That this will be paid whether or not you agree to the terms. What your length of service is, what your statutory entitlement is and what the difference is between that and what you are being offered. You should also think carefully about whether you have any potential claims against the employer - for instance, if you think you are not being made redundant because the employer is doing less of a particular type of work but because you have raised issues of discrimination. You are probably being asked to give up your right to pursue this. In terms of choice of solicitor, a solicitor which gets work from employer recommendations probably won't be too forthright in encouraging you to challenge unfavourable terms (even if they do not work for employers). If you are a member of a trade union, they will be able to suggest lawyers who do settlement agreements for employees on a regular basis. If not (and I assume not as otherwise they would be helping you through this), I would suggest finding a firm that specialises in representing employees - some solicitors' firms like Thompsons and Morrish are pretty open about their focus. | 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. | Can a lawsuit naming multiple defendants be partially dismissed? Yes. This happens routinely. As one random example, in a recent 7th Circuit case, there was no doubt that the Plaintiff had stated a legally valid claim against two off-duty Indianapolis officers who choked a bar patron unconscious, dragged him facedown to parking lot, beat him still further, emptied his wallet, and left him covered in blood. But, the Plaintiff also named the city that employed them in its municipal police department when they were on duty as a defendant. The trial court denied the city's motion to dismiss, and a jury awarded $1.2 million of damages against the city as well. The 7th Circuit, however, held that the trial court should have dismissed the City that employed them as a defendant, since it did not have legal liability for the off duty conduct of its officers, and the City further purged itself of any claim that it adopted a policy tolerating this conduct when it fired the officers after learning of the incident. On the other hand, a plaintiff can sue defendants in the alternative and only has to dismiss a defendant when it is clear that no reasonably jury could hold that particular defendant liable. For example, suppose that a house with a structural carpentry defect was built by two framing contractors. It is clear that the defective work was all done by a single framing contractor and that it was defective, but there aren't good records of which contractor did what work. The Plaintiff can properly sue both framing contractors in the alternative for the damages caused by the defective framing work, and can leave it to the jury to decide on the merits which of the two did the defective work if the question isn't cleared upon unequivocally before then. | Generally, a managing member of an LLC cannot speak for the LLC in court. The LLC needs to hire a licensed lawyer to do that. The general rule is that entities may not represent themselves "pro se" through non-lawyer officers and must have a licensed attorney represent them in any court matter (in practice, a court will usually allow an officer or manager to write a letter to the court asking for a brief extension of time to a deadline to obtain a proper lawyer, even though that is logically inconsistent). If an entity does not hire a lawyer, a default judgment will enter against it. In other words, a CEO or manager or managing member of a company isn't allowed to speak for it in court. This rule is almost universal in the world of legal systems descended from English common law, although sometimes there are narrow statutory exceptions. The manager of an LLC is a person to whom legal process may be directed to begin a lawsuit, but that isn't the same as representing the LLC in court. Wyoming does have an exception to the general rule for small claims court cases at Wyoming Statutes § 1-21-202(b), which states: Notwithstanding the provisions of Chapter 5 of Title 33 of the Wyoming Statutes, in small claims court, the state, governmental entities, natural persons, corporations, partnerships, associations or other organizations may litigate actions on behalf of themselves in person or through authorized employees, with or without an attorney, provided that if an attorney appears, the opposing party is entitled to a continuance for the purpose of obtaining an attorney of its own. Keep in mind, however, that small claims court only governs claims of $6,000 or less, and only in cases where the Plaintiff has elected to file a suit using small claims court procedures. I note that this question is tagged "small claims court" but it isn't clear from the circumstances set forth in the question whether this is merely a claim for a small amount of money or is truly a claim that was filed using the special small claims court procedures in which an attorney is not required. Wyoming Statutes § 33-5-101 et seq. is the law regulating attorneys which prohibits the unauthorized practice of law that is the basis for the general rule at Wyoming Statutes § 33-5-117 which states: It shall be unlawful, and punishable as contempt of court, for any person not a member of the Wyoming state bar to hold himself out or advertise by whatsoever means as an attorney or counselor-at-law. This statute isn't perfectly clear on its face, but is understood to codify the universal common law rule so it isn't ambiguous in any way. | A court can neither sue nor be sued as it is not a legal person. The state (read government) can be (subject to sovereign immunity) in its administrative arm (i.e. not the judicial or legislative branches). For your particular examples: A suit filed by a fired employee (e.g. a court stenographer), the court has no employees. Court stenographers et al are employed by the administrative branch - the person who gets sued is the Secretary of State for the Justice Department (or whatever they are called). A suit filed by a utility company for late payments for electricity, Utility companies are not the government even if 100% government owned (most are privately owned anyway) - companies are their own legal person. A suit against a postal service that failed to deliver and lost court documents, etc. I do not know what the legal status of the US Postal Service is - it is either part of a government department ora government owned corporation - see above. The court is impartial because it is constitutionally required to be - it doesn't care who the plaintiff or defendant are. | You need a lawyer There is no magic phrase to do what you want. The company will care about defending their assets, while you will want to defend yours. Only a lawyer will be able to tailor the condition that makes sense based on what your job's domain covers and your side projects. It is entirely possible that your personal projects conflict with your employer's, and you must then put your personal projects on hold or risk getting sued. e.g.) developing two pieces of software that does the same thing. Your lawyer will be able to advise on how that looks and what to do. No random strangers on the internet can give you accurate advice. | Landlord-tenant law is an area that is heavily statute-based, jurisdiction-dependent, and far from uniform across the country. A complex, specific, multi-part question like this one is not going to get a simple answer. In general, though, I can clear up some of the confusion with a quick example. Let's say you abandon your lease, but as you do so, you write a letter to the landlord saying: "While I won't be living there any more, my friend's band needs a place to practice. They have agreed to pay half my rent if you let them play there 4 nights a week. They'll be starting on Tuesday at 11 PM: please have a set of keys waiting for them at the front desk." The landlord does not give your friends the keys. They re-key and clean the apartment and rent it two months later. Are you going to stand up in court and argue, with a straight face, that you should only be liable for half the rent for those two months because of the landlord's "failure to mitigate"? Again, jurisdictions differ, but the duty to mitigate is not absolute. If the landlord could rent out a $1,000/month apartment for $5 a month, it doesn't have to do that, and you can't make the Court take $5 a month off their damages if they refuse to do so. Also, you seem to be confused about what subleasing is. A sublessor owes duties to you; you still owe the duty to your landlord to get the rent paid. A sublease is an agreement between you and a third party to pay you rent. It does not affect your relationship with the landlord at all, unless it's a breach of your agreement with the landlord or of local law protecting the landlord from unauthorized subleasing. |
If my mom refuses to take in my brother, is that abandonment? My 15 year old brother is currently living with me in California. I am planning on taking him to stay with my mother in the next several days (also in CA). She does not own a home; she stays with a friend. She has told me "he can't stay here," but I still plan on taking him. My question is: if she refuses to take him in, is that abandonment? I don't see her recourse if I drop him off and drive away, but I'm curious what the laws are about this. She has not cared for him for over a year but still has legal guardianship. Please do not respond with comments such as "you shouldn't take him." As many people know, family dynamics can be messy. | Abandonment is not the legal concept to be concerned with (though the situation might fall within the ambit of a law that uses the word "abandon"), instead the question should be about the legal obligations of a parent. California Family Code is what you want to look at. Though a look at the criminal act of "child abandonment" can be informative: section 271 and following indicate that there are some penalties for abandonment-like actions for children between 14 and 18, but the acts would have to be "willful" and "without lawful excuse" (which probably includes "inability to perform"). In the Family Code, section 7822 states when proceedings can be brought. For example, if (2) The child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child's support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child. Section 3900-3901 says that the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child's circumstances. The duty of support imposed by Section 3900 continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first. Nothing in this section limits a parent's ability to agree to provide additional support or the court's power to inquire whether an agreement to provide additional support has been made. There seems to be a formula for computing expectations of support: but the law won't require a person to pay money that they do not have. The law also will not compel a third party to take in an guest, nor will it compel the mother to become homeless (i.e. order the third party to take in the child or eject the mother). The courts could easily require the mother to take financial responsibility for the child. | 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). | What is emancipation of a minor? As I understand it, in some states in the US, a minor (i.e. younger than 18) who is at least 16 years old, can petition the state for emancipation; i.e. legal separation from their parents, and allowed to enter the world as a legal adult, despite being younger than 18. However, in order to be granted this, the minor must prove that they are capable of supporting themselves financially, that they have somewhere to live, and a few other things. This is true in some places, but not others. There are two different concepts for emancipation under U.S. law, and most states follow one or the other. One concept is that emancipation is a factual reality that exists when a minor is self-supporting or supported by a spouse or significant other, and not living in the household of a parent. In states that follow this concept, such as Colorado, a court ruling that a minor is emancipated is simply a finding of fact about what is, rather than a grant of permission. Another concept is that a minor is, as a matter of law, not emancipated until a court grants minor permission to deviate from the status implied by their age. My understanding that this is the concept used in California. In these jurisdictions, emancipation is granted only after an good faith attempt to give notice to the parents and a hearing, and involves an assessment of the capacity of the minor to be self-supporting without parental assistance and involvement. The question is focused on this concept, but it is not the only one and it is probably a close call as to which approach is the majority rule in U.S. states. Even in "permission" states, however, entering military service or marriage usually results in emancipation as a matter of law without any formal court proceeding. Common fact patterns There are certainly cases in which the fact that a minor is married or living in the household of a significant other as a stay at home parent would establish emancipation. Another fairly common fact pattern would be a employee whose employer also provides housing. Another fairly common fact pattern is a situation in which the whereabouts of the minor's parents are unknown and the minor has, somehow, been managing. Sometimes you see this when a minor's parents die and the minor goes on in an isolated wilderness area, for example. Adoption is indeed not an option Adoption is not possible without a termination of the rights of the parents (or at least one of them in the case of a stepparent adoption). The legal guardianship option The preferred arrangement when living basically as a child in a supportive adult's household would usually be a guardianship, to the detriment of the parent's role in most decision-making for the minor, rather than emancipation. Here are some quotes from a recent case from Colorado (In re Interest of A.D., 2023 COA 6 (January 19, 2023)), with that fact pattern: ¶ 2 L.D. is the sole living parent of A.D., one of her three children. A.D. was sixteen at the time of the guardianship proceeding. Although L.D. and A.D. once shared a healthy relationship, it deteriorated dramatically during the summer and fall of 2021. This deterioration gave rise to Petitioners’ request for — and the district court’s grant of — an unlimited guardianship over A.D. We turn to that history now. ¶ 3 In June 2021, A.D.’s car was vandalized while parked in front of the family home. A.D. and his mother had a heated argument about why it happened and who was responsible for cleaning it. Upset by this conversation, A.D. went to stay at his girlfriend’s house. Although he soon returned home, A.D. ran away from home five more times following disagreements with L.D. ¶ 4 In early July 