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Can a woman deny her husband or a stranger paternity test? Can a woman deny her husband or a stranger paternity test? Can a woman deny her husband a paternity test if he thinks she cheated on her? What about a stranger who claims to be the father when the woman is married. The first one should be straightforward, but I am not sure about the second one, because in that situation the man could be a stranger, or even if he's not he could negatively impact the couple. Let's assume that the country is the United States and that the state is California. | Short Answer Can a woman deny her husband or a stranger paternity test? Can a woman deny her husband a paternity test if he thinks she cheated on her? In California, up to the child attaining the age of two, the husband may seek a paternity test and take legal action to disavow paternity of a child of his wife who is not his biological child (although it is not certain of success even if he shows a lack of a biological relationship). But, a "stranger" may generally not compel that a DNA test be done or contest paternity in California, in his own right. Only the mother or her husband may do that in this fact pattern. Long Answer Background: The Technology of Modern DNA Testing In practice, there is almost never any reasonable doubt about a mother's maternity of a child, although this is possible to confirm with DNA tests. DNA tests on well authenticated samples are basically perfectly accurate in determining the paternity of a child (except in the one in a million case of identical twin men who have both had unprotected sex with the mother at the approximate time of conception of a child). The risk of a false positive for a close relative other than an identical twin is almost nil (even, for example, in the case of a "three-quarter sibling" with the identical Y-DNA, which is inherited by boys exclusively from their fathers, mtDNA, which is inherited exclusively from a child's mother, and blood type). A DNA test from a potential father and from the child can be compared to determine with nearly 100% certainty that the child is or is not the biological father of the child. It is not necessary to have DNA samples from both potential fathers to determine if the child is or is not the biological child of one potential father. It is trivial for an adult to obtain their own DNA test at a cost on the order of $100-$200 for a test sufficient for this purpose, and can take two or three weeks to process (it can be done sooner with an expedited processing fee or other kinds of priorities in a lab it only actually takes hours to process). The usual method of DNA collection from both adults and children is to take a swab from the cheek of the subject with a glorified Q-tip and to send it off to a lab, with careful third party participation in the process and labeling of the sample if court authentication is a potential issue. Many other kinds of small tissue samples for a subject, however, such as hair or blood or urine or stool, can be used to obtain a forensic DNA test which is almost equally accurate. Forensic samples, however, are much more expensive to process in a lab and are harder to authenticate as coming from the subject. A "medical grade" DNA test that examines genes where 99.9% +/- of humans are identical (involving the determination of the nature of a vast number of extra genes which are not ancestry informative in most cases, but are useful for identifying novel genetic mutations leading to suspected genetic disorders) are not necessary to determine paternity. Husbands Can Sometimes Disavow Paternity With Genetic Evidence In California, either spouse, may obtain a genetic test to overcome the putatively conclusive presumption until the child reaches the age of two with an affidavit setting forth why this is necessary (i.e. some reason to believe that the child is not the genetic child of the husband of the mother). See C.A. v. C.P., 29 Cal.App.5th 27, 240 Cal. Rptr. 3d 38, 2018 WL 5919106, 2018 Cal.App. LEXIS 1017 (Cal. Ct. App. 2018) (cited in the answer by @kisspuska), and California Family Code §§ 7540, 7541, 7555, 7611 and 7612). To support that affidavit, a husband could obtain and test a DNA sample of the child (as a presumed parent he wouldn't need anyone's consent to do that) and himself, without a court order, although an additional test might be necessary at trial if evidentiary objections were raised about the authenticity of the sample tested. A genetic test is not the end of the story, however, which still has to undergo an analysis balancing the relevant considerations under California Family Code § 7612 in which "the weightier considerations of policy and logic controls." In practice, this basically means that the court does a best interests of the child analysis that incorporates the damage to the marital relationship that discovery of the mother's affair has caused. For example, if the affair triggered a divorce and the mother's husband had been cited for domestic violence since discovering the affair and testified in court that he would never accept the child as his own, it is likely, in practice, that the father indicated by the genetic test would prevail as a legal parent over the presumption that the husband of the child's mother is the father of the child. In contrast, if the family was intact, the husband of the mother testified that he was willing to raise the child as his own, and the genetic father had a dubious character (e.g. destitute and a criminal record), the court would probably find that the husband of the mother was the legal father notwithstanding the genetic evidence. "Strangers" Almost Never Have Standing To Contest Paternity A stranger would generally not be a presumed parent with standing to seek such a test under California Family Code § 7611, and so would have to rely on the mother or her husband, to raise the issue and bring him in as a potential parent under California Family Code § 7555 (which creates a presumption of paternity if the genetic test shows he is the biological father but doesn't confer standing to challenge the paternity of a husband of the mother if no one else does so). The "stranger" would usually need the cooperation of the mother or the father to obtain a "voluntary" paternity test without a court order to even use it to try to prod either parent to raise the issue of paternity on his behalf, although this would be highly fact specific and one could certainly imagine circumstances in which the "stranger" could obtain a DNA sample from the child without committing a crime. The child through a guardian ad litem, also lacks standing to bring an action seeking to have him declared a parent based upon genetic evidence alone under Section 7541(b)(2). A child's guardian ad litem can only seek to have paternity established in favor of someone with a Section 7611 presumption of paternity (generally speaking, cohabitants of unmarried people and recently former spouses). More specifically, the people with standing to establish paternity under California Family Code § 7611 are: A husband who was married to the mother at the time of the birth or within 300 days before the birth. § 7611(a). A putative husband who would have been a spouse under § 7611(a), who marriage is annulled (e.g. because a marriage license expired or a husband was too closely related to the mother or either spouse is already married). § 7611(b). A putative husband who cohabited with the mother within 300 days before the birth whose attempt to married was too obviously defective to require an annulment (e.g. two fifteen year olds who have a church wedding without a marriage license). § 7611(b). A husband of the mother who marries the mother after the birth and is also named as a father on the birth certificate, in a voluntary written promise, or in a court order. § 7611(c). A putative husband who attempt to marry the mother after the birth and is named as a father on the birth certificate, in a voluntary written promise, or in a court order. § 7611(c). A person "who receives the child into his or her home and openly holds out the child as his or her natural child." § 7611(d). A parent who dies while the "child is in utero" if this is established in a probate court proceeding. § 7511(e). Generally only the bolded presumption of California Family Code §§ 7611(d) or 7611(e) could ever conceivably apply to a "stranger", and the dead father under California Family Code § 7611(e) would normally either lose in a § 7612 analysis of competing presumptions or would be named as a "third parent" in what would de facto amount to a memorialization and an adoption, but could be relevant for survivors benefits and inheritance at the death of the biological father. Furthermore, convicted rapists aren't eligible to be found to be legal fathers in California under California Family Code § 7611.5. California's decision to deny the "stranger" standing to establish his paternity is constitutional. The U.S. Supreme Court, in Michael H. v. Gerald D., 491 U.S. 110 (1989), held that a state is not constitutionally required to make such a process available to "the other man", but some states other than California do anyway. Relevant Statutory Language California Family Code § 7541 which governs contests to the presumption of paternity of a husband of the mother (and certain other cases) provides that: (a) If the court finds that the spouse who is a presumed parent under Section 7540 is not a genetic parent of the child pursuant to Chapter 2 (commencing with Section 7550), the question of parentage shall be resolved in accordance with all other applicable provisions of this division, including, but not limited to, Section 7612. (b) An action to challenge the parentage of the spouse who is a presumed parent under Section 7540 shall be filed and served not later than two years from the child’s date of birth and may only be filed by any of the following: (1) By either spouse. (2) By a person who is a presumed parent under Section 7611 or by the child, through or by the child’s guardian ad litem, to establish the parentage of the person who is a presumed parent under Section 7611. (c) The petition or motion to challenge a presumption under Section 7540 pursuant to this section shall be supported by a declaration under oath submitted by the moving party stating the factual basis for placing the issue of parentage before the court. (d) Genetic testing may not be used to challenge parentage, in either of the following cases: (1) A case that reached final judgment of parentage on or before September 30, 1980. (2) A case challenging the parentage of a spouse who is a parent pursuant to Section 7962 or subdivision (a) of Section 7613, except to resolve a dispute regarding whether the child was conceived through assisted reproduction. California Family Code § 7962 pertains to surrogacy arrangements and § 7613(a) pertains to assisted reproduction. California Family Code § 7612 which sets forth the standard for resolving disputed paternity claims reads as follows: (a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2, a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence. (b) If two or more presumptions arise under Section 7611 that conflict with each other, or if one or more presumptions under Section 7611 conflict with a claim by a person identified as a genetic parent pursuant to Section 7555, the presumption that on the facts is founded on the weightier considerations of policy and logic controls. If one of the presumed parents is also a presumed parent under Section 7540, the presumption arising under Section 7540 may only be rebutted pursuant to Section 7541. (c) In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage. (d) Unless a court orders otherwise after making the determination specified in subdivision (c), a presumption under Section 7611 is rebutted by a judgment establishing parentage of the child by another person. (e) A person’s offer or refusal to sign a voluntary declaration of parentage may be considered as a factor, but shall not be determinative, as to the issue of legal parentage in a proceeding regarding the establishment or termination of parental rights. (f) This section shall become operative on January 1, 2020. Caveats This analysis is specific to California and U.S. law on this topic is not uniform. It is also important to note that the determination made under the California law analysis above is not necessarily binding for all purposes. The applicable law depends upon how the paternity issue presents itself. This may be particular relevant in cases where a child may have an independent interest in asserting that someone is their father that could not have been, or was not asserted, when the child was less than two years old. For example, this analysis isn't necessarily the controlling one for purposes of inheritance rights, for purposes of citizenship, for purposes of membership in an Indian tribe, or for incest determination purposes, under the laws of all potentially applicable jurisdictions. | Hair is not personally property until it is removed from your body, it is just part of your body, just like your nose or your femur. After it is removed from your body, it is the property of the person it used to be attached to, although it is frequently promptly abandoned to a trash bin or the floor of a hair cutter. A married woman in Michigan is not now required to have her husband's permission to cut her hair (unless the husband has been declared her legal guardian for extraordinary cause due to something like dementia by a court with ample due process protections, in theory, anyway). This wasn't true even in 1850 and hasn't been true at any time since then. It may never have been true in Michigan while it was a part of the United States of America, although the state of territorial law under the Northwest Ordinance was not necessarily easy to determine with certainty. Almost certainly, there was never a statute to that effect on the books in Michigan or any preceding U.S. territory. The 1850 Constitution recognized the right of a married woman to have separate property that was not marital property (not unlike the law of community property states and countries at the time and not unlike states like Colorado). The 1855 statute, a 1911 statute not linked above, and the 1981 statute essentially put married women on equal footing with single adult women in terms of property ownership and legal status, with the 1981 statute basically just re-codifying the 1855 and 1911 statutes in more modern language. These legal authorities did so in order to abolish the common law doctrine that upon marriage, a husband and wife become one legal person who acts legally though the husband, called the merger doctrine a.k.a. coverture. Historical background for this wave of statutes can be found here. Justice Kennedy reviewed the history of this law in his 2015 opinion legalizing same sex marriage nationwide in the United States. One U.S. state was outside the common law tradition and a laggard, but it wasn't Michigan: In 1979, Louisiana became the last of the states of the U.S. to have its Head and Master law struck down. An appeal made it to the Supreme Court of the United States in 1980, and in the following year the high court's decision in Kirchberg v. Feenstra effectively declared the practice of male-rule in marriage unconstitutional, generally favoring instead a co-administration model. While these statutes are not directly applicable to the question, they do, more generally, disavow a legal worldview in which one could imagine that a woman would require a man's permission to cut her hair, although this is almost surely just an urban myth. Pre-1850, the government in Michigan, which was basically on the frontier at the time, was just too weak to maintain that kind of control over people. | The short answer is that yes, a couple can marry for the purpose of gaining access to the marital privilege in court actions, even if they are pending when the marriage occurs. There is basically no such thing as a sham marriage in this context. (There may be a handful of outlier cases as is the case in any legal rule, but this is the overwhelmingly uniform rule of law today.) In practice, outside the context of an annulment proceeding in the civil courts where one of the parties to the marriage or fiduciaries such as legal guardians for one of the parties to the marriage seek to have it invalidated, a legally entered into marriage is valid for all purposes without question. Even many marriages that can be annulled for religious purposes are not eligible to be annulled under non-religious civil law. Third-parties generally do not have standing to declare that a marriage be annulled. Usually marriage is conclusively established by the existence of a marriage license and the absence of a death or divorce by either party. Even the existence of a common law marriage, or the existence of some factor that prevents a marriage from being recognized as valid (e.g. one of the parties is already married or is underage) is often fairly easily proved (and is usually completely unrelated to the case in which a martial privilege is to be asserted and undisputed). Immigration law is the only context is which the status of a marriage as a sham is actively policed. Also, keep in mind that the marital privilege for evidentiary purposes is actually two separate privileges. One is the privilege not to testify against a current spouse in a legal proceeding. The other is the privilege not to testify as to confidential communications made to a spouse while the couple was married. Both have exceptions (e.g. for crimes in which one of the spouses is the victim). A confidential communication to a boyfriend/girlfriend prior to marriage is not protected by the confidential communications marital privilege even after the couple married. Only the testimonial privilege would be available with regard to those communications, and the testimonial privilege often has more exceptions than the confidential communications privilege (usually the exceptions are enumerated by statute that varies from state to state). A previous answer related to spousal privilege with quotations from a state statute to provide an example can be found here. In Colorado, which is fairly typical, the confidential communications privilege applies to all crimes (except those which are ongoing or are between the spouses), while the testimonial privilege does not apply to serious felonies. | There are several reasons people wish to get a marriage annulled. I'll try to list them in order of frequency -- though I'm unaware of any statistics that confirm that my ordering is correct. Money. As per Nij's comment, when people are divorced, their property is subdivided 50-50. If one person can get away with an annulment, and keep the property which he earned, then it will be in his interests to do so. Religious reasons. As per SJuan76's comments, several churches, including Catholic, Mormon, and Russian Baptist, do not allow a person to marry if his previous spouse is still alive. An annulment is a way around that. Fraud marriages. This is rare, but under Trump it happens more often then you might think. People (usually women) come to the US illegally, marry someone (generally significantly older), and after the wedding day they are never again seen by their spouse. They use their marriage certificate to ensure permission to stay in the US -- but, they were never interested in marrying that person in the first place. When found, often such people are living with another illegal alien "as a boyfriend", with kids born before the fraud marriage even took place. It is in such cases, that their new spouse often tries to attain an annulment of the marriage -- to make sure that the illegal alien doesn't get rewarded for cheating them. Personal reasons. For some people, having never been married means it's easier to get a spouse who also has never been married -- and being able to check the "Single -- Never married" box on a form is always a plus in such cases. Now, don't ask me why people prefer to marry someone who's never been married, over someone who's been divorced. :) Incest. Under the US law, if you marry someone who's your close relative, then you are guilty of a felony -- even if you didn't know they're your close relative at the time of marriage. However, if you annul the marriage, then you can avoid prosecution. | Short Answer SIMPLIFIED AND UPDATED BASED ON ADDITIONAL INFORMATION IN THE QUESTION: The marriage is valid, but their marriage will not allow the girlfriend to refuse to testify as a witness in the case. She can be compelled to testify against him under oath, but does not have to testify about the confidential communications that they have with each other after they get married (e.g. if he confesses to her while there are having a private conversation after they are married, while he is outside the jail, while he is meeting with his lawyer). All of her recorded statements made at any time, and everything that happens before they are married are available to be used as evidence at trial (assuming no other rule of evidence excludes it). Only confidential statements made between the wife and the criminal defendant while they are married can be excluded based upon their spousal status. END UPDATE Long Answer This question is about the marital privilege, which is created by statute or case law. There are actually two separate marital privileges that are analyzed separately. Also, I'm simplifying this answer to limit it to the "criminal case with a jury trial" situation. The rules are more complicated when it is not a criminal case, and in a bench trial as opposed to a jury trial, all references to the jury would instead be to the judge. But, almost everyone facing murder charges chooses a trial by jury instead of a bench trial, as is their right. The Husband-Wife Confidential Communications Privilege The stronger marital privilege applies to confidential communications made to a defendant's spouse during the marriage, which the defendant can insist not be presented to the jury. It doesn't matter if the spouse is still married to the defendant at the time of trial. The main exception to this privilege is for crimes committed against the spouse who is testifying, or to a crime committed against a child of either spouse. This privilege does not apply to anything that the defendant says to the girlfriend prior to getting married and does not apply to statements made by the defendant to the spouse when other people were present, and is similar to the attorney-client privilege or the parishioner-clergy privilege. In Florida this privilege, created by statute, reads as follows: Florida Evidence Code Section 90.504 Husband-wife privilege.— (1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife. (2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence. (3) There is no privilege under this section: (a) In a proceeding brought by or on behalf of one spouse against the other spouse. (b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either. (c) In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made. In many states (and in federal court), this Husband-Wife privilege for confidential communications has an exception for cases where the husband and wife jointly carry out a crime or fraud. But, Florida does not have this exception to the Husband-Wife privilege for confidential communications in state court criminal cases. In federal criminal cases, the case law under Federal Rule of Evidence 501 creates a substantially similar privilege for the purposes of this question. Federal Rule of Evidence 501 is as follows: The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. Since this is a criminal case, the last sentence of Federal Rule of Evidence 501 does not apply. There are also not any rules regarding this topic that have actually been prescribed by the U.S. Supreme Court. And, neither the U.S. Constitution nor any federal statute creates a husband-wife or spousal testimonial privilege. So, this issue is governed in federal court by "The common law — as interpreted by United States courts in the light of reason and experience." The relevant common law rules apply nationwide, although different federal court of appeals circuits may apply them slightly differently when the U.S. Supreme Court hasn't supplied a clear rule. The Spousal Testimonial Privilege The weaker marital privilege (sometimes called the spousal testimonial privilege) in many states, which is similar to the 5th Amendment right of a criminal defendant not to testify at trial, is a criminal defendant's right to prevent his current wife (but not a former spouse) from testifying against him at trial on any matter whatsoever, regardless of whether it relates to something that happened during the marriage or not. This marital privilege often has many exceptions for serious crimes and domestic violence in jurisdictions where it applies. In the federal courts, however (pursuant to case law developed under Federal Rule of Evidence 501), this weaker privilege belongs to the spouse called as a witness rather than to the criminal defendant. The spouse of a criminal defendant isn't required to testify against a current spouse in federal criminal prosecutions, but the spouse and not the criminal defendant gets to decide if the spouse will refuse to testify. There may be exceptions to the federal spousal testimonial privilege in cases where one spouse is accuses of a crime against the spouse or a child of one of the spouses, where they are joint participants in a crime, or where the competency of the criminal defendant is at issue (see Wikipedia). The only exceptions which might plausibly apply in a federal criminal trial are if the criminal defendant is the father of your son, or if the criminal defendant and his girlfriend whom he marries were joint participants in the crime, neither of which seems likely to be the case here. In Florida, the weaker marital privilege also known as the spousal testimonial privilege cannot be asserted in state court criminal prosecutions but may be asserted in federal court criminal prosecutions. (See, e.g., here). | Under US law, there is no requirement for a child to have the same last name as the legal father, the biological father, or the mother. Initially the last name is specified on the birth certificate, often taken from the name of the listed father, but that is not required. But the name can be changed at any time, by a custodial parent or guardian while the child is minor, and later by the child directly. | Is it possible for a witness to backtrack and claim that their previous statements were wrong because they misremembered? ... Is the witness now allowed to say something along the lines: "Huh. That's odd. I clearly remember it differently. But it's such a small detail and it was so long ago..."? Yes. Or is it now considered a deliberate lie? A judge's assessment of a witness's credibility and reliability is much more nuanced. See "How is a judge to evaluate a witness's credibility?" | 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. |
Is a contract agreed to in an illegal way binding? Suppose I, an amateur radio operator, want to buy a car from another amateur radio operator. I send him a contract over ham radio, and he agrees to it. We have violated amateur radio regulations by using it for commercial purposes, but does this nullify the contract? | Contract law involves a number of parts, the most relevant here being the formation of a contract, and the enforcement of its terms. There are various rules about formation, such as that you cannot hold a gun to a person’s head to force them to say yes (the courts would then say there was no contract), and then under other conditions a term in a contract might be illegal, for instance the courts will not order a person to commit a crime as one of the conditions of a contract. In the scenario that you propose, no term of the contract involves an illegal action, the only presumed illegality is in the circumstances surrounding formation of the contract. Duress is illegal, because there is no voluntary mutual assent. That’s not the case here. So there is no established legal impediment to finding that a contract was formed. There are ample opportunities to test the theory that an element of illegality in the formation of a contract makes the contract void, for example if a physical instrument used in creating or transmitting the contract was used illegally (the paper was stolen, the paper was used without permission of the owner); the assent was made while trespassing; the contract language infringes copyright. Given the court’s very strong commitment to recognizing and enforcing contracts, it is highly unlikely that the courts would reject a contract over a technicality of this type §97.113 of the FCC rules states the prohibited transmissions, the two relevant clauses being that the prohibited list includes (2) Communications for hire or for material compensation, direct or indirect, paid or promised, except as otherwise provided in these rules; (3) Communications in which the station licensee or control operator has a pecuniary interest, including communications on behalf of an employer, with the following exceptions… (2) is not clearly applicable, since the communication is not for material compensation (e.g. A is not paying B to make a transmission). (3) is more likely applicable, since the parties each have a pecuniary interest in the communication. The exceptions involve being compensated for making a communication, or one can on an irregular basis offer amateur radio apparatus for sale or trade. Since the FCC regulations only provide bare languages and no explanatory texts, and they decline to provide any examples (this seems to be a policy thing), and there is substantial unclarity as to what the restrictions mean, see this analysis. A finding of letter-of-the-law violation in this case cannot be made by the court in which breech of contract would be litigated. Instead, the FCC would have to first make a finding of law-breaking, then a party would have to prove in a separate cause of action that because of illegality in the circumstances surrounding formation of the contract, there never was an agreement. | There is no contract One of the requirements for a contract to exist is agreement between the parties - there is no agreement here. Here is what happened: AA asked for IT to make an offer subject to standard terms. IT made an offer subject to different terms. AA rejected IT's offer and made a counter-offer on the original terms. IT rejected the counter-offer. Since no one has accepted any offer, there is no agreement and no contract. Also, the rejection of an offer (by counter-offer or directly) kills the offer so, right now, there are no live offers that could be accepted to form a contract, for example, AA cannot now accept IT’s original offer. | No Contracts are not bound by due process. Due process is a rule of how a lawsuit has to be handled, not how a contract is to be handled. All the Due Process clauses in the US constitution simply don't apply. The only things that apply are the contract language, and the underlying/overwriting laws. If your contract stipulates that it is terminated by winning a coin flip against the other party, that's fine. If it stipulates, that you have to find 15 people supporting you in terminating the contract, that's fine. If it states that the other party can terminate for any and all reasons, including no reason, that's what the contract says, and fine. The contract would have to establish that you actually have a process, and how it is handled. My hypothesis is that these common practices combined with the plain language of the TOS of these social media platforms that grant complete autonomous impunity to the platform[...] This part is correct. They have the complete impunity because of how the contract is written. However, that does not make the contract illusory: you can decide not to agree to it and not go to the place, so it is mutual acceptance. Both sides are bound to perform something until the contract is terminated. An illusory contract would be that Alice gets 2000 USD for nothing (only one side performs). But both sides perform. The contract is to follow the TOS in exchange for site access. Both sides offer something: access in exchange for adherence to rules. The claim of non-mutuality is frivolous: If you claim "I don't agree to the TOS and contract", you can't at the same time get the benefits of the contract either: you signed the contract to follow the TOS in exchange to access the site, and if you don't want to follow the TOS, you have to terminate the contract and can't access the site. You can't eat your cake and have it too. Also, there is a severability clause, which is valid: even if a clause would be illegal, it would be replaced by the closest legal clause, overwritten by the legal minimum, or removed, whichever is the least impact. The rest of the TOS is untouched and fully valid. Your conclusion is wrong and meritless. | Let's say I buy a phone. Typically you can buy a phone with something that is advertised as "no contract" or for example "with a 24 month contract". In reality, "no contract" means "we have a contract where you hand over the cash, and the phone company hands over the phone, and there are various guarantees that are either implied or explicit, but there are no terms in the contract that force you to hand over money to the phone company beyond payment for the phone in the future if you don't want to". So there is a contract, but the contract is such that you as the customer have no obligations towards the seller once you have paid for the goods. "No contract" would happen for gifts, or as an example if you download open source software in the USA for free. There will be a difference between a "no contract" contract between business and consumer or between two businesses. Most countries have consumer protection laws so if a deal is advertised as "no contract" and the business demands further payments, they will likely lose. Between two businesses, each side is fully responsible to study the actual contract terms. | 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). | As you have agreed, by contract, not to reverse engineer the product, technically it would be a "breach of contract" to do so, assuming such terms are enforceable where you live (or wherever the EULA selects as the choice of forum). | They cannot force a contract on you after the fact. You should leave these numbskulls alone, they are clearly up to something that makes them likely to be sued. I am adding the following: it's not illegal as far as I know to declare anything you want to a person as long as it isn't a threat. "You are now beholden to give me your firstborn makle child." lol, no. | should you tell the third party to sign it using the standards of the U.S.? In most cases signing a contract is not subject to country-specific standards. All that matters is that it can be ascertained from the contract who the parties are as well as and their willful, informed formation of that contract. It is more typical for a contract to specify that it is governed by the laws of country X and/or jurisdiction Y. That places on the counterparty(-ies) the burden of ensuring that they know the legal framework that underlies the contract at issue. Lastly, note that a party entering a contract is "by definition" not a third party. At most, a third party might sign a contract in a witness capacity, not than in the capacity that implicates rights and duties pursuant to that contract. |
Can you have a software patent for a method that can be done in way one only? Is it possible to patent a software to do something which can only be done in one way due to limitations well known to everyone? Here is the scenario, I want to acquire an image from a digital sensor from my web based application: The browser itself cannot take images from the sensors, this is a known technical limitation For that reason, you will need install a client application on the client's computer to acquire the images You still want to take the image from the browser, so you will have a button on your web application which will tell the client application to acquire an image from the sensor The acquired image is then uploaded to the server where it is stored Any software developer will tell you this is the only way to do it... But what if someone patents this exact method? Is it possible? Can it be enforced and should I worry about these kind of patents? | Can only be done one way and has been done - not novel; you can only think of one way to do it and don't know if it has done that way or at all, may be is patentable. From one example it is hard to give a general answer that might apply to a case you might actually be thinking about. One can not get a patent on something that is not novel or is obvious (using U.S. patent law concepts) or not useful. Novelty is judged by trying to find a single reference, published before the filing date, that contains all elements of the claimed invention. An examiner can't just say "that is the way I would have solved the problem" or "everybody knows that already". This is to make the test for novelty more objective and give the applicant something tangible to argue against. Next consider obviousness. The examiner can't just say "seems obvious to me". Besides the problem that it is far from objective, there is a strong psychological effect called "hindsight bias". Once you know a solution, it seems obvious even if you would never have come up with it independently. To assert a rejection based on obviousness an examiner needs to find one or more references that, together, have all the elements in a claimed invention. That part is pretty objective. Then they need to argue that a (fictitious) person of ordinary skill in the art would think to combine those references to achieve the claimed invention. A POSITA knows everything that was ever published anywhere at any time in any language in the relevant field or specifically relevant to the problem from an other field and is of median/average skill in the field. There are rare cases where the problem was never recognized and the recognition of the problem is an important part of the invention. In that case the solution might be obvious once the problem was (inventively) identified. That would still not be an obvious invention. Your example might fit into this. In the rest-of-the-world obviousness is replaced by "having an inventive step", not exactly the same concept. And the rules of what can be considered prior art different. A third criteria is "useful" in the U.S. It is somewhat analogous to "industrial applicability" in the rest of the world. Until about 2000 this was a trivial hurdle in the U.S. As long it was not a law of nature (abstract), something completely done in your head or a perpetual motion machine, it was probably useful. There have been many rulings since then that have put more and more things in the "abstract" category and if it's abstract its not useful. This is the basis of the "you can't patent software" mantra. There are plenty of things that look like software that get patented but it is getting harder. | A fundamental principle of copyright law is that protection is only afforded to the concrete expression, and not the abstract idea. Therefore, if you write a sort program, what is protected is "that specific program", and not the general idea of a sort program. There are many kinds of sort algorithms: if you write a bubble sort program, you don't "own" all bubble sort programs, you only own the one that you wrote. If you sell your right to a particular bubble sort program, you don't thereby prevent yourself from writing another bubble sort program. But, technically, you do prevent yourself from copying that program, changing some variable names or maybe manually recoding a couple of lines, and re-licensing the code (assuming that you fully transferred copyright, or gave the customer exclusive rights to the code). The basic question that the courts will ask is "did you copy that program", which they answer by looking at the similarity between the two programs. All bubble sorts have a necessary similarity. To prove infringement, the plaintiff would (ultimately) have to prove that the similarity had to have come from copying rather than independent coincidental re-creation. Functional considerations and general programmer practice would tend to weigh against an allegation of infringement in certain cases, where "counter" is a common name for a counter variable, and bubble sort is a well known algorithm with limited practical differences in lines of code. The hard part is establishing that it would be natural for such similarities to exist even when independently coded by a single person. It may be common practice to take a program that you've sold and tweak it in some fashion, but that is copyright infringement, whereas "applying the lessons that you learned in writing X to a new program" is not infringement, it is using the same ideas, and the ideas are not what is protected. | Trivial is hard to judge after the fact due to hindsight bias. Once you know the answer to a riddle it seems obvious but you couldn’t figure it out without already knowing it. The criteria for get a patent in the US does not include the word or concept “trivial”. It does include non-obviousness. To reduce hindsight bias an examiner needs to follow a process of identifying all sub- components of an invention in the prior art and then making a good argument as to how someone of ordinary skill in the field would be motivated to put them together. Also there is no measure of improvement over past technology required for a patent. A trivial improvement in cost or performance is fine. Actually no objective improvement is required at all. An existing solution might work as well or better than your invention. That means probably no one will buy it but if it is novel and not obvious one can get a patent. | 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. | It is unclear whether WINE is infringing copyright or if it can rely on a fair use defense. The CAFC held that: that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection In that light, if WINE had original content in the structure, sequence, and organization of its API, the CAFC would likely also find that it is entitled to copyright protection. However, because this issue is outside the scope of the CAFC's exclusive jurisdiction (this is a copyright issue, not a patent issue), the holdings are not binding in any other circuit. Each circuit is free to review anew the copyrightability of APIs when such a case comes up. My guess is that this is the reason the Supreme Court declined to hear an appeal on CAFC's Oracle v. Google opinion. To address your fair use question would be simply speculation, because fair use is always assessed case-by-case, and even in WINE's closest analogy (Oracle v. Google), the CAFC remanded the fair use question back to the trial court, and that question hasn't been decided yet: we remand for further consideration of Google’s fair use defense in light of this decision | Disclaimer: I'm from the US and don't claim to know German or Turkish law. So let me discuss some general principles here, but details may well be different in Germany and Turkey. You're mixing together three very different things: trademark, copyright, and patent. Copyright protects the expression of an idea, in this case, the exact computer code, images, etc. If you didn't copy his code, the chance that you would coincidentally write identical code is remote. The fact that you both have a line of code that says x=x+1 wouldn't give him any grounds for a lawsuit. He'd have to show substantial portions of the code were identical. If you didn't deliberately copy his code, this isn't going to happen. Barring some extraordinary and unbelievable coincidence, you can't violate copyright accidentally. Trademark protects names and symbols used to identify a company or a product. If you decided to call your software company "Microsoft", then that other Microsoft could sue you for trademark infringement. Likewise if you copied somebody else's logo or other distinctive graphics. This is very different from copyright. It is quite possible to violate someone's trademark accidentally. Especially if he gave his company or product a rather generic name. Like if someone called his product, say, "Password Manager", someone else might make a product with the same name without ever having heard of the original. Ditto if he has some simple logo or other graphics. If you did accidentally duplicate a name or graphic elements, well, in the US a court would likely order you to change your name or graphics and that would be the end of it, unless you refused, in which case you'd end up in court. US Courts have ruled that very generic names have limited trademark protection. An example I saw recently was "Main Street Auto Repair". A court said that the owner of that name could prevent someone else from opening a shop in the same town with the same name, but he couldn't sue someone in another town who happened to use the same name. This is why, by the way, companies often use made-up words for their product names. In your case, this should be a trivial issue. If he is claiming trademark to the look of the main menu screen, just change the colors or move some buttons around. If it actually went to court, you should be able to argue that the similarity was accidental and when you were informed you promptly changed it, and that should be the end of it. Depending, I guess, on how hard-nosed the judge is, etc. Patents are different still. A patent gives the owner the exclusive right to use an invention or process for a specified period of time. It doesn't matter if you invented the same thing entirely independently. Whoever filed the patent first has exclusive rights. There have been cases where an inventor lost out to someone with a similar invention because he submitted his patent application one day later. If this other person has patents that you are infringing, you are pretty much out of luck. | Yes. The copyright owner of a work has the exclusive right to "reproduce the copyrighted work" or to make "derivative works" of it. 17 USC 106. Copyright law is older than the photocopier, and it applies to copies made by means of any technology. If your intent is to duplicate the protected work, whether you do it by tracing, photocopying, or even freehand, you are infringing that right. It is possible that you could squeeze into one of the copyright exceptions, such as fair use, but these are much narrower than people tend to assume they are (especially outside of the U.S.), and they boil down to: "Well, yes, I copied your copyrighted work, but..." The bottom line is: is it copyrighted? Did you copy it, in whole or in part? Then, unless you have a very good reason, you've infringed the copyright. Whether you do it by means of tracing paper, jellygraph, or iPhone doesn't matter. | You are absolutely allowed to discuss or describe or criticizes software (or books or other copyrighted or trademarked things) without any permission from the copyright holder or trademark holder. This includes teaching people how to use those things. You may not, however, copy protected software without permission. For example you could not include a CD with a copy of Windows 10 as part of a course you taught on using Windows 10, without permission from Microsoft. Also, you may not use a trademark in such a way as to imply that your course is approved or endorsed by the trade mark holder, or by the maker of the trademarked item. If reasonable people could think that your Windows course was approved by Microsoft, you are probably infringing their trademark. Use of screenshots is more of a grey area. Such use, for purposes of teaching or of commentary, is probably covered by fair use (in the US) or fair dealing (in any of several other countries). But that is always a case-by-case determination, and depends on the exact facts, such as how extensive the use is, and whether it in any way harms the market for the original. If in doubt consulting a lawyer experienced in IP issues is wise. But aside from the issues of screenshots, the makers or copyright or trademark holders of software have no right to grant or withhold permission to one who teaches about the softrware, nor to demand any fee from any such person. |
Is it legal to copy the KJV? If I understand correctly, the King James Version of the Bible is copyrighted in the UK but nowhere else. I live in the US. If I upload a copy of it to my Web site (which is hosted in the US), is that legal? Can I travel to the UK? | According to the page "Rights and Permissions: KJV" from Cambridge University: Rights in The Authorized Version of the Bible (King James Bible) in the United Kingdom are vested in the Crown and administered by the Crown’s patentee, Cambridge University Press. The reproduction by any means of the text of the King James Version is permitted to a maximum of five hundred (500) verses for liturgical and non-commercial educational use, provided that the verses quoted neither amount to a complete book of the Bible nor represent 25 per cent or more of the total text of the work in which they are quoted, subject to the following acknowledgement being included: Scripture quotations from The Authorized (King James) Version. Rights in the Authorized Version in the United Kingdom are vested in the Crown. Reproduced by permission of the Crown’s patentee, Cambridge University Press When quotations from the KJV text are used in materials not being made available for sale, such as church bulletins, orders of service, posters, presentation materials, or similar media, a complete copyright notice is not required but the initials KJV must appear at the end of the quotation. That copyright protection does not apply in the US, nor in any place ouside the UK (or possibly the British Commonwealth). If a person resident in the US uploads a copy of the KJV to a site hosted in the US, no US copyright has been infringed, nor has any US law has been broken. If the site is accessible from the UK, a suit could be brought under UK law for infringement of Crown Copyright. (Whether the relevant UK authorities would choose to bring such a suit I cannot say.) If there was a judgement for the plaintiff, any property that the defendant (the uploader) has in the UK could be subject to seizure for pay the judgement. The UK court could ask a US court to enforce the judgement, but in this case I am fairly sure the US court would refuse, because of the First Amendment. The up loader would not be subject to arrest in the UK, because this is not a criminal matter. But if the uploader brought any property into the UK, it might be subject to seizure to pay the existing judgement. To respond to a question in the comments, the KJV is not protected by ordinary copyright law, but by a Royal Prerogative Monopoly, a relic of the period when the Crown licensed all printing and distribution of religious works. See "A Four Century Copyright: Free the King James!" and sources linked from that page. | But while some libraries allow unrestricted use of their Public Domain content, others do not and limit the use of their copies to Non-Commercial use. It is my understanding that NC only applies to the digital copy, not the work itself. Your understanding is correct. An ancient text, or one long out of copyright, does not get new protection by creating an image of the text. At most the image itself is protected, not the underlying text. In the US, and other jurisdictiosn that follow the rule of the 1999 Bridgeman Art Library v. Corel Corp case there is no copyright protection on the image because it has no original content. Some EU courts have indicated that they will be following the logic of bridgeman. To the best of my knowledge no EU decision grants copyright protection to an otherwise out-of-copyright work because of its presence in a digital library or collection. However, if a person gained access to a digital library or collection subject to a TOS agreement which includes "no commercial use" terms and then published a text from it commercially, that person might be subject to a breech of contract or similar suit by the library. Such a suit would need to include proof of damages. | 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. | This appears to be very clear to me: "NPR does not allow other websites to post our content..." I cannot think of a more clear way to say "Do not reproduce our content on your site." Since you asked about licensing the right to reproduce their content, and they flatly ignored your request, I think it is safe to assume that they are not interested in licensing that right to you, even for a fee. This is also consistent with their "NPR does not allow [any] other websites to post..." language. It is always the copyright holder's right to refuse to offer any particular person (or all persons generally) a license, no matter what payment they might offer. (With the exception of statutory licenses, which in the U.S. exist only for recording covers of musical works.) They have also ignored your request to recompense them for infringement already performed. If in the future they decide to take legal action against you for your past infringement (hugely unlikely that such a hassle would be worthwhile for NPR) or seek any out of court settlement (again, quite unlikely they will care enough), I'm sure they will let you know. As they've said in their email, you are welcome to link to NPR's content. You are, of course, not welcome to spread misinformation or lies about NPR by claiming something like, "Look at this wonderful article that NPR wrote purely for us, at our personal request," or "NPR thinks that In Home Teaching Agency XXX is a great company, so we built a curriculum around their content," when NPR has never said any such thing. Any legal issue around linking would probably be a trademark offense, by wrongfully suggesting that NPR endorses you, or by misrepresenting yourself as an agent of NPR. If you don't do either of things, and just say, "Here's an article on [subject X] published by NPR," you're probably fine. If you want to be very thorough, you could include a disclaimer on your site like, "In Home Teaching Agency XXX is not a licencee or partner of NPR. Links to NPR articles are included for educational purposes only," or similar. This seems pretty excessive to me, since a reasonable person won't assume that linking to an article from a major news source suggests a partnership, but I suppose it couldn't hurt to include such a disclaimer. | 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). | A statement by a fictional character is part of the fiction, and so is normally protected by copyright. A short exclamation such as "You are not prepared!" might be ruled to be too short and not sufficiently original to be protected if it were used separately, but that would apply just as much to a short statement that was not a quote from a character. But something like one of Gandalf's speeches on "mercy and pity" to Frodo in Chapter 2 ("The Shadow of the past") in book 1 of The Lord of the Rings would clearly be protected. The longer and the more distinctive such a text is, the more clearly it would be protected. Whether it is put in the mouth of a character or is part of the narration makes no significant difference. Note, in a copyright sense a statement does not "belong to a particular universe", rather it belongs to a copyright owner, often the author, or in the case of a video game quite likely thy publisher. As this comment by Kevin mentions, and as I should have mentioned, reproducing a short quotation from a work of fiction, particularly if properly attributed, is quite likely to be fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more specific details. See also the threads tagged fair use If a quote is used for a different purpose than the original, in what is called a "transformative" manner in copyright cases, then it is more likely to be held to be fair use. The smaller of a percentage of the source item the quote is, the more likely it is that it will be considered to be a fair use. The less the use of a quote serves as a replacement for the source, or harms the market for the source, the more likely it is to be considered a fair use. See the links above for more detail. | It's legal as long as you follow these guidelines: They [The Cached Files] are created only for the purpose of viewing (In Your case listening) content The copies do not unreasonably prejudice the legitimate interests of the rights holders. The creation of the copies does not conflict with a normal exploitation of the works. Source: http://www3.ebu.ch/contents/news/2014/06/eu-court-rules-on-legality-of-in.html | 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. |
Can the US break-up a foreign company (specifically Bayer) after it has merged with an American one due to an increase in market power? In 2018 Bayer and Monsanto had a huge merger. In the future it is possible that it will be in the US's interest to reverse their decision due to the sudden shift in market pressure. That said Bayer is a German company so I wanted to know if the US Supreme Court or any other court could hit Bayer with antitrust regulations. If not is there anyway the US can regulate Bayer? | Starting at the top, a company can be restructured ("broken up") under anti-trust laws (classical examples: Standard Oil, ATT), however restructuring is not common. Approval of a merger does not immunize a company against future anti-trust action – the company has to continuously obey the law. Foreign companies are not free of the threat of anti-trust actions, indeed the "exception" where anti-competitive behavior is allowed is when it only hurts foreign markets. See In Re Capacitors Antitrust Litigation: Congress’s goal was to assure American companies that they would not be liable under the Sherman Act for conduct that typically would be considered anticompetitive so long as that conduct adversely affected foreign markets only This is implemented in 15 USC 6a which says that Sections 1 to 7 of this title shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless... and sections 1-7 are the general prohibitions against anti-competitive behavior 15 USC 8 specifically addresses illegal import trade: Every combination, conspiracy, trust, agreement, or contract is declared to be contrary to public policy, illegal, and void when the same is made by or between two or more persons or corporations, either of whom, as agent or principal, is engaged in importing any article from any foreign country into the United States, and when such combination, conspiracy, trust, agreement, or contract is intended to operate in restraint of lawful trade, or free competition in lawful trade or commerce, or to increase the market price in any part of the United States of any article or articles imported or intended to be imported into the United States, or of any manufacture into which such imported article enters or is intended to enter. So given that Bayer does business with the US, it is subject to US antitrust law. It can be found to be in violation, and can be punished accordingly. The Dept. of Justice has this long analysis of the law of anti-trust actions against foreign companies. But unquestionable and as upheld in a number of cases against foreign businesses e.g. F. Hoffman-La Roche Ltd. v. Empagran S. A., 542 U.S. 155 commercial activities abroad are subject to the Sherman Antitrust Act if those activities adversely affect domestic commerce, imports to the United States, or exporting activities of one engaged in such activities within the United States It is hard to know whether the court would order Bayer to be broken up, since involuntary restructuring is an uncommon outcome. | Typically, nobody has to force it. Somebody in the SWIFT organization, calls and holds a meeting of the board of directors, everyone on the board of directors votes as they are supposed to vote, and it happens, with implementation by the SWIFT organization's officers. It is very unusual for a country with a say in the process to deviate from a direction to do so. Ultimately, if necessary, a lawsuit to compel action could be brought in an appropriate court, possibly a Belgian court, possibly an E.U. court, or possibly a court in the country of a recalcitrant delegate. But it is rare that this is necessary. | tl;dr: It seems doubtful an antitrust claim would succeed. Twitter would likely file a motion to dismiss under Fed. Rules. of Civ. Pro 12(b)(6) for failure to state a claim upon which relief can be granted. To your benefit, the judge would tend to construe all of your factual allegations as true (i.e. that Twitter excludes some websites but not others). Then, given this construction it would ask whether your claim is "plausible on its face," where plausibility means "pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Bell Atlantic v. Twombly, 550 U.S. 544 (2007). Note, in this second step, we're not only looking for factual sufficiency, but also legal sufficiency. The antitrust claim would likely falter for lack of legal sufficiency. Your legal sufficiency would need to come from an alleged violation, so say you alleged an antitrust violation under Section 1 of the Sherman Act (15 U.S.C. §§ 1-7, amended at 12-27). In this case, you'd want to show 1) an agreement 2) that unreasonably restrains competition and 3) impacts interstate commerce. If there isn't an agreement (e.g. Twitter just chooses to plug SoundCloud), that makes antitrust success even less likely, so imagine you were able to show evidence of an agreement. Then the trouble would be showing this is an unreasonable restraint of competition. Antitrust is a really complicated field, but the short version is: partnership and product placement agreements aren't necessarily violations of antitrust law---especially when the companies aren't in the same market. While there certainly differences, your question is similar (from a legal concepts perspective) to the one LetsListen informally made with respect to Facebook. Aside: another issue is that a Twitter--SoundCloud collaboration isn't a within-market merger, which means the usual antitrust analysis in the Horizontal Merger Guidelines doesn't translate perfectly. united-states | It would depend on how the ownership contract is written. 30% sounds like a minority stake, so I don't know how they could block new investments unless the contract requires a super-majority to approve new rounds of financing. How does the remaining 70% of ownership feel about this? If they are abiding by the terms of the ownership contract I don't see that this is questionable behavior on their part. This is a business relationship. Business partners may come to have different outlooks on the future of the company, and the best way to protect their investment. Consider flipping the viewpoint: "I'm a minority owner in a company I no longer have confidence in. I would like to dissolve the company and sell off the assets to re-coup as much of my original investment as I can. The other owners want to chase this to the bitter end, and do a new round of financing, which will significantly dilute my shares, without (in my opinion) giving the company a real chance of success. What can I do?" When the founder of your friend's company accepted money for shares in the company, they gave up absolute control over the company's direction. Assuming none of the parties are acting in violation of the ownership contract, the most reasonable way to resolve a conflict like this is to buy out the dissenting shareholders. | Like many US legal questions, there is a Congressional Research Service report about this. It is not generally a violation of US law to do things in another country where the only connection with the US is that the offender is a US citizen. However, there are a number of general situations where the US has jurisdiction over federal crimes if either the victim or offender is a US citizen: if a place isn't within the jurisdiction of any country (e.g. Antarctica); a place used by a US government entity (like an embassy or airbase); crimes by American soldiers and those employed by or accompanying the military; etc. These are considered to be within the special maritime and territorial jurisdiction of the US. Other laws apply if they say so. For instance, any US national committing war crimes inside or outside the US can be punished under US law; ditto for treason. The Foreign Corrupt Practices Act makes it illegal for a US national to bribe a foreign official anywhere outside the US for business reasons (if it's inside the US, there are more requirements). For instance, you aren't allowed to pay kickbacks to a foreign government's acquisition officer to buy your product. The CRS report has more (it doesn't include the FCPA, but that appears to be an oversight). Note that extraterritorial jurisdiction doesn't just apply if the person is a US national. US laws can also confer it if the victim is a US national, if the offense has a significant US component, if it's directed towards the US, if it's in violation of international law and the offender later turns up in the US, etc. For your scenarios: Dual citizenship doesn't matter. A US citizen is a US citizen, and is required to obey all laws that apply to US citizens, unless those laws explicitly exempt dual citizens. A dual citizen isn't treated differently by the government; as far as the US government is concerned, their US citizenship is all that matters (except for certain specific purposes like security clearances). In Kawakita v. United States, a US-Japanese dual citizen was convicted of treason against the US for aiding Japan in WWII. Depends. Plenty of these laws have no requirement that anything related to the crime actually happen in the US; for sex tourism, the subsection about traveling in foreign commerce for the purposes of engaging in illicit sexual conduct is followed by a subsection about engaging in illicit sexual conduct in foreign places. "Travel with the purposes of X" or "with intent to X" means you must have intended to do X at the time you traveled, but most extraterritorial laws don't control travel with intent to X (they cover X directly). Depends on the law. Some laws (like child sex tourism) apply to any permanent resident of the US as well as any citizen. Some apply to anyone, because they're based on a conspiracy started in the US. Others apply just to US nationals; a noncitizen isn't bound by them (for instance, no one but a US national can be charged with treason against the US, for obvious reasons). Still others apply to anyone who later turns up in the US, even if that is literally the only connection between the US and the offense (this is basically reserved for crimes against international law, like genocide). | That is not at all what USPTO is telling you. Courts do not simply "dismiss" patents - that isn't a terminology you'd ever see used for a patent that was found to be invalid. Timeline of events: United Industries Corporation brought a suit against the owner of the patent, claiming unpatentability. That case went to trial, and the court found the claim to be invalid and that UIC failed to show unpatentability. UIC appealed that decision to the Court of Appeals. The Court of Appeals dismissed the case because both parties agreed to its dismissal (it's possible they reached some external agreement we don't know about). As far as I can tell, at this moment, the patent is active. | That depends on how you get the ingredient list. If the list is published and not protected by a patent, then anyone is free to use it in making the same or a similar product. If the product is patented and the ingredient list is covered by the patent, and the patent is currently in force, then making a similar product would probably be patent infringement, and the patent holder could sue and collect damages. If the list is secret, and has been protected as a Trade Secret, and if the would-be imitator gets the formula improperly, then the owner of the formula would have valid grounds for a trade secret lawsuit and to collect damages in that suit. Improper means would include breaking into the owner's files, or inducing an employee or contractor to violate a confidentiality agreement. But analyzing the product and figuring out its composition, a form of reverse engineering would be perfectly proper, and would give the formula owner no claim. Similarly, if the owner was careless and allowed the formula to be disclosed, the imitator would have done nothing improper. So the outcome depends on the details of facts not stated in the question. | There is something called the exhaustion doctrine that says that once the holder of a patent sells a patented device, they have relinquished control over that particular instance of the patent implementation. Anyone who legally purchases this hardware has the right to run whatever software they want on it, as long the software is otherwise legal (software designed to defeat DRM would be an example of software that is is not legal). |
What is the difference between mandamus and injunction? What if the party is a government official? Wikipedia defines mandamus as: Mandamus is a judicial remedy in the form of an order from a court[1] to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing), and which is in the nature of public duty, and in certain cases one of a statutory duty and defines injunction as: An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. So it looks like the only difference is that mandamus is directed against a government official (which may be not a party to a proceeding?), while injunction is directed to a party of a proceeding. Is this the only difference? What if the party of a proceeding is a government official? Would he receive a mandamus or an injunction? | First, mandamus is always a form of writ whereas injunctions are typically a part of the proceedings in a lawsuit. Writs and lawsuits are each distinct, individual legal actions whereas multiple motions for various remedies like injunctive relief can occur within one continuous lawsuit. The lawsuit and the various motions within it including injunctions have largely replaced the common law writ (including writs of mandamus except those from a higher court to a lower) as legislated in rules of civil procedure federally and in most states | Is official misconduct simply the act of "abusing public office" (or close to that)? There is no clear definition of malfeasance in office, or rather, there are many different definitions because there are so few appeals court judgments about it. Common elements of what definitions there are, are: First, malfeasance in office requires an affirmative act or omission. Second, the act must have been done in an official capacity—under the color of office. Finally, that that act somehow interferes with the performance of official duties—though some debate remains about "whose official" duties. It does not, necessarily, require that the malfeasance be criminal or unlawful in and of itself (i.e. things that would be unlawful if the person wasn't a public official), however, it really helps in obtaining a conviction. Did the judge act outside of the scope of his duties by even considering standing in a probable cause determination? Absolutely not. Standing is one of the matters a judge is required to consider. He may have got the decision wrong but that is why we have appeals courts. What in the citizen's complaint rule provides for the citizen's "closeness" to the crime? If nothing, then what else could the judge have based that decision on? It is a fundamental part of the common law that a person must have standing to bring a case. A statute can specifically grant or deny a class of people standing but if it doesn't the common law rule flows through. For a person to have standing absent a grant in the specific statute they must be sufficiently close to the act or omission that they have suffered damage or may yet do so. In general, just because the act or omission affects "all citizens" or "all taxpayers" is not generally enough - it must affect you personally and substantially enough to warrant the state dedicating scant resources to it. Time a court spends dealing with any particular case is time it cannot spend on every other case - probable cause is the judicial equivalent of medical triage. | No a senator does not have that power under their elected position. However politics does not work like that. A senator could know the governor of their state very well. Governors could issue pardons which will release people from jail. Governors can also command a certain person to do something, like release a prisoner. | Rakusen was the appellant at the Court of Appeal. Many, but not all, appellate courts adopt the norm of listing the appellant as the first party in the style of cause, even if they were the respondent or defendant in the underlying matter. This style decision can vary between courts within the same country and can even differ between courts within the same appeal hierarchy. E.g. in Canada different provinces do it different ways, and not all of them match the Supreme Court's style. | The answer depends on the jurisdiction, as always. But under the Federal Rules of Civil Procedure, which are the model for most American courts, there are all kinds of potential sanctions for discovery violations. Rule 37(b): If a party or a party's officer, director, or managing agent—or a witness designated under Rule 30(b)(6) or 31(a)(4)—fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. But the court will not move directly to imposing sanctions against the offending party. Instead, the rules require the aggrieved party to raise the issue privately and attempt to resolve it without court intervention. If that is unsuccessful, the court may issue an order compelling discovery. Rule 37 sanctions are generally only available if the offending party then fails to comply with that order. Separate from Rule 37, though, the court also has inherent authority to impose sanctions for litigation misconduct, but you can usually expect it to limit itself to Rule 37 protocols. Most judges don't want to hear about discovery, so they are happy to force people through the informal resolution process first. | In the United States, you can always choose to (try to) flee police. If the police subsequently assert that they tried to detain you, then they can choose to charge you with a number of crimes (which vary by jurisdiction). The assertion that you did not (or could not) in fact hear or perceive a lawful order to stop is a defense that you could raise in response to such charges. It is up to the triers of fact to determine whether, given the specifics of the case, they accept that defense. | "Cancellation" is generally a result of some statement or action a person made becoming public or having been made in public. Tortious interference requires that the defendant's actions are independently wrongful, such as defamation or criminal acts against the plaintiff. Truthful speech and opinions which do not allege facts are protected by the First Amendment (as well as state constitutions) and thus cannot be wrongful conduct. To apply that here, anyone can react to public knowledge about a person and call for that person to be fired, that is protected speech. As far as I know in this particular petition's case, RMS does not dispute that he made the statements they are attributing to him and using as evidence for their call to remove him from the board. | There are many Procedure Rules are they just that - the rules that need to be followed i.e. the "what". Whereas a Practice Direction is "how" a Rule should be implemented, or as Wikipedia puts it, a supplemental protocol to rules of civil and criminal procedure in the courts – "a device to regulate minor procedural matters". |
Is it legal to "troll" spammers? If a spammer sends me an email advertising a service, is it legal for me to reply acting like I'm interested in the service, have a fairly long conversation about it, and then say "no thanks" when they send me an estimate? | 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. | To paraphrase the Princess Bride: "I don't think those words mean what you think they do". The "truther-activist", "sovereign citizen", and "Citizen vs. Human Being" concepts will only hurt you. It has never succeeded, to my knowledge; It has failed multiple times. Let me tell you a little about myself to illustrate what I mean: I am a software developer (and it seems from your profile, you are at least somewhat computer inclined, so this will hopeful make sense to you). The business side of the company I work for think that myself and my team write "magic code", and having the system do whatever they ask for is just a matter of pressing enough buttons in the correct order. It totally insane, and it completely analogous to what you are propose. The court is a carefully designed system, and you don't have the power to make arbitrary changes to it. Certainly not through the "arbitrary button presses" of "legal fiction". Some things to note Legal fictions are never summoned. People are. Organizations are. See initial paraphrase with regards to "legal fiction". Your legal fiction has not been summoned, you have. You will be appearing as yourself, not a straw man. I'm sorry to break it to you, but whomever you have heard this from is wrong, and in the most best case scenario, they are confusing what they want to be true for reality. If they have received any money from you in relation to this opinion, then they are almost certainly a scammer and a liar. If you insist on going further with this nonsense, then you WILL lose, regardless of what actual facts you have. My condolences. Now, to answer the question you asked: Yes, you can file a monition for discovery before first appearance (but not before pleading). You can file by mail, and in some jurisdictions, online. Source: https://www.nycourts.gov/courthelp/goingtocourt/caseBasics.shtml. | Yes, it does. Using the downloaded content, whether it was scraped or individually downloaded one file at a time, for research or for commercial purposes would violate that TOS provision (unless some other provision contradicts it, or you obtain specific permission). The site owner could sue you for such a violation, should the owner become aware of it. I do not think it would be likely to be a criminal offense, depending on the jurisdiction. | You seem to have a solid understanding of the ePrivacy implications, but lack a fundamental insight: your organization does not have a right to achieve its mission or a right to disseminate unwanted marketing. But other people do have a right to not be subject to excessive marketing. Of course, reality is more complex, so it's probably not entirely impossible to do marketing. In your point 1, you note that some EU/EEA/UK countries distinguish ePrivacy protections between consumer and business subscribers. You can research the exact rules in the potential customer's country. This may allow you to email corporate/business accounts. I would strongly advise against messaging via Linkedin if there is a chance that the person is using that account for personal purposes like networking or hunting jobs, not just for conducting official company business. ePrivacy has markedly different rules for email marketing vs phone marketing. Whereas there are pretty strict rules for electronic messages and robocalls, manual cold calling can be OK from an ePrivacy perspective. However, many EU/EEA/UK countries have rules that go beyond ePrivacy, and may have a kind of do-not-call registry that you must respect. Of course manual calls take more effort than spamming emails, but recall the above point that you don't have a right to spam other people. Phone calls are probably the most appropriate approach when the company lists individuals' phone numbers on its website. This will at least give you a few seconds of attention with a real human, more than you can expect from an email that is likely to be caught by spam filters. Marketing via physical mail tends to have very lax rules. Note that every company/business that has a website will have to disclose its contact details including an address there, so this information is easy to acquire. However, chances are low that anyone would seriously engage with that marketing. You can consider alternatives to direct marketing, so that interested companies eventually come to you. Things like press releases, writing guest articles in industry publications, speaking at relevant conferences, working on search engine optimization, buying ads. On the GPDR aspects: GDPR and ePrivacy overlap, and it is necessary to comply with both sets of rules (GDPR likely applies here via Art 3(2)(a)). But where they potentially contradict each other, ePrivacy as the more specific law has precedence. For example, ePrivacy overrides the default GDPR legal basis rules when it comes to email marketing to existing customers (opt-out basis, no consent needed) or to using cookies (needs consent unless strictly necessary). Information that relates to corporations is not personal data, but information that relates to individual employees or to sole proprietors would typically be personal data. Since you are unlikely to obtain consent for using this data, you would need an alternative GDPR legal basis such as a "legitimate interest". Relying on a legitimate interest requires that you conduct a balancing test, weighing your interests like marketing against the recipient's interests, rights, and freedoms. Core question in this context is whether the data subject can reasonably expect their personal data to be used like this, taking into account the nature of their relationship with you. Since there is no pre-existing relationship, claims of a legitimate interest are weak to start with. However, it may be possible to argue that when a company makes employee contact details available via its website (not LinkedIn!) then relevant marketing can be reasonably expected. I would rather not rely on such arguments, though. | 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. | 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. | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. | Not for normal correspondence There are laws that require a specified channel of communication for specific purposes such as a physical address for the service of legal notices, but there is no general requirement. How, or if, a company communicates with its customers about complaints will either be specified in the contract or up to the company to determine and advertise. For example, this site specifies “ will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service” - any other method of delivery (Whatsapp, Facebook, even their own chatrooms etc.) is not a valid method of service, if you use those methods, then legally, you have not communicated. So, if the company requires complaints to deal with by online chat, they can safely ignore any letter or email you might send them. |
Can a US citizen be required to provide the authentication key for encrypted data on a confiscated computer? I'm asking this for the sake of a story I was considering writing. Assume that someone has a computer, and within that computer he has some encrypted data. He is accused of a crime and the police get a search warrant to confiscate his computer. They suspect that he may hold evidence of the crime within the encrypted data, but have no way of getting to it without a password. Can the police force the owner of the computer to reveal his password, and/or penalize him if he doesn't, since they have a search warrant which justifies their viewing his data? Or would this qualify as being forced to bear witness against yourself and thus be protected under the bill of rights? Related question, if they confiscate a user's computer and learn his password, either from his providing it or it being saved on his computer, would they have the right to use that password to view information stored on 'the cloud', such as in his e-mail or even on his facebook? | If law enforcement is actually requesting an encryption key, talk to a real lawyer. To answer your first question, the answer is "the government probably can't demand the password, but might be able to demand the data." Some courts have ruled that the Fifth Amendment can prevent courts from forcing someone to decrypt data for the government, because the act of decrypting the data conveys information (see United States v. Doe from the 11th Circuit). Other courts have ruled that there are situations where that is not the case (US v. Fricosu, In re Boucher). Boucher is particularly interesting because the government first asked for the password itself, and then (when that subpoena was quashed by the magistrate) narrowed its request to the decrypted data on appeal. In the magistrate's opinion, we see Also, the government concedes that it cannot compel Boucher to disclose the password to the grand jury because the disclosure would be testimonial. It is not generically a violation of the Fifth Amendment to compel production of documents (the 11th Circuit, quoting the Supreme Court, considered this a "settled proposition"). The issue is that the act of producing the documents can be considered testimony -- by producing the documents, the person is showing that they know the documents exist, where they are, how to read them, etc. Possession of the key to decrypt a file links you to that file, because keys are generally kept secret. In the 11th Circuit case, the court found that the government didn't know for a fact that a) Doe could decrypt the files, and b) what files existed on the encrypted drive. In the cases where forced decryption was allowed, the government had seen enough to independently show that the files existed, were authentic, and that the defendant had actual control/possession over them. The 11th Circuit asked for a bit more (the location), based on a standard that is in effect in some circuits but not others. In any event, courts seem to generally consider this to take a court order to force production of anything; the police can't just order you to do it. | As a baseline, you may assume that your code will be used legally. It sounds like this still applies in your case: there is an entirely reasonable and legal use for login code, so you had no reason to assume that there might be a problem. This puts you legally in the clear. To be liable, you'd need to know or at least reasonably suspect that your code would be used to violate the law. | Maybe not. The ICO says that The right of access enables individuals to obtain their personal data rather than giving them a right to see copies of documents containing their personal data. It might be valid to interpret the DPA / UKGDPR in a way that the relevant personal data undergoing processing in their system is the existence of the letters, but that you are not entitled to a copy of the letters. This is in line with the purpose of the right to access, that you can check what data they are processing about you and whether it is correct. If that argument holds and the data subject insists on receiving a copy of the letters, it might be legitimate to charge them a fee for these copies. But in practice: The data controller might not make this argument and just hand over the copies. It is worth a try. A right to access founded in data protection might not be the only way to receive a copy of these materials. If the letters are relevant for legal proceedings, they could perhaps be requested during the disclosure process. | It will be fact-specific, but potentially not unlocking your phone for such a reason could be a "reasonable excuse". However, you will need to provide evidence for such an excuse. The prosecution will still have to prove, beyond reasonable doubt, that the excuse is not "reasonable". It is entirely possible that the court would determine any such excuse based on privacy to not be reasonable, partly because it grants a very broad shield to defendants which would frustrate the purpose of the law, but partly because they can point to precedent that privacy is not an absolute right and that privacy infringement can be justified in the circumstances (the same way the police can search your phone). I have not been able to find any relevant case law on the matter, but I will keep investigating and update my answer if I find any. As an aside, it does appear possible for any warrant obtained by TV Licensing officials to include a Section 49 Regulation of Investigatory Powers Act 2000 notice which would compel you to unlock the phone regardless of any "reasonable excuse". Failure to do so would result in a conviction under Section 53 of the Act. | In the UK and USA (and I imagine other jurisdictions) there have been laws that explicitly provide for orders obliging entities to (A) provide access or information and (B) keep the order secret. For example, in the USA the Stored Communications Act, Fair Credit Reporting Act and Right to Financial Privacy Act authorise the FBI to issue National Security Letters (Wikipedia, EFF, EPIC, Lawfare). These are an administrative subpoena, without prior approval from a judge, for meta-information (e.g. phone numbers dialed or email recipients addressed but not the content) of communications relevant to national security investigations. They typically contain a non-disclosure requirement prohibiting the recipient of the NSL from disclosing its existence or the FBI's demands. There have been challenges on First Amendment grounds to the non-disclosure aspect but, so far as I'm aware, they have all ultimately failed. Some of their non-disclosure requirements may eventually expire under other laws. In response, so-called 'warrant canaries' (Wikipedia) have been developed (and gone a bit further than the original idea) - these are intended to allow entities to relatively passively warn of such an order having been received if not the detail of the order. However, they can be legally risky in that they might be seen by a court as trying to circumvent the non-disclosure requirement and therefore breaking it. | The relevant Maryland statute is MD. Criminal Law Code Ann. § 9-307 (2021), subsection (a): A person may not destroy, alter, conceal, or remove physical evidence that the person believes may be used in a pending or future official proceeding with the intent to impair the verity or availability of the physical evidence in the official proceeding. Note "that the person believes" and "with the intent to." If you have no reason to think it might be necessary in an official proceeding, you aren't violating this section. If you delete the data unintentionally or for some other reason, then you also probably are not violating the section. (I say "probably" because I'm sure there's some sort of provision for negligence or willful disregard for the evidential value of something you should know has evidential value.) As a practical matter, no copyright lawsuit or criminal trial (and criminal trials over copyright infringement are very rare) is going to depend on the browser history of the defendant's friend. What if my computer has major software issues and the only viable solution is delete everything and reinstall from scratch; am I stuck with a worthless broken computer because reinstalling things from scratch would delete evidence of a crime? If you know of evidence on the hard drive that would be destroyed, you can copy it somewhere else before deleting and reinstalling. Federal law is similar: it requires knowledge and intent. 18 USC 1519: Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. | In my opinion, this should be enough. The GDPR regulation is general - it does not attempt to address these issues directly, precisely for the reasons we see here: You can never predict how the technology will develop. When interpreting the GDPR, we must keep the intended goal in mind. What is the purpose of the "right to erasure"? To prevent anyone from further processing the personal data. If you "crypto-shred" it, it can't be processed anymore, not even theoretically. The encryptec file cannot be used to identify the subject, therefore it is not even personal data anymore. In case it can be decrypted in the future... Well, that is just a speculation. The courts can go to great lengths in interpreting what personal data is (dynamic IP address is considered personal data, since it can be linked to a person by the police with a court order), but i am pretty sure that "it can be theoretically possible in some distant future" is beyond the limit. As for the second question, I am not aware of any applicable case-law, but I guess that current security and technological standards will be used to assess the delay. You have a right to protect your data, the subject has a right to erase them. Those rights must be balanced, neither fully overrules the other. The delay should be short enough so the right to erasure is effective, and it should not extremely long compared to other (economically viable) backup solutions available, in line with current industrial standards. | Anyone can be arrested, as long as the police (and in some cases, anyone) have probable cause to do so. This generally includes two points: You are in the process of committing a criminal act The police have probable cause, generally through evidence, that you are in the process of, about to, or have committed a criminal act. This usually requires obtaining a warrant for the arrest. However, it's important not to conflate searches with arrest. Arrests are when you are being taken into custody for the reasons mentioned above. Searches are when your personal belongings (i.e. property), are searched to collect evidence. It is not up to police to convict someone. This is the job of the judicial system. There's a bit of terminology here: convictions basically mean being found guilty of an offence. Police don't have the ability to convict someone of an offence. They do have the ability to arrest, and charge with an offence. To charge someone with a crime basically means to accuse them of having done something. Now let's get to the actual crime. Since you haven't mentioned a specific jurisdiction, I'm going to use Canadian cases and law, but in general, it should apply worldwide. If the police have reason to believe that you are engaging in unlawful hacking-related behaviour, then they have the authority to arrest you. They simply need to have a reasonable belief that you are engaged in the crime. Something such as connecting you with an IP address and connecting that you were online at the time is enough. If the police need to find out more information (which they generally do, to investigate further into the matter) - they can obtain a search warrant afterwards. With this, they can legally search into your computer, and investigate. Any evidence that they collect can be used in court. I've recently done some research into cyber crimes. One rather infamous case involved the attack on multiple large scale websites, including Dell, Yahoo, and Amazon, in 2000. This sparked a large scale investigations, between the RCMP (Royal Canadian Mounted Police) and the FBI. The attacks were claimed by some to cause nearly 1.7 billion dollars of damage. The hacker was charged with 58 different offences. You can imply from the linked article that he was arrested before his computer was searched. |
Is it legal for a warranty to hinge on undisclosed criteria and require payment to test those criteria? In the USA is it legal for a manufacturer to: warrant a product in a way such that only they can test a pass/fail without disclosing the test criteria used charge the consumer to run the test require paid (software) upgrades on the product in order to run the test? For example, some electric car manufacturers offer a warranty on the vehicle's battery capacity retention being above a certain threshold (typically 60-70%) through the 8 year federally mandated warranty period because batteries naturally lose capacity over time and use. https://www.greencars.com/guides/definitive-guide-to-electric-car-batteries-range#:~:text=Most%20automakers%20have%20an%208,a%20minimum%20of%20eight%20years. However, exact battery capacity is difficult to measure so the manufacturers will dictate that an authorized dealer must perform a test for it. In some cases there is little description of the test beyond the dealer plugging the car into a computer, doing something and the computer generating a "pass" or "fail" response with no further explanation of what determines a pass or fail. Additionally, some people report that their dealer required that the car's software be updated (for a fee) prior to performing said test. So, is it legal for a warranty to hinge upon undisclosed criteria? Is it legal to charge money to perform such a test? And is it legal to require an additional purchase (software upgrade) to perform such a test? Edit to add two points that may be relevant: Does it matter if a dealer themselves does not understand what the test does and that the test computer is running the manufacturer's software which is the only way to determine a pass/fail? There are various ways to approximate battery capacity, including charging to full, and driving until the car stops to measure mileage however that is not only impractical because you may run out of charge in an undesirable location on a roadway but it also can vary substantially due to driving efficiency (are you driving uphill the entire time?). Because of this, no guarantee is in "miles of range" and any possible methods of capacity are an approximation. The manufacturer claims that only a dealer can make a warranty determination but the dealer seems to claim that it is ultimately the manufacturer's determination. | Main Question: Most likely not under Magnuson-Moss or U.C.C.. Question 1: If a charge payable before hand was not set forth in any written warranty, it is most likely not legal to deny remedy to the consumer. However, even if it was, it is possible that it would not meet the federal minimum standards for warranties as, per paragraph (d) a warranty has to provide for remedy without a charge. If there is absolutely no way for you to obtain the information to prove that a remedy is due — for e.g. no third party has legal or technical capacity to diagnose the vehicle — that is likely also a term to be found unconscionable and void, and may be found fraudulent, malicious and/or oppressive which may entitle one to collect punitive damages. (It is worth obtaining written confirmation of whether this decision is made in accord with their policies or on a line that they announce to be recorded) Question 2: Most likely same as Question 1. Question 3: Most likely same as Question 2. According to 15 U.S.C., subsection (a) of Section 2302 entitled "Full and conspicuous disclosure of terms and conditions; additional requirements for contents: "In order to improve the adequacy of information available to consumers, prevent deception, and improve competition in the marketing of consumer products, any warrantor warranting a consumer product to a consumer by means of a written warranty shall, to the extent required by rules of the Commission, fully and conspicuously disclose in simple and readily understood language the terms and conditions of such warranty. (4) A statement of what the warrantor will do in the event of a defect, malfunction, or failure to conform with such written warranty—at whose expense—and for what period of time." (5) A statement of what the consumer must do and expenses he must bear. (6) Exceptions and exclusions from the terms of the warranty. (7) The step-by-step procedure which the consumer should take in order to obtain performance of any obligation under the warranty, including the identification of any person or class of persons authorized to perform the obligations set forth in the warranty. (12) The characteristics or properties of the products, or parts thereof, that are not covered by the warranty. (13) The elements of the warranty in words or phrases which would not mislead a reasonable, average consumer as to the nature or scope of the warranty. It may, in addition to any or all of the above, be a violation of paragraph (8), (9), (10) and/or (11) based on specific fact patterns. To the 2nd point added: If the manufacturer stated that the vehicle would run at least a certain number of miles on a full charge for a certain number of miles driven or number of years, and did not stipulate it otherwise, they would have to remedy this. It is highly likely that they tried to evade making such written statement (if not written, it's not a warranty under Magnuson-Moss). If they did, and they did not define the scope of what they would have to do in the case of a defect or malfunction, they would have to remedy it by repairs within a reasonable time; if they fail, they would have to refund or replace. This does not mean that it is likely worth pursuing the matter in court other than maybe in small claims (See: ohwilleke's reply to this question for a general explanation). Moreover, most auto manufacturers put arbitration provisions in their sale contracts and/or their warranties and generally it may be required of one to opt out of it within 30 days of entering into the agreement. If that took place, first the dispute would likely need to be disputed through a qualified dispute resolution mechanism of the manufacturer, dealer, distributor and/or sellers choice depending on who gave the warranty. The specific State's lemon laws may provide for civil penalties for willful violations which may or may not be a very high bar to meet depending on the State's case law, and which is more likely to make it worth for "lemon" lawyers to take the case, but generally they are not a great deal more like hyenas of this segment of the law. It may still be worth considering for one depending on the specific facts, including State jurisdiction and the impeding nature of the nonconformity. (Please specify a State for the State's lemon laws applicable in this hypo) | 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. | It is legal for a manufacturer to sell a device which is capable of being misused. For example, a wifi-capable router can be sold even if it is "open" by default. A Bluetooth device has a shorter range than wifi, but in principle can connect to any other device. An owner's legal liability is not different given wifi vs. Bluetooth. Whether or not there is criminal liability for a third person who connects to the device also does not specifically depend on whether the device uses Bluetooth technology, as opposed to some other technology. 18 USC 1030 is the general federal law prohibiting "unauthorized access". In the case of a bed, two legal question arise: is it a "computer", and is it "protected"? It is an electronic high speed data processing device which performs logical, arithmetic, storage and communications facilities, i.e. it is a computer (in the legal sense). It probably is not protected, because it is not "used in or affecting interstate or foreign commerce or communication", that is, it is not connected to the internet (unless it is). State laws tend to be broader, not having the "interstate commerce" limitation, so accessing the bed would violate Washington's analog of the federal law. However, under Washington law, the access is probably not "without authorization". That term is defined as knowingly circumvent technological access barriers to a data system in order to obtain information without the express or implied permission of the owner, where such technological access measures are specifically designed to exclude or prevent unauthorized individuals from obtaining such information, but does not include white hat security research or circumventing a technological measure that does not effectively control access to a computer. The term "without the express or implied permission" does not include access in violation of a duty, agreement, or contractual obligation, such as an acceptable use policy or terms of service agreement, with an internet service provider, internet website, or employer. The term "circumvent technological access barriers" may include unauthorized elevation of privileges, such as allowing a normal user to execute code as administrator, or allowing a remote person without any privileges to run code. One question is whether there is any technological access barrier that the user circumvents (I don't know if it is possible to circumvent "hidden mode"). Since the term "may include ... allowing a remote person without any privileges to run code", and since playing music on speakers involves running code, then the remote user may be criminally liable. On the third hand, the language of that paragraph ("technological access measures are specifically designed to exclude or prevent unauthorized individuals from obtaining such information, but does not include ... circumventing a technological measure that does not effectively control access to a computer") clearly indicates a legislative intent to address deliberately overcoming active access barriers and not accidentally connecting to an unprotected, open system. Plus, the law also says that you are accessing the computer "in order to obtain information", but that is not the purpose of transmitting sound to speakers. | It will be fact-specific, but potentially not unlocking your phone for such a reason could be a "reasonable excuse". However, you will need to provide evidence for such an excuse. The prosecution will still have to prove, beyond reasonable doubt, that the excuse is not "reasonable". It is entirely possible that the court would determine any such excuse based on privacy to not be reasonable, partly because it grants a very broad shield to defendants which would frustrate the purpose of the law, but partly because they can point to precedent that privacy is not an absolute right and that privacy infringement can be justified in the circumstances (the same way the police can search your phone). I have not been able to find any relevant case law on the matter, but I will keep investigating and update my answer if I find any. As an aside, it does appear possible for any warrant obtained by TV Licensing officials to include a Section 49 Regulation of Investigatory Powers Act 2000 notice which would compel you to unlock the phone regardless of any "reasonable excuse". Failure to do so would result in a conviction under Section 53 of the Act. | 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. | As far as I know in the United States, no DMV provides test vehicles. You need a vehicle to take the driving test. Since you are not currently licensed, you can not legally drive yourself to the test alone... So logically, you must bring someone... anyone... willing to drive you to the test and provide a vehicle for you to test in. As others have stated in the comments above, worse case scenario is the hiring of a driving instructor. If you read the written instructions (and I remember correctly), it does state something along the lines of "must be accompanied by a licensed driver and provide an insured, registered, vehicle". Which is a bit more formal than the "bring a friend". Most people just naturally use more casual terms when speaking. I don't know your age, but it's probably more common to hear "bring a parent" than "bring a friend" when speaking face to face with the DMV staff. Also, not all insurance policies are driver limited. Some policies are on the vehicle regardless of driver. Typically Liability-only insurance is vehicle specific, not driver specific. [*1] You'd have to review the policies or call the insurance agents to confirm this. You may even do something as simple as add you to the current insurance for a month or two while you're practicing and testing. Just reimburse your friend for any increase in premiums during this time. Contact the insurance company/agent. The cost may be minimal. In addition, there are non-owner insurance policies which cover you even if you do not own a vehicle. This would provide insurance if none of your friends has a policy which would work. Realize that most people taking the test for the first time have probably already been added to a policy owned by their parents. So, your situation is a bit more unique. It's not meant to be inherently confusing but if you're "outside the norm" you have to do some deductive reasoning on your own. And finally, if an accident or damage were to happen during your practicing or testing, it would still be your responsibility. If you are in control of the vehicle, you are responsible for any damage to it or damage caused by the vehicle due to any negligence on your part, regardless of any insurance policy. You'd be a pretty bad "friend" if you caused damage and didn't financially make restitution leaving your "friend" holding the bag, so to speak. Restitution could be something as simple as paying the deductible on your friend's policy. Of course, if you are not covered by insurance any claim may be denied -- leaving you responsible for everything. The mindset that just because your friend owns the car they are totally responsible for anything that happens while your driving seem very, very self-serving and, well, I'd be apprehensive about loaning you my vehicle as well. In fact, I absolutely would not. | Although the local mechanic was suggested by you he was paid by the dealer, and hence was acting as the dealer's agent in the repair. If the dealer did not want to accept this then they could have simply insisted on doing the repair themselves. The dealer is responsible for the actions of their agent, and they cannot run out the clock on the warranty simply by failing to repair the fault. You could write to the dealer saying that you will accept their third repair on the understanding that the fault and two attempts to repair it predate the expiration of the warranty and hence you retain the right to return the car if this third attempt at repair does not remedy the problem. Or you could simply insist on returning the car for a refund. If they won't take it, write a letter stating that either they agree to take it back or you will take action in the county court to recover your money. Most businesses will conceed at this point because spending time in court is expensive even if you win. I say "write" because that means they can't deny agreeing later on. You can of course hand them the letter yourself rather than sending it by post. | Let us assume that you were high on meth at the time, that you were acting normally (that is, were not smashing windows or other such criminal things), but you had mouth sores and high blood pressure. Let's also assume that you are docile, but don't consent: so you stick around. Even with all of these assumptions working against you, the sheriff cannot force you to take a drug test without a warrant. When he goes to the judge, the judge will not issue a warrant to force you to take a test. Drug tests are forms of searches, which are protected by the 4th Amendment, and they basically require "probable cause" to the effect that you had committed a crime. Given your description of the circumstances, there is no such probable cause (i.e. "most likely that it is true"). The threat to call the sheriff was empty, though perhaps sincerely believed (many people sincerely believe lots of wrong things about the law). You can consent (sounds like you did): as far as I know, if you give in to a suggestion from a nurse that the sheriff will make you take the test (an untruth), that would not invalidate evidence derived from a voluntary search. Every citizen is expected (unreasonably) to know and follow the law, and it is expected that you will know that you have the right to refuse, so you cannot say "But I didn't know I could refuse". You always have the right to refuse any medical treatment or testing. This is true even if your insurance requires you to take a certain test. There could be contractual consequences to violating the contract with your insurance company, but again you cannot be compelled to take a test or undergo a procedure because an insurance company "requires" you to. If, for example, your insurance company requires you to take a meth-abuse screening test, then if such a contract condition is legal in California, refusing to take the test could lead to some insurance problems, like they would cancel your policy. As for financial liability for the test that you didn't really want but agreed to, there is a chance that you could argue in court that you were coerced into the test and thus your apparent consent was not real. You have the right to refuse the test; if the other party, "whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state", then they crossed a legal line and you can sue them, plus any "agreement" that is coerced is null in the courts, and the putative debt arising from the test is also null. You simply have to establish that you were coerced, and not convinced. |