2021, L.D. gave A.D. an ultimatum: he could (1) go to military school, (2) attend therapeutic boarding school, or (3) abide by her house rules. A.D. ran away again that night, but this 2 time he spent over a month away from home, staying with his girlfriend, couch surfing at friends’ homes, or sleeping in public parks. ¶ 5 On August 7, 2021, A.D. was taken to the emergency room after appearing to overdose while partying with friends at a park. The hospital made a mandatory report to the Department of Human Services (DHS). Once A.D. was stable, L.D. and V.T. (L.D.’s longtime colleague and family friend) met with a DHS representative to discuss next steps. L.D. agreed that, given the hostility between A.D. and herself, and between A.D. and his two siblings (who both lived with L.D.), it was in his best interest to stay with Petitioners. ¶ 6 On September 8, 2021, A.D. drove Petitioners’ car to L.D.’s house for his first night back since early July. When he arrived, L.D. became extremely upset that he had driven there. In her mind, A.D.’s operation of a car — and Petitioners’ facilitation of it — violated their agreement that he not drive until certain conditions were met. The next morning, without notice to Petitioners or her son, L.D. called the Division of Motor Vehicles (DMV) and withdrew her permission for A.D.’s driver’s license. The DMV revoked his license the next day. ¶ 7 A.D. became enraged when he learned that his mother had revoked her consent and subsequently sent a series of angry texts to her. L.D. then blocked A.D.’s number, thus preventing A.D.’s calls or texts from coming through to L.D.’s phone (though texts came through on her computer). ¶ 8 On September 24, 2021, DHS facilitated an “adults only” meeting with L.D., Petitioners, and DHS representatives. That meeting resulted in three shared priorities: (1) Petitioners were to provide regular updates about A.D. to L.D., who would, in turn, communicate with Petitioners before making decisions affecting A.D.; (2) A.D.’s license would be reauthorized within thirty days once to-be-defined conditions were met; and (3) A.D. would be allowed to be on the high school wrestling team, which all parties agreed was good for him. ¶ 9 Over the next month, Petitioners regularly emailed L.D. updates on A.D. L.D. provided few, if any, responses to these updates. Petitioners also sent L.D. a proposed plan for A.D. to get his license back, but L.D. did not respond. ¶ 10 On October 20, 2021, Petitioners filed their petition for appointment as A.D.’s guardians. L.D. objected to the petition, sought dismissal of the action, and requested attorney fees. ¶ 11 On November 8, 2021, Petitioners requested that the court appoint a guardian ad litem (GAL) to represent A.D.’s interests. Over L.D.’s objection, the court appointed a GAL pursuant to section 15-14-115, C.R.S. 2022, after concluding that, owing to their disagreement over the guardianship, the parties could not represent A.D.’s best interest in the guardianship proceedings. The GAL represented A.D.’s best interest throughout the litigation, and the court also instructed the GAL to provide a report about whether L.D. was “unable to exercise her parental rights.” ¶ 12 On November 14, 2021, before Petitioners filed their reply, L.D. — without consulting Petitioners or A.D. — revoked her permission for A.D. to wrestle the day before the first day of practice. Why she took this sudden action is unclear: L.D. testified it was because A.D. was not maintaining passing grades, while another witness testified that she wanted “leverage” over him to participate in family therapy. Regardless, A.D. was devastated by the timing and nature of this action. ¶ 13 While these motions were pending, Petitioners continued to care for A.D. Petitioners asked L.D. for permission to talk to A.D.’s teachers, coaches, and doctors about how to better care for him. Yet from August to early December 2021, L.D. refused to grant Petitioners permission to engage with these individuals. She ignored or outright refused to allow such communications until December 8, 2021, when, after repeated requests from a DHS representative, she allowed Petitioners to attend — but not participate in — a meeting with A.D.’s teachers. ¶ 14 L.D. also resisted Petitioners’ requests for financial support for A.D.’s care. To her credit, L.D. provided A.D. with $25 per week for groceries. These funds came from A.D.’s $1,800 monthly survivorship benefit, which was established following the death of A.D.’s father when A.D. was three. Petitioners knew the benefit existed and requested more financial support. L.D. did not respond to these requests. ¶ 15 Except for the text exchange between L.D. and A.D. following the revocation of L.D.’s consent for A.D.’s license, L.D. and A.D. never communicated directly. Instead, all such communications went through Petitioners or DHS. ¶ 16 Consistent with section 15-14-205(1), C.R.S. 2022, the district court conducted a hearing on Petitioners’ guardianship motion. The hearing spanned two days, with both sides calling numerous witnesses. ¶ 17 In a written order, the court granted Petitioners an unlimited guardianship over A.D. In so doing, the court concluded that Petitioners had proved by clear and convincing evidence that L.D. was, consistent with section 15-14-204(2)(c), “unwilling or unable” to care for A.D. and that the guardianship was in A.D.’s best interest notwithstanding his mother’s opposition to it. The linked appellate court decision then goes on to conduct legal analysis and affirms the trial court's ruling as correct. The official syllabus of the case summarizes that part of the opinion as follows: A division of the court of appeals reviews the guardianship appointment for a minor under section 15-14-204(2)(c), C.R.S. 2022. In so doing, the division adopts the analytical framework outlined in In re Parental Responsibilities Concerning B.J., 242 P.3d 1128 (Colo. 2010). Applying that framework to section 15-14- 204(2)(c), the division concludes that the moving party must prove, by clear and convincing evidence, that the parent is (1) “unable or unwilling” to exercise their parental rights, and (2) the guardianship is in the best interest of the minor notwithstanding the parent(s)’ opposition to the guardianship. Moreover, in entering such an order, the court must articulate the “special factors” it relies upon to justify this interference with parental rights. See Troxel v. Granville, 530 U.S. 57 (2000). Utilizing that framework here, the division concludes that the court did not err in appointing a guardian for the minor. | 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. | My friend should have taken his property with him, but presumably the host can't just keep it, especially after reaching out to them? Correct. However, the host does not have to do anything to facilitate its return i.e. they don’t have to post it to you. So long as they keep it for your friend to collect and don’t appropriate it for their own use, they are not breaking the law. If they do appropriate it, that is called theft or its tort equivalent, conversion. As my contract was with Airbnb and the host works from them, is there any responsibility on their part, e.g. Could I hypothetically open a small claims case against them? Or would any small claims case be directly against the host themselves? This is not true. You and the host each have a contract with Airbnb for the use of the platform. The contract for the accommodation is between you two and doesn’t involve Airbnb at all. In any event, there is no contractural issue here. | When a person dies intestate, California law (or the law of any other state) does not allow a presumed heir to unilaterally legally take over the estate, or part of the estate. This most likely involves a court procedure to decide who gets what. However, if all parties agree, it would be possible for one or more heirs to occupy the house without them owning it – this creates a legal mess that can be difficult and costly to untangle, so presumed-heir squatting is not a good idea. Ultimately, the property will have to go through probate in order for it to be sold to someone else. Obviously, property taxes and other assessments must be paid, but the state does not care who writes the check. There are also liability issues, if the property damages other property (example: the underground oil tank ruptures and pollutes the neighbors' property). If one of the heirs disputes the arrangement, they can sue to force proper disposition of the estate. Creditors may also have a legal claim against the estate. A person can petition the court (here is the form) to be appointed as the personal representative of the deceased. If someone else has "taken" the property, this petition triggers questioning as to who is entitled to a share of the estate, and the court will assure that it is distributed according to law, and if this is an adversarial process, each interested party may need to hire their own attorney (thus it is best to reach an agreement beforehand). | Parents do not have the right to their child's property. See this question. The parent cannot sell the house as they don't own it. The minor does- there is no law that says they cannot own real estate. There are limits on what minors can and can't do with it but this simply means that the legal guardian would be involved in selling it. Even if the parent was the legal guardian they would be selling it on behalf of the child. Depending on the age of the child this would involve either their consent or this being in their best interests. The contents are more complicated. In theory, if they were also inherited by the child, no. In practice it would be difficult to prove ownership. The most reliable way to prevent this would be taking physical possession of any important items by removing either the item or the parent from the house. | This is very, very weird. I've never heard of a case like this one. Is there some context that could explain why anyone would refile a divorce someplace new twelve years after getting divorced the first time around? The logical thing to do if Canadian civil procedure is at all analogous to U.S. civil procedure on this point, would be to have a Canadian lawyer file a motion in the Canadian divorce case to set aside the judgment on the extraordinary grounds that you were not married any longer at the time that the 2015 divorce was filed, seeking to set aside the 2015 case ruling. In most U.S. jurisdictions with civil procedural rules modeled on the federal rules of civil procedure (California's are not), this would be a motion under Rule of Civil Procedure 60, but obviously, the Canadian rule numbering would probably be different. Alternatively, if the home is in California, you could bring an action for declaratory judgment declaring that the Canadian judgment is invalid because it was brought in a divorce action between people who were already divorced and probably also lacked jurisdiction over you and the property. I'm not sure what you mean by CPL in this context. Normally, in a real estate context, a CPL would mean a "closing protection letter", but in the context you are using it, it sounds like you are referring to something akin to a lis pendens or a lien. Perhaps you mean a "certificate of pending litigation" which is another name of a lis pendens in at least some Canadian jurisdictions (but is terminology rarely used in the U.S.). This sounds like slander of title, or "abuse of process" or the filing of what is known as a spurious lien, any of which are actionable, but without knowing what a CPL actually is, it is hard to know. |
what is the process for overturning a Michigan Supreme Court ruling? It occurred to me that a long-standing Michigan Supreme Court ruling might possibly be incorrect; the case involves interpreting the Michigan Constitution [although, as pointed out below, this technically isn't possible as the MSC, by definition, has the final say-so in interpreting the constitution]. What is the process for having the issue re-heard? Details: the case is Butcher v. Township of Grosse Ile, which deals with Article IX, Section 9 of the Michigan constitution. Except as otherwise provided in this constitution, the total amount of general ad valorem taxes imposed upon real and tangible personal property for all purposes in any one year shall not exceed 15 mills on each dollar of the assessed valuation of property as finally equalized. Under procedures provided by law, which shall guarantee the right of initiative, separate tax limitations for any county and for the townships and for school districts therein, the aggregate of which shall not exceed 18 mills on each dollar of such valuation, may be adopted and thereafter altered by the vote of a majority of the qualified electors of such county voting thereon, in lieu of the limitation hereinbefore established. These limitations may be increased to an aggregate of not to exceed 50 mills on each dollar of valuation, for a period of not to exceed 20 years at any one time, if approved by a majority of the electors, qualified under Section 6 of Article II of this constitution, voting on the question. The foregoing limitations shall not apply to taxes imposed for the payment of principal and interest on bonds approved by the electors or other evidences of indebtedness approved by the electors or for the payment of assessments or contract obligations in anticipation of which bonds are issued approved by the electors, which taxes may be imposed without limitation as to rate or amount; or, subject to the provisions of Section 25 through 34 of this article, to taxes imposed for any other purpose by any city, village, charter county, charter township, charter authority or other authority, the tax limitations of which are provided by charter or by general law. In any school district which extends into two or more counties, property taxes at the highest rate available in the county which contains the greatest part of the area of the district may be imposed and collected for school purposes throughout the district. Among other things, the court in Butcher found that the phrase "The foregoing limitations shall not apply ..." at the beginning of the second paragraph obviates the "... aggregate of not to exceed 50 mills ..." in the first paragraph for cites, et. al. My very careful reading of the text makes me question whether this interpretation is correct. The first paragraph says "... the total amount of general ad valorem taxes imposed upon real and tangible personal property for all purposes in any one year shall not exceed 15 mills ... . Under procedures provided by law, ... , separate tax limitations for any county and for the townships and for school districts therein, the aggregate of which shall not exceed 18 mills ... , in lieu of the limitation hereinbefore established." [emphasis added] That is, the 18-mill "limitation" replaces ("in lieu of") the 15-mill limitation. The text then says, "... These limitations ..." What "limitations"? The 15- and 18-mill limitations just described. The text then continues "... may be increased to an aggregate of not to exceed 50 mills ..." Notice the wording here is "an aggregate of not to exceed", with no mention of the word "limitation." In other words, the "15- and 18-mill "limitations" may be increased up to 50 mills;" but "50 mills" itself isn't a "limitation," the text quite plainly calls it "an aggregate," as opposed to a "limitation." Now, onto the second paragraph with begins "The foregoing limitations ..." What exactly are the "foregoing limitations"? That would again be the 15- and 18-mill "limitations" described in the first paragraph; but not "... aggregate of not to exceed 50 mills ..." as that is not a "limitation." The assumption has always been that "50 mills" is also a "limitation," and thus the second paragraph excludes any "... city, village, charter county, charter township, charter authority or other authority, ..." from the 50-mill aggregate. | Background I will note that the case you cite was decided in 1972 and has been cited by other cases that relied on its precedents in all appellate decisions in Michigan, and one federal trial court decision in Michigan over the last 44 years. The losing party tried to appeal the decision to the U.S. Supreme Court, but the U.S. Supreme Court dismissed the appeal later in 1972 because there was no issue of federal law involved. Ultimate Conclusion There is pretty much no way to change the holding of that decision other than to amend the provisions of the Michigan Constitution in question by the procedures set forth in the Michigan State Constitution. Indeed, the basic premise of your question, "a long-standing Michigan Supreme Court ruling might possibly be incorrect" is basically definitionally wrong. When the Michigan Supreme Court interprets a provision of the Michigan State Constitution, its decision is, by definition, the correct interpretation of that language. It isn't terribly uncommon for authoritative court decisions to conclude for a variety of reasons that the literal plain reading of constitutional text actually means something quite different than what the words actually say. For example, the judicially interpeted meaning of the 11th Amendment to the United States Constitution (which is that states are entitled to sovereign immunity unless it is waived by the state or authorized by the United States or another state) is quite different from what the wording of the amendment says ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."), which on its face simply slightly narrows federal court jurisdiction and says nothing on its face about sovereign immunity. What you think those words should mean based upon a plain reading of the constitutional text is completely irrelevant. Amending Michigan's State Constitution Amending the state constitution is not easy in Michigan. It has been done only eight times since the current state constitution was adopted in 1963 - seven times pursuant to proposals made by the state legislature and ratified by the voters, and once in 1972 as a result of a citizens petition. It has been amended only twice since 1972. Several methods can be employed to propose and ratify amendments. Section 1 of Article XII states that: Amendments to this constitution may be proposed in the senate or house of representatives. Proposed amendments agreed to by two-thirds of the members elected to and serving in each house on a vote with the names and vote of those voting entered in the respective journals shall be submitted, not less than 60 days thereafter, to the electors at the next general election or special election as the legislature shall direct. If a majority of electors voting on a proposed amendment approve the same, it shall become part of the constitution and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved. This is the easiest way to amend the state constitution if there is a bipartisan consensus to amend it. Section 2 of Article XII says: Amendments may be proposed to this constitution by petition of the registered electors of this state. Every petition shall include the full text of the proposed amendment, and be signed by registered electors of the state equal in number to at least 10 percent of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected. Such petitions shall be filed with the person authorized by law to receive the same at least 120 days before the election at which the proposed amendment is to be voted upon. Any such petition shall be in the form, and shall be signed and circulated in such manner, as prescribed by law. The person authorized by law to receive such petition shall upon its receipt determine, as provided by law, the validity and sufficiency of the signatures on the petition, and make an official announcement thereof at least 60 days prior to the election at which the proposed amendment is to be voted upon. Any amendment proposed by such petition shall be submitted, not less than 120 days after it was filed, to the electors at the next general election. Such proposed amendment, existing provisions of the constitution which would be altered or abrogated thereby, and the question as it shall appear on the ballot shall be published in full as provided by law. Copies of such publication shall be posted in each polling place and furnished to news media as provided by law. The ballot to be used in such election shall contain a statement of the purpose of the proposed amendment, expressed in not more than 100 words, exclusive of caption. Such statement of purpose and caption shall be prepared by the person authorized by law, and shall consist of a true and impartial statement of the purpose of the amendment in such language as shall create no prejudice for or against the proposed amendment. If the proposed amendment is approved by a majority of the electors voting on the question, it shall become part of the constitution, and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved. If two or more amendments approved by the electors at the same election conflict, that amendment receiving the highest affirmative vote shall prevail. There were 3,156,531 votes cast for all candidates in the most recent election for Governor in Michigan in 2014. This means that 315,653 valid signatures would have to be on a petition requesting a constitutional amendment and experience in states where initiatives are common suggest that significantly more signatures than that would have to be collected in order to get that many valid signatures. Section 3 of Article XII says: At the general election to be held in the year 1978, and in each 16th year thereafter and at such times as may be provided by law, the question of a general revision of the constitution shall be submitted to the electors of the state. If a majority of the electors voting on the question decide in favor of a convention for such purpose, at an election to be held not later than six months after the proposal was certified as approved, the electors of each representative district as then organized shall elect one delegate and the electors of each senatorial district as then organized shall elect one delegate at a partisan election. The delegates so elected shall convene at the seat of government on the first Tuesday in October next succeeding such election or at an earlier date if provided by law. The convention shall choose its own officers, determine the rules of its proceedings and judge the qualifications, elections and returns of its members. To fill a vacancy in the office of any delegate, the governor shall appoint a qualified resident of the same district who shall be a member of the same party as the delegate vacating the office. The convention shall have power to appoint such officers, employees and assistants as it deems necessary and to fix their compensation; to provide for the printing and distribution of its documents, journals and proceedings; to explain and disseminate information about the proposed constitution and to complete the business of the convention in an orderly manner. Each delegate shall receive for his services compensation provided by law. No proposed constitution or amendment adopted by such convention shall be submitted to the electors for approval as hereinafter provided unless by the assent of a majority of all the delegates elected to and serving in the convention, with the names and vote of those voting entered in the journal. Any proposed constitution or amendments adopted by such convention shall be submitted to the qualified electors in the manner and at the time provided by such convention not less than 90 days after final adjournment of the convention. Upon the approval of such constitution or amendments by a majority of the qualified electors voting thereon the constitution or amendments shall take effect as provided by the convention The next referendum pursuant to Section 3, Article XII is in the year 2026, and any proposed amendments from a constitutional convention called under that provision would not take effect until approved by voters which could happen no sooner than the year 2028. Voters declined to call for a constitutional convention in the years 1978, 1994 and 2010. No Law Pased Only By The Legislature Can Overrule This Decision The state legislature can't pass an ordinary law that overrules a Michigan Supreme Court interpretation of the state constitution either. And, even Congress can't pass a law that reinterprets language in a particular state's constitution that has been determined to be the correct one by the state supreme court. No Other Court Can Overrule This Michigan Supreme Court Decision The federal courts including the U.S. Supreme Court cannot overrule the Michigan Supreme Court on a question of Michigan state law. The lower courts of Michigan cannot overrule the Michigan Supreme Court on any question. The Michigan Supreme Court Is Extremely Unlikely To Modify This Decision The Michigan Supreme Court is extremely unlikely to overrule itself regarding a decision that has stood and been relied upon for 44 years since questions of statutory interpretation are usually given unusually strong respect as precedents to promote certainty, although it could change its mind if it wanted to. Usually, though, a state supreme court only overrules one of its own past precedents if it becomes inconsistent with another line of cases and it eventually becomes clear that there are two or more inconsistent lines of precedents can't be reconciled with each other in some fact pattern that pits one line of cases squarely against another. For example, in Colorado, earlier this year a older case holding that a defense called "laches" could not be used in child support cases collided directly with a newer Colorado Supreme Court case involving promissory notes that held that the defense called "laches" is available in every type of case in Colorado. When confronted with the conflicting precedents in a new case this year the Colorado Supreme Court resolved the conflict in favor of the newer holding, overruling the older one which states that "laches" did not apply to child support cases. But, this is extremely unlikely to happen when the question involves the meaning of the precise wording of a highly technical property tax provision of the state constitution. | Maybe, but it is not a de jure taking. There are vast numbers of restrictions on what one can do with one's property and on businesses that one can conduct on that property. Zoning ordinances prevent me from setting up a chemical factory where I have my house; I can't build it up 4 stories and there is an obligatory setback from the property line for any extension. I can't freely build on my land, I need government permission in the form of a permit. This is allowed (Agins v. City of Tiburon, 447 U.S. 255), when the regulatory action advances a legitimate governmental goal and therefore the action is not a taking. The government might "take" land by rendering it useless without the formality of condemnation (United States v. Dickinson, 331 U.S. 745). But a moratorium on evictions does not render the property useless. The tenant remains liable for rent. | A "limited license housing agreement" may be an interesting attempt to get around landlord-tenant laws, typically associated with official student housing (e.g. this from Queens College CUNY). This facility near WMU is not overtly related to the university, but might be subcontracting for the university. At any rate, there is no special provision under Michigan law that exempts landlords from the provisions of the law in case they declare the contract to be an agreement as opposed to a lease. It is possible that this is copy-and-paste law that erroneously relies on provisions in landlord-tenant laws that exempt university housing agreements from provisions of a state's landlord-tenancy law. You do not need to be informed that you should / could consult an attorney before signing a legal document: this knowledge is presupposed. It is also assumed that when you sign a document, you read the document. It is reasonably likely that the lease contained language like the following (from the above contract): I have carefully read, fully understand and voluntarily sign this Housing Agreement. Once fully signed, this is a binding contract and is intended to be enforceable under its terms. I have had the opportunity to seek independent legal advice The disclaimer "This Housing Agreement is not a lease and no tenancy, leasehold, possessory or other property interest in any specific apartment or bedroom is created" has dubious legal status. The rights given by the landlord-tenant act cannot be waived, under the Truth in Renting Act, so saying "this is not a lease" does not make the lease not a lease. In Michigan there is a duty on landlords to mitigate loses when a premise is abandoned. The case Fox v. Roethlisberger, 85 N.W.2d 73 mentions such a possible duty in the context of tenancy is often cited on the web as establishing such a duty, but I disagree. Froling v. Bischoff, 252 N.W.2d 832 however establishes that there is such a general duty for any breach of contract (and even applies it to breach of a rental agreement). So whether or not you call it a lease, there is still a duty to mitigate losses. In the scenario where you abandoned the unit and the landlord waited until the end of the year to file an action for breach of contract, they could have failed in their duty to mitigate their losses (but see Fox v. Roethlisberger, where landlord did make an effort to re-rent, and simply was not able to for 9 months). | Congress can't override substantive rules of constitutional law Marbury v. Madison is a binding interpretation of what the U.S. Constitution permits or denies, and in substance, this law seeks to change that interpretation of the scope of the judicial power, so that interpretation may not be overruled except via a Constitutional amendment. Neither the Supreme Court nor