Are there any consequences for ignoring a private electrician company insisting on an inspection for year old work in Seattle? Relevant summary at bottom, if you don't want to read a background story. I am renting this property and do not own it. Long story short I had a NEMA 14-50 EV charger installed in my rental house in Seattle, with the permission of the owner. This was roughly a year ago. The electrician lied to me and told me I did not need an inspection. His company then called me saying that I did, and they went ahead and had charged me for it. It then failed inspection because he hadn't installed a GFI. On an exterior circuit... So they came back and fixed it (for free) but completely botched my panel and disconnected my water heater. I then didn't have hot water for 3 days. I tried to let them fix it (again) and they promised to send out an emergency dispatch that day. I called 4 times and was told they were coming, and sat around all day waiting; they never showed up. The next day I called a different company who came out on an emergency call and fixed it. The new electrician made many comments about things they'd done incorrectly and fixed some of their minor mistakes for me, free of charge. Since this was an emergency call on Labor day they charged me their holiday + emergency rate of $500. No cheap, but I wanted to take warm showers again and the other company did not seem inclined to fix their mistakes. I was understandably angry and called them, demanding them to reimburse me for the emergency service after I tried repeatedly to allow them to fix the mistake and they failed to. I received a verbal agreement from the site manager that he would. Nothing happened, of course, and then they started ignoring or not returning my calls. Eventually I gave up as the frustration was not worth it. Now I actually do not recall if an inspector came by a second time to approve the fix. Over the past week they have been calling and emailing me saying that they failed to document that the GFI was installed and that another inspection is required, or I could photograph the panel for them. I am inclined to tell them to go pound sand and to stop contacting me. I may also tell them I will send a picture of the updated panel, if they reimburse me the $500 as agreed upon last year. Should they be unwilling and I just continue to ignore them, is there anything negative that can happen to me? Or is this something that is now entirely their problem? Summary: A year ago a private electrician incorrectly installed an external 220V outlet on the side of a house I am renting (no GFI). The owner was consulted before the work was done. They "fixed" it and in the process disconnected my water heater. I attempted to allow them to correct this but they no-showed, so I had a 3rd party fix the panel. Now they are asking me for a picture of the panel to confirm they did install the GFI but after so much consternation and money spent fixing the issue, I am disinclined to work with them unless failing to do so can cause me issues. | There are some consequences for you, under the Seattle Residential Code. Per R103.5 Any person violating or failing to comply with the provisions of this code shall be subject to a cumulative civil penalty in an amount not to exceed $500 per day for each violation from the date the violation occurs or begins until compliance is achieved. $182,500 per year. Also under R103.4, Whenever any building or structure is being occupied contrary to the provisions of this code, the building official may order such occupancy discontinued and the building or structure, or portion thereof, vacated by notice. There should be a notation on your panel indicating permit number and approval, but if you have the permit number, you can check if the inspection was done and the work was approved (I think this will report status). The legal burden of assuring that the work was done correctly and paperwork is in order ultimately falls on the owner, though the city at least initially talks to the contractor. Insofar as a customer taking a picture doesn't count as an actual final inspection, I suspect that some cost- and time-saving short-cuts were taken. Following up on the new information about being a tenant, the primary legal question is whether you have a duty of care towards the landlord, since in engaging this company, the landlord's interest may be put at risk. The landlord may have protected his interest via a clause in the lease saying "you must get written permission to modify the property, and you assume full liability for resulting damages", so first thing to check is what the lease says (perhaps look for a "Tenant's duty of care" clause). In lieu of clear evidence that you caused damage to the owner (economic damage, by negligence w.r.t. his need to have proper permits and the whopping fines that follow), I don't see what the risk to you would be in just washing your hands of the problem. | 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. | It is usual for a lease to specify for what purposes and on what notice the landlord is entitled to access. Often there is a provision allowing the landlord access on no notice in an "emergency" which is often not specifically defined. Access for purposes of repair, and for purposes of inspection may be on 24 hours notice, or 48 hours, or some other period, or on "reasonable notice" with no specific period specified. Access for a reasonable purpose (such as inspection) on reasonable notice that does not actually inconvenience the tenant, and that is not demanded with unreasonable frequency will probably not constitute such a breach as to justify ending the tenancy, and may well not justify sizable damages in the absence of other breaches. Much will depend on the wording of the lease or rental agreement, and on the practice of the local courts. One might well ask oneself "what actual harm will an inspection with insufficient notice do me" because a court might ask a similar question if an action is brought. If the inspection does cause a problem, then that should be addressed. | This is a context where you need to lawyer up. There are two issues, his share of the costs, and his permission to construct in part on his property. You mother has the same rights, so she likewise can refuse to sign off on his scheme (the lawyers negotiate a resolution). Assuming both parties are insured and (to make it more complex) have different insurance companies, the companies limit how much they will contribute for their part of the damage. Normally, you find a contractor who will do it for a given price, let's say $10,000, and the parties split the cost. Both parties have an interest in the choice of contractor because of cost issues, and quality of product and service (though the insurance company cares about the cost). If one of the parties is a contractor, they too can legitimately submit a bid, and then the parties can decide which is the best bid. It is not fraud if a contractor, who is an insured, submits a bid and makes a profit on the job. It would be fraud if that party withheld material facts from an insurance company. In the context of massive disaster insurance claims, the insurance companies may not perform a rigorous investigation (e.g. may not ask for multiple bids). It would then be a material fact that one of the insureds stood to profit from this arrangement, so the insurance companies would likely wish to see evidence that the costs were not unreasonably inflated. If the neighbors bid is in line with industry standard (and the insurance companies know who the contractor is), there is nothing fishy about the arrangement. This assumes that both parties are being cooperative with each other. When that is not the case, lawyers are good at getting cooperation (not letting the other party push their client around). | I am unfamiliar with a "perpetual contract" and that phase does not appear in any reported appellate court decision of the State of Oklahoma. However, usually unpaid utility bills do constitute a lien against the property that is enforceable against a subsequent purchaser, which has the same practical effect. This kind of obligation is also sometimes described as an "encumbrance". Usually, in an arms length sale of real estate through real estate agents, a title insurance company is hired and is responsible for determining if there are any outstanding liens, pro-rating utility bills, pro-rating property taxes, etc. at closing. If the title company fails to find a lien and there is one, the title company is responsible for paying off the lien that it failed to find (although it can often force the previous owner to indemnify it for the payment it has to make). It could be that since water service was not currently being delivered, that the title company did not search in the manner that it should have to find this lien, or it could be that there was no title company used and so no one ever checked. Also, if the property was conveyed with a "warranty deed" such a deed contains a promise from the seller that there are no liens or encumbrances not listed on the face of the deed that have to be paid, and the seller has liability for breach of the warranty of title. But, if the property was conveyed with a "quitclaim deed" there is no such warranty. | If you want to take legal action, hire a lawyer. If you want to puff your chest and see if they flinch here is what you do: First let's deal with this arbitration agreement. (There is probably also a jurisdiction agreement in there, ignore that for now.) First you need to find someone to to arbitrate and a place to hold the arbitration. I suggest a babysitter, dog-walker, friend, whatever... just make sure it is a real person. You write them a letter saying that you are exercising the dispute resolution set forth in the terms and that you propose an arbitration by [insert person's name here] to take place at [location] on [date and time]. You are going to mail this to a physical address and should include a sentence asking them to let you know within 30 days if this schedule works for them. Also tell them that you prefer to communicate via email and provide an email address. Mail this letter. Just mail it plain old snail mail. In two weeks write another letter opening with a statement indicating two weeks ago you sent a letter and asked for confirmation of receipt, that you did not get receipt and would they please acknowledge. You have now puffed your chest. Pretty soon 30 days will run and you will go to the courthouse. Hopefully this will have gotten them talking to you and you can get this resolved. What I describe next is an absolute interbreeding and then slaughter of various states' court rules. I hope that more-informed stack participants edit with gusto. If you can't resolve things go to the courthouse and tell the clerk that you want to file a claim in small claims court against [company] for [dollar amount] based on breach of contract. She will give you paperwork to fill out. You will pay her the filing fee. One of the things you will fill out is a complaint, one is a summons. It might be two in one. Here is an random example. It should be a simple form. Keep it all as simple as possible but be sure to describe the facts that support your claim. You might include the fact that they ignored your requests to arbitrate. Take this complaint and summons and serve them on your defendant. To do this you will need to get someone in the company's city to serve it. There are professionals who do this, mail or email them (if possible) the summons and complaint and pay them. They will you with provide proof of service. Now you have moved past chest-puffing and you've thrown a punch. Now you have initiated a law suit. They must file an answer. This means that they must get lawyers involved. You've gotten their attention and it only cost you filing fees. They must now file an answer to your complaint. They will also likely file a motion to dismiss and do one of a few things: 1. complain that you need to arbitrate 2. It will complain that the contract requires legal action in a certain state or county 3. It will complain that regardless of the contract this is the wrong court for any host of reasons 4. they will claim that you haven't stated a valid complaint 5. some other boilerplate stuff. You might have a hearing scheduled to deal with these things, you might deal with them all on a trial date. Now go back to the clerk at the court and ask for a subpoena form. You will have this served on the defendant also - it must name a person. This is a document that requires them to come to court at a time and place. Again, lawyers get involved to quash this. Lawyers = $ so you probably got their attention. Oh yeah, you need to pay a witness fee and travel costs. You can also serve a subpoena duces tecum which requires them to bring documents that you ask for. This needs to be served on the person in change of keeping records. You will probably pay the costs of the documents. The clerk will have forms for you and will describe the process in ambiguous terms while repeating "we cannot give legal advice." You've got your documents, you have a witness coming, you are ready for trial. If you haven't had some sort of hearing already to deal with defendant's motions to get this thing dismissed, you will need to deal with that stuff now. They will claim that arbitration is required. You tell the judge that you invited them to an arbitration that you set up and they refused to come. You show all the paperwork, including your contract with the arbiter. They will argue about jurisdiction, good luck with this one but it's a whole other problem that I can't touch here! If you survive these objections you will tell the story to the judge, you will call the witness and question her, you will present your documents as evidence. In small claims court the judge (or magistrate or referee) might ask the lawyer some questions about facts. Then the judge will bang his gavel and you wait for his decision. If you win come back here and ask how to get your money. | Much of the remedies for your situation depend on what you have in writing about 1) the transmission agreement and warranty you signed and what it may contain about warranty replacements, arbitration and court actions, and 2) what written evidence you have to the fact that the garage was encouraged to "keep trying things" until the warranty ran out, as well as evidence of the dates of the CEL (check engine light) maintenances and the shift solenoid replacements. Do you have - or can you get - a statement in writing from the garage that they were told to keep trying things until the warranty ran out? Your case to get the company to pay for the installation of the new transmission may hinge on this, as you need to prove that the transmission was possibly failing before the end of the three years. Does the transmission sale and installation agreement contain a clause about binding arbitration or court actions if you have a warranty complaint? These will determine what you can and can't do if you exhaust all other remedies and want to go to court. But it sounds like the transmission company is at least trying to make the situation whole by offering a replacement transmission. You need to gently push them to pay for the installation. Your basic options are: 1) you can try to talk to the transmission company yourself (along with the ammunition of possible evidence of the garage being told to delay warranty replacement) and try to work out a settlement for them to pay the installation costs; failing that, 2) file a complaint with a consumer advocate (like Consumer Protection | Washington State); or failing those, 3) take the transmission company to small claims court (if your agreement does not bind you to arbitration). Re: the first option above: something that can work very well is if the transmission company is a regional or national chain, look up the president or CEO and send them an email outlining your complaint. Many times a corporation will try to settle these types of situations before a complaint is filed or they go to arbitration or small claims court, because good PR (paying for the labor/installation) is cheap and bad PR is expensive. They already offered a replacement transmission, which is good; you need to gently push them to pay for the installation. | The primary legal question is whether the resident (tenant) has breached a duty of care. There are all sorts of laws establishing duties of care, such as between doctor and patient, which may be created by a legislature or may be part of common law tradition. There is a duty of care imposed on a landlord w.r.t. the tenant, requiring that the premise be "secure", therefore a landlord might easily be held liable if the main door into the building was not locked. This duty is a specific instance of a general duty from tradesman/businessman to customer. As far as I can determine, there is no such statutory duty imposed on tenants in Washington state, and none from case law being revealed by a few cursory searches. In order to be subsumed under general "everybody has a duty to everybody else" law, the damage would have to be foreseeable. It is said that "If something is foreseeable, it is a probable and predictable consequence of the defendant’s negligent actions or inaction". This mean that a reasonable person would have known that, under the circumstances, the damage is likely to result. Circumstances vary quite a bit, and there is no general rule about holding the door open for another person. If there is abundant signage reminding tenants to never ever let in a stranger no matter that their excuse and/or if the premise is in a crime war-zone, the outcome is more likely to be considered to be foreseeable. |
Los Angeles Covid, turn off electricity at party residences I am researching the COVID 2020 lockdowns in Los Angeles, where mayor turned off the electricity, for people who have parties and social gatherings. Did they have court trials proceedings before shutting off electricity, or did they have Police turn off electricity without due process trial? https://www.latimes.com/california/story/2020-08-19/tiktok-house-bryce-hall-los-angeles-eric-garcetti https://www.bbc.com/news/world-us-canada-53680761 | There was probably due process This article explains that due process is required and also explains what that means: … one may not be deprived of a property interest without (1) notice, (2) an opportunity to be heard, and (3) a decision by a neutral judge. The mayor’s notice-only service interruption is, therefore, a gross abuse of power. I’ve included the conclusion even though I don’t think it’s necessarily correct - it depends what’s in the notice whether due process has been afforded. If the notice is a “show cause” notice which gives an opportunity to be heard before a neutral decision maker (not necessarily a judicial officer), then that’s due process. From what I can tell, the notice was delivered on or about 6 August 2020 and power was disconnected on 20 August - that’s plenty of time for submissions to be made and considered by the decision maker. It’s also plenty of time for an injunction to be sought if the person did not believe they were being afforded due process. Now, is possible, even probable, that given what the occupants do for a living, they were quite happy to have their utilities shut off. All publicity is good publicity after all. They may therefore have chosen not to respond to the notice. This is a situation where everyone is happy with the status quo - the influencers can play up their “victim” status and make lots of money, the mayor gets to be “tough” which no doubt plays well with his constituents. So, no one is going to challenge this in court. Now, if the city went after that revenue as “proceeds of crime” … | Many states have laws providing for a residence for their governors, but I know of no state that mandates the use of those homes. Oregon's previous governor, for instance, lived in Portland rather than the governor's mansion, Mahonia Hall. Some cities do the same. In New York City, Mayor Bill De Blasio lives at Gracie Mansion, but Mike Bloomberg never did. Although we don't always think of them as government officials, some government schools provide their presidents with state-funded residences, as well. At the University of Virginia, the president lives at Carr's Hill. | 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. | Is it the case that Police in the US are unable to proceed with a charge if a victim declines to "press charges" and if so, how are murder charges or even more pertinently, domestic violence charges, brought to court? First of all, it is prosecutors and not police officers who actually bring criminal charges in the legal systems in the vast majority of U.S. states (although not quite all, minor offenses in Rhode Island, for example, are an exception). Second, a prosecutor does have the right to bring criminal charges even if the victim or someone affiliated with the victim does not "press charges". Indeed, a prosecutor can almost always bring criminal charges over the objections of a victim, although "victim's rights" protections in some U.S. states require a prosecutor to confer with a victim before doing so. This said, law enforcement and a prosecutor cannot prosecute a criminal case if they have no knowledge that a crime was committed, so if no one brings a crime to the attention of authorities it is unlikely to be prosecuted. And, law enforcement and prosecutors will defer to the wishes of a victim that charges not be pressed in the legal system against an offender in many kinds of cases (although that discretion is limited in many states in domestic violence cases by statute). | You do need to know the location of both parties. U.S. Federal law (18 USC 2511(2)(d)), which prohibits the interception of wire and electronic communication, states: It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State. California Penal Code 632 requires the consent of all parties to a confidential communication in order for the conversation to be recorded. The statute defines a "confidential communication" as follows: The term “confidential communication” includes 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 a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. Once AT&T, or anyone else for that matter, states that the communication is being recorded, it is no longer considered a confidential communication requiring the consent of all parties in order for any party to record it. Part of the California Civil Jury Instructions for this code requires that the plaintiff must prove, among other things, that the plaintiff had a "reasonable expectation that the conversation was not being overheard or recorded." You can see the full jury instructions here: https://www.justia.com/trials-litigation/docs/caci/1800/1809.html | In the case of the US, the only anti-discrimination laws that would cover an event is the Civil Rights Act of 1964, under the rubric "public accommodation", in Title II. But that law does not prohibit sex discrimination. The extent of "public accommodation" is not clearly defined, but generally is held to be about "a place", and would include "entrance into this facility". It might be illegal in California, though, since the Unruh Civil Rights Act is more generic, not excluding sex on this point. The main issue would be whether this organization is a "business". | I am assuming, for the purpose of this answer, that you are talking about actual (attempted) suicide - rather than (physician or associate) assisted suicide. With regard to the U.S., various states at one time or another did have the act of attempted-suicide listed as a crime; some even as a felony, although I cannot find a single case of actual prosecution (of attempted - obviously you cannot enforce a law against actual suicide since the actor would be deceased). With that said, currently there is no law against the act of committing suicide in any state in the United States. I did a full Lexis search. Suicide (attempted suicide) is considered a mental health issue rather than a criminal one; hence, a person who is thought to be suicidal is subject to well being checks by fire, police, social services, and other like entities/people and are also subject to civil commitment and mental health holds if they are thought/found to be a danger to themselves or others. To that end, the reason police can enter a dwelling without a warrant under these circumstances, is to do a well being check. If they have a reasonable suspicion that someone may be attempting to kill themselves (a family member, friend or a neighbor calls and says they believe you're are in eminent danger of harming yourself), the police may enter the premises and bring them to a hospital, even against there will. They can be held (at a hospital) to determine if they are of "sound mind". Every state has some form of civil commitment (statutes) and some limited amount of time a person can be held for observation (again, at a hospital or treatment facility). I do not believe this is a typical ruse used by the police to enter premises without a warrant. Why? Not because all police are above skirting the laws against warrantless searches; however, there are just much easier means to accomplishing that end, if that is what they are going to do. Yes, if evidence of a crime is in plain view while the police enter for a well being check (or any other legitimate reason), the individual can be charged with that crime. However, most police officers are not going to charge someone if they see (a usable amount of) drugs, paraphernalia, or evidence of some other low level crime. This is true since (1) they are already in crisis and (2) they are there for the very reason that they have information they may not be of sound mind, hence potentially not criminally responsible. If they walk into a meth lab or a murder scene or some other serious criminal scene, ...well that is different and all bets are off. The bottom line is while this may have happened somewhere sometime to someone....this is not a practice I would be worried about. | The powers given to law enforcement professionals will be detailed in the relevant law that establishes them. I would suspect that the decision to cordon off an area would fall within the purview of the officer on the scene; the idea that a police officer would need to seek permission before cordoning off a motor vehicle accident or chemical spill is unworkable. I would also suspect that other emergency personnel (e.g. ambulance and fire-fighters) would have similar powers. However, such cordoning off would be a temporary measure and if it was maintained for an unreasonable period it would be open to challenge through an administrative or judicial process. If the police decided that a feature was a permanent hazard then they could seek a court order on the owner of the property to provide some measure to adequately protect the public, by either removing the hazard or providing some permanent barrier, under whatever laws seemed most appropriate. |
Copyright liability for encoded files? What are the details of copyright liability for an uploaded, encoded file? For example, let's say there's a copyright video, then someone encodes the entire file by shifting each of the bytes (either by a static value or repeating string of bytes, like a password for a zip file), then let's say they divide all of the bytes into groups of 4 and map all of them to pixels in RGBA format, then write those pixels to an encoded picture file, and post it online as "abstract art." Then makes, or gets someone else to make and publish, a program that is downloaded onto the end user's computer, which takes as in input the downloaded image that was encoded like above, and decodes it back into the copyright [video, or anything else] file. The question is: Who is liable? The obvious answer may be the one uploading the image, since it contains the copyright material within it, but can that person make a legitimate argument in court that he just randomly generated the "abstract art" and the fact that it was compiled into a format that can later be decompiled and the bytes re-shifted with a separate program, offline, which contains copyright content, is not his liability? And if so, is the person who wrote the program [which might even be him himself if the program was published in a different context] make the argument that the program isn't meant to specifically decode copyright material, just to decode anything in a specific format, whatever it is, and the fact that in this case the end user happened to use it to decode a file that happened to be encoded in such a way that it could be decoded into a copyright file, is not his liability? Then if so, at least the end user should be liable, since at the end of the day he has decoded copyright content on his device, and once he realized it he should have deleted it. But if so, would it then make a difference if the offline program decodes the file into system RAM only, and not to a file on disk? | Encoding is making an unlicensed derivate or copy Let's say instead of a video file, we take a short story. For the sake of argument, let's take For sale: baby shoes, never worn. We can apply the Cesar-7 Chiffre and get Mvy zhsl: ihif zovlz, ulcly dvyu. Or we use the NVA's TAPIR pattern: 56644 83690 62182 90838 15005 07883 69596 41698 29183 81317 41483 76644 38289 That is obviously nonsense. But all these patterns are at least derivative of the original work. But in fact, they full encode the message, only in a different format, and are reversible. This means we don't just make a derivate, we made a copy, which can be read with the proper means. It is the sole right of the author or rightsholder to license making copies, no matter how they are encoded. Or to rephrase: If it is reversible, it is a copy. If it is not reversible, it is a derivative. Neither is allowed. Subquestions who is liable? The one encoding the file committed copyright infringement for making an unlicensed copy. Period. No way around. The one downloading the file committed copyright infringement by copying the unlicensed copy. No matter if they knew what it was or decoded it, they made a copy of an (encoded) unlicensed copy. Deleting the file btw does not make the copyright infringement go away. can that person make a legitimate argument in court that he just randomly generated the "abstract art" [...] ? That would be perjury. They chucked a whole work into an algorithm. Saying anything else but "I chucked the work into the algorithm" is perjury. Which incidentally can be easily proven if the algorithm is reversible - it will prove the input. is the person who wrote the program [...] make the argument that the program isn't meant to specifically decode copyright material They can, but they are not even on the hook for copyright infringement in the first place. They provide a tool with legitimate uses, such as transmitting messages in a secure way. Encoded files inside other images are for example used by journalists to get files out of oppressive regimes. The liability araises only at the user who uses it illegally. But if so, would it then make a difference if the offline program decodes the file into system RAM only, and not to a file on disk? No. Think about an ISO file. ISO files are 1:1 copies of how a CD is written. They can be burned 1:1 onto a CD without any extra preparation, which is their legitimate use: be easy to distribute and verify copies of for example installation files. ISO files can also be mounted in a virtual CD drive, which emulates a CD drive. If you legitimately got the Windows ISO from Microsoft (or a licensed retailer) directly, you can mount it or burn it, or use it for all legitimate purposes. However, downloading the ISO for a game doesn't change that you made an illegal copy of the game, no matter that you need to mount or burn the ISO to actually access it. | It is illegal to make copies of copyrighted materials without license. In the case of software, obviously it will be illegal to make copies by copying and installing the software without a license, but we are not talking about that. If I have a legitimate license of say Photoshop, and I start the application, parts or all of the code will be loaded into the RAM of my computer, which is a copy. According to copyright law, it is legal for me to make that copy. You are allowed to copy legitimately owned software into RAM to execute it. If your copy of Photoshop is illegal, and you start the application, the copy that is made into RAM is again copyright infringement. Having read the software license for the software that you get when you buy a Mac, it seems that if you steal my computer and just start the operating system, you are committing copyright infringement, and it seems that if you buy such a stolen computer and just start the operating system, you are committing copyright infringement as well, because the license that I received when I purchased the computer covers anyone using it with my permission, and covers anyone who legally buys the computer from me, but doesn't cover a thief. Now does this affect the work that you did? No, you have the full copyright on your work. Copyright law doesn't require that your tools are all used legitimately. | There is no case law as yet However, the most likely situation is that there is no copyright in the original works because they are computer-generated. There is certainly copyright in the code that created the art but the output of that code, the art itself, would probably not be subject to copyright. Copyright only exists in art created by humans. The US Ninth Circuit has held that animals cannot create copyrighted works. Subsequently, the US Copyright office has rejected applications for registration (a prerequisite to a suit in the US) of computer-generated art because it “lacks the human authorship necessary to support a copyright claim.” While this position has not been tested in the courts, I don't think they are any more likely to grant copyright to a program than they were to a monkey. What's going on? The OP states that there is litigation: there isn't. What there is, is a DCMA takedown request from Larva Labs. If this is complied with that will be the end of the matter; if it isn't then there may be litigation. However, before Larva Labs could sue CryptoPunks in the US they would first need to get a writ of mandamus to force the USCO to register it. If they try and fail then there will be a legally binding court decision that Larva Labs don't own the copyright in any of their computer-generated art. Which kills their business model and, presumably, them. This would be a very high-risk move. They may choose to sue in a jurisdiction where registration is not a prerequisite, however, that court would still need to be satisfied that there was a copyright that could be breached. So that's just a different take on the same problem. I have ignored the issue of NFTs as these are legally problematic in their own right and irrelevant to the main question. However, the NFT and the artwork are not the same thing. | To do so I used some images and Gifs which may be under copyright but since I don't earn money for myself and there is no company backing me I was hoping that there is some protection for private persons like me who just want to showcase the project. Sorry. If your website is public facing (i.e. not password protected and available only to family and close friends), you need to follow copyright law. There is no exception to copyright just because a project is run by an individual for non-commercial purposes. I am also insecure about the GDPR regulations since I give users the ability to create an account and try it out. Your profile says you're in the EU. Then you need to comply with the GDPR. Is there any way to protect me against greedy lawyers and companies? Could I write something like: "This website is a peace of art" and save myself with arguments like "artistic freedom" or "free speech"? Nope. A controversial website run by Peter Sunde had at one point a "free speech" disclaimer (similar to the one you propose) posted. However, Sunde did never use this defense in court: Finnish court slaps Peter Sunde with €350k fine. If he had shown up in court, I am pretty sure the court would have told him that such a disclaimer has no legal merit. The only protection that will make you completely safe is to adhere to the law. | Can you be liable for damages? Under Tort Law, yes. Let's assume someone developed a virus based on your code. The virus caused millions of dollars of damage. The plaintiff (software vendor) can argue that: You have a Duty of Care to avoid acts or omissions which you can reasonably foresee are likely to injure your neighbor Donoghue v. Stevenson (1932) (UK) The concept of Duty of Care is also found in U.S. law, for example in MacPerson v. Buick Motor Co. (1916), which established that negligence does not require a contract. Breach of Duty: A reasonable person can foresee that the "proof of concept" can cause harm. The act of releasing code, therefore, falls short of the expected standard. If you are a IT professional, it is going to be difficult to defend this point. There is a causation relationship between your code release and the resulted damage. You are liable for negligence. Damage: It is likely that users will sue the software vendor for their loses. The software vendor will then sue you, since because of you, the software vendor has to compensate to its customers. This, of course, depends on what exactly did you release to the public. For example, if significant effort is needed to convert your "proof of concept" to an actual exploit, and you have provided a workaround to avoid this vulnerability, you may defend yourself by arguing that the cause and effect linkage is too remote. So I must keep the report private? What if the software is open source? Not really. You should take reasonable measure to ensure that your "proof of concept" is not an actual exploit, and a hacker needs considerable time to develop a functioning malicious software. CVE is a platform where vulnerabilities are publicly shared. What if you have given the vendor reasonable time to fix the vulnerability? It does not matter (to you) if time has been given for the vendor to fix the vulnerability. It does matter for the vendor, because if something happens later, the vendor is liable for knowing the problem well in advance and have not allocated the appropriate resources to correct the problem. To demonstrate a vulnerability exist does not require instruction of how to utilize this vulnerability. For example you can record a video showing the effects of the hack. Here (Wayback Machine; original link is dead) is an interesting read about Motorola taking matters into their own hands after they discovered a vulnerability on the Xerox CP-V system and Xerox did not patch the problem. | It's a contract violation if you're under the EULA. It may be a contract of adhesion, but such "clickwrap" contracts been found to be acceptable and enforceable in software EULAs out of necessity. However, there may be some limits. If you're not under the EULA, as you argue, then you lack a license to use the software at all and it's an outright copyright violation and/or a theft or misappropriation of the software. Whether or not you can be sued depends in part on what you do with it — if you don't release the material or otherwise cause damages then there's not much to sue for... Added for clarification: to answer the framing question, supposing neither contract or copyright applied, one could be sued in tort or in equity (i.e. for unjust enrichment). | Copyright law requires permission of the rights holder to e.g. post material. The terms of that permission could be very complicated, as seen in royalties contracts with publishers, but they can also be simple. If someone asks "can I post your video on my website" and you say "Sure, as long as you give me credit", then they can post the video on their site as long as that say something like "This video was made by Jake" or something like that. There is no exception to permission where permission is retroactively withdrawn just in case it turns out that one can make money off of the video. However: you gave That Guy permission, and that does not mean that the hundreds of Other Guys have permission. So you can pursue all of the Other Guys and demand that they take the video down, or require some payment to get your permission. | If users were to copy dictionary definitions, for instance Oxford or Cambridge) and make the word lists public, is it a copyright infringement? If the dictionary entries are protected by copyright then your user has infringed that copyright by posting the dictionary entries. Am I responsible for this activity? No. But you may be responsible for removing it if you get a request. Can dictionary owners charge me against copyright issue? If you follow the procedures outlines in the DMCA you can be protected from liability. |
Is certification required to become an author's editor? According to this source, I would not need a license to be a freelance editor. But if I had a business, the source says I may need to register the business, and I also may need a vendor's license depending on the circumstances. However, would I need to undergo any registration if I edit a single author's books? Also, would my services be taxable? If relevant, assume I am paid per page. | Editing is protected speech under the First Amendment. The government may not require any license to perform such services, though an author could impose whatever credentialing requirements she chooses. If you have created a business to provide those services, that business may need to be registered with/licensed to business in the state generally, but again, it would not require any special licesnse to perform editing services. Whether you provide those services as an individual or as the agent of a business entity, any income you derive from editing is subject to taxation the same as any other income you receive. | You'll want to read the actual licenses yourself and understand what is required. If you don't understand, then you'll want to consult an attorney. But neither of these licenses are all that complex in my opinion. MIT: Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), 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, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. Apache 2.0: Redistribution. You may reproduce and distribute copies of the Work or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form, provided that You meet the following conditions: (a) You must give any other recipients of the Work or Derivative Works a copy of this License; and (b) You must cause any modified files to carry prominent notices stating that You changed the files; and (c) You must retain, in the Source form of any Derivative Works that You distribute, all copyright, patent, trademark, and attribution notices from the Source form of the Work, excluding those notices that do not pertain to any part of the Derivative Works; and (d) If the Work includes a "NOTICE" text file as part of its distribution, then any Derivative Works that You distribute must include a readable copy of the attribution notices contained within such NOTICE file, excluding those notices that do not pertain to any part of the Derivative Works, in at least one of the following places: within a NOTICE text file distributed as part of the Derivative Works; within the Source form or documentation, if provided along with the Derivative Works; or, within a display generated by the Derivative Works, if and wherever such third-party notices normally appear. The contents of the NOTICE file are for informational purposes only and do not modify the License. You may add Your own attribution notices within Derivative Works that You distribute, alongside or as an addendum to the NOTICE text from the Work, provided that such additional attribution notices cannot be construed as modifying the License. Nowhere does either license require you to publish your application's source code, even if your application is directly based on the original code. | Contracts don’t have to be in writing Generally, there are specific exemptions. For example, in some jurisdictions, copyright transfers have to be in writing. Written contracts do not have to take any particular form Again, in general, some specific contracts may need to be in particular forms or explicitly deal with particular matters. Writing doesn’t mean ink on paper Of course, ink on paper is “writing” but so is an email, a text message, a Facebook post, a photo, a comic book. In law, writing simply means a semi-permanent record. Signatures are not required Unless, of course, they are in the specific circumstances. Your examples The plumber’s promise is both binding and unnecessary - the plumber is responsible for his own negligent acts and omissions even without such an agreement. On the other hand, if you promised not to hold him responsible, that promise would be binding. The designer’s agreement to transfer copyright is binding even where such agreements must be in writing because it is in writing. See What is a contract and what is required for them to be valid? | The (journal) publisher's interest is presumably to comply with conditions imposed by the copyright owner: CUP might demand of Elsevier that their reviewers delete electronic copies of books after the review is finished. In keeping and using the work (and perhaps freely distributing that copy), you have violated CUP's copyright (assume that CUP holds the copyright). Therefore you can be sued. Elsevier can also be sued. What is not clear is how many people can sue you (and whether you can sue anyone). It would depend on whether you were informed of the deletion requirement before you agreed to review the work. If you were led to believe either that you would get a paper copy of the work, or at least would be able to retain and use the electronic copy for your own use, the journal publisher does not have the option of rewriting the terms of that agreement after the fact. If you reasonably relied on them granting you permission to keep the work, they can't sue you. You might even be able to sue them, insofar as getting a free copy of an expensive book in exchange of writing a review is a standard academic business deal. On the other hand, if they told you in advance that you'd have to delete the review copy, then that is the end of the discussion. If you didn't read the agreement, that too is the end of the discussion. It is not clear what recourse the rights holder might have against you. You have no contractual relationship with the book publisher, and the journal publisher is not the agent of the book publisher so the book publisher is not bound by the errors of the journal publisher. Because you are expected to know that all IP requires permission of the rights holder to copy and since you know that the journal publisher is not the copyright holder, you are on thin ice in assuming that the copyright holder has granted you permission to copy the work. Indeed, even agreeing to review a work in electronic form is a dubious proposition, without suitable legal assurances that the rights holder has granted permission to make the required copies. If a journal buys a physical copy of a book, it can lend or give it to you to write a review, and no permission is required wrong the book publisher. To review an electronic copy, permission from the book publisher is required. You might try defending yourself against an infringement suit under the fair use doctrine, since the underlying purpose of "fair use" is precisely to allow book reviews. If the journal publisher was negligent in not informing you of the copyright conditions imposed on them (which they are supposed to impose on you), your infringement may be innocent, and you might only have a small liability. You could sue the journal in case the book publisher sues you – the journal publisher has a duty of care to you. Technically speaking, you're in trouble once you download the illegal copy, and technically speaking, you infringe copyright every time you read the work. Digital content is, or should be, distributed under some license (a contract between you and the rights holder), otherwise it is illegal to receive or use the work. Hence various public licenses grant permission to copy, subject to various limitations: the use may not be commercial; the work may not be redistributed; the work may not be altered; the work may not be redistributed in exchange for money, or some something of value... The teeth that digital licensing has is that if you copy and use a work contrary to the terms of the license, you do not have permission (the rights holder has granted conditional permission). Copyright law gives the rights holder the exclusive right to authorize making any copies, and in order to use a computer file, a number of copies are made (by various programs). The basic protection is that "the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work". Copies are statutorily defined as "material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed." One or more "derivative works" (with no added creative content) are created in getting from a pdf file to a computer screen. In §117, Congress created an exception to general copyright protection, whereby one can make "another copy or adaptation" of a computer program provided Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. This exception only covers computer programs, and not data files, and as the Copyright Office says You are not permitted under section 117 to make a backup copy of other material on a computer's hard drive, such as other copyrighted works that have been downloaded (e.g., music, films). It is also important to check the terms of sale or license agreement of the original copy of software in case any special conditions have been put in place by the copyright owner that might affect your ability or right under section 117 to make a backup copy. There is no other provision in the Copyright Act that specifically authorizes the making of backup copies of works other than computer programs even if those works are distributed as digital copies. I say that "technically", it is infringement if you open and process a digital file that you do not have permission to copy (via a license), because that is what the law says, and no court case has deemed that Congress intended something entirely different. It is notoriously difficult to establish legislative intent. Since Congress did articulate narrow exceptions in similar cases (computer programs, also secondary transmissions of performances and display of works, and did not include any exception for copies made by computer programs in the course of "using" a protected work, but could have, we can conclude that Congress did not intend to create such an exception. One might point to other facts to argue that Congress did intend that. At present, I believe that the Supreme Court would uphold the letter of the law, but there is really only one way to find out. That is, at any rate, the basis for the copyright holder pursuing an action against you (or, you and the journal). Even without any prior notification of a requirement to delete, they can still tell you that you must delete the work. They probably could not successfully force you to delete the work in a court of law, but there are many other things that they can do that boil down to the fact that you must delete that copy of the work. Blackballing, for example. | Under United States law, copyright is normally held by the creator of a work. There is one major exception to this rule: the "work for hire." If something is considered a "work for hire" under the copyright statutes, the copyright is held by the employer. Whether something qualifies as a work for hire is a complex analysis: here is a Copyright Office circular covering some of the basics. To be clear, I'm not giving an opinion (and I don't have enough information to give an opinion) on whether any specific works you or your fiance may create or commission qualify as "works for hire." It's a narrower test than you probably think it is. If the work is not a work for hire, the copyright holder owns the copyright, and anyone else can use it only with a license from the copyright holder. A license can be implied by the parties' behavior and communications--but it shouldn't be. If you're in a situation where you need to know, for example: That you are allowed to use the artwork forever, and the artist can't ask you to stop later; That you are allowed to change the artwork if you need to, even a simple change like cropping or adding a filter or text; or That, if your product is successful, the artist won't be able to sell another license to someone else to compete with you; then you need a written contract spelling out who owns the copyright and what the rights of the other party are. A lawyer can draw up a simple, re-usable form contract for you cheaply that will prevent the problems you're worried about. Remember: even if this is a work-for-hire situation, if you need to prove that down the road, it may require a trial, or at least preliminary motion practice, to do so. That's a lot more expensive than getting your ducks in a row now will be. tl;dr: Get a lawyer. If you're in a major city, there may be a local arts law organization that will provide you with free help for a simple job like this one. (Volunteer Lawyers for the Arts operate in several East Coast cities, and I know many top commercial lawyers who do pro bono for them). | You can'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. | First off: Legally, everything is copyrighted anyway. Licensing is not at all necessary. Hence, even if a court would disagree with # SPDX-License-Identifier: Apache-2.0, that would just make it closed source. Having said that, the law generally doesn't bother with trivialities such as "file headers". Any commonly accepted way to state the copyright and license terms is OK. Your LICENSE is such a common convention. If you want to avoid all doubt what is covered under that license, put a reference to that LICENSE in each header. If you have just five files in one directory that are all licensed the same, I wouldn't even bother with that. Again, the default position is that everything is closed source. | The author, or the copyright holder if the author has sold or assigned the copyright, may register a copyright at any time, even many years after the work was copyrighted. However, for all modern works (since 1978 in the US) the work has copyright protection as soon as it is created and set down in a tangible form (such as on paper or in a computer file), whether it is registered or not. Registration cannot gain or lose copyright protection. It is evidence of the copyright, and it provides some additional rights if an infringement suit should occur. If there are multiple co-authors, one author should ideally register on behalf of all of them, listing all co-authors, but multiple registrations will do no major harm. No one who is not an author or copyright holder of a work (or a valid authorized agent of the author or copyright holder) may legitimately register a copyright in that work. Registration procedures and the exact benefits of registration vary by country. In fact, some countries do not have any copyright registration. Edit: In the US, registration procedures are described in Circular #2 from the Copyright Office. Falsely registering a copyright is a crime under 17 U.S.C. § 506(e), and could be reported to law enforcement. See also Wikipedia's article on "Copyfraud". If a false registration has been made, the true author can file a conflicting registration. This should be sufficient to allow a copyright infringement case to be filed. It would be very wise to consult a lawyer with experience in copyright infringement issues before taking steps in the matter. Second Edit: It is one of the elements of an infringement claim that the plaintiff owns the copyright, or has been authorized by one who does. often this is not disputed, and is passed by with no significant time or effort. But if a false copyright registration has been made, in which a person who was not the author claims to be the author, then evidence clearly establishing the actual authorship will probably be needed if the case goes to court. A registration establishes a rebuttable presumption that the person who registered the copyright owns it, and this presumption would need to be overcome. |
Can I sign a new contract before resigning from a job that has not yet started I have accepted an offer and signed a contract that starts next month (from August). However, now, I have a new job offer that I prefer. I would like to accept it and sign a contract for this new offer that starts from September so that I resign later after the employement from the first contract has started (using two weeks period notice). Do you think it is possible and if there may be any problem? The reason I don't resign the first contract before its start is that it incurs a penalty cost. But instead, since it is a probation period, I should be able to legally resign with a period notice of two weeks and start my next contract next month. P.S.: Insights into German employment law would be appreciated -------------edit------------ a link to the contract template can be found here | Don’t be a dick Tell your earlier employer that you can no longer take the position rather than have them waste time and resources on you. You can try to negotiate a waiver of the break cost, most people will agree. If they want to hold you to the letter of your contract then you’ll know you were lucky not to work there; pay them what you owe them and move on. | If the contract commenced on 1st October 2022 the dates 30 April 2022 and 1 July 2022 are plainly a mistake (2022 for 2023). If so, you can give notice before 30th April 2023 to terminate at the end of June. Even if you want to hold them to those dates, the current "full calendar quarter" (which has been tacitly renewing) will end on 31st March, and 2nd February was too late to give the required 2 months notice. Either way, the contract cannot end until 30th June 2023, the end of the next full calender quarter. | Terms in a contract that are not legal or not enforcable are quite capable of causing you trouble and costing you time or money, most likely a generous amount of both. Your friend shouldn't care one bit about whether these terms would be legal and/or enforcable. If he doesn't like them, then he MUST NOT accept the changed contract. Not if these terms are illegal and unenforceable and of course even less if they are legal and enforceable. I would write back "I believe that the suggested change in terms is illegal and would be unenforceable. I also believe that the change is deeply unfair towards me and creates a considerable legal risk that I am not willing to accept under any circumstances. I therefore strongly reject your suggested change. " | Would breaking a rule in the handbook constitute breach of contract? Generally speaking, yes. Of course, most employment contracts are "at will" so a breach of contract often isn't necessary to terminate employment. Does my employer's updating the handbook constitute a unilateral change of contract? It depends upon what is changed in the update to the handbook. Typically an employment contract would have a term that says something to the effect of "employee shall devote his full time effort to perform the duties he is directed to perform by employer in a satisfactory manner." If the employee handbook says, "part of every employee's duties includes cleaning up his work area at the close of business each day, locking his file cabinets and shutting down his computer", this would typically simply be a definition of the duties of the employee which the employer reserved the right to change in the original employment contract, and not a unilateral change of contract. On the other hand, if the employee handbook says, "vacation days may not be taken during December" when the employee's contract simply said that "you have ten vacation days per year", that might constitute a unilateral change of contract which might not be enforceable for an employee with a fixed term of employment who was not an employee at will, without additional consideration. Locale is UK but (I assume) contract law is pretty universal so answers specific to any region are welcome. I have answered based upon general contract and employment law, but the UK frequently sets mandatory standards for different kinds of contracts and modifies common law rules related to contracts (much more so than the U.S.), so it wouldn't be very surprising if this were modified by a statute of which I am not aware. We have UK lawyers who contribute to Law.SE and they can chime in if there are particular statutes in the UK that apply to this question. | Can he/lawyer try to use the payment to me as leverage, for example, offer to give me that payment only if I agree to sign a non-compete or other document? The employer ultimately ought to comply with the written agreements between you two. The employer is not allowed to belatedly impose conditions that alter (to your detriment) the contract(s), let alone when you are no longer his employee. The clause "You will be paid on X and Y when/if they close" does not reflect whatsoever that payment is contingent on your acceptance of a non-compete agreement. Your description does not reflect any legal merits that would justify your employer to further withhold the compensation to which you are entitled pursuant to the deal/sale that got closed. The employer and his lawyer are just being vexatious. | If I did not sign promotion bonus document, my career would be over. Is this duress? No. The premise is hardly true or even logical, and what you describe falls short of duress. Not every imbalance of bargain power implies duress. First, it seems that you could have declined the bonus, thereby preempting the sanction/remedy for leaving within 12 months. Second, it seems hard to prove (and unrealistic) that your career would have been over if you refused to sign the document. The employer can easily refute that allegation by pointing out that there are many others who did not sign that employer's document and yet work elsewhere as investment bankers. You would need certain, additional context to reasonably allow for a conclusion that your career altogether depends on what happens with this single entity. Third, your mention that "the bonus mitigates the horrendous weekly hours" reinforces the idea that signing the document was your preference (namely, for the purpose of obtaining some additional, non-compulsory stimulus) rather than employer-inflicted duress. The rationale and decision for acceptance of those conditions reflects that you knowingly exercised your freedom of contract. A party is not entitled to void a contract only because he belatedly changed his mind about conditions of which he was aware beforehand. | 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. | You already have a contract(s): you do work and they pay you is pretty much all you need to have a contract. Given that there is already a contract, formalising it in writing does not expose you to any greater risk and usually, clearly defining the terms of a contract reduces risk all around. |
What specific law is broken if the merchant continue to charge the customer's card after the customer disabled his account? A customer used to have a VIP account with a California social media company that charges a monthly subscription fee. In July 2021, the customer disabled his account and terminated his VIP. No service is received since July 2021. The customer did not log-on the social media platform and did not send/post any messages. However, for the whole year, the merchant is still charging the customer's card for an expensive subscription fee. The customer carefully read the merchant's T&C which does not explicitly allow the merchant to charge a fee for a disabled account; in fact, the word "disable" is not mentioned in their full T&C. However, the merchant claims that the customer was notified that "a disabled account can still incur VIP fees". The customer never receive any notification through email or mail. What rights does the consumer have in this case? | The fact that the terms and conditions do not mention the word "disable" is significant, but not in the way you seem to think. You state: "...the merchant's T&C which does not explicitly allow the merchant to charge a fee for a disabled account". However, this doesn't mean that the merchant needs to explicitly state that they may. What it actually means is that the merchant does not recognize the term "disable" in the context of terminating the service contract. (Did they use stop, terminate, delete, eliminate, fall into disuse, log off, etc. or any other similar expressions?) You haven't defined what "disable" means, but perhaps it is more like a "pause" in service for which payment is still required? (Like having the post office hold your mail vs terminating all deliveries.) What you need to do is to read the section of the T&Cs that deals with terminating service and payment, understand what is required, and execute the procedures they describe. Whatever words they use, do that. If you have done all the steps and can prove it then you have a case against them, otherwise you are arguing semantics and interpretation... As to the title question, it does not appear that any "law" has been broken, this is just a contractual misunderstanding. P.S. This is the reason why I always set up payments through my bank to "push" money to vendors rather than authorizing them to "pull" money from me. When I am done I notify them and stop paying. I don't need to ask them to please stop taking it from me. | No When I go into my grocery store, I can use the lettuce if I pay for it. The grocer does not explicitly state that I can't use the lettuce if I don't pay for it but that doesn't mean I can. Replace "lettuce" with "software" (or any other property you don't own) and you have the same situation. | In the US, people are generally allowed to charge arbitrary amounts for services, as long as they do not violate various anti-discrimination laws in doing for. For example it would be illegal to charge people of one race less than they charge people of another race, because of federal and state anti-discrimination laws. Three primary factors govern the legality of a particular form of discrimination. One is the type of interaction, for example "voting rights", "public accommodation", "employment", "housing" – medical treatment would generally fall under "public accommodation". The second is jurisdiction – there can be federal, state, and municipal laws governing a particular kind of discrimination (the lower in the hierarchy you go, the stricter the laws tend to be). Finally there is the "protected class", that is, the basis for discrimination. Protected class is extremely variable, given the preceding two factors. Age discrimination is legal in ways that race discrimination is not. "Has insurance" is not a protected class anywhere, so this does not violate any discrimination laws (per se). There are numerous legal forms of discrimination which are analogous, for example to shop at Costco at all, you have to be a member; there are numerous businesses that offer "member discounts"; some doctors work on a "subscription" basis where they don't treat you unless you are a (paid) service subscriber. The idea that a service has to treat all comers identically is legally incorrect. Co-pay rates are dictated by insurance companies, and can vary depending on the specific insurance carrier that you have. To the extent that there are no specific laws saying otherwise, a service provider is legally entitled to charge less to a person who does not make a claims for coverage by medical insurance – or they could charge more. Indeed, the "without insurance" cost of medical services is typically higher, and the insurance company insists on doctors accepting lower compensation. A "practical" but somewhat risky solution is that if you know that the copay is higher than the street price, you can simply not reveal that you have insurance. However, sometimes an office visit results in a finding that some treatment is needed, and the street price for that treatment may be substantially higher than the insured price. At any rate, contractually-determined co-pays are legal. I should mention a remote possibility for applying anti-discrimination laws, owing to sec. 1557 of ACA. See this article on health care discrimination litigation, where the law enabled "private right of action for disparate impact claims opens the door to class-based claims challenging facially neutral health care policies, treatment decisions, and insurance coverage on the basis that they disproportionately affect members of protected classes". Under this regime, if a policy effectively discriminates on the basis of a protected class, without explicitly mentioning the class, the policy could still be found illegal. If there is a strong enough correlation between race and having health insurance, then "having health insurance" could be found to be a substitute for discrimination on prohibited grounds. There isn't enough case law on this issue, that we can clearly say that such an argument would or would not work. | Could the store give the customer credit or must they actual return the money? The store has the legal obligation to return the money if the customer demands to be reimbursed. Section 155(4)(a) of the BC Business Practices and Consumer Protection Act explicitly provides reimbursement "to a consumer or class of consumers". The store's unilateral, inflexible decision to give the customer credit in lieu of a reimbursement is in violation of sections 8(3)(a) and 9(1) of the Act. That approach constitutes undue pressure to enter into an additional consumer transaction, more so where management is aware of the issue and refuses to fix it. | 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. | There is no misrepresentation by the bank as you describe it, there is negligence by the account holder to comply with the terms of the account. The bank made no representation at all regarding a balance due. If you want the bank to be at fault, they the customer would have to demand a declaration as to the existence of a balance due (choose your words carefully), and the bank would have to have falsely asserted that there is no present or future obligation. This is not going to happen. All the bank can say is that they have no present record of charges. The customer's question might be something like "Do you guarantee that there will be no charges to this account as of now". Of course, the bank cannot know whether there is a forthcoming paper charge that was made at some mountain resort. If case they did make such a promise, you could disavow the debt, using your reliance on their assertion as the basis for denying the debt. There is no law requiring banks to warn people of their contractual obligations when they close an account. I've never encountered a credit card contract that includes such a clause, but I suppose some bank might include a mandatory-warning clause, in which case they could be in breach of contract. | 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. | A contract can’t legalise illegality Let’s assume that absent the “simulation” disclosure in the ToS, this would be fraud. The question then becomes, does making the disclosure make it not fraud? Fraud requires dishonesty and deception. These are measured by what a reasonable person would determine from the overall conduct so a small piece of truth in amongst a web of half-truths and outright lies is still dishonest and deceptive. From the perspective of US law, is Bob doing this regarded a scam? No, but only because “scam” isn’t a legal term - it’s slang for fraud and this is fraud Is this a criminal case, or a civil case? Both What evidence can Tom provide to support the lawsuit? Whatever he has. However, in practice, these types of fraudsters are rarely ever caught and it’s even more rare for the victim to recover their money. They are usually off-shore in countries with either poor rule of law or which will not extradite their nationals. |
If one stays in an AirBnB for which subletting is not allowed, is it your problem? This question is based on this consumer affairs problem on the Guardian site, but the details are not explicit so I shall present a hypothetical: Alice owns a house Bob lets the house from Alice, with a clause in the contract that specifically excludes the subletting of the property Charlie sublets the house from Bob via AirBnB in breach of this contract During Charlie's stay at the house, Alice approaches Charlie, informs them of the lack of permission to sublet and: Demands additional payment to remain in the house Demands Charlie leave the property before the end of their planned stay Threatens to call the police if one or other of the above demands are not met What is Charlie's legal situation here? Is there any requirement for them to pay Alice anything? Do they have the right to remain in the property? Have they done anything the police may consider a crime? Could they have a case against Alice for threatening behaviour? I would have assumed that Bob has breached a contractual term with Alice, generating a potential civil case against him. I cannot see that this would affect Charlie at all, but I do not know. | Charlie is not a party to the contract between Alice and Bob Alice and Charlie have no contractural relationship and Alice cannot require him to do anything nor is he liable to Alice in any way. Alice’s issue is with Bob who has clearly breached his contract. Alice can sue Bob for damages and may be able to end the lease. There is no trespass because Charlie is there with the permission of the leaseholder. From Charlie’s position there is no reason to believe that Bob does not have the authority to give this permission so Charlie is not in breach of the law. The police will see this as a civil matter and won’t intervene. | Probably not, although it is impossible to say without reading the lease. Usually leases are monthly. That means you pay for the entire month or lease term regardless of how much or how little you use the property. It seems weird that the lease ends on the 21st, but if that is the case, then you are legally obligated to pay for that time interval. That said, if you want to drive a hard bargain, you could threaten to reoccupy the apartment and stay in it until the 21st which are legally entitled to do, unless he refunds you some money. You would have to be a pretty serious hard-ass to pull this off, or be prepared to go to court. One possible course of action is that you demand return of the key and say you changed your mind and will be staying in the apartment until the 21st. Make sure the conversation is recorded and that he knows the conversation is recorded, or have a witness. He will refuse. You can then sue him for denying you the use of your property. | 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. | You are responsible vis-a-vis the landlord. If the obligations are not current, then the landlord has a right to terminate the primary lease, and your sublease is derivative of the primary lease, so you would be evicted. You, in turn, would have a right to sue the tenant of the original lease from whom you subleased, for any funds you had to expend to bring the lease current due to charged preceding your lease term. | Has this contract been translated (badly) from another language because the construction of the clause is cumbersome and confusing? Does the contract say that I can have guests over 1 night without charge? Without charge, yes. However "Without Landlord's prior written consent, Tenant has no excuse to accommodate ..." so you need the landlord's permission for overnight guests. If so does it only start charging on nights after the first? No, if a person stays more than 1 night (with the landlords permission) then this triggers the landlord's right to charge. See below for how much they can charge. Is it supposed to be 10% of monthly rent $137 per guest per night? "With temporary commendation, day-based, and additional 10% of rent each person is applied." The term is ambiguous, I can see three ways that this would be interpreted: If you have a guest who stays more than 1 night in a month they can charge 10% for that guest for that month (i.e. 2 to 31 days all for the same price). For 2 people for 2 days this would be $1,400 x 10% x 2 = $280. They can charge 10% of the monthly rent per night that the guest stays. $1,400 x 10% x 2 x 2 = $560 As, 1 except the rent would be pro-rata. $1,400 x 10% x 2 x 2/31 = $18.06 Assuming that the landlord put forward this contract the interpretation adopted in the absence of other evidence would be the one least advantageous to the landlord i.e. 3. However, there is other evidence - the landlord accepts that the rate is pro-rata - he has just failed to account for the 10%, so 3. again. How is overnight defined? Well, is it defined in the contract or by the law where you are? If not, it would take its normal English usage - "for the duration of the night". If they arrive before sunset and leave after sunrise the next day then they have stayed overnight. What if they came over at 9am and slept in the day? It says nothing about requiring your guests to sleep. If they party overnight then they are overnight guests. If they sleep all day but don't stay overnight they are not overnight guests. What about 2 am? If sunrise is after 2am then this is not overnight. | Not successfully It is not required that a person knows they are dealing with an agent of the principal rather than the principal directly - an agent speaks with the principal’s voice. Robert has consented to allow Elizabeth to act as his agent. It actually doesn’t matter if he consented before she acted or afterwards, he has agreed to be bound by Elizabeth’s actions. Rachel & Jared have agreed to enter the lease and indicated as much by signing the document. It doesn’t matter who signed it for the landlord or even if it was signed - leases have to be in writing but there is no common law rule that they need to be signed. | 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. | You are probably entitled to the $100 (more or less) They breached the contract and you are entitled to damages (what it cost you) for dealing with their breach if they are unable or unwilling to remedy their breach. This would include the reasonable cost of your disposing of the unwanted mattress plus or minus any difference in the price from you sourcing the equivalent mattress elsewhere (subject to any legitimate terms of the contract that allow them to cancel the contract if they can’t supply). Of course, it’s not worth suing over such a trivial amount but this is the sort of thing the consumer protection regulator in your jurisdiction would be interested in. |
If the person who shares a joint bank account with makes a large purchase without the other person’s permission, what are the legal options? If a joint owner of a bank account spends a significant portion of money without the other’s permission and doesn’t ascribe ownership of the purchases to the other parties, what are the legal and non-legal remedies available? | In most cases, there is no direct legal recourse for such a withdrawal. Money in a joint account is co-owned, and any account holder may withdraw any of it for any lawful purpose. As the article "What is a joint bank account?" from Bankrate.com states: The money in joint accounts belongs to both owners. Either person can withdraw or spend the money at will — even if they weren’t the one to deposit the funds. The bank makes no distinction between money deposited by one person or the other, making a joint account useful for handling shared expenses. But a joint bank account should only be opened with someone whom you trust, since that person has equal control over the account’s funds. If the account holders have a contract or legal agreement that controls what money can be withdrawn and for what purposes, then a violation of such an agreement might be a cause for legal action. But merely opening a joint account does not create such an agreement nor imply it. | 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. | In principle, a verbal contract is just as binding as a written contract. The catch is that it can be difficult to prove what was said. Unless you have witnesses, it would just be your word against his. As DStanley says in the comments, if you have proof that you paid half -- canceled checks or receipts or whatever -- that would be evidence that there was some sort of agreement. Whether your daughter is allowed to drive the car on a specific day depends not just on who owns the car but who has legal custody of your daughter. If a friend of hers said that it is okay with him for her to drive his car to a wild party where there will be drugs and an orgy, the fact that he has full title to the car does not mean that her parents have no right to tell her she can't go! You didn't say what the custody arrangements are, but if you have full custody or shared custody, this would give you certain rights to tell her what she is and is not allowed to do. | Essentially, if there is no written agreement or receipt of payment, the only records that exist will be in the payment itself. If it was paid by cash, there's probably no recourse without additional facts. However, if it was paid electronically, then even if there's no narration (description) that claims that the payment was for rent, it is still possible that you would be able to file a summons requiring the recipient bank to produce the information relating to the entity that holds the account the money was sent to. The information they have may be limited, but generally this would include: Name Address Date of birth (for natural persons) Phone number The above information is typically required under anti-money laundering and counter-terrorist funding legislation. Additionally, if it was paid electronically, the regularity of the payments and the regular amounts may be persuasive. Finally, it's not proof, but you can swear an affidavit or a statutory declaration attesting to the truth of your assertions, but without additional evidence (the aforementioned transaction information), it doesn't really hold weight on its own. | What would be the most reasonable thing to do? Live with it. Oh, and stop breaking the law with your automated emails. Illegality on their part does not justify illegality on your part. Also, it’s likely that this activity has caused your email address to be blocked automatically which may explain why they aren’t contacting you. From a legal point of view, that’s the only reasonable option. You do have valid grounds for a lawsuit for the value of the watermelon but the cost of filing will be a couple of orders of magnitude greater than the value of the melon so doing so isn’t “reasonable”. If you want to vent, the internet offers a wide variety of social media platforms for which that seems to be their primary focus. But that’s got nothing to do with the law. | In theory its only a crime if you know, or reasonably suspect, that it is stolen. The fact that you have to ask means that you have some level of suspicion, so that's not good to start with. In practice merely being investgated by the police will bring you a world of hurt long before it gets to trial. How much can you afford to spend on legal fees, and will you be able to make bail? | I can't help with the relationship issues: here are the legal issues. She legally owns 5% of the house and you own 95% I presume that the loan agreement is a contract between you, her and the lender so removing her name from the loan is at the discretion of the lender, not you or her. I would be very surprised if the lender would allow this without totally refinancing the loan. Whatever arrangements you had with your sister are probably not enforceable because the presumption is that arrangements between family members are not legally enforceable contracts. Unless you can provide evidence that both of you intended to create legally binding obligations for what you assert (like a signed document) then what you say is just hot air. Legally, neither of you have the power to get her name off the loan. As a co-owner she is entitled to live in the property rent free. Each of you is jointly (i.e. together) and severally (i.e. individually) liable for making the loan repayments - in what proportion that should be done is a matter for you two to sort out - the lender doesn't care who pays so long as they get paid. https://www.law.cornell.edu/wex/tenancy_in_common | This would not be "legal jeopardy" per-se, really the only remedy that Stack Exchange would have in a case like this would be to ban both accounts. It would be different if you caused SE some kind of monetary/reputation damages to the site itself. From SE's Acceptable Use Policy: Identity Theft and Privacy. Users that misleadingly appropriate the identity of another person are not permitted. It seems your described scheme would violate that term. But this isn't a legal problem, just an operational one. You aren't violating any law (unless there are local laws against this) by paying somebody to "be you" on SE. The most that this would earn you and your cohort would be a ban and probably removal of the contributions. |
Could there be consequences for Googling how to do something that is normally a crime? In Oregon, it is legal to break into a car to get a child or domestic animal out in hot weather. Suppose I see a child left in a hot car. I don't know how to break in, so I Google "how to break into a car." A few months later, the police in another town search my phone for an unrelated reason. They see that I Googled how to break into a car. Could there be any legal consequences for me? | The Google search is not itself a crime or any other kind of offense. It could be used as circumstantial evidence that you did something intentionally or with pre-mediation, rather than accidentally, or not at all. If you can provide an alternative explanation for the search that is plausible, such as the one in the question, and there isn't a close proximity of time, a jury is unlikely to give the search much weight as circumstantial evidence. But ultimately, the weight to give any piece of evidence is for the jury to decide in the context of all of the evidence in the case combined. | It seems you found out what happened. The police are wrong all the time and usually absolutely nothing happens from it. The police are not required to tell you why you are being arrested. See supreme court case Devenpeck v. Alford. The court merely considers that to be good police practice. They do have to justify probable cause for the arrest to the court. | It's generally correct in the American system that everything not forbidden is permitted. But the law you're looking at isn't really an exception. You have the legal right to tamper with evidence if tampering is not illegal, but this statute makes it illegal. The language you've highlighted merely says that the law does not apply to those who have some other affirmative grant of authority to do so. So if you stab someone to death in your kitchen, you can't remove the body or other evidence, but the detectives investigating the case can, because they have the legal authority to process the scene and maintain the evidence for trial. So the law is similar to the "speaking in public" hypothetical, but that doesn't make it meaningless. Because of the First Amendment, that law doesn't actually outlaw anything, but the tampering law faces no such legal barriers. You had the right to tamper until the government said you didn't. Now that it says you don't, you can only do it on the government's terms, which require an affirmative grant of authority. | Yes. The police have the power to seize your phone as evidence under the Police and Criminal Evidence Act 1984, the Misuse of Drugs Act 1971, and the Terrorism Act 2000. There are no caveats or defined circumstances other than having a reasonable belief that the data on the phone forms evidence against you. They do not require a warrant to access your phone, and many police forces in the UK are using commercially available software to bypass password/PIN protection on your phone 1. In the event you do not provide your password/thumbprint/facial scan/PIN to officers to unlock your phone, you can be served with a Section 49 Notice under the Regulation of Investigatory Powers Act 2000 (RIPA) which compels you to provide that information. Failure to do so can lead to a conviction under Section 53 RIPA, in addition to any other offences you may be charged with. | Clauses (a) and (c) are potentially relevant. You have to look in the Rules & Regulations to see what exceptions are permitted. Although firearms and especially shotgun shells are of a "dangerous, flammable or explosive character", it is reasonable to believe that when stored properly, they do not unreasonably increase the danger of fire or explosion, and would not be considered hazardous or extra hazardous by any responsible insurance company. On the latter point, you could ask any responsible insurance company if they would consider such shells to be hazardous. While in ordinary language simple possession of a firearm is not a threat of violence, the wording of clause (c) is open to a wider interpretation, since acts considered to be a threat of violence include displaying or possessing a firearm, knife, or other weapon that may threaten, alarm or intimidate others. The fact is that many people are alarmed by the simple existence of a weapon, so simply possessing a weapon could be interpreted as a "threat" in this special sense. Since you are not in the position of having signed the lease and now need to deal with the consequences of this clause, the simplest solution is to explain your interest, and ask them if having your gear in your apartment would be a violation of the lease. Be really clear about this and get it in writing in some form, if they say "no problem". Then either pick a different place, pick a different hobby, or find a separate storage facility. | It is probably illegal in all of the jurisdictions in the US where a fetus is legally declared to be a person and where the murder statutes are written to not explicitly exclude abortion: that is, in no jurisdictions. No law existing or proposed for Georgia specifically addresses "travel for the purpose of getting an abortion". The underlying theory behind the claim (advocated by some Georgia attorneys) is that a person may be open to a conspiracy charge for taking a woman to another state to get an abortion, which would be a crime if committed in Georgia. If a conspiracy exists in Georgia to do something illegal (in Georgia), that is a violation of OCGA 16-4-8 ("when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy"). The substantially same law exists in Washington, and most if not all other states. The theory is apparently that "conspire to commit a crime" means something like "conspire to perform an act which would be a crime if performed in in this jurisdiction", e.g. "purchase marijuana, or take a job at certain payday loan companies". No state has successfully claimed extraterritorial jurisdiction, where a Georgia resident can be prosecuted in Georgia for a legal act carried out in another state, so this theory is a bit of a stretch. | If we go by Indian case law (as we should), you have to find a way. The relevant case is K.P. Adbul Gafoor v. New India Assurance Ltd, where appellant drove on a motor cycle on a learner's permit without a licensed driver positioned correctly, in violation of Rule 3 of the Rules, and smacked someone. The bulk of the case is about the insurance and liability consequences of violating the rule: the main point here is that the court deemed this to violate the rules. | Deliberately causing an accident is illegal. However, in some (probably many) jurisdictions there is a "necessity" defense against criminal charges. In Washington it goes like this: Necessity is a defense to a charge of (fill in crime) if (1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm; (2) harm sought to be avoided was greater than the harm resulting from a violation of the law; (3) the threatened harm was not brought about by the defendant; and (4) no reasonable legal alternative existed. The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge]. It is possible, if B is attempting to kill the pedestrian, that you have defense of others available as well. |
What are the actions a resident should take against police remaining, with no warrant, on residential property after being repeatedly asked to leave? Police shows up on a residence's front door, starts encounter with resident. Resident decides to end consensual encounter, and asks officers to leave. Officer decline to leave and put foot on the door frame to stop resident from closing door. Resident insists officer is not welcome and demands them to leave. Officers do not leave. Closing the door or forcing the foot to move probably leads to the famous "assault on an officer" charge. Cops claim they have the right to remain on the property without specifying why. What should a reasonable person do in this situation? Call 911 on the cops? Leave the front door open, withdraw deeper into the residence? Keep asking them to leave and state they are not welcome? | Yes, your best bet for immediate relief is to call 911 and ask for a supervisor. Generally speaking the police are not legally obliged to explain themselves to you on the spot. They are obliged to explain themselves to the courts and their supervisors. | This is a no win situation. People who try to stop in a safe public place fearing that the cop may be an imposter risk prosecution for resisting arrest. But, no one will offer you any remedy if the cop was an imposter who was victimizing you. One recommended course of action if you doubt a cop is real is to call 911 as you pull over to confirm that the cop trying to pull you over is real. | There are various practical considerations such as the fact that a spike strip is not effective against a tank. The main legal reason is that in the US, a seizure (arrest) must be reasonable under existing interpretations of the 4th Amendment. A person has a constitutional right to his life and property, and police force potentially infringes that right. For example, stopping a jaywalker with a shotgun blast would be unreasonable force, and could open the government up to a section 1983 lawsuit (referring to 42 USC 1983). So while the police are motivated to protect lives and property and to enforce the law, their use of force has to be reasonable. There is no mechanical procedure for determining, in any arbitrary instance, where the line is between reasonable and unreasonable force. The courts have determined that it is whatever force a reasonable officer would use in the given circumstances. More force is justified if the reasonable officer believe that he or others are in imminent danger of serious bodily injury or death, and lack of such a reasonable belief could lead to a protracted low-speed car chase to arrest a suspect. There are guidelines that help police make these decisions, see this for example, and department will have specific rules about use of force. There is a tradeoff between spending more time waiting for a suspect to stop, and using force to stop a vehicle. One way to stop a fleeing vehicle is with a spike strip, but that will destroy property and is likely to cause injury, so you need a policy. Here is a policy in Ohio, which begins by stating that Due to the unique conditions within the community we serve the agency designee has determined that high speed pursuits are generally restricted to exigent circumstances, and when occurring are authorized and closely monitored by supervisors. Spike strips can be used in some circumstances, but not all. That is, police have to follow the law in making an arrest. | In Connecticut, this is covered by the firefighter's rule. Police and fire personnel entering a property as part of their official duties are considered licensees, which limits the duties of the landowner. The rules are as follows: You can't intentionally hurt or lay a trap for the licensee. If you know or should know the licensee is there, you need to exercise due care with them. You don't have to worry about obvious hazards (but keep in mind that it's harder to see stuff at night). If you're doing something dangerous, you need to watch out for them. If you know about a hidden hazard, you must warn them. I'm not sure how in-depth you need to go with the warnings; various things I find suggest the duty to warn might only be there when you know or should know the licensee is present, but signs are a good idea regardless. On the other hand, if you do need to warn them, you might need to mention the specific locations of the pits you actually know about. However, there's no duty at all to proactively look for possible hazards. This rule originated as a rule for professional firefighters responding to a negligently-started fire: the idea is that professional firefighters sign up to do a dangerous job, and letting them sue for hazards inherent in their job (they aren't called without a fire) is a bad idea. Also, since they cannot be denied entry, go in places not open to the public, and can arrive at any hour, needing to keep the property safe for them is an unreasonable burden. Of course, there's an exception if a law is passed to protect their safety, because statutes override common law. The rule has since been extended in some states to police, and to situations besides the very problem they were called for. Other states have abolished it. In any event, this is for civil liability only: this is when cops can sue for injuries caused to them. | Even if you had grounds for a lawsuit, you could not make it come out of the officer’s pocket. Under Chapter 4.64 of the Seattle Code, the City of Seattle is generally required to defend and indemnify city employees who are sued for doing their job. If you sue a police officer, the city pays his lawyer; if you win or if the city decides your claim is legitimate, the city pays whatever damages there were. The provision does not cover “claims and/or litigation arising from any dishonest, fraudulent, criminal or malicious acts or omissions of officers or employees of the City,” but that requires a lot more than “I wasn’t parked illegally,” and in any event you cannot force that issue -— only the city can. That’s between the officer and the city, and has nothing to do with you. This provision is pretty common in employment, including government employment. If I’m working for you and am acting in good faith, doing things for your benefit under your instructions, it’s only fair for you to shoulder the costs if I mess up. When it comes to government employees (whose job often makes people very angry at them), indemnification is extremely common. If police officers faced the risk of financial ruin for innocent mistakes, it’d be very hard to find anyone willing to do the job. | Theft is of course illegal in all US states, and pretty much every other jurisdiction. In the US that is a matter of state law, not federal. It could be reported to the local police, but it might be hard to prove. Both landlord/tenant law and privacy law are largely matters of state law in the US, not federal law. Such laws vary a good deal in different states. In many states a landlord is allowed to enter the rented premises, usually on "reasonable" notice, or without notice if there is an emergency. If the landlord actually lives in another part of the house, and simply rents a room to the tenant, the landlord may be able to enter the room more freely than if it was a separate apartment or house. In many cases where there is a written lease or rental agreement, it will specify under what conditions the landlord or landlord's agent may enter, and how much notice is required. What does the lease in the current case say about that? | It depends. The police and only the police decide what are and are not police matters. However, although it might not be a police matter, you still have lots of options at your disposal. For example, does your jurisdiction (city, town, municipality, etc.) have an animal control division? i.e., City dog catcher. Most do. If so, I would call the animal control division and file a report. They might possibly do a field visit and take the animal into custody if the animal is still roaming loose. If you sustained bodily injuries, you should get checked by a doctor and have those injuries documented in a medical report. If possible, you could drive by the property and take photos of the unchained dog roaming loose. Then, armed with your evidence consisting of: police report medical injury report animal control report and photographs of the scene You could (with the help of a licensed attorney) file a civil suit against the pet owner. You might be able to win an award for damages, pain and suffering and possibly punitive damages as well (check with your attorney). Also, your attorney could advise you if you might have a cause to move for an enforcement action against the dog and/or its owners that might or might not include having the animal removed from the owners custody or in extreme cases of negligence and bad behavior possibly "put to sleep." Your suit might focus on collecting from the homeowner's insurance policy of the pet owner and you could potentially collect a lot of money with the right set of facts and evidence on your side. You might want to look for an attorney who specializes in personal injury. Most PI attorneys work on a contingency. Meaning they don't charge an up front fee and will only get paid if you win your case or settle. In which case their fee is typically about 1/3 of what you get awarded in settlement or judgment. | No If the police want to arrest you your legal obligation is to submit and, if the arrest was a violation of your rights, pursue a legal remedy afterwards. You do not have a right to resist an arrest even if that arrest is without legal basis. "Resisting arrest" is a specific crime with a specific definition. For example, in new-south-wales it is in s546c of the Crimes Act 1900 and it says: Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both. If you are charged with resisting arrest the state needs to prove each element of that crime beyond a reasonable doubt. If they can't do that the charge will be dismissed. If they can prove it then you may have a defence to resisting arrest if: you did not know that the person was a police officer or you did not know that you were being arrested if the police officer was not acting lawfully. However, a police officer will be acting lawfully even if the arrest is subsequently found to be unlawful provided they are acting in good faith and without malice. Suspecting you of committing a crime even if you didn’t makes it lawful to arrest you. |
Is the district of columbia a state? Is the District of Columbia a state? Does it operate like a state? Does the District of Columbia have a govenor? Is it special in the way it operates? | The District is not a state, and does not function as one. The District does not elect any Senators, nor any Representatives. It does elect one "Delegate" who sits in the House, and may speak in debate, but does not have the right to vote. The Constitution allows congress to exercise "Exclusive legislation 8in all cases whatsoever" over the District. However, since 1973 the Congress has allowed limited "home rule" in the district, although it could cancel this at any time by a new law. The district has a local government, but it more closely resembles the government of a major city than that of a state. It is led by a Mayor and a city council. It is specified in some Federal laws, and one Constutiuonal provision that for certain limited purposes the Districtm should be treated "as if it were", a state. There have been a number of proposals to make the District into a state. The most recent ones have proposed to do this by redefining the "Capital District" into the White House, the Capital building, the Mall between them, buildings adjacent to the mall, and a small adjacent area. The rest of the district would, under such proposals, be admitted as a new state. Congress has the power to admit new states, so this would not require a Constitutional Amendment. But no such proposal has yet passed Congress. There are some special provisions in the way the District is Governed. For one thing, to compensate for the many public building and facilities (which pay no taxes) and the special demands on the District of the Federal Government, Congress provides some of the funds needed to run the district, with the rest coming from local taxes. Congress must approve the District Budget, and can veto local laws. See the Wikipedia article for more detail. | I did not perform a complete survey but The Jurisdictional Limits of Campus Police reports that, "subject to jurisdictional constraints, campus police officers had virtually the same powers as their municipal counterparts." (Internal quotes omitted.) Generally speaking, police are police not administration. Here are some statutes: ILLINOIS HIGHER EDUCATION (110 ILCS 1020/) Private College Campus Police Act. The Board of Trustees of a private college or private university, may appoint persons to be members of a campus police department.... Members of the campus police department shall have the powers of municipal peace officers and county sheriffs. MASSACHUSETTS General Laws PART I TITLE II CHAPTER 22C Section 63. The colonel may... at the request of an officer of a college, university, other educational institution... appoint employees of such college, university, other educational institution or hospital as special state police officers. Such special state police officers shall... have the same power to make arrests as regular police officers for any criminal offense committed in or upon lands or structures owned, used or occupied by such college, university, or other institution or hospital. Oklahoma 74-360.17 ...certified campus police officer shall have the authority to enforce... State criminal statutes. Campus police departments formed by private institutions of higher education pursuant to this act shall be deemed to be public agencies in the State of Oklahoma Here is a case: People v. Boettner, 362 N.Y.S.2d 365 (N.Y.Sup., 1974) is a case where school officials at a private school tried to get the cops to come execute a search. While the cops were dragging their feet obtaining a warrant, the school officials did their own search, found marijuana which they turned over to the police. Suspect was arrested and convicted. When the cops can't go into the room, send in the administration. Sort of. present search and seizure was conducted by college officials in a private capacity without government knowledge or participation and concludes that as such it is not subject to fourth amendment constraints. While it is true that a student does not lose his constitutional rights at the school house door or at the entrance to the college campus neither does he become cloaked with greater protection than any non-student who is the subject of a seizure of evidence by a private citizen. BUT the judge makes sure we understand that "State Police had no knowledge of and did not participate, directly or indirectly, in the search conducted by RIT officials on the 15th." So "it cannot be said that the RIT officials who decided on their own to search defendants' rooms were acting as agents, either actual or implied, of law enforcement.... Nor can it be said that the present search was only one incident in a close and continuing relationship between RIT and local law enforcement officers.... In the final analysis, RIT acted on its own, for its own reasons, and to further its own purposes." Regarding a written policy: The fact that the rules of the college regarding room searches were not complied with is of no consequence in determining the admissibility of the evidence for purposes of a criminal proceeding. Public schools are an entirely different animal. In those cases the university staff are public employees and their searches can be fourth amendment violations but they ARE allowed to conduct searches subject to the "reasonable exercise of University supervisory duties." "Even though the special relationship that existed between these petitioners and Troy University officials conferred upon the University officials the right to enter and search petitioners' dormitory rooms, that right cannot be expanded and used for purposes other than those pertaining to the special relationship." Piazzola v. Watkins, 316 F.Supp. 624 (M.D. Ala., 1970) Moore v. Student Affairs Committee of Troy State Univ., 284 F.Supp. 725 (M.D. Ala., 1968) | If a person A, speaking by telephone to an election official B in Georgia, attempts to influence that official to improperly alter an election result in a way that would constitute frauds or otherwise be a violation of Georgia law, then the person A has committed a crime in Georgia. There are various ways to commit a crime in a place without being physically present in that state. Since there is no question what was said on the telephone call in question (because it was recorded) the question to be determined would seem to be whether it constituted a crime under Georgia law, and whether the Georgia officials think it is worth prosecuting. It is true that a trial for a criminal accusation is normally held in the state where the crime was committed (or allegedly committed). But that need not be in a state where the person was ever physically present. If a person living in State C does business is state D, and is requires to file a tax return with the authorities in D, and it is alleged that the return was false, then the person is being accused of a crime in D, committed when the false return was received in D. | Oklahoma Territory and The Indian Territories were set on the road to statehood by the Oklahoma Enabling Act: §13 of that act stipulated that two judicial districts would be created, where The Indian Territories would be the Eastern District and Oklahoma Territory would be the Western district. This is an ancient-enough political act that we can't say why Congress decided to give the constituent parts separate courts, however legal issues regarding tribes are different from other aspects of federal law, so it would be sensible to have a specialized district for special cases. In 1925, Congress reorganized the two districts into three. I think that is as far as one can go with the legal aspect of the question, but there may be a historical political explanation | What exactly would a prosecutor charge? State? Federal? It depends on whether it is a state or federal prosecutor. It appears that the president has at least flirted with violating both federal and state law, in which case he may be charged by both the federal and state prosecutors, each one laying charges under the relevant body of law. Would Trump be vulnerable to Federal prosecution of the phone call after he leaves office? Yes, if the facts support such a prosecution. It's not clear to me that the conversation constituted an unambiguous violation of the federal statute, but I have no knowledge of any precedent that might inform such a determination. | The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted. | 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). | Governments have power to do whatever their constitutions (written or unwritten) allow them to do. For example, the constitution of Australia provides: The federal Parliament can make laws only on certain matters. These include: ... post and telecommunications; ... The telecommunications power covers VPN and any software that uses the Internet for delivery or communication (i.e. virtually all modern software). In addition the federal government has power over inter-state and international trade (any software that crosses state or international borders) and corporations (any software made, sold or used by companies). If they want to ban a piece of software they have pretty strong constitutional power to do so. |