any lower federal court, under their appellate jurisdiction, will declare unconstitutional or otherwise adjudicate unconstitutional any law passed by Congress; neither the Supreme Court nor any lower federal court will hear or otherwise engage in cases or controversies in which one or both parties put into discussion the constitutionality of a law passed by Congress, or ask for a law or a statue passed by Congress to be declared unconstitutional. The language in italics is jurisdiction stripping language, which I discuss below, and which is also discussed in another answer. But, the language in bold is enunciating a substantive rule of law regarding how the judicial branch may resolve a case that is otherwise properly before it. And, Congress does not have the power to change that to make the U.S. Constitution a dead letter under its Article III jurisdiction regulation powers. The language in bold language is a direct attempt to overrule a binding interpretation of the U.S. Constitution and that is beyond the authority of Congress to do, so the statute would be unconstitutional, at least, in part. Jurisdiction stripping Yes, Congress can regulate the jurisdiction of the federal courts pursuant to Article III, Section 2 which states: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under the Regulations as the Congress shall make. But, there are parts of Article III that apply in addition to the power of Congress to create "Exceptions" the appellate jurisdiction of the U.S. Supreme Court, and the power to create and modify the "inferior courts" that exist. The first sentence of Article III, Section 1 of the U.S. Constitution states: 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. This is crucial, and interacts with the Exceptions power. The default provision is that all judicial power as defined in Article III, Section 2 is vested in the "supreme Court" unless and until that power is instead vested in an "inferior Court" established under Article III that Congress creates by law. Therefore, Congress does not have the power to deny every court (or even every federal court) both original and appellate jurisdiction over any constitutionally justiciable claim arising under Article III, even if the claim is not within the express original jurisdiction of SCOTUS. If they deny every inferior Article III federal court jurisdiction over something within the constitutionally defined scope of the judicial power, then it reverts to the original jurisdiction of the U.S. Supreme Court even though it is not expressly made a part of the U.S. Supreme Court's original jurisdiction. The judicial power of the federal courts collectively is defined in Article III, Section 2 of the U.S. Constitution and extends to all cases arising under the U.S. Constitution which would include a claim to have a provision of federal or state law declared unconstitutional as in violation of the constitution. It says: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; . . . (This analysis is attributed to U.S. Supreme Court Justice Joseph Story.) Now, this is not to say that Congress couldn't do something to make it harder procedurally to have statutes declared unconstitutional. For example, there would be a much harder claim of unconstitutionality if Congress vested original jurisdiction in all such cases in the United States in the U.S. District Court for the District of Wyoming, and then only assigned one judge to that district, and denied the U.S. Courts of Appeal or the U.S. Supreme Court, appellate jurisdiction over those decisions. At some point, however, even this lesser restriction, rather than elimination of a judicial power would still be subject to challenge under the due process protections of the 5th Amendment. Writ jurisdiction Notably, Marbury v. Madison was a case brought in the original jurisdiction of the U.S. Supreme Court under a writ of mandamus, under the All Writs Act, and not in connection with its appellate jurisdiction. So, Congress would also have to repeal or amend the "All Writs Act" to pull off the intent of the proposed statute, because the U.S. Supreme Court's original jurisdiction extends by statute to writs that are not appellate in nature even though this power is very rarely exercised. A writ is a court order directed at a government official directing that government official to do something, or to refrain from doing something. But, there are many ways to back door a seemingly private cause of action, particularly one related to constitutionality, into a writ. And, if a court has jurisdiction over a writ, it has jurisdiction to entertain requests by litigants to have such writs issued. Congress can't remove a state court forum It is worth noting that every single state court from traffic court on up has concurrent jurisdiction with the federal courts to declare that a statute is unconstitutional, and that state courts frequently do declare state statutes to be unconstitutional. Congressional jurisdiction to regulate jurisdiction is largely limited to regulation of the jurisdiction of the federal courts. It can put a federal question (e.g. copyright enforcement or disputes with the IRS) in the exclusive jurisdiction of the federal courts, but there are no cases in which Congress has been permitted to place a federal law in the exclusive jurisdiction of the federal courts while also denying any federal court jurisdiction over claims arising under that law. Otherwise, state court jurisdiction isn't regulated by Congress. And, the Constitution specifically requires all federal, state and local officials to swear to uphold the U.S. Constitution which arguably provides an independent basis for state court jurisdiction over constitutionality claims arising under the U.S. Constitution. This is a really important point. For example, suppose that someone who lives in the same state as you do sues you entirely under state law in a state court, and that state's courts require you to bring any claim you have against that person in state court over which that state court has jurisdiction as a counterclaim or you forfeit that claim forever. If you have federal claims against the person who sued you in state court, and your claims are not one of the handful of issues (e.g. copyright enforcement) that are in the exclusive jurisdiction of the federal courts, you must enforce your federal claims against that person as counterclaims in that state court case, or you will lose them forever. For example, suppose that your employer sues you in state court for conversion (i.e. stealing company property) and you have a right to sue the employer for not paying you the right amount for your overtime work under federal law. Then, you must bring your federal overtime claims in state court as counterclaims to the conversion action, rather than in federal court. Similarly, even though state criminal charges are always brought in state courts, a criminal defendant in a state court criminal case, can raised arguments arising under the U.S. Constitution including a determination that a state criminal law is unconstitutional, in state court as a defense, even though the only federal court recourse a criminal defendant has is through an appeal to the U.S. Supreme Court or a post-conviction writ of habeas corpus brought in federal district court after all state direct appellate relief is exhausted, after petitioning to the U.S. Supreme Court, and after all state post-conviction relief (including petitioning the final state order to the U.S. Supreme Court) is exhausted. In practice, this means, criminal defendants have no meaningful access to the federal courts other than two petitions for certiorari to the U.S. Supreme Court which are discretionary, until they have been incarcerated wrongfully for five or ten years. But, federal defenses can and routinely are raised in the state court trial (and indeed, federal defenses that could be raised in a state trial court may not be raised in a habeas corpus petition in federal court unless they were first raised in or before the original state court trial). N.B.: Federal claims in the exclusive original jurisdiction of state courts The extremes to which jurisdiction stripping is allowed are explored in the handful of claims arising under federal law that are expressly not within the scope of the jurisdiction of any federal trial court or intermediate appellate court, or within the express non-appellate jurisdiction of the U.S. Supreme Court. The most notable of these are affirmative private individual civil lawsuits against offenders under the federal robocall and junk fax law (a.k.a. the Telephone Consumer Protection Act a.k.a. the TCPA a.k.a. 47 U.S.C. § 227), which do not not require a writ, which may only be brought in state court, subject to an ultimate appeal to the U.S. Supreme Court. But, the federal courts have exclusively jurisdiction over litigation many kinds of claims other than private civil actions arising under the TCPA. This law is much less constitutionally concerning than the one proposed in the question, however, because while Congress can't repeal the U.S. Constitution, it doesn't have to pass a law giving private individuals a private cause of action when they receive robocalls or junk faxes at all. It could pass a law that was enforceable by the FCC alone, for example, and in the case of the TCPA, there are persons, including the FCC and regulated persons who want to challenge a regulation issued by the FCC, who are entitled to utilize the federal courts to enforce the TCPA or to dispute it. For example, there is no private cause of action to enforce most federal criminal laws (as such, not just involving the same harm) with a civil lawsuit by the victim against the criminal, in either federal court or state court, but that is not unconstitutional. This is because federal criminal laws can be enforced by government prosecutors and defended against by private individuals, in Article III federal courts. Also, even private causes of action under the TCPA are subject to ultimate U.S. Supreme Court appellate review, and the U.S. Supreme Court is an Article III federal court. | Regarding concern one: I don't know much of anything about historical landmarks and how they get exempted from certain laws. However, I can tell you that the law generally prefers safety over preserving historical value. It is highly unlikely that a court would ever consider a plant that has existed for any number of years to be of more value than a pedestrian's or driver's safety, and thus requiring that the hedge be trimmed or removed to allow for that safety would be far more important. As well, your argument that cutting or removing the hedges would decrease the value of the property isn't the strongest argument. Currently, you have hedges that violate a local law. That immediately decreases the value of your property because a part of your property is in violation of ordinances that would have to be corrected in order for the sale of the property to go through, because most homeowners do not want to buy a property with a burden attached to it. Thus, a potential buyer would likely stipulate that the hedges be removed before they consider buying, or they might also stipulate a lower price so they can use the difference between buying and list price to remove the hedges themselves after the sale. Sure, if you only include the part of "this property has beautiful hedges" then the property value goes up, but once you tack on "which are also in violation of law" that value you just gained is immediately negated. Now in your specific case you mentioned that it hangs a foot over an eight-foot wide sidewalk. That is an abnormally wide sidewalk (a standard sidewalk in most places is only around three feet wide, with some extending up to five feet). I've only personally seen eight-foot or more wide sidewalks in very heavily trafficked areas, which from your "small town" description doesn't sound like the case there. You might be able to argue that in your particular case, due to the size of the sidewalk, that the hedges do not actually inhibit the safety of pedestrians and thus the ordinance shouldn't apply, but there's no guarantee that would work (it sounds like the city council already decided that they want it enforced there). However, if it is hanging over into the street in any capacity, you are pretty much out of luck. It's unlikely you would ever get an exception for that kind of violation. Regarding concern two: You're widely conflating "daily" and "excessive" to mean the same thing. Daily fines are not automatically excessive fines, and it is not in any way unconstitutional for a fine to be assessed on a daily basis. The laws you cite about excessive fines refer to the cumulative total of the fine. At a certain point of assessing a fine on a daily basis, the amount reaches a point where it is an excessive amount to pay. In a situation like that, it makes far more sense to stop increasing the fine and instead jail the person as they have shown a clear disregard for the law and a willingness not to comply with the law. Continuing to fine them has proven not to deter them any further from breaking the law, and that a massive fine does not justly punish them for the actions they have taken. A different punishment is warranted. This is the premise of the case you cite in your question. Brunk argued that a cumulative fine of over $100,000 for his violations was quite excessive and appealed on that argument. I don't know what the final outcome of his appeal was, because that particular court did not make a decision (rather they vacated the amount and sent it back to a lower court for reconsideration to determine if that amount was fair). It's entirely possible he still ended up with the same fine in the end. Regarding concern three: There is nothing remotely illegal about this. So long as there is a city ordinance that allows the officer to write such a citation, the officer is perfectly within his authority to write such fine and threaten such fine for noncompliance. A law in its natural form is a threat. The government body that created that law is issuing a threat to all of its citizens that if they do this thing, then this fine or amount of jail time will be applied to them. We just don't think of laws as threats in that regard when we talk about them. An officer reiterating that to you does not constitute anything other than them telling you what the law is and what can happen if you disobey it. Now if the officer threatened something against you that is not mandated by law, that would be a more serious concern that potentially could have some legal consequences for them. But there's no evidence that occurred here. Your situation in general: If you're hoping for some constitutional argument that you can throw in the officer's face to get him to back off, you're not going to find one. Generally that part of the constitution is only reviewed after fines have been handed down. You would first need to be fined and have a judge review the case to determine a total amount of how much you will be fined for all the cumulative violations. At that point if you believe it is excessive and in violation of the constitution, you would challenge the decision in court or appeal the decision if the case has already been closed. But even then, the fine would not be dropped. It would just be reduced to a value that some other judge reviewing the appeal thinks is a fair, non-excessive amount for a fine given the specific details of your case. Your case details do matter. For example, if you just argue with the officer the entire time and do nothing to resolve the problem identified, a judge might consider a much higher value vs if you actively worked to resolve the problem but just weren't capable of doing it fast enough. "Excessive" here is a completely subjective term that is different for every single case. No one can tell you whether something is excessive until the final number has been totaled and given out. Consider the two alternatives I just mentioned above. If both of those cases were in trial at the same time, they would both likely end up with different amounts for fines and, on appeal, one might succeed in convincing a judge that the fine was excessive and one might not. Better options: You could talk to the officer and explain to him that you are not capable of doing the work that quickly without hiring additional help, which you cannot afford. But that may only work once. If the issue arises again in the future (say next year), the officer likely won't be as forgiving since you've been warned about the hedges hanging over the sidewalks and streets before. If anything at all, it will show a court that you attempted to work out an arrangement of some sort to fix the problem, and were trying to cooperate. If it ended up in court for some reason, that interaction would be immensely helpful to you. As well, you'll want to consult an attorney for exact interpretations of the city's ordinances to make sure that this is actually against the law and how the law punishes its violation. Many cities have ordinances forbidding trees and other plants from obstructing sidewalks and roadways for safety concerns, but not all. As well, I've found it is much more common for a city to impose a single fine for a violation like that if the warning is ignored. The city would then send out its own crew to rectify the problem and then charge the resident for labor, materials, and removal costs. However, if the city does not have their own Public Works department, that may not be an option for them. If you do find more specifics about how the law is to be enforced, politely tell the officer that. It won't get you out of trouble, and he may still have the legal authority to fine you in some way according to the actual law, but knowing the exact details of your township may give you more peace of mind in knowing the actual limitations of how much you can be fined. | This is an opinion question, even if it doesn't seem like one. The life work of many professors is trying to explain the current system of review. One theory that is fairly well accepted relates to the concept of deference to other political actors. To understand this theory, we need to begin by recognizes that the Court is not unilaterally adjudicating political rights; it is one of many actors that all have some stake in making Constitutional decisions. The Court recognizes this, even if it also demands that it get last word on whether or not it gets last word. In footnote four of Caroline Products the Court laid the foundation for the modern equal protection doctrine. That text embraced a constitutional scheme whereby rights are given judicial protection primarily if they are unlikely to be given political protection by the other branches of government. Under this scheme, we care about groups that are politically weak or political distant from those with power. This equal protection jurisprudence is an example of deferential thinking; we trust the political branches generally unless there is reason to doubt the effectiveness of the political process. The deferential thinking approach to constitutional law holds that we do the same for many other area of Constitutional law. A given enumerated right is only Scrutinized strictly by the courts if the courts don't trust the other political actors (States, Legislature and Executive), to adequately protect that right. As I said, that is a theory. Not everyone agrees that this is what is going on or that this is what should be going on. Moreover, many enumerated rights are protected under a very strict level of review. Strict review and "strict scrutiny" are similar ideas, with the latter being a term of art and the former being a reasonable description of how much attention courts will pay to protecting a given right. | There has never been a right to appeal directly, or discretionarily form a state trial court to SCOTUS. But, one can apply for a common law writ in SCOTUS with respect to a state trial court actions under the All Writs Act which is functionally an appeal, even though it is technically an original SCOTUS proceeding. But, original SCOTUS writs are extremely rare and I don't know if it has ever been used in the manner you describe. If so, it probably happened before the intermediate federal courts of appeal were created in the late 1800s. It isn't easy to do a search of cases to determine the answer. UPDATE WITH CORRECTION: After further consideration, I think that I have a better idea of what the question was getting at and want to elaborate on that. Most state courts (Utah, Texas and Oklahoma are exceptions to the general rule[1]), have either an intermediate court of appeal and then a state supreme court (sometimes given a different name such as "Court of Appeals" in New York State, in which the Supreme Court is the name of the trial court of general jurisdiction and the intermediate appeals court), or only a state supreme court from which appeals lie directly to the state supreme court. [1] In Utah there is an appeal of right in every civil case to the state supreme court and the intermediate court of appeals considers cases that it "kicks down" to the court of appeals rather than dealing with itself. In Texas and Oklahoma, there is a Court of Criminal Appeals in addition to the State Supreme Court, which operates much like a Supreme Court in criminal cases with the state supreme court that is nominally superior only rarely intervening in criminal cases (I don't know when precisely it can intervene in those states). In every state with an intermediate appeals court, there is an appeal of right to an intermediate appeals court which must be considered on the merits, and then a discretionary appeal to the state supreme court. Sometimes in these states there are a handful of exceptions. For example, in Colorado, there is a direct appeal of right to the state supreme court in death penalty and water law cases, and in municipal court and limited jurisdiction court cases (i.e. cases in courts limited to $25,000 in controversy or less), there is an appeal of right to what would usually be the general jurisdiction trial court and then a discretionary appeal from there to the state supreme court). But, there is still almost always one court to which there is a direct appeal of right. There are a small but non-negligible number of cases where what is usually a general jurisdiction trial court serves as an intermediate court of appeals of right for a lower trial court (e.g. a small claims court or municipal court), with appeal from there only in the discretion of the state supreme court. Those cases can and very rarely (but sometimes) do go on to be considered by the U.S. Supreme Court when a state supreme court denies discretionary review (in addition to being rare, few such cases are significant enough to justify the effort on the part of the parties to do so and are considered significant by the U.S. Supreme Court too), just as they would when an intermediate court of appeals rules and a state supreme court denies certiorari at the state level. But, in that case, the direct appeal still isn't a direct appeal of a "court of first instance" (i.e. a court where the original trial on the merits is held). But, there is no constitutional right to a direct appeal of right (there is only a constitutional right to a collateral attack via habeas corpus in criminal cases resulting in incarceration). The right to a direct appeal in state courts is a product of state law and state constitutions (in the federal courts it is a consequence of federal statutes). In some states without an intermediate court of appeals, there is also an appeal of right to the state supreme court. But, in other states without an intermediate court of appeals, appeals to the state supreme court are discretionary (much like appeals to the state supreme court from an intermediate appellate court and appeals to the U.S. Supreme Court). Thus, if you are in a state in which there is only a discretionary appeal to the state supreme court, and the state supreme court declines to consider your appeal on the merits, you can appeal to the U.S. Supreme Court once the state supreme court has declined your state level petition for certiorari. The actual pre-requisite at the state level in a direct appeal is that your state direct appellate options be exhausted. So, if you are in a state without intermediate courts of appeal in which the state supreme court reviews trial court decisions on only a discretionary basis, then you can make a direct appeal to the U.S. Supreme Court if you have sought review on direct appeal in the state supreme court and it declined to grant certiorari to review your case on the merits. In practice, this is still very rare. States without intermediate appellate courts are universally small in population and hence have small case loads. Most states with only a single supreme court still have at least one direct appeal of right and have had that right for most of their history. And, state supreme courts usually do exercise their certiorari power in cases that are worthy of discretionary consideration in the U.S. Supreme Court. But, in this narrow situation, the U.S. Supreme Court may consider a trial court decision on a direct appeal, without it ever having been considered on the merits at the state level. This happens rarely (although the U.S. Supreme Court not infrequently, i.e. perhaps a couple of times a year, considers a case upon which there has been an intermediate direct appeal and a state supreme court has refused discretionary review), but it has almost certainly happened sometime. It is hard to devise a legal research search that would locate such a case, however, and strictly speaking, the denial of certiorari can be seen as a state supreme court ruling that is required in almost every case. | The new law wins. That's rather the point of passing a new law-- the legislature wants to change the current law of the land whether that is based on statutes or court rulings. Of course, there are caveats. Prior judicial rulings may have relied on an interpretation of a source of law that supersedes the legislature in question (i.e. based on an interpretation of the state or federal Constitution or based on a federal law that supersedes the state law). In that case the new law would be found unconstitutional or ignored. Or the new law might have an ambiguous interaction with current law that courts would have to resolve. The new law might clearly make X illegal but there may be legitimate questions about whether it intended to make previously legal action Y illegal as well. It is, after all, very difficult to write a law that covers every possible fact pattern one would encounter in the real world. |
Shared responsibility in criminal law Let's consider this case. John and Bill works together for apartment reparation in 10th floor. John unintentionally put big heavy hammer near the open window, after 5 minutes Bill accidentally (unintentionally) hit this hammer and it fall down from 10th floor and killed somebody. Both of them went to court. Let's say we have ideal case. Everybody accept this story. There is no doubt that it was accident. John confirm, yes, I unintentionally put hammer near windows, Bill confirm yes, I accidentally (unintentionally) hit hammer and it fall down. Theoretically if John would not put this hammer near the window, Bill would not drop it down and nobody would be killed. In this sense John is guilty. From other side if Bill would be more careful and would not drop this hammer also nobody would not be killed. In this sense Bill is guilty. My question: If it is classified as "Negligent homicide", What normal judge in Western World will decide about this case? Who is guilty and who will go to jail? John, Bill or both? If both are guilty, will they have the same responsibility, like 5 years in jail for john and 5 years in jail for Bill or Bill will get more? Update: If it is difficult with criminal-law, let's say hammer fall down to the car and let's assume nobody has insurance. Who will pay for the car reparation in this case? John, Bill or both? and if both, each will pay 50% or different? | Assume that this happened in Washington state. Under RCW 9A.32.070, the crime of second degree manslaughter occurs when, with criminal negligence, he or she causes the death of another person. RCW 9A.08.010(d) defines criminal negligence: 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. I don't understand the claim that John unintentionally put the hammer near the window. If he put the hammer on the floor below the window, then Bill can't unintentionally hit the hammer and cause it to fly out the window. Let's suppose you mean that John put the hammer on the ledge of the open window unthinkingly. Bill doesn't see the hammer and accidentally knocks it off the ledge when he backs up and his butt hits the hammer. Only John is criminally negligent: he is negligent, and any reasonable person would know that it was a risky thing to do. John did an act knowingly and voluntarily, just not having an evil intent. John can't plead that he happened to have no clue about the effect of falling hammers – the law doesn't care about his personal knowledge, it cares about what a reasonable person would know. Now, if Bill was tossing a tennis ball at the hammer to see if the ball would bounce back into the room, or some other lame reason, then Bill is also criminally negligent. The point is that saying "I didn't intend this particular outcome" is not relevant. You don't have to have any bad intent at all, when it comes to negligent homicide. You just have to be sufficiently incautious, so that you have not just deviated from the standard of care that everybody owes everybody else, you have done so grossly. This is a judgment made by the fact-finders, and depends on the totality of circumstances. Criminal penalties aren't "divided". In Washington, they could both get 10 