Can Tunisia prosecute for crimes committed outside its territory? I was doing some research into extradition recently, having been inspired by The Great Train Robbery. Since the story involved extradition of British nationals, that committed a crime within the UK, I had a brief look into countries which do not have extradition treaties. I stumbled upon extraterritorial jurisdiction, which is when a person can be reprimanded for an action which took place outside of that country's borders. Very shocking indeed! Tunisia does not have an extradition treaty in the UK, but I was wondering whether they could charge someone for a crime committed outside of Tunisia on the basis that the person is living there as a resident (or other scenarios)? For example, they came over on a British passport and remained living there for a period of several years. | The The Great Train Robbery (if committed today) would be considered an Organized Crime. Tunisia ratified the United Nations Convention against Transnational Organized Crime on the 2003-06-19. Therefore Tunisia could charge any participants of that crime, based on domestic law, should they deside not to extradite them. United Nations Convention against Transnational Organized Crime where the text of this Convention can be downloaded as PDF Article 2. Use of terms (a) “Organized criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit; ... Article 15. Jurisdiction 4. Each State Party may also adopt such measures as may be necessary to establish its jurisdiction over the offences covered by this Convention when the alleged offender is present in its territory and it does not extradite him or her. | There is no answer to the question, as presented. The criminal law differs in various respects in England, Scotland and Northern Ireland: one cannot speak of 'UK law', because criminal procedure is really very different in the three separate jurisdictions. In England and Wales, the rules of criminal procedure are what govern the issue raised in the question, rather than the substantive laws relating to the various charges which might be brought; and while the substantive laws in England and Scotland are often fairly similar, the procedures are usually very dissimilar. In a trial at the Old Bailey, in London, a Jury has no role in the criminal procedure: once empanelled it performs its usual function of deciding the facts of the case, based upon the evidence presented, but it has no role in determining what charges are preferred against the accused (this is decided by a different court at a much earlier procedural stage), and the jury has no power to alter the charges on the indictment. Only the prosecution can decide what charges are made against an accused person. And if an amendment to the indictment is thought to be appropriate, only the prosecuting barrister can make such a change. If the case has come-on for trial, the permission of the Judge must usually be obtained to any alteration in the charges. The Judge might object to an attempt to add a charge carrying a more severe penalty at a late stage in the proceedings (as the case may of course have already taken many months to reach the Old Bailey). He will often be more accommodating to an application to reduce the charges, to a lesser offence, particularly if accompanied by an undertaking not to proceed on a more serious charge - e.g. due to a lack of evidence supporting it. Where several charges are brought in the alternative, then the jury has a function, since it can then convict of a lesser charge if the evidence on a more serious one does not satisfy it. But it cannot ask for the charges to be altered: the jury represents the layman, and jurymen are inevitably not legally qualified (at one time, being legally qualified was an automatic disqualification from serving on a jury). So the jury is assumed to be incapable of understanding the fine distinctions between different offences, and has no role whatsoever in deciding which offences shall be included on the indictment. Even the Barrister representing the accused has no role in determining which charges his client will face: that is purely a function of the Crown Prosecutor's office, and once the trial has come-on at the Bailey only the prosecuting Barrister and the Judge truly have a role in making any necessary amendments. The function of defending Counsel is to strike a plea-bargain, if he can, and where the opportunity arises: which is to say, if he can persuade his client to plead guilty to a minor charge (whether or not on the indictment), and can also persuade the prosecutor not to proceed on the more serious charge(s) on the indictment. A Judge will not usually object to a legally-represented defendant applying, by consent (i.e. through the prosecutor), to amend the indictment in order to enter a plea of guilty. He might refuse, if the accused has no legal representation, but not otherwise. The short answer, therefore, is that in England and Wales a defendant cannot be convicted on a charge that is not listed on the indictment, but a jury can convict of any charge on the indictment if the judge asks the jury to retire and consider a verdict - but the case may not get so far as that, if a plea-bargain is struck. There are rare occasions where a judge might withdraw a charge, if he desires, by directing the jury to acquit on that particular charge, but this only occurs if he considers that any conviction on that charge would be positively unsafe in all the circumstances of the case. | As unlikely as snowfall in the Sahara at noon To be a war criminal, you need to violate the rules of war. These are for example the Hague conventions (aka Haager Landkriegsordnung) - which bans the use of certain munitions or destroying cultural heritage - or the Geneva Conventions on the treatment of civilians, prisoners of war, use of Gas, and other items. There is literally no way in which you can violate the Geneva Convention without being in the location of the conflict or the command structure, and to violate Hague, you would need to either supply such munitions to a side or again, be in the command structure. Even if scamming funds into non-existing "help funds" is super unethical and illegal in itself as fraud, it would need someone in a very specific position to take the money to actually commit a war crime to make this part of a war crime. | US troops deployed to Germany would be covered by the Status of Forces Agreement, which governs jurisdiction. Your question also ignores the nature of the prosecution services in Germany, which do not allow a rogue junior official to file charges at a whim. You would have to assume that at least a state government, if not the federal government, actively pushes the case. (And the federal government could probably take the case away from any state which had such ideas.) If you look for precedents of legal jeopardy, look at the case of Anwar Raslan, a Syrian official convicted of torture in Germany. It is also a closer parallel to the Pinochet case. Finally, the principles underlying such prosecutions were established in Germany but not by Germany. I'm talking of the Nuremberg trials. If German courts were to find the US Army to be a criminal organization, then individual members would be at risk. But as a political scenario, that is absurd. | If the purported husband (PH) has not attempted to enter the UK under false pretenses, and has not submitted documents containing false statements to the UK government, it is hard to see how he might be charged with a crime by the UK in connection with the invalid marriage. But since the PH is now said to have submitted an application for entry clearance based on the bigamous marriage, a marriage that it appears that he knew or should have known was invalid, he has submitted an official document based on a false statement. That is presumably an offense under UK law, and may well affect the PH's future immigration treatment. If the deceived wife has not knowingly made false statements to the UK government, it is hard to see how she would be charged in the UK. She would be wise to promptly inform the UK government that the marriage was invalid, to withdraw any statements or applications based on its validity, and to take legal steps to correct the record so that the marriage does not show as valid. This might be by annulment or some other procedure, probably depending on the law in the Bahamas where the purported marriage took place. (Under chapter 125, section 21(b) a prior marriage is valid grounds for an annulment or decree of nullity.) She might also want to notify the US authorities. The purported husband might have been guilty of bigamy in the Bahamas, depending on just how their law is written. Whether the authorities there will seek to extradite and prosecute him one cannot say. | 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. | Is this interpretation correct? YES Encounters such as this should normally fall within the non-statutory stop & account which covers police-initiated conversations with members of the public to ask general questions about their activities when there are no reasonable grounds to suspect an offence. The terminology varies from Force to Force, but can be summarised as: What are you doing? Why are you in the area? Where are you going? What are you carrying? There is no legal requirement or obligation to answer any of these questions, and the police cannot lawfully detain anyone to ask them - unlike the statutory powers under Stop & Search and Arrest covered by the OP. | The following answer applies in the situation where all countries involved are member states of the European Union: Can the tax services in countryA confiscate accounts that are opened in countryB by me? All countries in the European Union (EU) are party to the Brussels Regulation (Regulation No. 1215/2012), this regulation means that judgments made in one EU member state may be enforced in another EU member state, against those person who judgment is made against. It may take some time, procedurally, for the judgment creditor to do this, but they are entitled to do so. Anyway, what this means for someone in such a position is that they contact a lawyer in "countryA's" jurisdiction to help appeal or find a way to mitigate the judgment since it was awarded as a result of fraud. Alternatively, when proceedings begin to register the judgment in countryB, one in such a position may choose to hire a lawyer practicing in countryB to challenge the registration of the judgment |
Are auto-generated identifiers PII if they cannot be linked to an identity? The reason for this post is to express a contradiction that seems to be widespread in some places on the internet. I'm not a lawyer, I'm a software developer doing my best to comply with the GDPR and the ePrivacy Directive. If I had enough money I would hire a professional to do it for me, but for now that is not the case so it is up to me to do it. I don't know if what I am going to expose is true, it is the result of my investigations, so I invite anyone to contradict me and tell me what I am mistaken. The object of my reasoning is the auto-generated unique identifiers on the client device in analytics tools and similar (Google Analytics...etc.). These identifiers are often linked to real identities, with which I think it is evident that they are personal data; however in recent years there has been a wave of analytics services claiming to respect privacy that use auto-generated identifiers not linked to any identity. Some of these services claim that they can be used without a cookie banner as mandated by the ePrivacy Directive. These services have evolved and now some of them have eliminated the need for this identifier. The reason is the criticism of some users who use the fact that if you can differentiate one user from another, it is personal data and must be subject to prior approval by the end-user. Instead, some of these tools use fingerprinting methodologies that consist of mixing various data (which by themselves would not constitute personal information) in order to differentiate some users from others, this being a way to technically 'solve' the legal trouble by not creating the auto-generated identifiers. Leaving aside the debate that may arise here about whether or not fingerprinting is personal information (I do not intend to delve into it in this thread), let's assume the following scenario: Let's imagine that I have a privacy-friendly application in which I use auto-generated identifiers on the end client's device to be able to differentiate one user from another. This application does not collect any other kind of personal data, only short bits of information to know the language of my users, if a page has been viewed, etc. Let's imagine that I have complied with all the legal obligations about informing and obtaining consent from this user, and this user has accepted it. Now let's imagine that this user wants all their collected personal information to be deleted, as dictated by the GDPR. At this point, I couldn't fulfill his/her request. The reason is that although these unique identifiers are stored in my database, they only serve to differentiate one user from another, I cannot know to which real person they belong. With which I imagine (and I repeat, I do not know about these issues, what I am going to say is pure conjecture) that I would have to add a form in my application so that the user could copy that identifier and then pass it to me so that I can eliminate all data associated with it. At this point is where, in my inexperienced opinion, a contradiction occurs: I cannot by myself, through the data I have collected, identify this person. I need him or her to proactively tell me who they are in my system... so, how can an auto-generated identifier be considered personal information if, on its own, it's not possible to identify a real person? Of course in this example let's imagine that I really can't identify the user, that I have not collected any other personal information of any kind that together with the identifier allows me to identify him/her. This is so far the contradiction that I do not understand. I repeat that I am not a lawyer nor am I versed in the matter, so I would be very grateful if someone could get me out of my mistake and point out where the fault is in my reasoning. | You are having difficulty understanding the GDPR because you have an improperly narrow idea of “identification”. In contrast, the GDPR uses an extremely broad definition. In Art 4(1), personal data is defined as any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person It is worth noting that your “auto-generated identifier” would quite clearly be “an identifier such as … an identification number” and/or “an online identifier”. It is also worth noting that indirect identification is still identification. Recital 26 explains the concept of identifiability in more detail: ³To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. ⁴To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. Key observations: Singling out a data subject already counts as identification, meaning that it isn't necessary to infer their real-world identity! The data subject is still identifiable if you can only identify them with additional data. The data subject is still identifiable if identification can be performed by others. The main limit to this concept is the “means reasonably likely to be used” criterion: as long as there is a reasonable scenario in which the data subject could be likely identified, they are identifiable. Identifiability does not depend on your current intentions or policies, only on objective factors. As an illustration of these points, consider the Breyer case (C-582/14). The pre-GDPR Data Protection Directive had an essentially equivalent concept of identification, except for the “singling out” factor. The CJEU was asked to decide whether this meant that IP addresses collected in a server log file of some website were personal data. Quite clearly, such IP addresses do not directly identify a person, unless you happen to be the data subject's ISP. But here the CJEU constructed a reasonably likely scenario that shows that IP addresses will typically be personal data even without the “singling out” criterion: in the event of cybercrime, the website operator would reasonably provide the IP addresses of visitors to the police for investigation, and they in turn would have the means to get a subpoena/court order to get the ISP to provide the information necessary for identification. What does this mean for your identifiers? These identifiers and any linked information relate to a particular user, the data subject. Thus, these identifiers and any linked information are personal data if the user is identifiable. Since these identifiers allow you to single out a particular data subject, i.e. allow you to distinguish one user from another, the users are identifiable within the meaning of Recital 26 GDPR. Additionally, identification is possible if it is performed by someone other than you – such as the user themselves. How does this mesh with data subject rights? You correctly point out the problem that when a user contacts you to exercise their data subject rights, you wouldn't be able to find their records. But Art 11 GDPR prepares for this: If your processing activities do not require identification, then you are not required to acquire or maintain additional information just for the purpose of complying with data subject requests (this encourages data minimization). If you can demonstrate that you are unable to fulfill a data subject request because you can't identify the data subject, then the data subject rights in Art 15 to 20 do not apply. These are the rights to access, rectification, erasure, restriction, and data portability. Unaffected are the right to information, the right to object, and rights related to profiling. However, you still have to comply if the data subject provides additional information enabling their identification. You have intuitively grasped the correct solution: you can provide a feature where the user can see their automatically generated user identifier. Then, they can provide this ID to you when invoking their data subject rights. A note on privacy-preserving analytics. When it comes to analytics, the GDPR and ePrivacy issues must be looked at separately. From a GDPR perspective, any client IDs or other identifiers are likely to be personal data, regardless of how they are stored or created. But the GDPR does not necessarily require that the user gives consent to such analytics – a legitimate interest (opt out) solution might also work. The ePrivacy Directive does not care about whether such IDs or fingerprints are personal data, only about how they are created and stored. Any access or storage to information on the end user's device is only permissible with consent, unless the access or storage is strictly necessary for a service explicitly requested by the user. Analytics are not strictly necessary from the user's perspective. Thus, while cookies or LocalStorage can be freely used to store user preferences on a site, accessing/storing cookies for analytics purposes, or accessing information for fingerprinting purposes through JavaScript APIs, is only permissible with consent. Compare also the WP29 opinion 9/2014 on fingerprinting (PDF). This leads me to conclude that many so-called GDPR-compliant or cookie-less analytics fail to meet ePrivacy obligations if they include a client-side component such as the typical JavaScript tag without asking for consent, but that they might be OK if they rely on purely server-side data collection. Regardless of how user IDs or fingerprints would be created, those IDs and any linked data would still be personal data though, so that GDPR would still apply. A hash of an identifier is still an identifier and therefore personal data, and at the very least still enables indirect identification. (WhatsApp attempted a “lossy hashing” argument while appealing its fine, but didn't convince many supervisory authorities.) | The GDPR has a fairly broad concept of what it means for a data subject to be identifiable. The details are given in Recital 26: To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The good news is that this mandates a risk-based approach to identifiability. You don't have to prevent re-identification with absolute certainty, but you must make sure that re-identification is not “reasonably likely”. The bad news is that “identify” does not just mean “figuring out the real-world identity of the data subject”, but also “being able to single out the data subject”. Hashes of personal data are still personal data. The hashed password still allows you to single out data subject, since the hash now serves as an identifier that links multiple records. Equivalently, a random ID would serve as an identifier. Depending on the information in the linked records, this could reasonably likely also allow linking to a real-world identity. I'll also point out that the GDPR explicitly notes that “online identifiers … such as internet protocol addresses, cookie identifiers or other identifiers” enable profiling and identification, and are thus a kind of personal data. Note that it seems you have a user database that includes a password hash. This database includes rich links between the password hash and other, more directly identifying, data. Alternatively, consider that the software that collects tracking information along with this tracking identifier would also receive other information about the data subject that could allow re-identification, such as the data subject's current IP address. It would be reasonably likely that such additional information could be used to identify or single out the data subject. For this analysis, it is irrelevant whether you have any intention of singling out users – it only matters whether, under an objective analysis, the relevant means to do so exist. Related: EDPB thinks hashed phone numbers are personal data. There has been recent debate by regulatory bodies on the question whether hashed phone numbers are personal data. This debate was published by the EDPB binding decision regarding the Irish DPC's fine against WhatsApp, which uses hashed telephone numbers to intersect user's address books. The question in the context of the fine was whether this represents processing of personal data of users who are not WhatsApp users themselves. Originally, the Irish DPC argued that such hashes were not personal data. However, the German, French, Portuguese, and Dutch supervisory authorities pointed out that the specific hashing approach used by WhatsApp does not provide anonymization, for example because there still is contextual information (such as the user's social graph) that would allow indirect identification (and because their hashing was pretty weak and reversible with reasonable effort). Such hashing would only be pseudonymization, not anonymization. The Hungarian supervisory authority makes the argument that WhatsApp could always re-create the hash from the original data, thus permitting re-identification of the hash. This is in line with my above argument that the hash allows singling out. Again, the hash should be considered pseudonymous, not anonymous. The EDPB upheld all these objections against the Irish interpretation as “relevant and reasoned”, and largely agreed with their merits. Some parts of the resulting analysis are specific to issues around phone numbers, in particular that there are comparatively few phone numbers. However, a recurring point is that the hashed data cannot be viewed in isolation. It must be viewed in the context of how it is created and used, and in the context of other data that the data controller has. Conclusion It is possible that in some cases the hash could serve as an anonymous token. But this would require careful analysis about how the hash is created and used, and about what other data you have available and could potentially link or correlate with this token. Unless you are extremely sure that there are no means that could be reasonably likely used to perform re-identification or singling out, you should consider such tokens to be pseudonymous data. Pseudonymization is a great security measure, but such data is still personal data. I suggest reading the WP29 opinion 05/2014 on Anonymization Techniques (WP216) (PDF link). It predates the GDPR and is slightly outdated in both legal and technical matters, but still contains highly relevant guidance on the matter of proper anonymization in the European data protection context. Aside from identifiability issues, I am concerned about using the password (or derived hashes) for anything other than authentication. Even in hashed form, this is fairly sensitive data. In most cases where you would use a password hash, you can likely use a random number instead. | From the GDPR's definitions: ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; This blurred image would be "information relating to an identified ... natural person (‘data subject’)." It does not matter whether the person can be identified using the information in question. Therefore, the answer to your question Under GDPR, does blurhash of a profile picture count as personal data is yes. | Belgium enacted an implementing law, the Act of 30th July 2018 on the protection of natural persons with regard to the processing of personal data. This, along with the GDPR, are the key legislative references that relate to your question. On 5th September 2017 the ECHR judged that it "considers that States should ensure that, when an employer takes measures to monitor employees' communications, these measures are accompanied by adequate and sufficient safeguards against abuse". This case set a precedent relevant to employee monitoring in Belgium. This is most definitely a data protection or privacy law matter and the DPO should be consulted. If they have to do research, that shouldn't be your concern as that is their job. The company must support the DPO in what they need to do that job, as such is literally written into the GDPR. Furthermore, in this case it would, by my evaluation, be necessary to conduct a Data Protection Impact Assessment (DPIA) for the monitoring activity, and if one has been done, it should document the recommendations and requirements or what is already in place. You as an individual may also ask a question of the Data Protection Authority: (NL) https://www.gegevensbeschermingsautoriteit.be/verzoek-klacht-indienen (FR) https://www.autoriteprotectiondonnees.be/introduire-une-requete-une-plainte You might ask them about your position and liability as an employee, but I would be more concerned, if I were you, with verifying that your actions are above board rather than trying to cover your ass just in case they aren't. Do the right thing, even if that means questioning the direction you've been given. AD logons still identify the person logging on, and may include source IP, which is specifically listed in the GDPR as within the scope of 'personal data'. So while there may be a legitimate need to process such data, it needs to be gone about in the right way. Actions taken by an employee are taken by the organisation in terms of processing personal data, so whatever you are asked or ordered to do, will be done by the company. If you are being offered no legal justification for doing so, you might document the direction you are given and question it respectfully, pointing out that if found to be unlawful, it is the company that would be in trouble, all while knowing that should there be for example an unfair dismissal, you have a record of who asked you to do what, how you challenged or questioned it, and what was the outcome. | In 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. | If you are purely a designer (and not contracted for the daily operation of the site), the answer is "no". GDPR Article 4 defines the "roles" responsible for complying with GDPR, and there are two: Controller and Processor. The Controller is the one who calls the shots. In particular: Decides what personal data to process. This is usually the owner of the web site. The Processor is the one that actually does the processing. This is usually some company providing some sort of data processing service (e.g. SaaS, PaaS, etc.). The relationship between the Processor and the Controller must be contractual. The contract is called a DPA (Data Protection Agreement or Data Processing Addendum). As a designer, you don't fit into any of these roles. If your contract with the client is silent on liability for GDPR compliance, then you have no liability. This goes for projects completed both before and after the May 25 deadline. Of course, if there are GDPR clauses in your contract, then you must fulfil them just as have to fulfil any other contractual obligation. But unlike the controller and the processor, there are no automatic legal liability for a designer or programmer. | This question shows a misconception of GDPR. GDPR creates an obligation not just towards the data subject but also towards the authorities of the relevant state(s). The data subject cannot waive your responsibility to safeguard data, document internal processes, etc. GDPR is not a blanket ban on the handling of personally identifying information (PII). Informed consent is one of the ways to get permission to process and store this data. If your data subjects are prepared to give your sweeping permissions, ask for consent (informed, revocable, etc.), document the consent, and go from there. The data subject does not get to decide what classification data falls under. If you collect, say, medical data, then you are subject to increased restrictions and safeguards. | The university has a legal obligation to collect certain data from attendees, including employees an visitors. It has decided to keep these records in digital form, and offers a smartphone app as a convenience. The university has outsourced the data processing activity to a third party. This is perfectly legal under the GDPR, if that third party is contractually bound to only process the data as instructed, and not for their own purposes. Whereas the university acts as a data controller (Verantwortlicher), the third party would be a data processor (Auftragsverarbeiter). I have some doubts though whether an app or a website is indeed the solution that offers the best data protection, especially taking into account the GDPR's data minimization principle. Requiring updates when entering or leaving any room is potentially excessive. Given the sensitivity of the data, the university should have performed a data protection impact assessment to weigh the consequences of this measure. At least for employees, the measure would likely have to be approved by the union (Personalrat) as well. |
If I wrote code for a personal project, and use some of it in a program at my company, can they now sue me for using the code in my personal project? Let's say I developed a web app for a personal endeavour of mine. Soon after, I get a job with a tech company, and my first task is to develop a web app for them. Well, it turns out the functionality of this new company web app is similar to my personal web app, and so I use some of the code from my personal web app in the company's web app. Can the company now sue me or take other legal action if I continue developing my personal web app? If so, how can I put a "license" in my code to protect my intellectual property (since I wrote the code BEFORE I even took the job)? For the programmers out there, the code language is JavaScript and CSS. | In the US, code that you write in the course of employment is the property of your employer. Otherwise, anything that you create is your property. The gray area is things that you write during your employment but not in the course of your employment (hence the terms of the employment contract are vital). Something that you write before becoming an employee is not "in the course of employment". However, if you use that code in the in the course of employment, you invite the argument that in fact the code was written in the course of employment. That argument can be squelched if you have an agreement with the employer that acknowledges that you are licensing your code to the employer in exchange for ... some consideration. It could be $1, or a similar unit of currency. | You cannot use a patented invention without permission A patent gives the owner exclusive rights to use it: not just profit from it. The only way you can use their patent is by licensing it. You cannot make any version of the software that uses the patented method, free or otherwise. Technically, the software you have now is infringing even if you never release it. If you had published your work before they filed for the patent, you can seek to have their patent invalidated due to the existence of prior art. If you had been using it privately prior to this some jurisdictions will allow you to keep using it privately. | If you use the reviewer's code, or code derived from it (e.g. if you just changed a variable name) then they own the copyright on that part of the software. If the reviewer describes a solution which you implement, or if you re-implement the code from scratch while taking ideas and methods from the reviewer's code, then you own the copyright on that code. However if there are only a few ways to implement something in code then the code is not creative and hence cannot be copyrighted. For example the regular expression in the question you link to is (as far as I can tell) the only correct solution to the problem: any programmer addressing the problem will have come up with that RE. In this the position is akin to a database of phone numbers: while the collection may be copyright (depending on whether selection or arrangement required creativity), the fact that Alice Jones has the number 012345 is not copyrightable, and neither is the alphabetical arrangement of names. Where it gets messy is the boundary between the two. The requirement to detect 4 or more repeated digits in a credit card number could be implemented in a number of ways, but whether there are enough of these to qualify any particular solution as "creative" would be a matter of fact for a court to decide. | No, you can't The last paragraph of the MIT License explicitly says the author is not responsible for damages (emphasis mine): THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE. A software license is not a contract. You didn't enter a contract with the developer or team. You found software online and decided to use the software. When you install paid software you are almost always presented with the EULA and check-box saying you agree to it. You took an action and agreed to the EULA. You didn’t have to agree to anything before getting access to the code under the MIT license. The software is offered "as-is" which is further protects the author. You'd have to show the author convinced you to use the software fraudulently. You're unlikely to talk to the author at all, and since the entire source code is available for review, it would be very difficult if not impossible to claim fraud. Finally, in the U.S. people have been sued using the Computer Fraud and Abuse Act. None of the notable cases involve embedding a virus in an open-source project. Of interest is how the CFAA defines a virus (emphasis mine) (A) knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; Simply writing bad code wouldn't be enough. You'd have to prove the developer acted maliciously. Hobbyists working for free don't usually have much money. The other major contributors to open source are large companies like IBM and Google, which have lawyers on retainer and deal with frivolous lawsuits frequently. | Yes, it does. Using the downloaded content, whether it was scraped or individually downloaded one file at a time, for research or for commercial purposes would violate that TOS provision (unless some other provision contradicts it, or you obtain specific permission). The site owner could sue you for such a violation, should the owner become aware of it. I do not think it would be likely to be a criminal offense, depending on the jurisdiction. | Whether this is considered a trade secret (at least in the US) depends partly on whether you've taken reasonable action to keep it secret. If an employee thought it was OK to publish the algorithm, that's evidence that you didn't try very hard to keep it from getting out. Even if nobody's noticed it yet, getting the blog post taken down in't going to get it off the internet. You may as well try to do it anyway. If nobody has noticed the algorithm by now, you want to make it harder for them to find. You need an IP lawyer pronto. Depending on where you are, you might be able to get a patent on the algorithm still, but patents are hard to enforce, and it appears to be getting harder in the US to patent algorithms. (There's a Stack Exchange site so people can look at patent applications and see if they can invalidate the application with prior art.) You can't license out the algorithm without having some legal way of stopping other places from just using it. If you have more proprietary algorithms or things that aren't generally known that give you a competitive advantage, it would be a good idea to inform employees that they aren't supposed to reveal them. Check with your IP lawyer to see what you should do. | As Greendrake says, you can legally create your "open source" license. There are two problems with this: Since you are not an experienced contract lawyer, there is a significant risk that your license doesn't do what you intend it to do. As a consequence, people who you want to use your software might not do so, because your license prevents it or makes it too risky. Or people may use your software in ways that you didn't want to allow, because the text of your license doesn't prevent it. Your license terms may be incompatible with other open source licenses. For example, I might want to use GPL licensed software A, and your software B with your license in my application. Being careful, I give both licenses to my lawyer, and the lawyer says, "sorry, you cannot possibly follow the terms of both licenses, because GPL and Ky's license require that you do two contradictory things. You can use software A and follow GPL's terms, or you can use software B and follow Ky's license terms, but you can't use both". All in all I would recommend that you use a widely used open source license. | As the owner of your own computer, you can dispose of it however you see fit (as long as your choice is legal). The courts could, theoretically, force you do do something with your computer, but installing software is not one of the things that the courts are empowered to force you to do. (Mostly, they can force you to turn it over for a search). A company can't force you to do anything with your property: only the courts can order the use of force. But there is no legal basis for the courts to grant a company's request for an order to install software. A company can perhaps persuade you to install software on your personal computer, in exchange for keeping your employment. I assume you are familiar with the law regarding firing people. If you do not perform your job, you might be terminated for cause. You could hire an attorney and sue for wrongful dismissal, and it's not obvious that you have a valid reason for non-performance. So I would suggest consulting a Canadian employment attorney before sticking your neck too far out. |
How can laymen get pro bono assistance from Downtown Toronto Litigation Firms? To narrow this question, I focus on Toronto Canada. I am NOT referring to Pro Bono Ontario, because "legal advisors on the hotline provide brief services. They do not create an ongoing relationship with you.". Unlike Access Pro Bono in B.C., Pro Bono Ontario does not assist you to instruct or retain lawyers. Many famous Downtown Toronto litigation firms tout Pro Bono. Lenzcler Slaught Representing a respondent plaintiff in an appeal from a judgment obtained in the Small Claims Court concerning a purchase of a defective vehicle. Paliare Roland All quotes henceforth from Murray Gottheil's article. I rule out firms outside the Greater Toronto Area, for the reasons of Murray Gottheil tout in his article. After I cold call the Partners of their Litigation department, sometimes I get no reply. Or I get these responses. The Defendant is a wealthy Multi National Corporation. We are conflicted. One Partner admitted me on the phone that if they acted for me, then "they will not be conflicted out of a major file". Even if they do not currently represent the MNC, other MNCs they represent "clients may not take favourably to you acting against a Bank and trying to establish that a common banking practice is improper." For example, if a firm has a deep expertise in insolvency and may have a good shot at being appointed lead counsel for an airline that is on shaky grounds, they will feel pretty stupid if they take on a file for a consumer group making a claim against the airline and are then conflicted out of the much more lucrative role of acting for the airline or its monitor in the insolvency. We do not take on a client just for small claims. We act in small claims court just for existing clients. We cannot represent you cost effectively. Our retainer costs you quantum of damages sought The problem is that in some areas of the law, there are only so many lawyers who have deep experience and are really good at what they do. If a client has a complex matter which requires a particular expertise, it is not unusual for the client to discover that the number of knowledgeable lawyers who are available to take on the matter may be quite limited. [...] Moreover, I will readily acknowledge that there are many situations where most, if not all, of the best lawyers who practice in the relevant area of law will be in a large firm. | What Kind of Cases Do Large Law Firms Take On A Pro Bono Basis? There are three main paths to pro bono representation by a large law firm. One is to have a personal relationship with a firm or someone in it, in a way that causes one or more lawyers to see you are part of their community, when you are in a potential legal dispute that poses a grave risk of injustice to you which you have no ability to afford a lawyer to assist you with. A pretty typical example of this would be a law firm that has a receptionist or a child of an office manager, for example, who is being stalked by a violent ex-boyfriend who needs a protection order, which a lawyer in the firm agrees to provide for free. Some times former clients who have fallen on hard times after a long paying representation can fit in this category as well. Often these disputes are "small potatoes" cases too minor to arouse the interest or ire of clients or prospective clients, and that are unlikely to change the law itself. Another way to get pro bono representation from a large firm is to have a legal problem that fits into some sort of adopted cause of the law firm that doesn't conflict with its usual client base. For example, it is fairly common for large law firms to take on the pro bono representation of someone who is likely to have been wrongfully convicted of a serious crime and is not sophisticated enough to represent themselves in the matter. A representation like this can provide trial court experience that young lawyers in large firms rarely get, rarely conflicts with the firm's representation of large businesses and rich people, and provides a moment in the lives of the participants in which they can remind themselves that the legal system can be used in skilled hands to secure justice for justice's sake, rather than merely to advance a paying client's interests. Assisting refugees seeking asylum, helping marginal small business owners comply with their tax obligations, and assisting a low income person with a case that has the potential to establish good precedents (e.g. regarding property rights) for your paying clients are other popular options. Typically, these kind of pro bono representations are "pet causes" of particular lawyers in the firm and those lawyers proactively look for opportunities to locate people for whom representing them pro bono can advance the cause. Finally, a fair amount of pro bono work comes in the nature of civic involvement with a legal angle, such as serving on the board or as a general counsel for a non-profit organization or church, or in some special one time transaction for a non-profit like a bond offering for a new building. Often, the non-profit or civic organization is one in which people somehow connected to the firm are involved. In almost all cases, large law firms are also image conscious and will only take cases that would reflect well on the firm if they were reported upon in a newspaper story from a reporter willing to listen to their side of the story. In a pro bono case, the law firm wants to be on the side of the case where they are wearing the "white hats" (i.e. the good guys). When Do Law Firms Have A Policy Of Declining Pro Bono Representation? On the other hand, in addition to actual direct conflicts, where the law firm represents the other side of a dispute with you, which of course, no one would expect the firm to represent you in on any basis, most large law firms have a class of potential clients that they refuse to accept because they constitute "business development conflicts." Firms that are hired by insurance companies to represent defendants in personal injury cases will almost never take on a personal injury plaintiff. Firms that represent residential landlords will almost never represent a residential tenant. Firms that represent big businesses that do business with the general public will almost never take on a consumer protection lawsuit for a consumer. Firms that represent manufacturing and utility companies won't take on lawsuits to enforce environmental laws. Firms that represent employers don't represent unions. They don't take on these kinds of clients both because their existing and prospective clients don't like it from an appearances and "loyalty to the cause"/solidarity perspective, and because they don't want to end up making precedents as a result of their skillful representation that end up hurting most of their clients. Finally, law firms almost never represent someone who can afford their services on a paying basis for the work in question. Similarly, law firms like to represent pro bono clients who are appreciative and reasonably tolerable to deal with. Law firms don't want to represent a client who is a headache to interact with without even getting paid to do it, unless very high principles indeed are at stake. | The issue you describe is usually characterized as the multijurisdictional practice of law and is not terribly straightforward, in part, because the "practice of law" is not a well defined or consistently defined term. For example, in New York, preparation of a title opinion is considered to be the practice of law, while in Colorado, it is not and title opinions are routinely prepared by non-lawyers in title companies and by a type of independent paraprofessional (with no formal licensing) known as a "landman". As a rule of thumb: All work involving law in a jurisdiction where you are not admitted is subject to the ethical requirement that you be actually competent to render the opinion regardless of your formal licensure, and Normally, work involving law in a jurisdiction where you are not admitted must be incident to your representation of a client in a state where you are admitted to practice. A leading analysis of the issues related to multijurisdictional practice is a 2002 report of the American Bar Association on the subject, much of which has been incorporated into the rules of professional ethics for attorneys of many states. The core rule of professional conduct that was proposed and adopted in identical or similar form by many states from that report is as follows: Rule 5.5 Unauthorized Practice Of Law; Multijurisdictional Practice Of Law (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice. (d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, or a person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that: (1) are provided to the lawyer's employer or its organizational affiliates, are not services for which the forum requires pro hac vice admission; and when performed by a foreign lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or (2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction. (e) For purposes of paragraph (d): (1) the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and subject to effective regulation and discipline by a duly constituted professional body or a public authority; or, (2) the person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction must be authorized to practice under this rule by, in the exercise of its discretion, [the highest court of this jurisdiction]. The meaning of the rule quoted above is discussed in official and unofficial commentary beginning at page 19 of the ABA Report. | Someone has pulled a sample motion of this type off of PACER (the public access Internet portal to civil filings in federal court). The example is more formal and structured than a lot of state court motion practice would be, however (e.g. few state court's require or encourage motions with a table of contents and a table of authorities). This example is 36 pages long, and many states don't even allow motions to run for more than 10-15 pages without leave of the court to do so in advance. There is a New Jersey federal court example here which is also on the formal and fussy side (although, in part, because the motion isn't just an arbitration motion and is also raising several additional unrelated issues which if omitted would cut it in half). See also one here. Another example, from a California state court, is closer to the mark for a typical state court filing. A court that handles residential landlord-tenant matters is probably even more "casual" and probably expects motions to get to the point more quickly. The core content is probably solid, although it would have to be customized to reference the state law statutory and procedural rules rather than the federal rules of civil procedure, and to analyze and set forth the facts of your case rather than those of some random person whose pleading is linked. This would also have to be adopted to state court practice standard, which typically uses different formatting for captions, signature blocks, whether or not line numbering is required, etc., and is often subject to other requirements. Some require that a certificate of service be filed as a separate document, while others routinely incorporate it in the main document. Many state courts require that a proposed order be submitted with a motion as a matter of state or local court rules, a few states require a cover sheet to be filed with motions, many states require you to confer with the other side in the case and to recite their position opposing or supporting the motion, or something in between, before filing it, and some courts require you to notify them once the deadline for a response has passed, regarding whether an opposition has been filed to the motion's request for relief or not. Similarly, some states courts require that motions be "verified" (i.e. have their allegations confirmed under oath) or supported by an affidavit setting forth the factual matters alleged in them. New York State structures a lot of motions as "orders to show cause" in which the court preliminarily reviews the relief requested and issues an order telling the other side that it will do something if they don't file an objection showing good cause for the court not to rule in that way by a given day, which must be formally delivered (i.e. "served") upon the other side by a deadline. I don't know if New Jersey local motion practice is similar. Many court systems also charge a "new case" filing fee for motions to compel arbitration that does not apply to other kinds of motions. Ideally, you'd want to review some motions (about pretty much anything) to get a feel for how this is usually done in New Jersey. | I am not a lawyer: If they sue you it will probably be for fraud, then the DA will investigate and can easily find out who you are. If they can prove that you signed the contract is another story. If the clause in the contract is valid yet another. Getting a lawyer might be wise, especially if your visa depends on a clean legal record. Have you talked to them yet? If you can afford it, you or your new company could pay off he months salary to the old company. In my opinion it's fair, they probably turned down a lot of other applicants an will either need to search again or find a good temp to replace you. Think there was something that you cannot quit a contract before it starts, but another option would be to start working for them and then realizing during the test period that it's a bad match. However, best lawyer up! Search for "Kündigung vor Beschäftigungsbeginn" (Cancellation before the start of employment) Quick google suggests that they might be right if they have it in the contract, but the lawyer will know for sure. Look for someone who does "Arbeitsrecht". | 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. | Now the party in question is threatening to sue (but of course refuses to point to which sections he believes are libelous) ... do we have to pay the $$ to "lawyer up" if we want to be safe? If you get sued, you will definitely want a lawyer. If you don't get sued, well, in that case you're safe. So your first question is whether the supposedly aggrieved party will actually sue. Your second question is, if they sue, do they have a good case? That question will be useful in deciding whether to settle. If the threats are empty then you might want to hire a lawyer to call their bluff. Otherwise you may have to endure the continual empty threats. This is especially true if the libel case is weak. Your lawyer can write a letter that explains why there is no case. If they do sue, they will have to identify the specific libelous statements, so you will at that point be able to refute the claims. But you'll also want a lawyer at that point, so you won't have to be directly concerned with the details; your lawyer will take care of them. As suggested in a comment, do keep in mind that a true statement cannot be libelous, by definition. To the extent that you can prove that every statement in the piece is true then you don't have much to worry about. But even then you'll want a lawyer's advice, because even if you know yourself that everything is true, you don't know what it will take to prove that in court. (Another aspect of the element of falsity is that statements of opinion are generally not defamatory.) To learn for yourself about the elements of libel you can start with Wikipedia or a bit of internet searching. To get a thorough analysis of the facts of your case in light of the laws of the relevant jurisdictions, you will need to engage a lawyer. It might not cost as much as you fear. | Let me turn this around, how would you find a doctor, plumber or hairdresser? There is nothing special about lawyers! Things you should consider when hiring a lawyer are the same as for any other profession or trade: The service you need them to perform Location Value Ability/Expertise References/Referrals As a simple procedure: Define your search. You don't need a big city lawyer for a traffic offence and you probably need a specialist if you are going to lodge a patent. Consider how far you want to travel for face-to-face meetings. Again, a traffic offence will have you looking in your local area; a patent may involve travel to a major city. As a general guide a bigger firm will have more expertise available but charge higher fees. Search Internet, telephone books, court records, radio ads, word of mouth etc. etc. Build a shortlist based on your criteria. Contact your prospectives and ask them: Can they do the work you need? What will it cost? Who are their references? Check the references! Really! Check the references! Decide. | If what you show is correct and above-board then you are being sued in superior court. However it sounds unlikely that the plaintiff could have served you with notice of such a lawsuit without you realizing it, so if I were you I would first call the court to see if they do in fact have a case with the docket number listed. Then ask: When and who served the original notice in the case (because if you really didn't get it then whoever said you did majorly screwed up and is probably in trouble) Who the plaintiff's counsel is If the letter was from a real lawyer on the California Bar, and that case really is open in the superior court with you as a defendant, then you really are being sued, and you should either get a lawyer or negotiate a settlement, because if you don't answer and defend then you're just going to have more judgments against you. If any of the above does not check out then whoever sent that letter is in big trouble if you report it to the DA, postal inspector, and (if they are a real lawyer) the Bar. |