years and $20,000 – though the judge could decide that John deserves a bigger penalty because he is a bigger bonehead. | They are two different courts, with different standards of proof. In a criminal court, the standard of proof is "guilty beyond any reasonable doubt". In a civil court, the standard of proof is "more likely guilty than not guilty". Actually, in a civil court it's not "guilty", it's often "liable for damages". It's obvious that there will always be cases where the evidence lies somewhere between these two. Consider what the reasons for both court cases are: In the first case, it's the state against you. The state doesn't suffer any injustice if you are not convicted, and the state is very powerful, that's why the standard of proof is high. In a civil court, you have often two private persons fighting it out. If you are correctly accused of breaking my arm and I sue you for damages, then if you are not convicted, I am suffering a broken arm and all the associated pain and cost. A standard as high as in a criminal court would be entirely unfair towards the victim. | 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. | Yes to everything. Justified use of force is assault / battery / homicide (as appropriate). "Assault" means that a person has placed someone in fear of their life or person. "Battery" means that a person has physically struck someone in some way. "Homicide" means that a person has killed another human. None of these definitions speak to the legality of the action. You are right about the example being assault. Justified use of force is de facto legal. Assault, battery, and homicide are normally crimes, but the justifications for using force carve out exceptions. If the circumstances fit within the justification, the person using the justified force has not committed a crime. (Generally speaking, the person targeted by said force has.) If the situation you describe fits within the laws of justification within the state (and to be fair, it probably does), then your co-worker is right about the actions being perfectly legal. Police are picky about what they investigate, and prosecutors are picky about what they charge. If it's 100% clear from the evidence that you were justified in your use of force, prosecutors will (typically) not press charges, and so police will not bother with an arrest or further investigation. It's really not worth the time and effort for a case that has 0% chance of producing a conviction. However, if the police and prosecutors have some doubts (e.g., they think your force was excessive and therefor not justified), they can still press charges. Being charged with a crime does not mean you have committed a crime. And vice-versa. Justification is an affirmative defense against charges of assault / battery / homicide. An affirmative defense does not mean "I confess to the crime but have a really good excuse." It means that you admit to certain facts that would normally be beneficial to the prosecution, but claim additional facts that either mitigate or make you innocent of the given charges. In the case of justified force, you are admitting to the action of assault, but claiming innocence. When making your defense, your theory of defense must be internally consistent. You cannot admit to a fact when convenient and deny it when it is inconvenient. "I was in Santa Fe at the time, and anyway, Sam did it," is an example of a self-consistent theory that gives multiple reasons to acquit. That's good, because the jury only needs one reason that gives them pause, and now you've got two chances at that. "I was in Santa Fe at the time, and anyway, he was threatening my life," is not internally consistent. If you argue justification, you explicitly declaim any alibi. This situation is more dangerous, because your defense rests entirely on the credibility of the justification. But if you argue an alibi, you implicitly declaim any justification. So building your defense on things the prosecution can disprove is much worse than taking an affirmative defense of justification. | This is a good question, which I am going to answer from a practical perspective, rather than a theoretical one, which would probably justify a law review article (applications of the takings clause to criminal justice fact patterns is actually one of my pet areas of legal scholarship, but a lot of it calls for dramatic changes in established practice and precedents reached from other perspectives, making it impractical to pursue in real life). I recently had a case along these lines in my office where my client's property was seized as evidence in a criminal case against a third-party. The crime involved a gun shop where all of the guns that were in the possession of the shop owner for repairs at the time of the bust (i.e. as bailments), including ours worth several thousand dollars in addition to having some sentimental value, were seized as evidence of charges against a shop owner who was fencing stolen goods, making sales to felons off the books, falsifying excise tax returns, etc. He seemed legitimate and had been in business for many years in what was not a fly by night operation. He had all of the proper licenses. Who knew we were dealing with a crook? In that case, we intervened on behalf of our client in the primary case to seek the physical return of the property (basically a replevin claim), as have others affected by the bust. It took a few months and some legal fees, but we prevailed without too much effort, as have the other intervenors. Generally speaking, to make a 5th Amendment claim, you would have to show a total taking and move into some legal gray areas in this context, while it is usually hard for authorities to show a continuing need for possession of third-party property in the face of a demand for its return, especially when photography and other scientific tools can document the evidence in great detail these days. In that case, showing that our client's particular gun was not involved in any illegitimate transaction also simultaneously made it less important as evidence, although that would not necessarily be true in general in these kinds of situations. There is a pending case in Colorado posing similar issues, where a suburban police department essentially destroyed a guy's home in order to catch a felon with no relation to the homeowner whatsoever, who had fled into it and taken refuge there. But, that case, as far as I know, has not yet been resolved on the merits. | As you describe it, the survivor knows that the action will result in death, and premeditatedly undertakes the action. So we turn to the murder statute in that (unspecified) jurisdiction, which will be like this: A person is guilty of murder in the first degree when: (a) With a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person; or (b) Under circumstances manifesting an extreme indifference to human life, he or she engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person So the charge is first degree homicide. Because the murder statute might leave a person wondering if "it counts" when the conduct follows somebody's rules, the jury is given instructions clarifying what words mean: for first degree homicide in general see these pages. Most relevant here are the elements of "extreme indifference", also the definition and elements of premeditation. In general, if I say "It's okay if you kill him", that does not make it legal to kill a person, so organizationally sanctioning the move does not legalize it. | usukaustralia Yes, this can be charged as a type of negligent homicide, involuntary manslaughter. The degree of culpability might be greater than negligence, since the initial act was a premeditated crime. There is no intent to kill The act is criminal and malicious The consequences are reasonably foreseeable The offense would be a type of constructive manslaughter, where a crime not intended to kill or cause bodily harm results in death. In the UK this is also known as an unlawful act manslaughter. The perpetrator of a premeditated crime is held responsible not only for the intended consequences, but also for foreseeable incidental ones, albeit at a reduced degree of culpability. This doctrine is established in both civil and common law, and will apply in broadly similar ways, with different local names, usually variations on unintended homicide, in most civil law jurisdictions as well. us Medical or fire-fighting equipment being among the stolen items is, in many jurisdictions, by itself sufficient to raise the charge to grand theft, which is a felony in common law. If Bob actually specializes in this, and a death did occur, the prosecution might charge them with second-degree felony murder, if applicable in their state. That rule is generally applied when the base offense presents danger to human life, but there have been cases that stretch it. Burglary is sufficient to apply this rule. Such a charge is less certain to stand up in court and is usually traded down in a plea bargain. | Assuming that the above can be established by admissible evidence, that sounds like a case for first degree murder, and probably various other crimes as well. In some jurisdictions there is a specific crime of "Murder for hire" which might also apply if available on the jurisdiction where this occurred. A comment mentions a possible insanity defense. That is going to depend on detailed facts not included in the question, but might be possible. |
What's the status of the estate of someone that has been convicted of stealing, and ordered to pay restitution? Mr. X has been convicted of stealing $1 million, sentenced and ordered to pay restitution. What is the status of his estate under the following scenarios: 1) Mr. X has spent all the money and is broke. He can't possibly pay the $1 million. When he gets out of jail and (presumably) starts working again, how much of his income can he keep, and how is "excess income" assessed toward the $1 million debt? 2) Mr. X has a house worth $1 million with a mortgage of $1 million (a civil liability). I have been told that a criminal judgment takes precedence over a civil liability. Is it true, as my friend asserts, that the $1 million crime victims will get their money before the mortgagee after the house is sold? 3) Mr. X has a house worth $2 million with a $1 million mortgage, and $1 million of equity. Is there anything (e.g. taxes) that will stand in the way of the house being sold, $1 million being paid to reimburse the crime victims, and $1 million to the mortgagee? Put another way, what is the order of reimbursment between victim, mortgagee, and other claimants such as taxes? | First of all, there is more than one legal sense in which the term a person's "estate" is used. You are using it in the archaic sense of all of the property owned by a living natural person, but this is not a contemporary use of the term. Normally, the term estate is referred to property that belongs to a dead person that is subject to probate, the property that belongs to a trust, or the property that was transferred to a bankruptcy trustee by operation of law upon the filing of a bankruptcy petition. None of those modern senses of the word apply to this question. You are just asking about the extent to which a particular kind of debt (criminal restitution) can be collected from the person who owes that debt. Your tag also implies that you are particularly interested in New York law. The probate laws of the State of New York are codified in a portion of its statutes known as the EPTL (Estate, Powers and Trusts law), but as noted above, that is not relevant in this case. The criminal law provisions related to restitution, and the general rules applying to debt collection (spread across several of New York's statutes such as the Real Property Actions and Proceedings Law (RPAPL), the New York Penal Law, and the Civil Procedure Laws and Rules (CPLR)) are the laws applicable to your subquestions. 1) Mr. X has spent all the money and is broke. He can't possibly pay the $1 million. When he gets out of jail and (presumably) starts working again, how much of his income can he keep, and how is "excess income" assessed toward the $1 million debt? This involves the liability of Mr. X and not "his estate". If he goes bankrupt this debt would not be discharged if the proper procedural steps are taken. In general, restitution judgments can be enforced by the procedures set forth for collection of a civil judgment and also through the terms of any relevant probation or parole conditions (which would typically allow for incarceration for willful failure to comply with the conditions to the extent that Mr. X is able to do so with minimal due process protections). Civil judgments can be enforced through garnishment of amounts owed to you (such as bank account balances and wages) subject to certain exemptions from creditors (only some of which apply to restitution judgments) and through writs of execution against property owned by you (the process is quite different for tangible personal property v. real property). The general rule is that wages are exempt from creditors up to an amount equal to 30 hours times minimum wage or 75% of the total whichever is greater. There is usually no exemption for income as an independent contractor, businessman or for bank accounts (unless fully traceable to certain exempt assets). Certain kinds of property (there is a long list) are exempt from creditors as well (although certain kinds of assets are exempt as against some but not other creditors). 2) Mr. X has a house worth $1 million with a mortgage of $1 million (a civil liability). I have been told that a criminal judgment takes precedence over a civil liability. Is it true, as my friend asserts, that the $1 million crime victims will get their money before the mortgagee after the house is sold? This is also a claim against Mr. X and not his estate. Your friend was incorrect. A mortgage is a property interest that takes priority over an unsecured debt like a restitution judgment even if that debt may have special priorities in some circumstances. (This assumes that the mortgage is recorded before a "judgment lien" is recorded in the real property records of the county where the house is purchased or is recorded contemporaneously with the purchase of the house. If a judgment lien is recorded and then a mortgage is entered into and recorded later, the judgment lien would have priority.) 3) Mr. X has a house worth $2 million with a $1 million mortgage, and $1 million of equity. Is there anything (e.g. taxes) that will stand in the way of the house being sold, $1 million being paid to reimburse the crime victims, and $1 million to the mortgagee? Put another way, what is the order of reimbursment between victim, mortgagee, and other claimants such as taxes? To grossly oversimplify a complicated process with a variety of exceptions: The highest priority would be any outstanding liens for unpaid property taxes, Then sometimes all or part of a homeowner's association lien, then the first mortgage, then any other other liens junior to the mortgage that are not subject to a homestead exemption of CPLR Section 5206, because the homestead exemption was waived or to which it does not apply by law (e.g. mechanic's liens for work done on the property but not paid for and second mortgages), then the homestead exemption amount (paid to Mr. X) which in New York ranges from $75,000 to $150,000 depending upon the county in question which remains exempt for one year if kept segregated or reinvested in a new home (twice as much if the debtor is married), then judgment liens paid in order of recording which were recorded prior to the restitution judgment lien. The property interest in the house associated with judgment liens or other mortgages recorded after the restitution judgment lien foreclosed upon that burden the property (i.e. junior liens) are erased in a foreclosure, subject to a right of redemption set forth in in RPAPL Section 1352: Sec. 1352. JUDGMENT FORECLOSING RIGHT OF REDEMPTION. Where real property has been sold pursuant to a judgment in an action to foreclose a mortgage, and an action is thereafter brought to foreclose or extinguish a right of redemption in such real property, the judgment, instead of directing a sale of the property, shall fix the right of any person having a right of redemption therein or the right to foreclose a subordinate mortgage or other lien and shall provide that a failure to redeem or commence an action for the foreclosure of such mortgage or other lien within such time shall preclude such person having a right of redemption or the holder of such mortgage or other lien from redeeming such property or foreclosing such mortgage or other lien, and thereafter such person having a right of redemption or the holder of such mortgage or other lien shall be excluded from claiming any title or interest in such property and all title or interests of such person having a right of redemption in, or the right to foreclose a subordinate mortgage or other lien against such property shall thereby be extinguished and terminated. The claims would be paid out of the proceeds of a sheriff's sale net of the costs of sale. If there is money left over after all of these claimants are paid, it would go to the property owner, Mr. X. But, in your scenario with a $1 million mortgage and a $1 million restitution lien and a $2 million value, there would be no excess. If a properly bid sale price is not enough to pay the entire restitution judgment, the shortfall called a "deficiency" remains as a "deficiency judgment" that is still owed by Mr. X. Strictly speaking, the higher priority liens don't get paid from the sales proceeds (except the owner's homestead exemption amount), instead the foreclosure sale buyer takes the property subject to those liens and those senior lienholders have a right to foreclosure in turn if they are paid off. Also, procedurally, the value of the property net of higher priority liens and encumbrances is determined by the highest bid made at a sheriff's sale (with the foreclosing debtor allowed to use the amount of the lien as payment), not on the basis of an appraisal or prolonged sale via a realtor. Often there will be no bidder other than the creditor bringing the foreclosure. APPENDIX: Criminal restitution in New York State is primarily governed by N.Y. Penal Law Section 60.27 which reads as follows: Restitution and reparation In addition to any of the dispositions authorized by this article, the court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed upon a person convicted of an offense, and after providing the district attorney with an opportunity to be heard in accordance with the provisions of this subdivision, require the defendant to make restitution of the fruits of his or her offense or reparation for the actual out-of-pocket loss caused thereby and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action taken against the victim. The district attorney shall where appropriate, advise the court at or before the time of sentencing that the victim seeks restitution or reparation, the extent of injury or economic loss or damage of the victim, and the amount of restitution or reparation sought by the victim in accordance with his or her responsibilities under subdivision two of section 390.50 of the criminal procedure law and article twenty-three of the executive law. The court shall hear and consider the information presented by the district attorney in this regard. In that event, or when the victim impact statement reports that the victim seeks restitution or reparation, the court shall require, unless the interests of justice dictate otherwise, in addition to any of the dispositions authorized by this article that the defendant make restitution of the fruits of the offense and reparation for the actual out-of-pocket loss and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action, caused thereby to the victim. In the event that restitution or reparation are not ordered, the court shall clearly state its reasons on the record. Adverse action as used in this subdivision shall mean and include actual loss incurred by the victim, including an amount equal to the value of the time reasonably spent by the victim attempting to remediate the harm incurred by the victim from the offense, and the consequential financial losses from such action. Whenever the court requires restitution or reparation to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense. In making this finding, the court must consider any victim impact statement provided to the court. If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in section 400.30 of the criminal procedure law. The provisions of sections 420.10, 420.20 and 420.30 of the criminal procedure law shall apply in the collection and remission of restitution and reparation. For purposes of the imposition, determination and collection of restitution or reparation, the following definitions shall apply: (a) the term "offense" shall include the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense. (b) the term "victim" shall include the victim of the offense, the representative of a crime victim as defined in subdivision six of section six hundred twenty-one of the executive law, an individual whose identity was assumed or whose personal identifying information was used in violation of section 190.78, 190.79 or 190.80 of this chapter, or any person who has suffered a financial loss as a direct result of the acts of a defendant in violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, a good samaritan as defined in section six hundred twenty-one of the executive law and the office of victim services or other governmental agency that has received an application for or has provided financial assistance or compensation to the victim. A victim shall also mean any owner or lawful producer of a master recording, or a trade association that represents such owner or lawful producer, that has suffered injury as a result of an offense as defined in article two hundred seventy-five of this chapter. (a) Except upon consent of the defendant or as provided in paragraph (b) of this subdivision, or as a condition of probation or conditional discharge as provided in paragraph (g) of subdivision two of section 65.10 of this chapter, the amount of restitution or reparation required by the court shall not exceed fifteen thousand dollars in the case of a conviction for a felony, or ten thousand dollars in the case of a conviction for any offense other than a felony. Notwithstanding the provisions of this subdivision, if an officer of a school district is convicted of violating any section of article one hundred fifty-five of this chapter where the victim of such crime is such officer's school district, the court may require an amount of restitution up to the full amount of the fruits of the offense or reparation up to the full amount of the actual out-of-pocket loss suffered by the victim, provided further that in such case the provisions of paragraph (b) of this subdivision shall not apply. (b) The court in its discretion may impose restitution or reparation in excess of the amounts specified in paragraph (a) of this subdivision, provided however that the amount in excess must be limited to the return of the victim's property, including money, or the equivalent value thereof; and reimbursement for medical expenses actually incurred by the victim prior to sentencing as a result of the offense committed by the defendant. Any payment made as restitution or reparation pursuant to this section shall not limit, preclude or impair any liability for damages in any civil action or proceeding for an amount in excess of such payment. In the event that the court requires restitution or reparation to be made to a person and that person dies prior to the completion of said restitution or reparation, the remaining payments shall be made to the estate of the deceased. The court shall in all cases where restitution or reparation is imposed direct as part of the disposition that the defendant pay a designated surcharge of five percent of the entire amount of a restitution or reparation payment to the official or organization designated pursuant to subdivision eight of section 420.10 of the criminal procedure law. The designated surcharge shall not exceed five percent of the amount actually collected. Upon the filing of an affidavit of the official or organization designated pursuant to subdivision eight of section 420.10 of the criminal procedure law demonstrating that the actual cost of the collection and administration of restitution or reparation in a particular case exceeds five percent of the entire amount of the payment or the amount actually collected, as the case may be, the court shall direct that the defendant pay an additional surcharge of not more than five percent of the entire amount of a restitution or reparation payment to such official or organization, or the actual cost of collection or administration, whichever is less unless, upon application of the defendant, the court determines that imposition of such additional surcharge would cause undue hardship to the defendant, or any other person who is financially supported by the defendant, or would otherwise not be in the interest of justice. Such additional surcharge, when added to the initial five percent surcharge, shall not exceed ten percent of the amount actually collected. If the offense of which a person is convicted is a class A, class B, class C, or class D felony involving the sale of a controlled substance, as defined in article two hundred twenty of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this section, in addition to its ordinary meaning, shall mean any law enforcement agency of the state of New York or of any subdivision thereof which has expended funds in the purchase of any controlled substance from such person or his agent as part of the investigation leading to such conviction. Any restitution which may be required to be made to a law enforcement agency pursuant to this section shall be limited to the amount of funds expended in the actual purchase of such controlled substance by such law enforcement agency, less the amount of any funds which have been or will be recovered from any other source, and shall not include a designated surcharge pursuant to subdivision eight of this section. Any law enforcement agency seeking restitution pursuant to this section shall file with the court and the district attorney an affidavit stating that funds expended in the actual purchase of a controlled substance for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding. Any law enforcement agency receiving restitution pursuant to this section shall promptly transmit to the commissioner of the division of criminal justice services a report stating the dollar amount of the restitution received. If the offense of which a person is convicted is defined in section 150.10, 150.15 or 150.20 of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this section, in addition to its ordinary meaning, shall mean any municipality or volunteer fire company which has expended funds or will expend funds for the purpose of restoration, rehabilitation or clean-up of the site of the arson. Any restitution which may be required to be made to a municipality or volunteer fire company pursuant to this section shall be limited to the amount of funds reasonably expended or to be expended for the purpose of restoration, rehabilitation or cleanup of the site of the arson, less the amount of any funds which have been or will be recovered from any other source, and shall not include a designated surcharge pursuant to subdivision eight of this section. Any municipality or volunteer fire company seeking restitution pursuant to this section shall file with the court, district attorney and defense counsel an affidavit stating that the funds reasonably expended or to be expended for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding. For the purposes of this subdivision, "volunteer fire company" means a fire company as defined in paragraph a of subdivision two of section one hundred of the general municipal law. Notwithstanding any other provision of this section to the contrary, when a person is convicted of harming an animal trained to aid a person with a disability in the second degree as defined in section 195.11 of this chapter, or harming an animal trained to aid a person with a disability in the first degree as defined in section 195.12 of this chapter, the court, in addition to any other sentence, shall order the payment of restitution to the person with a disability who was aided by such animal. If the offense of which a person is convicted is defined in section 155.25, 155.30, 155.35, 155.40 or 155.42 of this chapter, and the property taken is timber, the court may upon conviction, in addition to any other sentence, direct the defendant to pay the rightful owner of such timber an amount equal to treble the stumpage value of the timber stolen as defined in section 71-0703 of the environmental conservation law and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation. Such reparations shall be of such kind, nature and extent as will reasonably restore the lands affected by the violation to their condition immediately before the violation and may be made by physical restoration of such lands and/or by the assessment of monetary payment to make such restoration. If the offense of which a person is convicted is defined in section 240.50, subdivision one or two of section 240.55, section 240.60, section 240.61, section 240.62 or section 240.63 of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this subdivision, in addition to the ordinary meaning, shall mean any school, municipality, fire district, fire company, fire corporation, ambulance association, ambulance corporation, or other legal or public entity engaged in providing emergency services which has