Under GDPR, do organisations have to tell the ICO (or similar) the email address they use for GDPR deletion requests? As is well known, websites (illegally) use deliberately misleading and frustrating web design to slow down users who want to tell them not to collect information for marketing purposes. If they collect this information, they have to delete it and (presumably?) stop collecting it in the future if a user emails them to tell them so. However, finding this email address means going to all the organisations which might hold data about you and trying to find what email address they use. In the UK the ICO enforces GDPR. Do data holders have to tell the ICO what email address they use for deletion requests? | No. While UK data controllers must register with the ICO, they only have to provide general contact details. The ICO does not provide a public registry of data controllers. Outside of the UK, there is no requirement to register with the Supervisory Authority unless a DPO is appointed. Per Art 13 GDPR, every privacy notice must disclose the contact details of the controller, and of their DPO (if applicable). The GDPR does not require controllers to have a specific email address for data subject requests. Controllers have to fulfill the request regardless of the channel through with the request is made, so that normal channels for support or contact should be appropriate. The ICO writes in its guidance to controllers on the right to access requests: Are there any formal requirements? No. The UK GDPR does not set out formal requirements for a valid request. Therefore, an individual can make a SAR verbally or in writing, including by social media. They can make it to any part of your organisation and they do not have to direct it to a specific person or contact point. Of course, if a controller does not make contact details available or otherwise refuses to accept a valid data subject request, you can ask the ICO for assistance. | Obtaining consent for cookies is not required by the GDPR at all. Instead it is covered by the e-privacy directive, which as a directive rather than a regulation, must be implements by specific legislation in each individual country. The exact requirements vary with the law of each country. An e-privacy regulation has been proposed, which would have scope similar to the GDPR, would replace the Directive, and would not require national implementing legislation. However it has not yet been adopted. Proposed versions have significantly different requirements than the current Directive. Nor does the GDPR require consent for advertising that does not involve the processing of personal information, unlike some other privacy laws such as the California CCPA. However, if the Google package sets cookies without consent that are not strictly necessary for operation of the web site, it might well fail compliance with some of those national laws implementing e-privacy. Also, even necessary cookies must be disclosed to the user, as I understand it, possibly only in general terms. Several national Data Protection agencies have said that cookie compliance is not a major priority, at least not until an e-privacy regulation is in place. But that does not mean that lack of compliance is legal. Unfortunately I see no way for a developer using the Google package to correct this issue within the package. One would either have to implement a different solution, or trust that Google will fix this before enforcement becomes a serious issue. However, the app developer could add a separate general cookie consent banner, and turn off all adds if consent is not given, I believe. | 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. | No, it's not legal. The General Data Protection Regulations (GDPR) apply given that you are in the UK (regardless of where the Data Processor is based). The UK GDPR is slightly modified due to Brexit, but the same principles apply. The only plausible legal basis for this actions would be that you consent to it, and you're entitled to withdraw that consent at any time. Some may claim that Article 6.1(b) applies, i.e. that it's necessary to send marketing email in order to fulfil the contract, but GDPR is clear that bundling such consent into a contract for service simply to permit the data processor additional actions isn't allowed, as I'll demonstrate. UK GDPR requires that consent to use your personal information (in this case, your email address) for the stated purpose be freely given. Consent to use your information for direct marketing is not freely given if it's inseparable from the consent to use it for some other service, as per para 43: Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. And Article 7.4 backs this up with When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract. The intent of Article 6.1(b) is that only the processing required for the service you have bought is allowed (e.g. if you supply your address for delivery of stuff you've bought, the data processor can use that address to send you the stuff, but is not allowed to add a contract term that allows them to send you unwanted stuff). Examples of emails that Article 6.1(b) would allow (in my assessment) include things such as notification of upcoming downtime, or a reminder that subscriptions are due, but not unsolicited advertisements for other products. There's a grey area that's open to interpretation, where adverts are piggybacked onto actual service messages. | As Rick mentioned in comments this would most definitely be considered processing of personally identifiable information (PII) under the UK GDPR. You mention "advertising" and "marketing purposes" so it's pretty clearly not for your own personal household/family use and that means you would have to comply with the GDPR. That means you're going to need what's called a "Lawful Basis" for processing this data. There's six different ones: (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) You haven't provided enough information for to hazard a guess at what your basis would be but the ICO has an on-line tool which would give you a starting point. It's a very good idea to make sure you have all your i's dotted and all your t's crossed before you start processing any PII - and that includes documenting the process. Otherwise, what consequences may I face if I do so? In some ways the consequences of non-compliance are "what have you done?" coupled with "how much have you got?", the maximum penalty is £17.5m or 4% of your annual turnover (whichever is greater) and fines issued under the UK GDPR to date have ranged from mere pocket change to almost enough to buy a tank of petrol. Widen it to the EU and small property owners association got a €500 slap on the wrist and Amazon managed to net themselves a €746m fine. | Treat all email addresses as if they are personal data. All email addresses that belong to a specific person are personal data of that person, regardless of the specific form of the address. If your list contains the email addresses of data protection officers then all of them are personal data. The only exception I could see would be email addresses that clearly belong to a corporation that is they are addresses of a legal person which is not a natural person. | No, a company cannot suspend your GDPR rights – contracts can't override the law. Your rights as a data subject apply as long as your personal data is being processed. However, there is no requirement in the GDPR that they fulfill your data subject rights through a self-service mechanism like a “download my data” button. They can require you to use another support channel. (But Google offers infamously bad support.) In some cases, the service may legitimately decide that they cannot give you access to the data, for example if they believe that you are not the actual data subject (e.g. if they think that you hacked the account). The right to access must not adversely affect other people (Art 15(4)). If they have doubts about your identity, they can require further information to verify you (Art 12(6)). If your requests are excessive or unfounded (if you are spamming them), they can also turn down the requests (Art 12(5)). | The GDPR does not prescribe how information should be pseudonymized and does not even define the term properly. Yet, pseudonymization is suggested as an safety measure in various places, so that pseudonymization should be implemented wherever appropriate. The most useful guidance the GDPR gives is by contrasting pseudonymization with anonymization, where it says that pseudonymized data is still personal data because the data subjects can be identified using additional information (see Recital 26 GDPR). In contrast, re-identification is not reasonably likely for truly anonymized data. A common technique for pseudonymization is to replace identifying information with a pseudonym, for example replacing a name with a random numeric ID. However, this can only be considered pseudonymous if the mapping between the ID and the real value is not available to whoever uses this data. Replacing individual fields in a data set might not be sufficient for pseudonymization because apparently non-sensitive fields could still enable indirect identification. This requires careful analysis taking into account the entire context of the data, so it isn't possible to say whether merely removing names + email addresses achieves pseudonymization or anonymization. What you are doing is redacting parts of sensitive data. I think this is a pretty weak pseudonymization method since it still leaks partial information about the true value, and leaks information about the length of the redacted value. It is possible to argue that this is OK (e.g. if you can show that you have multiple similar redactions so that you achieve a level of k-anonymity). But by default, such partial redactions are likely to be unsafe. Completely removing the sensitive data is much safer. The “Article 29 Working Party”, a pre-GDPR EU body, has published an opinion on anonymization techniques in 2014 (PDF). It does not account for the GDPR's specific phrasing, but provides an overview of pseudonymization and anonymization techniques and puts them into context of European data protection law. It considers how such guarantees guard against attacks such as singling out data subjects, linking multiple records of the same individual, and making inferences about the data subject. In this guidance, pseudonymization techniques that are suggested include encrypting or hashing the sensitive data. However, the guidance warns that such techniques do not provide strong protection against singling out or linking records of the data subject. A bit earlier, the UK ICO had published guidance on personal data, including on the matter of anonymization and pseudonymization (PDF) with some good examples. For determining whether a data set has been successfully anonymized (or pseudonymized), they suggest a motivated intruder test: could someone without specialist knowledge or skills re-identify the data subject? In your example, such a person should not be able to infer that a record about Stxxx Axxdxrxn is about a Steve Anderson. In my opinion, your pseudonymization approach would fail the motivated intruder test unless you have multiple records that could all be about Steve Anderson (compare k-anonymity). |
How can we answer questions about tabletop game rules without infringing copyright? https://rpg.stackexchange.com/ is a stack dealing with table top RPG games, the most prominent being Dungeons and Dragons (D&D). Answering questions almost always relies on information from rule books sold by the makers of D&D. Due to stack culture reasons, answers directly referencing the rules are valued far more than experienced perspectives. To avoid link rot, it is essentially a requirement to copy-paste the relevant portions of the rules into the answer. These portions could be a few sentences, or even a few paragraphs, often they are the entire rules for a spell or character ability. Even answers that do not directly quote the rule books often use information from those rulebooks to write an answer. Ultimately SE is using this content to turn a profit, so we can't naively think we are merely sharing information with friends and are immune to copyright law. Are we actually allowed to share this pay-walled information? To what extent is this kind of content infringing copyright? What should we be looking out for to prevent issues? | This kind of quotation, for commentary, criticism, or reference, is generally allowed without obtaining permission. In the US, this falls under fair use (see 17 USC 107. In the UK and most commonwealth countries, it falls under fair dealing. In other countries there are various exceptions to copyright that will probably cover this. Even answers that do not directly quote the rule books often use information from those rulebooks to write an answer. Facts and ideas are never protected by copyright, so this is not going to be an issue. See 17 USC 102(b), which provides: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. As a comment by user Trish reminds, game rules are facts and are not protected, although their exact wording may be. | The basic principle about copyright protection is that the expression of an idea is protected, but the idea itself is not. So wholesale copying without permission is infringing. But the abstract algorithm is not protected by copyright (and let us assume that it also isn't patented). By way of analog, an insertion sort is a pretty easy concept to grasp, and once you understand it, you can re-create it, independent of how the original example (where from you learned about the sort) is expressed. So the question is whether it is necessary for you to copy that code (copyright protects against copying), or can you independently re-express the algorithmic idea (ideas are not protected)? | As for plagiarism, that is not a legal concept, so he can define plagiarism however he wants. It certainly isn't, under any definition I have ever seen on Earth and I have seen many (it has to do with "claiming someone else's work as your own"). As for copyright, a set of questions is (potentially) protected by copyright. If they are copied from somebody else's book of questions, then the book author (or publisher) holds copyright. Let's say that QM invented the questions, such as "What is the Turkish word for Janissary?", "What is the most prominent feature of Jannissary garb?" and so on. Then that set of questions, when put down in fixed form, are protected by copyright, and cannot be copied without permission. | It should not surprise you that copyright protects the right to (among other things) make copies. There are limited exceptions that are considered "fair use", like if you reproduce a limited amount of text for educational, reporting, or review purposes. Giving your friend a copy of a large portion of the text just because they want it would almost certainly violate copyright. Whether the book is available or out-of-print has absolutely no bearing whatsoever on who holds the copyright or whether your actions violate it. This is very different from giving your friend the book itself. The book itself is covered under the "first sale doctrine", meaning that by buying a copy of the book, you buy the right to sell, transfer, or dispose of that particular copy, but it doesn't give you the right to make more copies. I will note that in practice, it is vanishingly unlikely that the copyright holder would ever learn of your isolated instance of limited infringement in the first place (especially since it's out of print), much less bring legal action against you for making a single copy that did not affect their bottom line. | You are creating a derivative work. You are only allowed to do this if the library comes with a license that allows this. If you want to give your derivative work to anyone else, copying it is copyright infringement unless the license allows it. Copying the derivative work and attaching a different license is most likely to be copyright infringement. And if people receive a copy with an open source license that is not justified and rely on it, that’s creating one unholy legal mess for everyone involved and can be massively more expensive than plain copyright infringement. No license means you don’t have permission to do anything with it, not creating derivative work, not distributing it, and certainly not publish it with an open source license. | Stack Exchange questions are not public domain, they are protected by copyright. Authors have granted a license under Subscriber Content, specifically 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 4.0) As long as you comply with the terms of the CC BY-SA 4.0 license, you may copy user content. | Copyrights don't apply to the names used. You mean trademarks. You copyright your game and you trademark the name. http://www.reddit.com/r/gamedev/comments/11v69k/using_a_guns_name_in_your_video_game/ Basically, it wouldn't be wise to use trademarked names in your game. Even though it's unlikely you would be sued and even if you were, you could possibly fight it under Fair Use, but do you want to take the chance? If some gun company decided they didn't like how you used their name, even if they have little to no grounds for a case, they can STILL sue. Anybody can sue for pretty much any reason where there is doubt. If they have enough money to throw around, they can drag you through the mud, ruin your business and then just lift their lawsuit. They don't need to win in court, just destroy you. Keep in mind that even if you don't use the name, if the gun in your game is an accurate replica of the real thing, it could still be a trademark issue. EDIT: Something you could consider though is asking permission. You never know. They may simply not care. You might even try propositioning them to pay YOU to have their gun showcased in your game. It's not entirely uncommon for companies to be willing to pay for a bit of endorsement advertising. | 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. |
Uber files: Can Uber offload their past responibilities by claiming they are a new company? The recently released Uber files report how the company built a network of lobbyists in close contact with many high level government officials around the world. These relationships include suspects of high level corruption and helped the company establish a foothold in many countries around the world. When asked for a comment the current spokesperson declared: We have not and will not make excuses for past behaviour that is clearly not in line with our present values. She also declared: When we say Uber is a different company today, we mean it literally: 90 percent of current Uber employees joined after Dara [Khosrowshahi] became CEO Personally I noticed that even though many people changed the investors are still the same and the benefits the company got with this behaviour are still there. Furthermore, they still have an advisory board which pays handsome fees to many ex politicians. But apart from that I would like t know if legally they can offload their past responsibilities in this way. Could they be investigated by the US authorities for possible bribery in foreign countries, or is it enough to change the high level management to avoid prosecution? | A company is a legal person If this is the same company, then it can be prosecuted for its past activities just like a natural person can. | What should I do? Don't get intimidated, don't sign/accept/submit to his "agreement" now that you are securing employment elsewhere, and make sure that henceforth all your communications with the CEO & his startup be --or continue to be-- in writing. The CEO's attempt to be reimbursed is pure non-sense because hitherto there is no mutually agreed clause between you two to that effect. Generally speaking, compensation is for the professional's work, not for his employment spanning "n" pay periods. Having there been no employment/founders agreement of any type, he will be unable to prove that this was agreed any differently in your case. Furthermore, the CEO's threat to seek reimbursement of your earned compensation unless you submit to his "mutual" agreement not only amounts to extortion, but it also reflects his cluelessness about contract law. For instance, that contracts which are signed under hardship or duress are voidable. By contrast, submitting to his conditions will needlessly impose on you the burden of proving duress once you decide the situation is unsustainable. This is in addition to the legal weight with which your acceptance and subsequent conduct would support the CEO's allegation(s) that you two have "at all times" been in a cognizable contractual relation. Being realistic, it is highly doubtful that a startup which pays you weeks late is able --or even willing-- to spend money on a lawyer for nonsense like this. | There is certainly precedent. This list of the 10 biggest class action lawsuits in the world indicates that 8 of the 10 were by investors against their own company. In any event your analysis is flawed. The people who initiate the class action may (probably are) no longer be investors because they sold their shares and realised their losses. Further a legacy investor who didn't buy on the basis of the company's wrongdoing would not be entitled to damages. Finally, an investor who bought at say $100 on the basis of false information (like the cars were legal when the company knew they weren't) and now hold shares worth $40 will wait many years (if ever) to make good their losses: a lawsuit will be quicker and more certain. | Although crypto space may be little regulated, insurance is in most jurisdictions highly regulated. Any such arrangement would need to comply with current laws on insurance, until and unless modified laws to cover this sort of thing are passed, and then it would need to comply with those. Tax authorities generally allow one to declare "other business income" or "other investment income" without forming a legal entity. I cannot say how such income would be classified in any given jurisdiction. Whether the platform, or some legal entity associated with the platform, would need to be registered will depend on the current laws and regulations governing insurance, and on the way in which teh contracts are structured. A disclaimer cannot prevent one from being sued. The contracts would need to carefully and explicitly state who is liable for what. Programs cannot be held accountable for anything. Legal entities, including operators of programs, can be. If negligence in the creation or operation of a program causes a loss, the operator may well be liable. Programs cannot be sued for anything. Legal entities, including operators of programs, can be. It may well be essential to constitute the "platform" as a legal entity of some sort. Otherwise its operator will be liable for its actions. I cannot be sure. I once encountered a somewhat similar system in which insurance was provided by individuals exchanging contracts, so that in a sense each member insured all the others. There was a company that supervised and provided legal and administrative services to the group of individuals, and collected fees for this. That sounds a bit similar to the suggested platform, but I don't know exactly how that company was organized. The system was called "NJ CURE". I don't know if it is still in operation. | In all likelihood, the judge's order related to data collection and reselling is not legally enforceable. They weren't parties to the expungement action, so the judge doesn't have jurisdiction over them. And, the First Amendment protects the right to say truthful things pretty absolutely. Arguably, if the sites provided the information without making clear that it might not be current because records were expunged or corrected, there might be a claim for negligent misrepresentation, false light, or even defamation, but I seriously doubt that even those claims would hold up. The language in the order might cause sites to comply out of not legally justified concern, or just a desire to be accurate, even if it is not enforceable. So, it doesn't hurt to bring that information to the attention of such sites and ask them to take down the information. But, when push comes to shove, I very much doubt that you would prevail in court enforcing that order against them. Certainly, if you do nothing, they will do nothing, because they are not psychic and have no idea that the court order related to those records has been entered. Even a valid and enforceable order directed at a party over whom a court has jurisdiction is not effective until the person ordered to comply with it has notice of the order. And, there is no system that gives sites like that notice without you taking action to inform them of an order. | It's almost certainly violating the company's rules, and yes, you can get into trouble for that (in the sense of an internal disciplinary matter). Whether it's a criminal hacking will depend on a) what you did; b) where you are ... but I wouldn't rule that possibility out. | Police officers can lie to you He asked to search your car. He’s allowed to do this. You said no. You’re allowed to do this. He lied to you when he said he would get the K9 to search the car - this would not be legal. But he’s allowed to tell you lies. You made an admission of criminal activity. He now has probable cause to search. He legally searched, confirmed your admission and booked you. Seems legit to me. | Both of your question are creatures of contract. Their disclosures when you set up the account (or potentially amended disclosures or terms they've mailed to you subsequently) control both of these questions. They don't have to share the results of their internal investigation against you (they do have to give you proof that the deposit/transfer was fraudulent), but that does not give you access to their internal investigative process or its findings. They cannot shut down your account based on protected reasons (race, class, gender, religion, etc.), but the can certainly close an account pursuant to their operating procedures, their rules, terms and conditions or disclosures - all of which you agreed to (implicitly or explicitly) when opening the account. There is likely nothing you can do about either of these issues, unless the contract you formed with them by opening the account gives you that right, which would appear in their terms of service, disclosures, etc., and these almost always protect their right to do most anything when it comes to protecting the overall best interest of the corporate entity. |
Cheapest Way To Sue Over Breach of Loan Contract? 6 months ago, I loaned a business friend $15000 to be repaid as $18,000 in a week. I have a complete contract which also includes the following section regarding lawyer fees for defaulting “Borrower shall pay all costs incurred by Lender in collecting sums due under this Note after a default, including reasonable attorneys' fees. If Lender or Borrower sues to enforce this Note or obtain a declaration of its rights hereunder, the prevailing party in any such proceeding shall be entitled to recover its reasonable attorneys' fees and costs incurred in the proceeding (including those incurred in any bankruptcy proceeding or appeal) from the non-prevailing party.” The contract also states that the loan should incur the maximum amount of interest allowed. Additionally, myself and the borrower are located in different states. Is my best bet to get a lawyer and sue? If so, approximately how much should I expect it to cost? How would it work with the requirement for him to pay the legal fees? Do I have the option to take this up via civil complaints? Or is that only for people who are in the same state? Any advice is greatly appreciated. Thank you all in advance | Is my best bet to get a lawyer and sue? If so, approximately how much should I expect it to cost? How would it work with the requirement for him to pay the legal fees? You would ordinarily either hire a lawyer or bring suit yourself in a limited jurisdiction court (the kind that handles misdemeanor criminal offenses and smaller dollar amounts owed, the exact name of the court differs from state to state). You can always bring suit in the county where the debtor resides. If the loan was not for consumer purposes, you could sue in the place where the loan "was made" or in a forum provided by the loan documents (which does not appear to be present), that might be different from the place where the debtor resides. Usually, you would want to hire a lawyer with offices not too far from the place where you are bringing suit, as limited jurisdiction courts often require in person appearances. Normally, a lawyer would ask to be paid up front, with you posting a retainer equal to a significant share of the estimated legal fees, called a retainer against which the lawyer would bill until it was exhausted, and would normally bill on an hourly basis. Fees on the order of $1,500-$5,000 wouldn't be unusual. One factor that would increase the cost would be the fact that your loan is almost certainly at an illegally high rate of interest, and you and your lawyer would have to examine the relevant law to determine the effect of that on the enforceability of your loan, and the correct amount to claim. In some jurisdictions and circumstances, this might make your entitle loan or at least all interest on it and all fees incurred to collect the debt, uncollectible. In other jurisdictions it might just reduce the amount of interest you could recover. Without this complication, it might have been a matter you could handle on your own. With this complication, you really need a lawyer. You could probably not legitimately claim the full $18,000 plus attorney fees and costs. Some lawyers would take a case like this on a contingent fee basis with you only advancing court costs and out of pocket expenses like process serving charged, but they'd typically do so only if they were confident that they would prevail at trial and if they were also confident that the debtor had the ability to pay. On a one-off basis, a contingent fee percentage of 40%-50% would be more common in this situation that the "usual" one-third contingency rate. "Reasonable" legal fees would be added to the amount you are owed on the loan if the high rate of interest doesn't invalidate this provision. Amounts recovered for legal fees would be paid to you from which you could repay your lawyer whatever you owed your lawyer. In a contingent fee case, usually hourly based fees are awarded and included in the total amount recovered (once the debtor actually pays) and the lawyer would get a percentage of the total collected regardless of what the amount recovered is supposed to be for. Another option would be to sell your debt to a debt collection firm which would charge you a small sign up fee and then collect a percentage of the debt recovered. The usurious interest rate involved, however, might discourage them from accepting you as a customer or buying the debt. If the debtor is not collectible with a job and/or real estate with substantial equity, you probably won't be able to find someone to take the case on a contingent fee basis at all, and will probably have to pay an hourly rate. Do I have the option to take this up via civil complaints? Or is that only for people who are in the same state? It isn't clear what you mean in these questions. A lawsuit is commenced by filing a civil complaint, filed by you or your lawyer in a court, and this can be done even if you don't live in the same state as the debtor, although it may be necessary to file it in the state where the debtor lives. But, the government won't supply a lawyer to help you collect your debt in the way that it would appoint a prosecutor to bring criminal charges against someone who committed a crime in which you were a victim. | Because your legal fees and contract damages are not "in addition to" your risk; they are your risk. If you pay the retainer and lose, you don't lose anything more than the retainer and damages. If you pay the retainer and win, you don't win anything more than the retainer and damages. The only kind of argument I can see here is that you're incurring some kind of psychic cost by enduring the uncertainty surrounding the litigation, but I can't remember ever seeing a case -- in Florida or elsewhere -- in which the court recognized taking on risk as a compensable harm, especially in a contract case, where damages are much more limited than in other kinds of cases. Risk is just a necessary feature of an adversarial legal system. | If the landlord gave you a key, and you can not give it back to him he has every right to charge you for correcting the oversight. I put to you that if you can't provide it back to him, he can't be certain that it has not fallen into the wrong hands, and he would be prudent to change the lock - and indeed, he may not even have another copy of the key in which case he really does not have a lot of alternatives. If you look at the section on "Claims for Damages or Loss" pdf there is a section B - Damage which confirms that Loss includes less tangible impacts including "loss of a service or facility provided under the tenancy agreement" Section C of the same document goes on to assert that "The purpose of compensation is to put the person who suffered the damage or loss in the same position as if the damage or loss had not occurred". There is arguably a question of the amount of loss suffered, and they can't sting you for punitive damages, but they can charge you a reasonable amount to get a new key cut (or possibly to replace the lock) - but that was not your question, and would probably arise if the amount he charges was unreasonable in the circumstance. Depending on if he has already taken action - and if not, how much the bill would be - promptly remedying the breach by finding and returning the key or equivalent action might save you some money. | There is a reasonable chance that the amount that you are borrowing and paying interest on is through a third party, so the dealer can't just waive the interest for the period when they are fixing the car. Legal responses would include canceling the sale, and suing for damages. The problem with suing for damages is that this isn't costing you an extra $15/day (the loan gets paid off at a fixed time, regardless of how much you get to actually drive the car). It would be a considerable stretch to argue that you were deprived of a week's worth of enjoyment for the car because of the wrongful acts of the dealer, and should be compensated. Your attorney would be in a good position to tell you, based on the facts and Texas law, whether that approach would be futile. The legality of the situation primarily depends on what the contract says. It is likely that the contract has clauses that maximally disclaim responsibility to the maximum extent allowed by law. There will be some clause that says something about taking delivery of the car, so you can check whether they have breached the contract on that point: it is possible that there is some escape hatch like "as soon as possible, upon receipt of payment". It seems pretty clear that they concealed a material fact, in order to induce you to buy the car. For example, the manufacturer may have installed a defective veblitzer which had to be replaced, and a reasonable person would not buy a car with a defective veblitzer, thus the veblitzer is a material fact. Or: the veblitzer may have been damaged in a flood. The fact that the car is, by their representation, not safe to drive in its current state, the mind of fact that would push most people into the "no thanks" category. To pursue the fraud angle, you need to be more specific about the defective part in your complaint. The only way to force them to reveal the nature of the missing part is to sue them and compel disclosure of the relevant facts during discovery. Again, your attorney would deal with this. You should bear in mind that if the sale is simply cancelled, you may not be able to recover the loan application or processing fee, and the trade-in will no doubt have been sold, so you can't get the old car back. There are laws against deceptive trade practices which might be applicable, depending on whether they said anything deceptive in their disseminated advertising. Section 17.46 may be applicable, if they patched the car together temporarily with a counterfeit veblitzer. | 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. | Here is the Illinois Landlord and Tenant Act, and here are the Chicago Residential Landlords and Tenants ordinances. Neither set of law addresses application fees. So it would have to be covered in whatever agreement you have with the agent (assuming you paid the agent), or with the landlord (if you paid the landlord). Fees for a credit history check are generally not refundable since they are actual costs incurred by someone, no matter what the outcome is. Check the forms you signed, like this one, to see whether they explicitly say that the fee is not refundable. | Nope. Say I sue you successfully, and the court delivers a judgement that awards $1000 in damages. It is not the responsibility of the small claims court to ensure that the judgement is fulfilled. In fact, the debtor (person who lost) can outright refuse to pay the creditor (or the person who won). They are not in violation of any law at this point. However, the creditor can ask the court for options on enforcing their judgement, and these can include, but are not limited to: Garnishing wages Providing a court order Seizure of assets (through court sheriff, don't use this yourself or you end up getting into criminal matters) and others to enforce the judgement. The debtor isn't liable for refusing, unless when they are in violation of a court order. Violating a court order is a criminal matter, and the debtor could possibly be found guilty of contempt of court. Oh, and the case wouldn't move on to a higher court. Cases go to a higher court when an appeal is made, generally when there has been an error in enforcing the law. You also need to be provided leave to make an appeal. | 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. |
Why would a Leasing Agency, as Agent of the Landlords, form 4 shell corporations to be the Landlord — but with the same address? One of my children leases in Hong Kong. She quotes from her Tenancy Agreement The Landlords Name : Dekker Investment Limited Dillinger Investment Limited Easeluck Development Limited Jekyll Investment Limited Registered Office : 72-76/F, Two International Finance Centre, 8 Finance Street, Central, Hong Kong. [Emboldening mine.] Agent of the Landlords Name : Henderson Leasing Agency Limited Registered Office : 72-76/F, Two International Finance Centre, 8 Finance Street, Central, Hong Kong. A;; their addresses are the same. So Henderson isn't trying to hide that they share the same office as the "Landlords"! But this isn't simply a legal address for a registered agent! My child visited one of these Floors before, and personally knows some employees with Henderson. They confirm that Floors 72-76 house many employees and offices. When I Googled the 4 limited corporations, I found no websites or information for a functioning bona fide (Is this the correct term?) company. Thus I think these 4 landlords are merely Shell or Holding Corporations. Question 1. But why wouldn't Henderson Leasing Agency Limited simply double as the Landlords? Why would they set up separate corporations as the Landlords? Question 2. Why would Henderson need to set up 4 separate corporations Why not just 1? | Why do you think they have the same shareholders? There’s no reason to believe that they are related corporations just because they share an address. I am shareholder and director of 4 corporations. 3 have the same shareholders in the same proportion. The other has different shareholders. All of them have their registered office at my accountant’s premises. It’s a small suburban practice so there are probably only a few hundred companies at that address. A large city practice would have thousands or tens of thousands. The property management company probably provides the same service. | Companies have a registry of their shareholders. Anyone with at least one share registered in their name is a shareholder of record. However, the vast majority of people who consider themselves "shareholders" aren't actually registered owners of a stock. Instead, almost all public stock in the US is held "in street name." That means that the stock is formally held in the name of a brokerage. What an individual has is "beneficial ownership:" the brokerage passes dividends on to the beneficial owner, will vote how the beneficial owner tells it to vote, and requires agreement from the beneficial owner before it can sell the stock. To make stuff even more complicated, the broker itself generally holds the stock in street name. Almost all public stock in the US is really owned by the Depository Trust Corporation in the name of Cede and Company (a general partnership of a few DTC officers). The reason public stock is mostly held in street name is efficiency. Transferring the legal owner of a piece of stock is a nontrivial process; until recently, it involved physically shipping stock certificates to the new owner. Even now that stock ownership can typically be transferred electronically, it's much easier to tell Cede & Co. "the new beneficial owner is this person." Because beneficial ownership is just a contract, you can skip all the formalities of updating the company's official register of shareholders. | The usual default rule is that a purchaser is bound to honor a lease on the same terms as the previous owner, and that purchase agreements are subject to existing valid leases. However, the Ontario Residential Tenancies Act, 2006 (S.o. 2006, chapter 17) section 49 (2) says: If a landlord who is an owner as defined in clause (a) or (b) of the definition of “owner” in subsection 1 (1) of the Condominium Act, 1998 owns a unit, as defined in subsection 1 (1) of that Act, that is a rental unit and has entered into an agreement of purchase and sale of the unit, the landlord may, on behalf of the purchaser, give the tenant of the unit a notice terminating the tenancy, if the purchaser in good faith requires possession of the unit for the purpose of residential occupation by, (a) the purchaser; (b) the purchaser’s spouse; (c) a child or parent of the purchaser or the purchaser’s spouse; or (d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 49 (2). I take that to mean that IF the purchaser intends to reside in the unit (or have one of the people in (2)(a)-(d) reside there), then and only then, you can be given notice to leave. Acceding to par (3) of the same section the notice must be at least 60 days, and must be to the end of a rental period (probably a month), and that 60 days may not start until after the landlord has actually signed a sales agreement for the unit. And the landlord can only do this if the new owner has specifically indicated a requirement for possession of the unit as a residence, not to rent to someone else. You may want to seek out a tenants assistance organization, or possibly a lawyer, since it sounds as if the landlord is going beyond what the law permits. EDIT: As to showing the unit, section 26(3) of the same act provides that: Entry to show rental unit to prospective tenants (3) A landlord may enter the rental unit without written notice to show the unit to prospective tenants if, (a) the landlord and tenant have agreed that the tenancy will be terminated or one of them has given notice of termination to the other; (b) the landlord enters the unit between the hours of 8 a.m. and 8 p.m.; and (c) before entering, the landlord informs or makes a reasonable effort to inform the tenant of the intention to do so. 2006, c. 17, s. 26 (3). and section 27 (2) and 27 (3) further provide that: (2) A landlord or, with the written authorization of a landlord, a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, may enter a rental unit in accordance with written notice given to the tenant at least 24 hours before the time of entry to allow a potential purchaser to view the rental unit. 2006, c. 17, s. 27 (2). (3) The written notice under subsection (1) or (2) shall specify the reason for entry, the day of entry and a time of entry between the hours of 8 a.m. and 8 p.m. 2006, c. 17, s. 27 (3). So it seems that the landlord may show the unit to prospective purchasers during reasonable hours. However another provision says that the landlord may not interfere with your "quiet enjoyment" of the premises, so the frequency of showing probably must be reasonable. | You would report unpermitted lock replacement to the home owner. The building code regulates new construction and renovations, and is not a requirement of any and all residences. This seems to correspond to a "secondary suite", which is supposed to be registered with the city (if it is allowed in your city). Here is a link for Vancouver, for instance. Such suites are supposed to be registered and inspected, the inspection being carried out by Development, Building and Licencing: By-Law Compliance & Administration (a division of the city government). This article discusses some of the legal problems that can arise from an illegal secondary suite, however the penalties would land on the property owner, and he may not have approved of this subletting or the basement suite. A less-nuclear first step would therefore be reporting it to the property owner. | As written, your question seems to ask for legal advice in a specific case. That would be off-topic. If you are asking strictly as a hypothetical: In germany, there is supposed to be the Bestellerprinzip for services of a real state agent (whoever retains the agent pays the fees). This was clarified in the Gesetz zur Regelung der Wohnungsvermittlung as changed in 2015. Landlords and real estate agents are frequently trying to get around it, but getting the legal construction of the contracts wrong would mean a substantial fine. | In any legal dealing, there is always some risk. The signature constitutes definitive proof that you have a contract, but you still have a contract, because you have mutual acceptance. A far-fetched scenario is that the lessor could allege that they did not agree to the terms of he contract with you (perhaps claiming that you obtained a blank contract form from them and filled in details, but they didn't agree to those details). However, if they allow you to move in, that is sufficient constructive evidence of a contract, so they could not argue "We didn't agree to this". The main risk would be your lack of proof that they ever agreed to lease the place to you (no emails, no texts, no witnesses, no legally-recorded conversations). There may be specific state laws about providing a copy of the rental agreement, such as this California law, where they must provide a copy to the tenant within 15 days of execution by the tenant. This provides a collection of relevant state laws, though you may have to dig a bit because this is a hook into all of the laws about leases and not just about providing copies. | Can I just not renew their contract and go back to my place in 2 months or do I still need to give them 6 months' notice? Short answer: 6 months' notice Long answer: I'm assuming this is a fixed-term Assured Shorthold Tenancy. Unless a landlord is going down the Section 8 route where the tenant has broken the tenancy agreement, they will need to serve a "Section 21 Notice" under the Housing Act 1988 requesting the tenant to leave a property. The Act has been amended to extend this notice period to 6 months, and any fixed-term tenancy that ends during that period will roll over to a periodic tenancy until the end of the notice period. This is the relevant extract from the government's website: Section 21 notices requiring possession of a property under an assured shorthold tenancy Landlords can only use a Section 21 notice to ask their tenants to leave their property: If the notice expires at or after the end of the fixed term. During a tenancy with no fixed end date - known as a ‘periodic’ tenancy. From 29 August 2020, a Section 21 notice must give tenants at least 6 months’ notice of the fact that the landlord requires possession. This give some more detail about s.21 Notices. | What's the legality of this situation? It's unlawful and you should seek support for it. That document you linked to appears to have resources that could help you, such as support lines and counselling centres, etc. Am I being discriminated against by these landlords(companies)? I would say so. It sounds like you're being discriminated against on grounds of race and ethnic origin. It appears to violate the General Equal Treatment Act. However, I do want to stress that there may be completely reasonable factors as to why landlords are rejecting your appointment requests. For example, it would not be discriminatory to refuse housing on the basis that you don't have the appropriate income, or you have a poor credit rating, or you don't have any previous rental references. It can be very difficult to prove discrimination if any of the above factors apply, since the landlord could simply cite one of those reasons instead. |