expended funds for the purpose of responding to a false report of an incident or false bomb as defined in section 240.50, subdivision one or two of section 240.55, section 240.60, section 240.61, section 240.62, or section 240.63 of this chapter. Any restitution which may be required to be made to a victim pursuant to this subdivision shall be limited to the amount of funds reasonably expended for the purpose of responding to such false report of incident or false bomb, less the amount of any funds which have been or will be recovered from any other source and shall not include a designated surcharge pursuant to subdivision eight of this section. Any victim seeking restitution pursuant to this subdivision shall file with the court, district attorney and defense counsel an affidavit stating that the funds reasonably expended for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding, except as provided for by section 3-112 of the general obligations law. Where a transfer of probation has occurred pursuant to section 410.80 of the criminal procedure law and the probationer is subject to a restitution condition, the department of probation in the county in which the order of restitution was imposed shall notify the appropriate district attorney. Upon notification by the department of probation, such district attorney shall file a certified copy of the judgment with the clerk of the county in the receiving jurisdiction for purposes of establishing a first lien and to permit institution of civil proceedings pursuant to the provisions of subdivision six of section 420.10 of the criminal procedure law. | I gather that the numerous ramifications you outline are merely contexts and that your main concern is about the application of contract law (contract law in the U.S. does not really vary among states). Thus, I will not really delve in the intricacies of --for instance-- privacy or copyright issues arising from the commercial use of a person's likeness that you mention in one of the scenarios. As a starting point, one needs to bear in mind that: a contract is an exchange of considerations under terms and conditions entered knowingly and willfully by the parties, which can be evidenced by the parties' subsequent conduct (that is, not just by signing a document); and a contract is unenforceable if it contravenes public policy and/or the covenant of good faith and fair dealing. Accordingly, the questions are (1) whether a person knew or reasonably should have known about the terms & conditions at or by the time of those events which trigger obligations pursuant to the contract; and (2) whether the provisions therein are unreasonable, illegal, or tantamount to a penalty, especially in the event that the party breaches or repudiates the alleged contract (see the Restatement (Second) of Contracts at § 356(2)). The scenario of house for sale entails various difficulties as per contract law and otherwise. Here are some of those issues: Are visitors properly (including "beforehand") notified about the "walkway clause"? If not, the contract is void because it cannot be said that visitors knew about & accepted that condition. Does the house provide alternatives for lawful & informed visitors to safely avoid the walkway? If not, then the seller/owner might end up incurring premises liability with respect to those visitors who get injured in making their reasonable effort not to trigger the "walkway clause". Is the house owner realistically able to prove that use of the walkway by lawful & informed visitors is sufficiently "inconsistent with the offeror's ownership of offered property" so that triggering a house sale is a reasonable consequence (see Restatement at §69(2))? Is the owner-imposed mortgage rate compliant with state law pertaining to granting of credit & loans? These exemplify only some of the burdensome complications when trying to enforce "contracts" which are extravagant or quite one-sided. Lastly, as a side note, the presumption that a person reading the poster and walking in the intended area does not thereby receive consideration is not necessarily accurate. As an example, the "intended area" could have been devised by an entity in the business of enjoyment and recreation, such as a private park. The person who deliberately walks in (regardless of whether he read the poster) certainly receives a consideration, which is the amusement or recreation for which the park was designed. | If I remember the case correctly, he didn't make his home look uninhabited (that is nobody is living there) but as if the inhabitants had left (gone shopping etc.) to make it look attractive to burglars. He then waited inside, armed with a gun, with the intent of shooting any burglars that might arrive. He shot the first burglar in the legs, and then proceeded to kill the unarmed and now defenseless burglar, who was lying injured on the ground and was in no position anymore to hurt him. He then did the same with a second burglar, shooting her in the legs, then shooting her multiple times, and when he found she was still alive, he shot her point blank in the face while she was lying on the ground. You are asking the wrong questions. You are asking "is it illegal to remove a truck". It's not. What is illegal is to intentionally create a situation where you shoot people and try to claim "self defence". It can very well be argued that by luring burglars into your home with the intent to kill them, they are not actually illegal in that home, because you wanted them to be there. You can do many things that are each completely innocent but add up to a crime. Actually, for everyone interested, I posted a question maybe last week or the week before whether you can be convicted for both first degree murder and second degree murder for killing a person, and it was exactly this case that inspired the question. What should he have done? If he hadn't lured the burglars in, I believe the case would have still been a double murder, since he killed both unarmed teenagers when they were absolutely no threat. It might not have been first degree murder since it would not have been premeditated. But he intentionally lured them in, making it premeditated (first degree) murder. If he had only injured them, the fact that he lured them in could very likely have made this an assault. You asked: "Now that the burglars are in his house, what should he have done? " Well, he got himself into a dangerous situation. Remember, he was convicted for premeditated murder. So just before he shot the girl in the head, he should have instead put the gun away and called police and an ambulance. It would have been one murder instead of two. Just before he shot the boy, he should have put the gun away and called police and an ambulance. It would have been just attempted murder. When he heard the first person entering, he should have called the police and waited. When the burglar came in sight, he should not have shot and injured him. It's a similar question to "if I try a bank robbery and there is an armed guard, what should I do". The only legal thing to do is to drop your weapon and wait to be arrested. If an armed burglar had appeared instead of two unarmed teens, well, he would have put himself into a dangerous situation. Just as the burglar would have no right to shoot even if a home owner points a weapon at him, he had no right to shoot, no right to self defense, since he had intentionally created the situation. Tough shit. That's what you may get if you plan a murder. Responding to some comments: @J.Chang Are you being serious? You are not allowed to make your house inviting to burglars, while waiting inside with the intent of killing them. Self defense only applies when a reasonable person would believe they are in danger. Reasonable persons don't think that a burglar comes in with the intent of blowing themselves up and taking the home owner with them. And no, you don't get to "assume the worst". Not when the worst is something no reasonable person would expect. Thanks to Dale for pointing out that even for soldiers in a war situation, where different rules apply, deliberately killing a helpless enemy combatant is murder. | The simple answer is, get a lawyer and explain your case, and pay him to solve the problem (or tell you that it's hopeless). The two main questions would be whether the appraiser have any duty to you, and whether his action was within the scope of what he is supposed to do. If you hired the appraiser, he has a duty to you. I will assume it was you that hired the appraiser (if it was the bank, that's a different matter). Then the question is whether his action or non-action is within the scope of the job. If the place is infested with termites, that is probably irrelevant because an appraiser is not a termite inspector. On the other hand, if he failed to measure the structure, or erred substantially in the measurement, that kind of negligence could be legally actionable. The seller (not the appraiser) is required to "disclose", so it's not obvious that there is any thing that an appraiser could disclose that relates to a map. | What would happen if this money was not returned? The former employee would, based on the given circumstances, be guilty of theft contrary to section 1 of the Theft Act 1968: (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it... Section 5 defines "Belonging to another" to include: (4)Where a person gets property by another’s mistake, and is under an obligation to make restoration [...] an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. Setion 4 states that: (1)“Property” includes money... Although there are statutory defences to theft, at section 2, to acting dishonestly they are not satisfied in this scenario: (1)A person’s appropriation of property belonging to another is not to be regarded as dishonest— (a)if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b)if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or (c)(except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. A very similar set of circumstances arose in the case A-G Ref (No 1 of 1983) [1985] QB 182 The defendant, a police woman, received an overpayment in her wages by mistake. She had noticed that she had received more than she was entitled to but did not say anything to her employer. She did not withdraw any of the money from her bank account. The trial judge directed the jury to acquit. The Attorney General referred a question to the Court of Appeal. Held: [by the Court of Appeal] It was possible for a theft conviction to arise where the defendant had not withdrawn the money. There was a legal obligation to return the money received by mistake. | The precise details (and citations) will vary with jurisdiction, so this answer deals only with principles. If you pick up and "take possession of" property belonging to somebody else, you are a thief. [Note that 'taking possession' rather than picking up to restore to the owner/correct place is what makes the difference, which is why in real life nobody who cannot prove your intention will take action; but your question explicitly concedes the point.] If the property does not belong to the supermarket, you are not stealing from them, but from the currently unidentified owner: this makes no legal difference. You might conceivably have a defence if you can prove that the owner has abandoned the property, whatever the definition of "abandoned" is in your jurisdiction (note that it is up to you to show this, and possibly that you knew it before you picked up the property). If it belongs to the supermarket, this cannot be true; if a box of matches has fallen out of someone's pocket, it might possibly be (whatever the laws are, it is very unlikely that they have ever been applied in such a trivial case, so there may be some uncertainty). in any case, the shop is undoubtedly allowed to throw you out, ban you from returning to their premises, and inform other shops and the police that they believe you to be a petty thief, based on their experience. | While it seems like a simple question, the answer is somewhat complicated. As is frequently the case for "white collar" misconduct, There are several civil and criminal legal theories that could be applied, depending upon the nature of the offense, at both the federal and state levels (e.g. how was it done and what is the relationship of the offender to the victim). The penalty will generally be specific to the legal theory under which punishment or compensation is sought. One of the more obvious ones (if the stolen files are legitimately classified as trade secrets) is violation of the state's trade secret law: If a court finds that a defendant has unlawfully taken a plaintiff's trade secret(s), it may impose the following penalties and remedies: Criminal Penalties: Unlawfully taking a trade secret (defined above) constitutes the crime of larceny in Massachusetts and is punishable by up to five years imprisonment, or by a fine of up to $25,000 and up to two years imprisonment. See Mass. Gen. Laws ch. 266, § 30. Damages: A court can make a defendant pay money damages to the plaintiff in an amount up to twice its actual damages. See Mass. Gen. Laws ch. 93, § 42 Injunctive Relief: Massachusetts law gives a court the power to restrain the defendant from "taking, receiving, concealing, assigning, transferring, leasing, pledging, copying or otherwise using or disposing of a trade secret, regardless of value." See Mass. Gen. Laws ch. 93, § 42A. It appears that a court could order you not to publish a trade secret if it found that you had unlawfully taken it from the plaintiff. The First Amendment to the U.S. Constitution may limit the court's authority to do so, however. Another would be a civil action for conversion of intellectual or intangible property, or a criminal action for theft or sale of stolen goods. Depending upon the means by which the files were obtained, it might implicate common law fraud and criminal fraud offenses (including wire and mail fraud), and state and federal laws involving computer crimes. Another legal theory could be tortious interference with contract or tortious interference with business prospects. Less aggressively a common law constructive trust could probably be imposed on the digital files and the proceeds from them, and the person receiving the proceeds of the stolen files could be sued for unjust enrichments/restitution. In many cases, it would be a civil and criminal federal copyright law violation (if the victim owns the copyright and the files are copyrightable material). The proper offenses and hence the available remedies, would depend to a significant extent both legally and from a practical and litigation tactics perspective, on the means by which the digital files were obtained. | If it’s your pizza, yes The civil equivalent of theft is the tort of conversion, “consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In England & Wales, it is a tort of strict liability.” |
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