Is it legal to hack a hacker back (in the US)? I was wondering if it's legal to do what most people call a "hack back." Suppose someone tricked you into downloading software onto your computer that was designed to steal your data, but it was advertised as an online security software. Then you found out. Would it be legal to shut down their servers, or maybe even delete all the data on them, to prevent yourself and other people from this attacker? Because I think of it sort of like self-defense: Someone tries to attack you, you can defend yourself (mostly). If a hacker attacks your computer, could you go and prevent them from doing so (by shutting down their servers)? I would think yes, but I don't have any idea of the law. I have taken a look at this post, and though it does clear a small bit up about this, it does not fully answer my question. | Generally, no. The Computer Fraud and Abuse Act (CFAA), which is the law that generally forbids breaking into or damaging computer systems, does not have any exceptions for "hacking back." Congress has considered amending the law on multiple occasions (in 2017 and 2019) to add limited exceptions for so-called "active cyber defense," but neither the 2017 version nor the 2019 version ever went anywhere. | I spent 26 years in Law Enforcement (two years in Fraud, Identity Theft, and Embezzlement) and here is the answer I would often give other people in this situation: By law, recipients are not required to do anything. It can be deleted without a second thought. There is no specific law requiring someone to report this as it doesn't rise to the level of a crime. Contacting the sender or intended recipient can be risky because the other person is unknown. Return addresses online may be masked by redirects or other traps. What is displayed may not be the full picture of the site where they want someone to go. Having information about someone, although private, is not a crime unless there is a specific intent to use that information for a crime: fraud, identity theft, theft, etc. Doctors, banks, and numerous other businesses have access to personal identifying information about people. Unless they were to use it illegally, just having the information is not a crime. Phishing attempts: As far as sending the information on to the intended recipient, that would be very noble; but there is no requirement to do so. This type of transaction is likened to having a stranger call looking for someone else. There are people around the world just hoping to get people to click on their site so they can download everything on the victim's computer. I once taught a class in Internet Safety to senior citizens. The message was simple: Don't put any information on-line that you wouldn't post on your front door. Advances on computer security have made it possible to securely handle more information but still be on-guard; Phishing still happens. Most reputable companies won't send you e-mails asking for personal information, passwords, or account numbers. Hackers, thieves, and criminals have access to personal information regularly. In today's society, it's just a part of life in a digital world. How does one protect themselves? Be diligent about all transactions. For instance: Check bank accounts, credit card purchases, and credit reports regularly. A TV show, Adam Ruins Everything - Adam Ruins Security, clearly outlines a lot of these facts. (Season 1, Episode 2 - First aired October 6, 2015) To recap: 1) Do nothing. 2) Stay vigilant. 3) Be wary. Common idiom - If it looks too good to be true, it probably is. | Using Tor is not illegal. Nor is hiding your IP address, which is - among other things - what Tor does. Going to .onion links is not illegal. What you find and interact with at those .onion sites may be illegal. See Law StackExchange Is it legal to host a directory of .onion urls? Running a Tor Relay is not illegal. That could change. Running an Exit Relay could expose your IP address as the Relay, so that could lead investigators of illegal activity to you. Read https://www.torproject.org/eff/tor-legal-faq.html.en As always, check your state laws http://statelaws.findlaw.com/criminal-laws/computer-crimes.html And do your own research with the links above and at https://en.wikipedia.org/wiki/Tor_(anonymity_network) and at https://www.torproject.org/ | 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. | 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. | First of all, the definition of hacking and cheating is murky: There is no such thing as a legal definition of cheating. But there is one for hacking. Hacking is usually defined in the law as unauthorized access to a computer or files, be it directly (then often coupled with some sort of trespass) or via the internet. Cheat codes generally allow modifying the game on the fly. Those were expected input that then resulted in widely unbalanced effects. For example, Age of Empires had E=mc2 trooper that could be sent via the normal text chat. That resulting unit was entirely expected bahavior and in no way unauthorized access to the computer. Related to them are console commands such as opening the developer menu and then typing TGM in any Bethesda game since Morrowind. These are likewise expected behavior and not unauthorized access. Because these two are generally already expected by the very design of the game, providing a manual on how to use these functions is nothing else but to provide a documentation of the software. Now, it gets more tricky with modifying the game with external means that are not provided by the publisher or maker of the game. For example, one might have agreed to not use external software to modify the game in the End User Licensing Agreement, and so far no court has ruled anywhere that a prohibition to modify the game or of the RAM would be an unconscionable clause and void. Few courts have tested these, but under the theory of tortious interference and with a proper EULA clause, cases like the Fortnight Lawsuit from 2017 (settled in 2021) have been brought. In that case, in a wave of trying to get a particular multiplayer cheat software go away, among others a minor was sued for violating the EULA and advertizing this software, which was claimed to violate copyright law. However, the case settled and was mostly hinging on DMCA issues. Conclusion It's murky, you need to hash out your business idea better. Also, you have really strong competition: sites like dlh.net have accrued literally millions of cheat codes over more than 3 decades. I even remember when DirtyLittleHelper was provided as software on a GameStar CD that then would update the database of cheats for games I never even heard of in the late 1990s and early 2000s - there were already hundreds of thousands of entries there then. | Illegal to write? No. Notwithstanding the First Amendment which would almost certainly make a law prohibiting it illegal, writing such things is an essential part of an IT security professional’s toolkit. You can’t protect against worms if you don’t know how they work. Illegal to distribute on an unauthorised computer? Absolutely. This would be a clear breach of the Computer Fraud and Abuse Act. | I think the officer is probably lying, not just mistaken, but they are not required to always be truthful. In addition to the law against possessing ID with intent to commit, or to aid or abet, any crime, it is also against the law to be knowingly in possession of a stolen credit card, or any other property. An example of a strict-liability possession crime, which the officer knows of, is that it is a crime to possess heroin, period. I am skeptical that the officer actually believes that there is a law making it a crime to be in possession of a credit card with permission, and suspect that he thinks it is stolen. |
Legal authotity for a Police Officer to force one out of a private vehicle Lets say you're sitting in a fast-food parking lot eating the food you just purchased from the establishment. Your windows are rolled up and the vehicle is turned off. A police officer pulls into the lot and stops behind your car and turns on his spot light to view the license plate and also block your view with the light. He exits the vehicle, walks up to your window and starts demanding ID. You show the ID without rolling down the window. He starts ordering you to exit the vehicle. He gives the reason of "someone called about suspicious vehicle" or says that you are a "suspicious person" but you are not doing anything illegal, you are positive he did not observe you drive the vehicle at any point, and you are eating food with packing, labeling and logo from the location you are parked at. Are you legally obligated to exit the vehicle upon request? If so, please state the law/statue that gives him standing. If not, please explain how a U.S. citizen needs to articulate this fact to let the officer know you are not exiting because you are not legally obligated. Here is a recent video showing a similar situation: https://www.youtube.com/watch?v=JYmpDa1MBdA | Police are authorized by statutes to carry out the functions of law enforcement. I.e., they are granted by law the authority to: Investigate alleged or apparent crimes Detain and arrest individuals when there exists "probable cause" to believe they have committed a crime. There are a plethora of details encompassed by these general descriptions. For related inquiries see also: How can you tell if you have to follow a police officer's instructions? search-and-seizure In the specific example you cite you are in a public place, albeit on private property. If the property owner asked the police to leave they would have to meet a higher statutory threshold to legally remain and pursue their investigation. In practice, however, they may do whatever they want. Publicized incidents suggest that the best chance you have of ensuring your rights are protected in a police confrontation are to: Have the incident recorded in audio and video in as detailed a fashion as possible, and seen by as many witnesses as possible. Avoid actions that could escalate the incident or serve as a pretext for escalation by the police. Try to get higher-ranking police on the scene. E.g., if you can safely access your phone you may want to both start video recording and call 911 to ask the dispatcher to send the officer's superior to the scene, while making it clear to the dispatcher that you intend to comply with all lawful requests but that you feel threatened or unsafe. | 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. | Different states vary on all of this stuff but many times the roadside breathalyzer is given to establish probable cause to arrest a driver. After that the driver is given another test on a computer-connected breath tester at the station (or wherever). It's these big testers that are usually used as the evidence and are the ones which are at the center of controversy in various states. As @Dale M stated, for roadside tests the officer can write the results in a notebook, some breathalyzers have printers, and other are connected to a computer. Whatever the case, there is usually a process that officers go through to ensure this stuff is accurate and complete. A lot of it is departmental policy and would only be revealed if challenged in court or perhaps via an open data request. But again, this record is to show probable cause for the arrest and the trip to the bigger badder test which is fully computerized and documented and witnessed. (In at least one state (NC) you have the right to have a witness present when you are tested.) EDIT: Oh, and if your plan is to challenge probable cause because the record-keeping on the roadside breathalyzer is mediocre, the cop can cite all sorts of other probable cause, like he saw you swerving, you were slurring your speech, he smelled alcohol, you failed the in-car test, and you failed the roadside walking, touching, dancing, singing test. | 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. | What do I do? Contact the police, and henceforth make sure that all your interactions with the business owner are in writing. That evidence will facilitate the police investigation in this fact-intensive matter. Can I actually be arrested? Yes, you are at risk of getting arrested regardless of whether you eventually prove the business owner is the one who broke the law. Hence the importance of contacting the police before it proceeds on the basis of his fraudulent accusations. The business owner has committed crimes including --but not limited to-- forgery, larceny, and attempted extortion (People v. Ramos, 34 Misc.3d 914, 920 (2012) and Matter of Spargo, 68 A.D.3d 1242 (2009) reflect that also the attempt of extortion leads to being charges and convicted, respectively). The timing of events could be indicative of the extent to which the business owner's criminal conduct was premeditated. For instance, it is unclear whose idea was keep the vehicle in his company's name notwithstanding that you had not acquired the company yet. If it was his idea, this will tend to weaken his denials of mens rea (given his subsequent course of action). Likewise, it is unclear what dissuaded you from purchasing the business. You need to assess whether he lured you in order to get your money for the car, and thereafter cause you to change your mind about the business. | You don't have to talk to the police. All taking a lawyer with you will do is have someone to remind you not to talk to the police, and short your bank account a couple hundred dollars. Tell the detective you're busy. The detective saying you "are not going to be arrested" means absolutely nothing. When they show up to talk to you, don't go to the door unless they have a warrant. | If they have no legal grounds then it would be trespass to chattels However, they do have legal grounds. Following the procedure laid out in the relevant Act makes the car refuse under the Act notwithstanding your opinion. Move it or lose it. Or seek an injunction preventing the council removing the vehicle- this will likely fail. | So for your first question, yelling "Stop Thief" loudly at the thief is perfectly legal (Like Yelling "Fire" in a crowded theater, it's legal if the theater is infact, on fire... the quote implied that it was a prankster who drew amusement from the reaction of the people who took him seriously). This may alert store employees, who have a specific kind of Citizens Arrest Power known as "Shopkeeper's Privilege" and is a reduced liability compared to Citizens Arrest. This is also pretty basic self defense agains people who are not engaged in any physical action against you but are starting to scare you. Suddenly shouting draws attention to you and discourages them from their behavior "I SAID DON'T TOUCH ME" being suddenly shouted in a Wal Mart is going to get notices from the immediate crowd drawn to you, and by poximate location, the person who is making you uneasy. For your second question, maybe, it depends... since the cop is clearly chasing the guy, you meet the qualification to use non-deadly force in stopping the criminal (i.e. you are witnessing a person committing a crime, in this case, resisting arrest or persuit) and it would certainly be reasonably non-deadly force if you were to trip, grab, or push the fleeing suspect. Citizens Arrest doesn't specify a minimum time to qualify, so if the officer is seconds behind, and you detain the criminal in this action until the gap is closed, it still counts. |
Is it legal to take something you didn't know was yours? John Doe saw James Smith's car sitting in James's driveway and decided to steal it. He walked up onto the driveway (trespassing) and broke into the car and stole it (theft). What John didn't know was that James had just died, and had willed all of his property to John. Therefore, John actually was walking in his own driveway (which is legal, of course) and broke into and "stole" his own car (also legal, albeit unusual). Did John commit a crime? He had intent and thought he had committed a criminal act (he thought he was trespassing and stealing), but the actions were actually legal. Does the criminal intent make them illegal? | Theft in Oregon (and elsewhere, substantially the same) is defined statutorily: A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person: (1) Takes, appropriates, obtains or withholds such property from an owner thereof... The car is James' property and it is not John's, even though James is dead. There is a legal process by which at some point in the future the car could become John's, but criminal acts are defined in terms of what is the case at the time of the act, not what might happen in the future. James' intent as expressed in the will notwithstanding, it is not guaranteed that John will become the car owner. So until John is actually the owner of the car, John is taking the property of another, and this is theft. | You did not commit any crime, but that does not mean you cannot be charged with a crime. Up to the point where you take the item back out of your pocket, a police officer would have probable cause to believe you were attempting to steal the merchandise, and probable cause is all he would need to charge you. At trial, the government would have the burden of proving that you intended to actually steal the item, but it can satisfy that burden merely by showing that your actions were consistent with such an intention. You would have the option of testifying that you planned to pay for the item. From there, it would be up to a jury to decide whether it believes you. If so, you should be acquitted. If not, you would likely be convicted, and your conviction would likely be affirmed on appeal. | I think this is a lot like this question Liability for poisoning food one expects to be stolen because you are causing harm to someone/something when they are using your things without permission. That question says that if you expect someone to do something with something that you have purposely made wrong then you are legally responsible for the effects. | The legal system is set up to alleviate the problem or conundrum of intimidation by perpetrators. In the US criminal system, the State is the plaintiff, not the individual. In the extant described situation, very likely all you would have to do is sign an affidavit that the recovered phone is your phone, and that it was removed from your possession by unknown means on or about a certain date. From your description given here you don't know if it was stolen...you appear to have perhaps dropped it or left it somewhere, and someone picked it up/found it. Clearly it didn't belong to them, but this is more like "recovered lost property" rather than "received stolen property." The craigslist poster might be entirely un-chargeable with a crime, though they might have to give up the phone to you. | 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. | Theft is universally a crime in virtually every jurisdiction. Insofar as a state has a criminal code and a functioning judiciary, theft will always be a crime. It is also a basic legal principle that theft is a tort as well (in other words, a civil wrong incurring damages to an individual that can be remedied in a court of law). A key part of the problem in failing to make theft a crime, is that in the absence of a substantive penalty in terms of a fine or imprisonment, theft becomes a low-risk, high-reward activity where the maximum penalty is simply the repayment of stolen goods (with relatively minimal loss). This fails to provide an effective deterrent to this socially frowned-upon activity, and rates of crime would skyrocket. It is appropriate, therefore, to make theft a crime (and all jurisdictions do so), as all pillars of criminal justice immediately apply. Edit: As @/JBentley correctly points out, penalties do in fact exist in civil law. That said, the power of incarceration, perhaps in this case the ultimate deterrent, is largely unavailable in civil cases. The ultimate point - that theft is rendered a more sound and legitimate enterprise based largely on gambling - remains the same. Additionally, not all individuals have the time or effort to file small claims and follow cases to the end. Making theft a tort-only offense would cause extraordinary difficulties in enforcement as many would consider the loss of perhaps a small article relatively insignificant compared to filing in small claims court. | 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. | Yes, it's illegal new-south-wales s118 of the Crimes Act says: Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to the accused’s own use, or for the accused’s own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal. QED |
If I called the police and told them I drove at 56 for a few seconds on a 55 mph road, what would happen? Suppose I call the police and confess that, while driving on a road with a 55 MPH speed limit, I drove at 56 for a few seconds. They did nothing to prompt it; I just randomly decided to do it (but I had indeed "sped," if this is even speeding) What would happen? | united-states They would laugh at you and possibly send out someone to make a mental health welfare check. | Police officers can lie to you He asked to search your car. He’s allowed to do this. You said no. You’re allowed to do this. He lied to you when he said he would get the K9 to search the car - this would not be legal. But he’s allowed to tell you lies. You made an admission of criminal activity. He now has probable cause to search. He legally searched, confirmed your admission and booked you. Seems legit to me. | The Kentucky restriction against "hit and run" is KRS 189.580, which says that The operator of any vehicle, whose vehicle…is involved in an accident …shall immediately stop and ascertain the extent of the injury or damage and render reasonable assistance Notice that the legal requirement is for the operator to do something: the law requires nothing of the vehicle itself. Supposing that you are correct that the vehicle was operated by someone who hit and ran, then if the police gain suspicions that such is the case, and if those suspicions are reasonable, then then could obtain a warrant to obtain evidence from the vehicle, which could be used against the operator. The fact that you (might) now own the vehicle would not transfer legal responsibility to you – responsibbility goes with the actor, not the instrument. | California Vehicle Code chapter 11, division 7, article 1, section 22350: No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property. Section 22358.5: It is the intent of the Legislature that physical conditions such as width, curvature, grade and surface conditions, or any other condition readily apparent to a driver, in the absence of other factors, would not require special downward speed zoning, as the basic rule of section 22350 is sufficient regulation as to such conditions. Without knowing exactly what questions the officer was asked, it's impossible to know why you were ticketed and why you were found guilty, but "reasonable or prudent" and "endangers the safety of [others]" covers a great deal of ground. | 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. | You are referring to Michigan State Police v. Sitz 496 U.S. 444 (1990). It does not require or suggest a requirement of advance publication of any details regarding the checkpoints. The dissent mentions that "a sobriety checkpoint is usually operated at night at an unannounced location. Surprise is crucial to its method." This point was not countered or even mentioned by the majority. In this case, a state committee had created guidelines setting forth procedures governing checkpoint operations, site selection, and publicity. The mentions this as a background fact, but does not rely on the existence of these guidelines as a requirement for the constitutionality of checkpoint stops. It does contrast checkpoints with "roving patrol stops". Quoting from Martinez-Fuerte 428 U. S. 543 (1976), the majority in Sitz said: "at traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion". There are state guidelines, some states have constitutions prohibiting sobriety checkpoints (lots of case law at the state level regarding this), and some state legislatures have made these illegal. In Sitz, the checkpoints were being operated subject to guidelines developed by the Sobriety Checkpoint Advisory Committee (of the State Department of Police). Federally, the NHTSA has guidelines on visibility and publicity towards the goal of effectiveness. | There are certain situations where the law may require you to provide some information -- particularly when you've been pulled over for a traffic violation -- but it is typically limited to basic identifying information. Beyond that, it is legally advantageous to refuse to answer questions. If you are doing so, though, you should explicitly invoke your Fifth Amendment right against self-incrimination, and your Sixth Amendment right to counsel. Invoking the Fifth prevents the police from using your refusal to answer as evidence, and invoking the Sixth requires the police to stop asking you questions. It may, however, be practically disadvantageous to refuse to answer questions, as there are cops who are just looking for a reason to act like a psychopath. | From Rule 170 of the Highway Code: watch out for pedestrians crossing a road into which you are turning. If they have started to cross they have priority, so give way If this was indeed the case, then it suggests that the OP had right of way, and the driver was at fault. In any case, the driver should have indicated before turning. |
License Plate Flipper I would like to install a license plate flipper so I can hide my license plate when I am on private property. I have no need and no intention of hiding my license plate when driving on public roads. How do I find out if they are legal to install? I don't drive out of state so I am really only interested in the legality of installing the device in my state (GA)? It is obviously illegal to flip the plate on a public road so answers stating this obvious fact are not helpful. | Washington state dedicated a section of their code to explicitly make this illegal (to install it, not just use it). RCW 46.37.685(1)(b) says It is unlawful for a person to have an installed license plate flipping device on a vehicle, use technology to flip a license plate on a vehicle, or use technology to change the appearance of a license plate on a vehicle. and it is illegal to sell them. Georgia does not seem to have a specific law on the topic, but the same effect holds under GA Code §40-2-41, which says: Unless otherwise permitted under this chapter, every vehicle required to be registered under this chapter, which is in use upon the highways, shall at all times display the license plate issued to the owner for such vehicle, and the plate shall be fastened to the rear of the vehicle in a position so as not to swing and shall be at all times plainly visible... It shall be the duty of the operator of any vehicle to keep the license plate legible at all times. No license plate shall be covered with any material unless the material is colorless and transparent. No apparatus that obstructs or hinders the clear display and legibility of a license plate shall be attached to the rear of any motor vehicle required to be registered in the state. We can start with the question of whether the vehicle must be registered: yes, it does. Then we can ask if "which is in use upon the highways" is true. This is not obvious, because that clause could be interpreted as meaning "which is at some time or other in use upon the highway", or else as "at those times when it is in use upon the highway". I strongly suspect that the courts would find in favor of the first interpretation, not the second, especially since the law also says that you must "keep the license plate legible at all times" (not "at all times when you are on the highway"). Finally, a plate flipper clearly "hinders the clear display and legibility of a license plate", and the law prohibits the attachment of such device, not just its use. So obscuring your license plate is just not legal. | Your VPN scenario is why you have to show the banner to everyone. If you somehow knew beyond any doubt that someone was not in the EU, then you would not have to show a banner, but because you can't verify that, you should always show the banner. Doing so also protects against accidentally violating a similar law in another country; the GDPR is the best-known privacy law, but it is far from the only one. It's good practice to ask for people's permission before collecting their information anyway. | Texas and California are actually what are called Presumed Speeding states, unlike most others which are Absolute Speeding states. (There is a little known third category called Basic, but this is uncommon). In a presumed speeding state, a speed-limit violation offers someone in your shoes far more flexibility in building your defense than the more common absolute state. In states that use this presumed system, such as California and Texas, it is not illegal to drive over the posted limit as long as you are driving safely and this can be established. For example, if you are driving 50 mph in a 40-mph zone, you are "presumed" to be speeding, yes. However, despite this prima facie evidence (meaning "on its face") of speed in excess of the posted limit, if you can show you were driving safely you may be able to mount a pretty decent defense. Just because you got a ticket is not prima facie evidence beyond a reasonable doubt that you were speeding. You are presumed innocent. If they prove you were speeding this is all they need to make their case, unless you rebut it. But there is a lot of room to rebut this presumption – and that is if they prove it. They must (as with all criminal cases) prove you did what you are accused of beyond a reasonable doubt – the highest standard of proof in the U.S. So, if everyone was going 80 MPH in a 70MPH zone, you would argue that the road was (I'm assuming) dry, unmarred, you were traveling in heavy enough traffic that to slow your speed to the posted limit would actually be less safe than traveling with the flow of traffic. You can talk about the state of your vehicle (repair, handling, etc.), how you stayed in one lane, and you can describe your skill at driving – especially if you have no other tickets and you have been driving for a long time. If you were weaving in and out of traffic, riding someone's bumper, if it was pouring rain, the road was bumpy or under construction, or if you admitted speeding (if you did this you can still rebut with a showing of safe driving, but ignore all info regarding challenging radar or other means of determining speed), or if any other evidence exists that the officer would testify to that shows you were not driving safely, this will not be successful. A successful example of a speeding defense in Texas: on a clear, dry morning with no other cars on a wide, straight road, a man is pulled over for being clocked going 50 mph in a 40 MPH zone. He had a perfect record and had been driving 22 years. He was driving a 2-year-old car. He convinced a judge that this was driving safely given those conditions and was acquitted. That's because facts presented were sufficient to "rebut the presumption" that by going over the posted limit he was driving at an unsafe speed. NOTE: Never bring up your driving record unless it is spotless. Unless you are a habitual offender it cannot be used against you or be brought into evidence at all, unless you open the door. You can also mount a defense based on the radar detection device, if one was used. You can seek records as to when the calibration fork was last checked, when the last time it was professionally calibrated (rather than self calibrated). You can ask, in a leading way (only if you know) how close the car behind and in front of you were (you don't want to be too close to the car in front of you, however if the cars were tightly grouped it is more likely the radar detector could have read another vehicle): e.g., "Isn't it true that the car behind me was only 1.5 car lengths behind me?" Only do this if you know, but if you can get the officer to admit that the car behind you was close, that can be used to rebut the radar detection and goes to the argument that driving slower would have been dangerous and you were driving safely with the flow of traffic. You should be prepared to put on an entire trial if you fight the ticket. In Texas, I believe speeding is considered a Class C criminal offense (rather than a civil offense as in most absolute states); hence, they have to build the prima facie case against you and prove it beyond reasonable doubt. If you can afford one, get a good traffic violation attorney. Always choose a jury in this type of case. Everyone speeds a little and you are far more likely to be acquitted by a jury than a judge. You should also ask to have the case assigned to the county seat; request this in writing ASAP. If you are trying the case, be prepared to go after the officer. Note any distinguishing marks on your car (if any), recall what you wore, what time of day, the lighting, all that. Even go back to the scene at the same day and time and take video showing the flow of traffic, (hopefully) the straightness of the road, etc. Cross-examine him on all facts with confidence and in a leading manner. Always ask for the calibration reports and you will get all evidence against you in discovery. This thing about 10mph being the minimum they can give a ticket for: ignore that, it's rubbish! It's meant to get you to admit to him that "you were only going 8 or 9 over." Also, that whole percentile argument is not relevant and will not work at all. You must show that you were driving safely given all the facts and circumstances to rebut the presumption that you were driving unsafely by speeding. It is worth fighting as you will also incur surcharges, increased insurance rates, and points on your license that are cumulative and stay for 3 years – a certain amount of which gets you suspended if you get (or have) more violations. | Was or is possession of screwdriver illegal in the UK? Yes, if the screwdriver's intended purpose is for a criminal act. There's not enough detail in the article, but the most likely scenarios are: Offensive Weapon, contrary to section 1 Prevention of Crime Act 1953: (1)Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence ... [...] (4)In this section “ public place ” includes any highway, or in Scotland any road within the meaning of the Roads (Scotland) Act 1984 and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise; and "offensive weapon” means 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 or by some other person. Going Equipped to steal, contrary to section 25 Theft Act 1968: (1)A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary or theft. (2)A person guilty of an offence under this section shall on conviction on indictment be liable to imprisonment for a term not exceeding three years. (3)Where a person is charged with an offence under this section, proof that he had with him any article made or adapted for use in committing a burglary or theft shall be evidence that he had it with him for such use. [...] (5)For purposes of this section an offence under section 12(1) of this Act of taking a conveyance shall be treated as theft. Possession with intent to destroy or damage property, contrary to section 3 Criminal Damage Act 1971: A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it— (a)to destroy or damage any property belonging to some other person; or (b)to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence. [with a maximum sentence of 10 years] NB in this jurisdiction, possession of a weapon for self-protection is not, except in some very narrow circumstances, a reasonable excuse to carrying one. | Knife laws in the United States are notoriously ambiguous, often vary at the municipality level, and enforcement can best be described as capricious. I can't put it better than this eye-opening answer I found on Quora: Don't ask anybody what the law is about knives. Not even the police. There's so much misinformation floating around out there. ... Check the law yourself. Not just state law, but local law for any county or city you stop in or pass through. I was tasked with writing a weapons policy for my security department, my former employer. I checked the Code of Maryland Regulations and found a mess. Knives are considered tools, not weapons, unless and until one uses or intends to use a knife as a weapon; knives are legal regardless of blade length; folding knives may be carried concealed, but fixed knives must be carried open; switchblades and balisongs are not OK, but no mention of gravity knives, locking mechanisms, or assisted-open mechanisms. I carried my S&W assisted-open knife everywhere, including into Baltimore City several times. Then Freddie Gray was arrested for carrying one and died in custody. A whole lot of people thought the arresting officer had made an unlawful arrest, based on the state law, including the Baltimore City prosecutor … until someone bothered to check the city law and found that assisted-open knives are illegal in Baltimore City. The arrest was a good one. And I left my knife in my car from then on whenever I went into that town. (I have on occasion asked police about knife laws. In every case the officer has declined to answer whether a particular knife or carry practice was legal.) | 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? | Your rights notwithstanding, the government has the power to do such things under appropriate circumstances. First, you would have to be in violation of some ordinance, for instance in Columbus OH you are a violator if the grass is over 12". This should generate a notice informing you what the issue is and giving a deadline for remedy. If you don't comply by the deadline, they are then empowered to send out guys with tools, and the city will bill you for the work. You could call them and ask what the deal is. They might say "We put the notice on your gate", or "we mailed it to you". From a legal POV, the onus is on them to be sure that you're notified. It would be a good idea to verify that this isn't a scam. [Addendum] Bryan TX kindly provides a video about code enforcement, and gives a link where you can go directly to the section of interest (starting 0:43). Your description of the situation is at variance with what they say is the law (12"; 7 day advance notice whereafter they will correct the violation. They also say no notice is required for second violation within a year; $100 administration fee added to costs; lien will be placed on property if unpaid). I assume that your back yard is publicly visible: they recognize that "when the area observed is plainly visible, from a vantage point where the Code Officer has the right to be there, there is no reasonable expectation of privacy". That could include visible from a neighbor's property if the inspector has permission from the neighbor to be there. Otherwise, there's a simmering 4th Amendment problem (assuming that they didn't get a search warrant). | 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). |
Does one have the power to order the police to provide them with a public defendant lawyer during a traffic stop, stop-and-frisk, or pretextual stop? When police stop and search a pedestrian, this is commonly known as a stop and frisk. When police stop an automobile, this is known as a traffic stop. If the police stop a motor vehicle on minor infringements in order to investigate other suspected criminal activity, this is known as a pretextual stop. Additional rules apply to stops that occur on a bus.[3] | No Besides this being clearly unworkable, the requirements for the state providing public defense attorneys include being in need (you will need to provide an affadavit or similar to the effect) and when the defendant is at risk of significant time of confinement. The 5 to 15 minutes of the traffic or Terry stop are not considered significant. Nor are the processing times of arresting you and taking you in. Trying to make the officer provide you with an attorney (or declaring you aren't doing anything without one) before complying with their orders may well result in your incarceration and subsequent assignment of a public defender. | "Police" that one would generally encounter in the US are local or state agencies, and the ordinary crimes you mentioned are matters of state law, so they would be reported to local or state police. (There are federal law enforcement agencies, but they only deal with specialized areas of federal law, and you wouldn't ordinarily encounter them in daily life.) On the other hand, immigration is a matter of federal law. The responsibilities of local or state police are governed by state law, and the federal government cannot compel state officers to enforce federal law. A specific state's law could potentially require state and local police to ask about people's immigration status and/or ask the federal government to check on the status of someone they suspect might be illegal. I believe a few red states have enacted, or are considering, such laws, though they usually deal with people stopped by police rather than people filing a report. Some of these laws have been challenged in court, and I am not sure which exact parts of which laws are still being implemented for each of those states. Most states do not have such laws. | Various cases heard by the US Supreme Court have established that an anonymous tip can indeed create reasonable grounds for probable cause, allowing the police to search and detain persons involved. For example, the case of Navarette v. California where a suspect was stopped on the highway after an anonymous tip was given to police - the court ruled that the tip established reasonable grounds for probable cause which allowed the persons to be stopped in the first place. The precedent set in that case would apply to the situation you are describing. | If you were moving "with the flow of traffic" but over the limit, you were still breaking the law, and the cop can choose which car or cars to stop on any basis or none (except ones forbidden, such as racial in the US). This is almost surely not a valid defense, not in any jurisdiction that I know of at least. If you can show that to slow to the speed limit would have actually been unsafe, you might have a defense, but that is going to be hard to get a court to accept. | The standard for stopping someone and requesting their ID under the limitations in the U.S. Constitution is "reasonable suspicion." For example, if the officer has a reasonable suspicion that you are taking pictures for the purpose of a secure location for purposes of espionage, or to case the location for a future crime, reasonable suspicion is probably present and you can probably legitimately be asked for you ID. A creative and intelligent officer can almost always conjure up some reasonable suspicion in the situation that you identify to question you and demand ID. For example, she could state that no one else has taken a picture of that location in weeks and that is is very unusual behavior, that your demeanor or the time of day you were present doesn't seem to be that of someone taking a picture for artistic or journalistic purposes, that you seemed nervous, that a previous criminal engaged in similar behavior before committing a crime fourteen years ago, that a confidential informant (e.g. a nosy neighbor) advised him that there was someone engaged in suspicious behavior at that location, that she read in a police anti-terrorism bulletin that terrorist favor that model of camera, etc. The nature of the suspicion doesn't have to be shared with you until you challenge it in court. A dumb cop won't come up with any colorable reason, demands ID for a stated reason ("before you have to do whatever I say") that is inaccurate, admits he has no reason to stop you in a conversation captured by a body camera, and doesn't come up with pretext after the fact before going to the court. In that case, the stop is a de minimis violation of your civil rights justifying a nominal damages award of $1 to you and your attorneys' fees and costs and maybe a consent decree ordering the agency not to do that in the future. | Police may not arrest you without probable cause, and the existence of probable cause is evaluated “at the moment of the arrest.” Beck v. State of Ohio, 379 U.S. 89, 96 (1964). Therefore, police may not “look for after-the-fact justifications for [seizures] that would otherwise be impermissible.” United States v. Hughes, 606 F.3d 311, 316 (6th Cir. 2010). In Beck, for instance, the defendant was arrested because he had a prior record of illegal gambling and because an officer had heard "reports" about him doing something that was never specified. When the officer saw the defendant driving, he stopped him and searched his car, but found nothing. He arrested him anyway, and when they got to the jail, they found betting slips in his pocket. He was convicted under the local gambling ordinance based on that evidence, but the Supreme Court reversed the conviction: The constitutional validity of the search in this case, then, must depend upon the constitutional validity of the petitioner's arrest. Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. However, if they want to arrest you for Crime A but only have probable cause to arrest you for Crime B, they may arrest you on that offense, and doing so may quite easily give them the time or access they need to gather additional evidence on Crime A. This is why so many large drug busts start as turn-signal violations. | What law in the U.S. governs when you need to pull over for a traffic stop? Specifically, Massachusetts? Refusal to submit to a police officer, Mass. Gen. Laws Ann. ch. 90, § 25 (2016) governs. The relevant part reads: Any person who, while operating or in charge of a motor vehicle . . . who shall refuse or neglect to stop when signalled to stop by any police officer who is in uniform or who displays his badge conspicuously on the outside of his outer coat or garment . . . shall be punished by a fine of one hundred dollars. What about a police standing on the side of the road, waving you over? (perhaps at a speed trap) If the police officer is on a uniform and displays his badge, probably. What about a police just standing on the side of the road, looking at you? Assuming the police officer doesn't "signal" you to stop, you would be okay under this statute. Whether he is legally justified in asking you to stop is a separate issue outside the scope of you question. Bottom Line: Someone who doesn't want to run afoul of this law should stop whenever they think a police officer is pulling them over. | 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. |
Practically, what prevents judges from ignoring precedent? This question/answer suggests that the United States' adherence to the common law system is traditional and not mandated by the constitution or federal statute. This makes me wonder what exactly keeps common law alive. I imagine many judges follow precedent because they have a personal respect for tradition or the merits of the common law system. But I also imagine many judges would want to ignore precedent to enact their own opinions. So what prevents such judges from doing so? Are there local or state laws that require them to follow precedent? Can ignoring precedent get them fired? Or do they just fear backlash from the public or their peers if they break tradition? Or is the premise of my question flawed and judges break precedent all the time? | Decisions that break with precedent do happen with some regularity, but far "from all the time" in the US. When they do happen, they are generally only at the top level of a state or federal court system, that is a State supreme Court (or equivalent, some states use a different term) or the US Supreme Court. There are several factors which discourage judges from simply ignoring precedent. First of all, all the training a lawyer receives teaches him or her to respect precedent, and to find rules by examining past cases. precedent is literally the stuff with which a lawyer works, rather more than the wording of statutes (although those are also important). Secondly, as a lawyer works as a litigator, judges will usually ground their decisions on precedents, particularly in appellate cases, explaining their decisions largely in terms of how they conform to or extend precedents. Thirdly, if a lower court judge fails to follow precedent, that judge will often be criticized by an appellate judge or justice, often in the course of an opinion overturning the lower-court judge's ruling. This does not feel pleasant to such a judge. Fourthly, decision that fail to follow precedent are often (although not always) criticized by legal scholars, particularly in law review articles and treatises. Fifthly, lower-court judges who often fail to follow precedents, are less likely to be recommended by senior judges for promotion to appellate positions. However, the actual appointments are controlled by politicians (in most cases) not other judges, so this factor may not be as strong it it would first seem. Only once a judge gets to the level of the Supreme Court of a state, or the Federal Supreme Court, is that judge (now a Justice) expected to alter precedents as needed, and most justices have said that they make such changes only reluctantly. I am not aware of any US state or federal statute or regulation that specifically;y requires judges to follow precedent. The most common way to alter precedent is not to overrule or ignore it, but to distinguish a prior case. This happens when a judge says something like: In the previous case of A v B when had situation X which lead to outcome Q. But in this current case we have the very different situation X1. In the case of X1, the outcome should be S instead of Q. If the new case becomes persuasive the old case A v B may apply to only one specific set of facts that almost never comes up, and the new rule apply to almost all other possible situations. The old case may cease to be cited or applied without ever being formally overruled. And, of course, where the rule is statutory, it may be changed if the legislature alters the law. If the rule is constitutional, it may be changed by a constitutional amendment. For example the 1830s case Barron v Baltimore held that the US bill of rights did not apply to the states, only to the Federal Government. But after the 1868 14th amendment, courts started to incorporate much of the bill of rights into the Due process clause of the 14th, and apply it against the states. This took place gradually, mostly during the period starting with 1898, up until about 1970, but with some incorporation coming as late as 2010 (Heller) | It is binding precedent for lower federal courts in the Ninth Circuit. They are required to follow it. It is persuasive precedent for the other circuits and for state courts. They may be persuaded by the reasoning and will consider the fact that the Ninth Circuit held as it did to be one factor in their decision-making, but they can make a different decision if they want to. Some courts are also more persuasive than others, although this is usually not explicitly acknowledged in written opinions. For example, state courts in the Ninth Circuit are likely to give more weight to a Ninth Circuit opinion than they are to give weight to a decision from another circuit. Cases from the Second Circuit are more likely to be persuasive than cases from other circuits, because of its reputation. Cases from the Southern District of New York are more likely to be persuasive than cases from most other non-local District Courts. There is also a personal reputation function that comes into play when looking at persuasive decisions. Some judges have a better reputation or a better reputation with a particular other judge, and their decisions may be considered more carefully. This is not explicit, but it means a good lawyer will mention the judge's name when a case in support of his position was decided by a well-regarded judge. Finally, the Ninth Circuit's holding would be persuasive precedent for the Supreme Court. You could write law review articles about this, but to dip one toe in: they may be persuaded by the reasoning and it matters to their function of providing unifying law, so especially during the process of applying for a writ of certiorari, they will care what different circuits have held on an issue and which circuits are going which way. But they are not bound by the circuit courts, and will overturn all of the circuits if they think that's the right decision. They did that a while ago with a statute about what it meant to use a firearm while committing a crime, for example. | Finding Certainty There is only one way for certain: Do the supposedly unlawful thing Get sued (civil) or prosecuted (criminal) Go to court - if you win it wan't illegal If you lose, appeal to the next appellate court in the chain In one of those courts refuses to hear your appeal - it was illegal Repeat as necessary until you reach the Supreme Court - if you win it wan't illegal If you lose or the Supreme Court refuses to hear your appeal - it was illegal. Of course, this whole cycle will take a few years and quite a lot of money. Not certain but persuasive Consult a lawyer: their area of expertise is knowing what the law is and how it will likely apply to your circumstances. Of course, they can be wrong about this because - see above. Why is this so hard? Common law jurisdictions, of which Florida is an example, do not have a "Code of Laws" where you can look things up and see if they are legal or illegal. The Common Law in Florida is partially enacted law (by the US, Florida, County, City and finally your housing corporation) and partially unenacted law (decisions made by courts about both the enacted and unenacted law). In fact, enacted law is usually quite ambiguous until it has a body of unenacted (or case) law that surrounds it and provides guidance on how the courts will interpret it. Part of a lawyers skill is knowing (within their area of expertise) what the relevant case and statute law is with respect to the specific facts of the case, or knowing how to research them. Publish and be damned! You can always take the Duke of Wellingtons approach. In common law jurisdictions, everything is legal unless there is a law (enacted or unenacted) that makes it otherwise. If you do not believe that the action you wish to take is illegal then advise the other party that you will give them 24 hours to come back with a court injunction to prohibit it, otherwise you will proceed. You can't call a bluff harder than this! | Courts have inherent jurisdiction to reconsider/recall their own decisions. This rarely happens (especially if the decision has already been "sealed" i.e. issued in writing) but still possible. The principle of finality only applies to parties asking courts to reconsider; it does not constrain courts themselves. So, in this example, "the judge agrees to vacate them" but that decision hasn't been sealed yet. The judge can easily just change their mind (although, again, it rarely happens). No double jeopardy applies because it is still the same trial. | While the answer by Jen does a good job explaining why some possible alternative structures for US courts of appeal (circuit courts) would be unworkable, the real reason why we have such courts is their historical origin. In the United states, Justices of the Supreme Court regularly traveled through the country. They would stop at particular locations, and hold court together with the local judge of a district court as a two-judge court. Appeals from district court decisions were heard. Some were passed along to the full Supreme Court, particularly ones in which the Justice did not agree with the judge. Each Justice had a route, or "circuit" which that Justice covered once or twice a year on horseback (or by carriage) spending half or more of his time "riding circuit". The process was quite onerous, and was by far the larger part of the work of a Justice. It allowed decisions to be reviewed by a Supreme Court member at places physically closer to the original trials, and served as a filter on cases to be decided by the full court. This practice was derived from the older English practice of having Justices in Iter (later known as circuit judges) who traveled through the country, judging cases that had been held awaiting their arrival. (The word "Iter" is related to "Itinerary", the list of places one is scheduled to visit.) The Marshall Court and Cultural Change, 1815-1835 by G. Edward White (ISBN 978-0195070590) includes a detailed description of the process of circuit riding during the period of 1815-1835, and the way in which proceeding in the circuit courts influenced constitutional jurisprudence and how cases came to the Supreme Court. I recommend this extensive book for better understanding of the origins of many features of the US Judicial system. Some years after the US Civil war the Circuit Courts officially became the Courts of Appeals and Supreme Court justices stopped "riding circuit", but the geographical divisions continued to be called "circuits", and each circuit is still supervised by a single Justice, who rules on "emergency" applications, often for stays of judgement, or for injunctions. The division of the US court system into circuits thus is due as much to historical inertia as to careful design, although an alternate design that was an improvement would not be easy to create. | These situations do come up (and incidentally, this is nothing new, it has been a difficult and recurring legal issue since at least the 18th century), and they really suck to be in, and often there aren't easy answers. There are a lot of legal doctrines out there that are designed to avoid a hard clash of conflicting court orders and to prevent someone from suffering contempt of court sanctions when they are in this bind. Generally, litigants caught in this bind look for these outs. For example, when particular property or records are at issue, often the person in question will "interplead" the property placing it in the jurisdiction of a court to resolve and out of their hands. There is a doctrine called in custodia legis which provides that once something is in the custody of a court that another court may not exercise jurisdiction over it. The entire sub-field of civil procedure pertaining to jurisdiction and venue is designed to avoid these conflicts. U.S. law has a whole sub-field a statutes and legal doctrines like the Rooker-Feldman doctrine designed to prevent these conflicts from coming up when they arise between federal and state courts. One of the most important legal doctrines is that a person cannot be punished for contempt of court for failing to do something that the person being held in contempt of court does not have the ability to do. One argument, which doesn't always work, is that once you are subject to a legally binding court order that has been served upon you that you may not legally defy that court order in order to follow the order of a court which cannot override the decisions of the court issuing the first order. Usually, contempt citations are directed at individual employees or agents rather than at entities. For example, in a dispute over Indian Trust Funds against the United States government, contempt citations were brought against the Secretary of Interior personally and could have sent that individual to jail for not complying. One way the an individual can get out of the order relating to an employment or professional duty is to resign from office and thus deprive oneself of the ability to perform the order. But, the short answer is that there is no one simple legal rule for resolving these situations, and the litigants stuck in these situations look for every available legal argument to resolve it until it is resolved. | Judges do not decide, jurors do (however, if a judge is the fact-finder, then the judge makes such a determination). The main input that the decision-maker gets is a jury instruction. In order to unify "reasonable doubt", "reasonable price", "reasonable delay" and so on, appeal is often made a mythical being, "the reasonable man", so reasonable force would be the degree of force the reasonable man would use in a given situation. I will draw from California criminal instructions ('cuz I have them) but similar instructions can be found across jurisdictions. For example, one instructions says "A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes". Or from a negligence instruction "A reasonable person would have known that acting in that way would create such a risk". More detailed appeal to The Reasonable Person is found in the justified homicide instruction: Defendant’s belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the [attempted] killing was not justified. When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. The defendant’s belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. There is no explanation of what it means to be "a reasonable person". Since nobody believes that they themselves are unreasonable, a simple and also wrong way of judging the matter is to subjectively judge whether you yourself would do the same thing, if you were in that situation. Very often, instructions do not even bother to say what "reasonable" means, so (re interpreting expert testimony) "You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence"; (re corpus delicti) "That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed"; "Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty", "when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable" The closest the law has come to articulating an objective characterization of "reasonableness" is in "reasonable doubt" instructions. One characterization is in People v. Feldman, 71 N.E. 2d 433. It is not a doubt based upon sympathy or a whim or prejudice or bias or a caprice, or a sentimentality, or upon a reluctance of a weak-kneed, timid, jellyfish of a juror who is seeking to avoid the performance of a disagreeable duty, namely, to convict another human being of the commission of a serious crime A somewhat improved characterization is the Calcrim instruction Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt There is room for improvement, but it points in the right direction. On rare occasions, a law is written that actually includes a definition. The Gas Price Spike Act HR 3784 said The term ‘reasonable profit’ means the amount determined by the Reasonable Profits Board to be a reasonable profit on the sale. It is then up to the board to subjectively determine what that profit is. (BTW this did not become law). [Addendum] It's actually very difficult to determine what reasoning judges use in those cases where they are the determiners of fact. They will likely call on their knowledge of law, asking "are these circumstances sufficiently like past circumstance A where the defendant was convicted, or more like B where the defendant was acquitted". | The most innocent of your scenarios is "against the rules", so less innocent acts fair worse. The idea behind researching legal theory and precedent (presumably not presidents) is that surely it is good for a juror to know what the law is. But that thinking is wrong. The judge will instruct you as to what the law is, and will also instruct you that "the law" is limited to what he says it is. I will draw on the instructions for an antitrust case, Best Buy v. Toshiba, HannStar. The core instruction is: It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. The preliminary instructions (the pattern instructions for California civil trials) say the same basic thing: At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law. The judge instructs the jury that: When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. Your research might find alternative statements of the law out there, which seem entirely plausible. That doesn't matter: you have to set aside whatever ideas (about the law) that you've gotten from anybody besides the judge. In fact, if the judge makes a (serious) mistake and rules against a party in a manner that is contrary to established law, and you know this (it doesn't matter how), you are supposed to apply the law (including rulings during trial as to admissibility) as given to you by the judge. As for a case of a juror knowing that the judge was mistaken (specifically, knowing based on his pre-existing knowledge of statutes and case law – not based on forbidden research during a trial), we can get the "should" from the absolute instruction to follow the judges instructions. Additionally, if you read transcripts of voir dire (not a trivial task), you can observe judges probing attorneys who happen to be in the prospective pool, asking questions to determine whether that person can just do as they are told. But it would be difficult to establish a "hard rule". There never will be an instruction that says "You must follow my orders even if you know for a fact that my orders are wrong" – jury instructions never admit the possibility of judicial error. |
Am I free to use any publicly available data for visualization purposes? According to this page: Data itself is not copyrightable. For instance, demographic counts, weather measurements, phone numbers, chemical structures, currency values, facts about individuals and events, and similar types of factual information may be used without permission. From this, it seems like any type of publicly available data can be used to create visualizations, even without asking for permission. Is that true? | You are correct that facts in general are not protected by copyright, and most raw data are facts. However, a collection of data may be protected by copyright as to its selection and organization. A use which copies such selection might possibly be copyright infringement. If data constitutes a trade secret it may be protected as such, and "improper" access might be unlawful. This would not apply to publicly available data or collections of data. If, to access a data set, one must sign or agree to a contract, that contract may limit the use of such data. Again, this would not apply to most publicly available data. | Basically, you cannot do it. You are required to include the MIT license in any derivative work. However, that holds only for the parts that you import from this other project. You can identify which parts of the final product are copied from the MIT-licensed program (and indicate "these parts are subject to the following MIT license"), and then you can do whatever you want with the remainder that you wrote. The downside of not licensing your material is that nobody can use it. To use it, people would need permission, which is what a license is. If you don't license it, you don't give permission, so people can't use it. You presumably want to subject your own contribution to different licensing conditions, so then you would state those conditions and clearly indicate what parts of the code you wrote. | THE FOLLOWING OPINION IS NOT LEGAL ADVICE Based on your screenshot and description, I don't see anything infringing. If the data you are using is from your own sources, and what you show is not a scan or photo of their guide, and your layout is thus unique in specifics (not a direct copy), it wouldn't be an "infringement" as far as copyright law is concerned. Things you cannot copyright: A font (except as a computer font file but not as used in a document). A concept (a main issue here). A idea for a "way" or "order" to display data. Mere data or facts can not be copyrighted nor can ideas. Anything sourced from the US government (trail data, topos, etc.) Something not in printed, physical, or recorded form. That is, the copyright only extends to those things as they are realized in print, or as a recording for audio or video, or a physical statute, etc. A live performance is not copyrightable for instance, nor are ideas. The Law: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. For instance, an icon of a TENT is the common form (like a font) of indicating a camp ground. They may be able to copyright the specific instance of their tent icon, but they cannot prevent you from using some other triangle to represent a tent for a campground. And in facts yours is completely different. Displaying data a particular "way" like 1e for 1 mile east is not copyrightable when it is common for the type of guide. It's just data. CONCEPTS AND DATA ARE NOT COPYRIGHTABLE, only the ACTUAL specific page or work in total as rendered. More below, but your page seems totally different. OTHER FORMS OF IP PROTECTION Now, just because some intellectual property can't be protected by copyright, does not mean it is a free-for-all. For instance, a "way" of doing something can be PATENTED (process patent). And "ornamental design" can be given a design patent. A logo or brand name can be given a trademark. Here's an interesting court ruling on the subject of data display. Basically it can't be an abstraction/concept. It has to be in a definable, physical, novel form. NOTE: it has been possible to copyright a "look and feel" but that applies to software, not static printed media. And the courts have been reversing on that a lot as time goes on. BUT WAIT...THERE'S MORE So, I am going to GUESS that you are talking about AT Guide by David Miller? It's pretty rich of him to claim copyright over the "manner of the display of data" when APPARENTLY he is using concepts of data display as described by EDWARD TUFT So, LOL. Is this the guide they claim you are "copying"?? THESE AREN'T THE ICONS YOU'RE LOOKING FOR Okay, so let's go one by one and their claims against you: 1. The way of representing distances between shelters "The Way" of presenting something is not copyrightable, only an expressive or final form. Some forms of "organization or selection" that may make a work in total copyrightable, but not on their own in isolation. 2. The sideways orientation of the elevation profile Presenting some elements "sideways" is not copyrightable (WTF LOL OMG RUS) the same as number 1. Turning an element sideways does not, on it's own, rise to the level of "creative or non-obvious." 3. The icons Your icons are completely different. If you copied and used his ACTUAL icons, you might have had some issue, but your icons are not even remotely the same. Using icons to indicate services or features is COMMON. Not copyrightable. http://www.dmlp.org/legal-guide/works-not-covered-copyright In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents. (However, copyright protection may be available, if the artwork of the symbol or design contains sufficient creativity.) 4. The convention of representing direction/distance for waypoints. Again, "The Way" of doing something is not copyrightable, nor is data or facts. 1.1E or 2.3NW are common are they not? I've seen similar treatments elsewhere. It's "obvious and not novel." FINAL FORM, EXPRESSIVE FORM is copyrightable NOT FORMATTING CONCEPTS. Basically, he is saying something along the lines of "I'm formatting paragraphs with a double space, so you can't." The "actual" icon drawings he used are copyrightable. Your icons are clearly different. I assume your mountain-top profile line is taken from some publicly available survey source? So long as you never used a scan of the actual line he uses (and even then?), because he cannot copyright the mountain top profiles themselves! DOES HE EVEN HAVE A VALID COPYRIGHT? For that question, I'd say yes with limitations. His work is a compilation of data. Data can not be copyrighted, but the unique arrangement can in context of the work in total. These three conditions must ALL be present (from http://www.rbs2.com/ccompile.pdf): The collection and assembly of pre-existing material, facts, or data. The selection, coordination, or arrangement of those materials The creation, by virtue of the particular selection, coordination, or arrangement of an original work of authorship. So It seem to be that his guide meets these, but his copyright is for his work in total. You are NOT using his data. You are using your OWN data. Based on my reading of Key vs Chinatown Today you are not even close to infringing. You are doing your OWN selection, and your OWN arrangement. It does not matter that you may be using some similar typographic or charting conventions. Those cannot be copyrighted. You are doing your own thing, and "similarity is not infringement." SEARCH AND YOU WILL FIND On the subject of the copyright, here's the copyright on AT guide: https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=A.T.+Guide&Search_Code=TALL&PID=FgMjtJ244OxoFULrVoob_CEI8bc_M&SEQ=20190506230418&CNT=25&HIST=1 If the link doesn't work due to expiration or a cookie, it should look like this: It's a matter of using the USPTO search engine "its way" — it's not Google and requires specific search strings. Looks like the assignee or owner is https://antigravitygear.com ? Did THEY contact you or David Miller? Or did they claim to be an attorney? I'd love to see the email. Attorneys don't email dunning letters, by the way (though they may if it was a DMCA takedown request I suppose, but I still doubt it.) If it was an attorney it would be via US mail on attorney letterhead. To the best of my knowledge, you can't file proof of service on an email, it has to be USPS or trackable. This means the guy that made the other PDF is annoyed or whatever. If he claimed to be an attorney, that's VERY illegal if he's not. And one final note: Just being non-profit does not absolve you of copyright infringement. But as I said, I see no infringement here. The other answer that asserted these are covered under "works of art" is not withstanding. There is nothing "expressive" about Miller's guide. Also that other answer cited a source for AUSTRALIAN law, not US. Mere typographic elements do not rise to "an expressive work of art". A mountain profile that is nothing but a illustrative line based on data also does not. | 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. | Yes. The introduction to the license says "You may adapt — ... build upon the material for any purpose, even commercially". (My emphasis). Note that there is an attribution requirement so you need to find a way to attribute each image to its individual author. For the fine details, you certainly need to read the actual license (rather than the introduction) and you probably need to consult your own, paid-for, IP lawyer - but if you are just scoping the project out at the moment, you should be fine. For contrast, here is a Creative Commons licence that does prohibit commercial use. | If I make a working prototype and upload it on youtube will it prevent others from getting a patent on the idea? Generally yes. If the core information is accessible to the public, it becomes "prior art" and cannot be patented anymore by someone else. That includes you. Depending on local legislation, you have a small time window to apply for a patent (after disclosure) but if you don't, it's public domain and everybody is free to use it. If it's mainly code, you may be able to upload to Github and attach a license to it but that offers only limited protection. Globally? That depends on local legislation which there are too many of, to answer this here. | Let's say I wanted to generate a report on the trends in outcomes of civil cases. Is there anywhere I could download any kind of data related to it? The parties involved, maybe information about the size of compensation, result of the case etc. The raw data is a matter of public record, but it isn't available in a downloadable format. You have to go court by court, or case by case, look at the public records, code and classify it, and then analyze the data yourself. Some summaries are available in annual reports of the federal court system and of many state court systems, but this typically looks at total dockets, and dockets by type of cases, but rarely looks at outcomes. The most detailed outcomes you are likely to get from these sources are number of cases terminated in a year (often by geographic subcategory), number of jury or bench trials with some division by type of case, number of defendants adjudicated, and number of dismissals prior to trial. The U.S. Sentencing Commission does more analysis of outcomes from detailed case data. Many professors writing articles for academic journals do it the hard way, and there are some collaborations of professors and research institutes that collect large, detailed (although not complete) databases, for example, limited to federal courts (where it is easy to get data on individual cases in PACER) or to, for example, 75 most populous counties with cooperative custodians of records. But, often you need to be an accredited member of the collaboration working on that to get access to the raw data. One commercial source is a firm called the Jury Verdict Reporter that regularly publishes detailed data on as many jury verdicts as it can, but this is quite an expensive resource to use. | Yes, such a site can be created without infringing copyright Facts about the game are facts.They are not protected by copyright. Criticism of, and comment about the game, is an activity protected by the US First Amendment. Making such comments is very likely to be fair use under US copyright law. In general the author of a work, such as a book or a game, or the maker of a product, has no right to grant or withhold permission to discuss or comment on the work. This is true not only under US law, but also in the law of most countries (perhaps of all countries). The name of the game might well be protected as a trademark. But that does not allow the trademark owner to prevent discussion of the game, clearly identified by the name of of the game. As long as nothing is being sold or rented, or advertised for sale or rental under that name, and there is no attempt to claim that the site is sponsored or approved by the trademark owner, and there is no likelihood of confusion, there is no trademark infringement. This is true under US law, and under the trademark laws of most other countries. A wiki is a specific technology. It can be used for community discussion, or for a company's internal documentation, or for any of many other purposes. Wikipedia has popularized this technology. Not all community discussion sites are wikis, however, nor are all wikis for community discussion. Just as not all novels are books printed on paper, and not all books are novels. In any case, setting up a wiki about a topic such as a game, a movie, or a novel does not require permission from the owner or creator of the game or of any trademarks associated with the game or work. The same would be true for a discussion forum about such a game or work that is not a wiki. If a wiki uses excessive quotes from game dialog, or uses the game's logo without permission, or reproduces other game assets, such as character art, maps, and the like without permission, that might be copyright infringement. |
Federal Reserve - can its charter expire? If so, when? Reading through the history of US central banks, the First Bank of America's charter expired after 20 years, then the Second Bank of America's charter also expired in 1836. The Federal Reserve Act then set up the system of central bank branches we have today after roughly 70 years without a central bank. However, what I was unable to find is if there was any clause in the official regulations that stipulate if the Fed's charter can also expire. I'd be keen to know if that's even possible and when that would be possible, legally speaking. | I skimmed the text of the act and didn't see anything about expiration, so that suggests that it doesn't expire. Normally such a provision would be prominent near the beginning or end. | A financial institution (including a pawnbroker) cannot unilaterally change the terms of an agreement and obeying the law. This section in particular limits the interest rate to 2% per month. It would be illegal and a misdemeanor to raise the interest rate above the statutory limit. They also cannot change (shorten or lengthen) the maturity date of the loan, nor can they obligate you to wait until the maturity date to pay off the loan. They are in a bit of a bind if they lost their FFL. There is nothing illegal about transferring inventory to another store. They cannot compel you to redeem the item immediately, and you cannot compel them to violate the law and keep the item without the required license. In case what happened is that you went past the original maturity date because there is no viable public transportation to the new location and you've gone over the 30 day "grace" period (hence the extra charges), you might successfully argue in (small claims) court that the shop is responsible for your tardiness. The fact that the item is located 40 miles away is not per se an unconscionable burden on you, but if it is impossible or very expensive for you to get there because of the new location, they could have some responsibility to mitigate the situation (e.g. give you a ride to and from). | Yes, patents expire. The term is generally 20 years, but a patent can expire earlier if the owner fails to pay the scheduled maintenance fees. 35 U.S.C. § 154, 35 U.S.C. § 41 The patent owner could grant you permission to make, use, or sell the invention. This isn't the same as getting permission to call it your own, and it is completely separate from copyright. | Yes It's legal: but that's more of a bug than a feature. The Constitution says this about the appointment of Supreme Court judges: he [the President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, ... In the Federalist Papers: No 76, Hamilton had this to say: But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal. and in No 78: It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." He was wrong about the first but right about the second. Now, this is only the way he saw it and others no doubt had other views but he was focused solely on balancing the powers of the executive and the legislature. There is no consideration of what would happen if, for whatever reason, including partisanship, the executive and the legislature were tightly aligned or hopelessly opposed. Even for the time, this view seems overly idealistic and hopelessly naive. However, these are the same people who thought it would be a good idea for the runner-up in the Presidential race to be the vice-President. Indeed, Hamilton saw and was an integral part of the intense partisanship that arose in the 1790s between the Federalists and the Republicans and the first rejection of a Supreme Court nominee happened during George Washington's Presidency. This analysis shows that the confirmation rate when the White House and Senate are politically aligned is 87.2% but only 47.2% when they are different. That said, most (78%) nominees have been confirmed with the last decade being about average. The US Supreme Court has always been partisan. Indeed, it's only since the Second World War that the idea that it shouldn't be has taken root. In earlier days, the Supreme Court was not populated by jurists - it was the domain of politicians, some of whom moved back and forth between the bench and the Capitol. In Brown v Board of Education 4 of the 9 judges had been Congressmen or Governours and some had never been on the bench of any court before their appointment to SCOTUS. So, yes its totally legal but no, it probably isn't what the founders intended but yes, it has ever been thus. | Interesting question. I routinely write wills that authorize the executor to destroy property that has no significant economic or sentimental value, but I've never encountered a case where a testator or testatrix has directed that property be destroyed and I've never seen a reported case (or even a news report) in which that has happened. To the extent that an estate is solvent, there is no reason that a creditor could complain and if the destruction was done in a safe manner (as opposed to burning down a house or something like that without consulting the fire department) I'm not sure that there would be a public interest in doing so either. There are many religions that had a practice historically of burying someone with grave goods, so there are reasonable First Amendment freedom of religion arguments for allowing such a practice if it had a religious basis. And, if no interested party objected, I don't see how anyone could stop the executor from acting, unless the property to be destroyed was, for example, evidence of a crime, in which case it would be a crime to destroy it and the provision of the will would be void because it was a crime to carry it out. If an executor sought permission from a court to carry out this instruction, the court might require a public notice of the planned destruction to give notice to any third party who might claim an ownership interest in the property allegedly belonging to the decedent. On the other hand, usually, all interested parties in an estate can agree to act contrary to a will by unanimous consent, in which case no one would have standing to fight for the provision in court (unless it was considered a charitable bequest, in which case a state attorney general or an advocate appointed by the court with the "will" as the client could defend it). Given the strong public policies in the law disfavoring "waste" (i.e. useless destruction of property) such a provision could be held to be void as against public policy (similarly, bequests contingent upon marriage decisions are now void as against public policy). | 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". | At the federal level, gift cards seem to be treated as a special case of electronic fund transfer. 15 U.S. Code § 1693l–1 and the corresponding regulations presently regulate disclosure of fees and expiration, and do not directly say anything about sale of such a card. There might be relevant state laws, though Washington state laws mostly mirror the federal law (also allowing issuing a card with an expiration date if given for no value to a charitable organization). You can actually get your last $5 back in cash in Washington per RCW 19.240.020. A gift card / certificate isn't a "thing" in the way that an apple, hammer or table is, it's a contractual relationship. If you own a thing, you can freely re-sell it to whoever you want (assuming there isn't an express statutory prohibition against the sale of the thing). You cannot universally sell (assign) a contract right – there is a default preference that you should be able to, but Amazon has in this case said "No, you can't". | Scenario 1. It doesn’t matter what it says. If it was not legally ratified, it is not legally in force. There is no absolutely no paradox at all. It is essentially just a draft amendment and would be thrown out if any attempt was made to enforce it and challenged. |
Can the term "code" be used as an all-encompassing legal term for law, statutes, bills, acts, constitutions, and other "legislation"? I am trying to figure out what law, codes, statutes, bills, acts, constitutions, opinions, decisions, and legislation have in common, what the overarching entity is that these objects all are. I am working on an ontology and would like to put constitutions under the category of "codes", along with regular "codes" (like the US Code), since it seems they are both dealing with law and thus can be classified the same (though they are obviously different in some ways). Likewise, after an hour of digging around, I couldn't find really what the similarities and differences were between these 9 or 10 terms really was. Can they all be bucketed under the category of "codes" at the end of the day, or why do they need to be kept separate? Sorry for the naive question, I am no legal person, just a software developer learning as I go. What really is a "code", then? To my understanding so far, a code is a comprehensive collection of laws. So wouldn't that mean it accounts for all these other object types? Just found: Once a bill has been enacted into law, it is called an act of the legislature, or a statute. Bills are introduced in the legislature and are discussed, debated and voted upon. That helps clarify somewhat, so now it seems to come down to statute vs. constitution vs. code. | "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. | Yes Yes Yes However, these are pretty standard contract terms. Many, many terms survive the end of the substantive agreement. For example, terms with respect to ongoing confidentiality, dispute resolution, warranties, termination itself etc. The second is so common it actually has a named legal doctrine: reading down. In the absence of such a clause, if the contract inadvertently exceeds what the law allows, it preserves the contract rather than leaving both parties without contractural protection. | These clauses are called recitals. Taken together, they are a form of preamble. The tradition of preambles is quite ancient. The Code of Hammurabi, for example, has a preamble. This preamble serves to establish the authority of the one enacting the laws, however, rather than his motivation. United Nations instruments typically use a series of participial phrases as preambular paragraphs (pdf) rather than subordinate clauses, but they have the same function of establishing context and motivation. I have not been able to locate the origin of this particular form of preamble, however. It seems to have evolved gradually from freely constructed preambles. I could not identify when this form became fixed. | You've basically described two of the ends of the pole in theories of jurisprudence (there are dozens of ends). There is no theory of law that relies purely on "spirit" (also no theory that actually relies on the letters uses=d in writing law), instead, everybody interprets the text (the words enacted by the government) and some people supplement their interpretation with consideration of "other factors", such as assumed legislative purpose. Certain scholars and judges are inclined to put most weight on the actual wording of the law, while others are inclined to let purposive considerations dictate the interpretation of a law. Interpreting law by W.N. Eskridge is an informative guide to supplementing a reading of the statute with anciliary considerations. Antonin Scalia is the best-known proponent of the textualist approach. | No, all text of the Canadian constitution is of equal force. The 1993 Supreme Court case New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) makes this clear: It is a basic rule, not disputed in this case, that one part of the Constitution cannot be abrogated or diminished by another part of the Constitution: Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148. So if the privilege to expel strangers from the legislative assembly is constitutional, it cannot be abrogated by the Charter, even if the Charter otherwise applies to the body making the ruling. This raises the critical question: is the privilege of the legislative assembly to exclude strangers from its chamber a constitutional power? The opinion went on to determine that the privilege of the legislative assembly to exclude strangers was an unwritten constitutional principle which could not be abrogated by the written constitutional Charter (though they did not specifically call it an unwritten constitutional principle at the time, this is retroactively so through Reference Re Secession of Quebec para. 52). Edit: Following Toronto (City) v. Ontario (AG) 2021 SCC 34, it's not entirely clear New Brunswick Broadcasting Co. is still good law as the majority relegated unwritten principles to interpretive aids and filling structural gaps of the written Constitution, without referencing this case. The rule that the (written) Constitution cannot contradict itself seems logical though, and the cited Reference re Bill 30 does indeed state at para. 62 that the written Charter cannot override other parts of the Constitution (presumably we should read that as specifically written parts, since that's what was at issue in the reference). | What is the estimated number of lines in all current US federal laws? I realize that this metrics isn't accurate. Which font size do we use? Do we include comments? How to count someone v. United States? U.S. federal law consists of: 52 Titles of the United States Code (some of which have more than one volume) and a smattering of uncodified statutes that probably would take up one or two additional books. On the order of 100 volumes. About 2 volumes worth of federal court rules of general applicability. About 200 sets of local court rules for particular federal courts. On the order of 20 volumes for the whole set. About 2000 volumes of the Federal Reporter which sets forth published appellate court decisions. About 2150 volumes of the Federal Supplement which sets forth selected federal trial court opinions. On the order of 500 volumes of the Federal Rules Decisions which sets forth selected trial court opinions interpreting court rules. 582 volumes of the United States Reporter which sets forth U.S. Supreme Court decisions. A set of U.S. Treaties in Force on the order of 20-30 volumes. The Code of Federal Regulations (50 titles, some of which have more than one volume). On the order of 200 volumes. Several hundred treaties with U.S. Indian tribes, probably about 20 volumes. About 500 volumes of territorial legislation still in force (e.g. statutes of Guam, Puerto Rico, U.S. Virgin Islands, District of Columbia, Indian reservations). So, this would mean roughly 4500 volumes that have about 1000 pages of text each for a total of 4,500,000 pages, typically single spaced in 10 point (10/72nds of an inch) font on letter sized paper with half inch margins (i.e. 7.5 inches for text per page top to bottom) which works out to on the order of 50 lines per page. So, roughly, 225 million lines of code equivalent for primary federal materials only. There are some judgment calls about definitions here. For example, I did not include the full text of all works deposited with the library of Congress as part of the documentation of copyrights, or the full text of all patents and trademarks ever issued, each of which would dramatically increase the total, even though reference to those materials is necessary to determine if another work infringes a copyright or patent. Similarly, I omitted recorded real estate documents and publicly filed corporate documents even though those could each be referenced as evidence in a court case to determine someone's legal rights. And, I didn't include court orders in trial courts with no precedential effects which are binding between the parties even though some consent decrees in that set of documents have the force of law. Of course, the problem is that U.S. federal law isn't an independent body of law by itself, by design. U.S. federal law routinely incorporates the law of the state in question by reference. For example, criminal liability in federal parks is determined in part by reference to state law. A full set of state statutes and regulations in a typical U.S. state would require perhaps 50 volumes for a total of about 2500 volumes, and the entire corpus of published state level case law for all states combined is on the order of 10,000 volumes. So, excluding municipal ordinances, you are looking at another 12,500,000 pages at 50 lines a page, for about 600 million lines of code. Local government ordinances are litigated in state court so there is no separate body of case law for them. But, there are about 100,000 local governments and there are probably about 2 volumes of law for each, so about 200,000,000 pages and about 1,000 million lines of code. I'm sure I've made some minor omissions (e.g., case law from the courts of U.S. Indian Tribes), but the grand total for all U.S. law local, state and federal is on the order of 2 billion (i.e. 2,000,000,000) lines of code. Also, keep in mind that this is only the primary materials and doesn't include treatises and textbooks and digests and law review articles interpreting the law which you need in practice to utilize this corpus of primary legal materials, and which can be referenced by courts in cases. On the other hand, secondary sources are profoundly less redundant than primary sources. You could have a pretty comprehensive collection of secondary sources with 2,000 volumes which would be about 2,000,000 pages and about 100 million lines of code which could be rolled into the omitted materials in my 2 billion lines estimate. Of course, this is highly redundant. Case law spends lots of time reciting rulings from prior cases and the language of the relevant statutes and regulations, for example, and many municipal ordinances start out with an exact copy of another municipality's municipal ordinances before the municipality starts writing its own original legislation. Similarly, state traffic codes are often copied from one another. Also, not every reported case continues to be good law. But, there is no good way to separate the wheat from the chaff for a user of these legal authorities. You need them all. | One can argue both ways. On one side, yes, zero representation in the Senate for all states is equal suffrage in the Senate. On the other side, no, depriving all states of all representation in the Senate deprives them of their suffrage in the Senate (without needing to consider the question of whether the suffrage is equal). Since this question has never been considered by a court, we can't do much more than speculate how one might rule. There has never been an amendment proposed to modify the composition of the Senate -- at least not one that was seriously considered. The spirit of the law works in favor of the second interpretation. Furthermore, a strict application of abstract logical reasoning was probably not the intention of the framers. A strategy that might seem more likely to succeed would be to introduce amendments reducing the Senate's power in the legislative process, similar to the evolution of the House of Lords in the UK. If the goal were to sideline one state, this might work, but if the goal is to address the complaint that the Senate is undemocratic because people in smaller states have proportionally more influence there, there's no way the amendment would pass 3/4 of the states' legislatures. The number of states with one or two representatives is 13, by itself a sufficient number to block the adoption of an amendment. | The naming conventions for legislation in the United States and the United Kingdom have evolved over time and have undergone various changes and adaptations. It is difficult to pinpoint a specific time when the naming conventions for legislation in the two countries diverged, as the process has likely been a gradual one. In general, the United States and the United Kingdom both have a long history of using names or titles to identify and refer to legislation. In the United States, legislation is typically given a short and descriptive title, such as the "Patient Protection and Affordable Care Act" or the "Sarbanes-Oxley Act." In the United Kingdom, legislation is often referred to by its short title, which may include the year in which it was enacted, such as the "Companies Act 2006" or the "Bribery Act 2010." These naming conventions have evolved over time and have been influenced by a variety of factors, including changes in the political and legal systems of the two countries. It is likely that the naming conventions for legislation in the United States and the United Kingdom will continue to evolve and change in the future. |
Flashing the emergency lights at a vehicle to dim the headlights OK, let me give you the facts. First, my dad's 2005 Toyota Camry has very low low beams. You simply cannot see with the low beams in all situations. The night in question I was driving my dad's car and all of a sudden I saw the flashing lights of a police car going in the opposite direction. I thought "OK, they must be going to some type of emergency", so I started to slow down and get over a lane. Then I noticed the police car turn around with the lights still blaring, so I got all the way over to get out of the way of the emergency vehicle. Well, I noticed the police car was right behind me now and had sirens on and was not trying to go around me. So of course I pulled over. The officer approached the car and said to me, "Sir, you were not speeding or doing anything wrong, but the reason I stopped you is you did not dim your high beams when I turned on my emergency lights." I told the officer OK, I wasn't aware that your emergency lights were for me to dim my high beams, and I turned the high beams off right there and told the officer sorry and thank you and proceeded to drive off. Then the officer asked me for my ID and that is when everything went sour. What happened next is really not the issue. What I am wondering is, did the officer have probable cause to pull me over in the first place? Who turns on the emergency lights while going the other direction as a way to tell me to turn off my high beams? I have never seen this happen before as always 100 % of the time in my experience the proper way to "signal" a driver to dim their high beams is to flash your high beams at them. Now correct me if I am wrong, but I would think no one would know that the officer was flashing their emergency lights at you to dim your head lamps. As I said, I thought they were in pursuit or going to an emergency. Any information on this matter will be greatly appreciated. I just feel like the officer was out of line using this tactic as probable cause to pull me over for not dimming my headlamps. I found this doing some research of my own: headlights alone are not probable cause for a DPS officer to pull a driver over. With DPS, we can't stop you just for your lights | depending on the Jurisdiction, you actually were in violation of law! In germany it is a misdemeanor to drive with the high beams on in such a fashion that it blinds or dazzles other road traffic, such as traffic from the front. It is also a traffic violation to drive with front lights that don't properly illuminate the street - such as a broken one. In the worst case, improper illumination voids the validity of the safety certificate (TÜV) and thus you may not drive the car at all on public streets until you have repaired the defect. Not having a valid TÜV can mean you are also not insured! In the US: YES, a stop is most likely legal In the united-states, Terry v Ohio is the governing case. It prescribes that, to initiate contact with a car and detain it on the street curb, reasonable suspicion is enough. What could be reasonable suspicion for the police? In the case presented, 'The high beams are on constantly to hide non-functioning/sufficient normal light' would be the very first thing that comes to my mind, so there very likely is reasonable suspicion to initiate the stop. Ot of course 'The high beams are suitable to dazzle me for a split second, and thus the driver endangered traffic'. Endangering traffic can actually be a felony in some cases. Or just 'They shone their brights into my eyes and violated the High Beam statute' - which is actually the most likely case. As a result, while a broken headlight is not reasonable suspicion to search a car, them and high beams might qualify to make a stop reasonable, especially if at first just a verbal warning not to dazzle oncoming drivers was intended by police. Only if the local law is worded in a peculiarity, that might invalidate a stop. And you might be in violation of law here too! california High Beams can be a traffic violation within 500 feet of oncoming traffic and 300 when trailing another car, if they are not so aimed that the glaring rays are not projected into the eyes of the oncoming driver. florida Under Florida Law, it is also a noncriminal traffic infraction to drive with the high lights on in such a way that it blinds traffic within 500 feet of them oncoming and 300 if you are behind them. Again, the test is that the beams are only ok if they are so aimed that the glaring rays are not projected into the eyes of the oncoming driver. new-jersey Here comes a possible source for your quote: New Jersey has a similar high beams law, but also a recent case. The judgment from the New Jersey Surpreme Court is only valid in New Jersey. According to it a high beam violation has to be witnessed by the officer themselves to justify a "terry stop". If you dazzle a moving police cruiser they may stop you. If you dazzle the moving car in front of them, they may stop you. But if you beam your high beams at a stopped car or no car at all, then the police can't stop you. HELD:The trial court and Appellate Division properly concluded that the motor-vehicle stop violated the Federal and State Constitutions. The language of the high-beam statute, N.J.S.A.39:3-60, is unambiguous; drivers are required to dim their high beams only when approaching an oncoming vehicle. Neither a car parked on a perpendicular street nor an on-foot police officer count as an oncoming vehicle. The judgment of the Appellate Division upholding the trial court s suppression of the evidence is affirmed. Had the officer, in that case, operated the car while being on the same road, the stop would have been constitutional. But he was on foot in a crossing street. texas Wait, actually the quote stems from Texas. However, it has nothing to do with high beams but additional lights such as "Angel Eyes". Texas too has a High Beam Statute, which just like other states, bans blinding oncoming traffic: (c) A person who operates a vehicle on a roadway or shoulder shall select a distribution of light or composite beam that is aimed and emits light sufficient to reveal a person or vehicle at a safe distance ahead of the vehicle, except that: (1) an operator approaching an oncoming vehicle within 500 feet shall select: (B) a distribution aimed so that no part of the high-intensity portion of the lamp projects into the eyes of an approaching vehicle operator; and Even in Texas, blinding the police cruiser would thus be enough to stop the car, at least for a verbal warning and lecture. Common courtesy While it might not be against the law to dazzle someone everywhere, it actually does impact the other drivers: there have been crashes induced by traffic running high beams and blinding oncoming traffic, which then ran off the road or into other cars. In some countries, if they catch you for causing a crash that way, you are in for negligence. As a result, it actually is common courtesy in Europe to dim off your high beams when you notice oncoming traffic, and, if you don't run high beams yourself but notice high beams oncoming to flash them up for a brief moment so you get noticed. | It's called police and prosecutorial discretion to discern when to arrest and prosecute; and that situation in particular is also the result of a decision of the jury of the court of public opinion. Permits are required to sell on the street in Oakland. But not everyone who sells has a permit, and not everyone who is confronted about not having a permit is arrested and prosecuted. There are simply too many potential cases to prosecute. And, the police officer has the discretion to ticket or not. When you get pulled over while driving or riding a bike, you don't always get a ticket, since the officer has the option of discretion. When the officer responded and found an eight year-old selling water, he obviously was aware of the fact that it was a violation. But he was also aware of the court of public opinion. What is it going to look like if he arrests an eight year old and their parent? Allison Ettel was right, in a purely legal sense, to make the report. And technically, the child (and adult) needed a permit. And could have been ticketed and prosecuted. But it was Ettel was tried and convicted in the court of public opinion, and she lost her case. Happens a lot. | tl;dr Hitting the pedestrians is a separate crime, even if they shouldn't be there. Background On a highway, you might have a legal right of way and therefore a claim against the pedestrians for failing to yield. Since the states (and not the federal government) own and operate the interstate highway system, your specific answer depends on the state law. In North Carolina, for example, pedestrians walking along or upon a highway have a statutory duty to yield the right of way to all vehicles. So you could probably videotape and press misdemeanor charges against them individually. That said, contacting the police and waiting (or taking an alternate route) is the best recourse. Having the right of way (or feeling ethically justified) doesn't allow you to commit an offense like hitting a pedestrian. The fact that the pedestrians aren't supposed to be in your way is of little consolation in the charges you'll face if you injure or kill one. The court will see this as a legal/ethical problem, but one that won't go in your favor. In particular, you deliberately directed your vehicle into the crowd with the knowledge that the action might cause harm. One doesn't have to imagine the Austin Powers steamroller scenario to know that injuries are possible when cars go through crowds. That will pull all of the "involuntary"-flavored mitigations off the table. In particular, driving a car into a crowd might be considered "an inherently dangerous act or omission, done in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty." In the worst case scenario, where someone died as a result, a North Carolina prosecutor might push for second-degree murder (which operates on a "recklessness-plus" standard and might not be as crazy as it sounds since driving into the crowd is likely reckless, and driving in slowly with them yelling at you to stop could push a jury over the top). In that case, as a defendant, you'd hope your charge could be mitigated down to something like death by vehicle (which is similar to "vehicular manslaughter" in other states), and you'd shoot for the misdemeanor version of death by vehicle since you weren't driving under the influence. However, a key element of proving death by vehicle is that you unintentionally caused the death---and the fact that you deliberately drove into the crowd might ruin your defense. In the case where you just hurt someone, you'd likewise hope to mitigate intentional charges to unintentional ones. A claim for false imprisonment is unlikely to succeed. False imprisonment is called a variety of things---like felonious/misdemeanor restraint, unlawful detainment, etc.---depending on where you live. To prove it (and generalizing a bit since this varies by state), you typically have to show (1) detention or restraint against your will, and (2) unlawfulness of the detention or restraint. A big challenge here is that courts often interpret this to mean detention or restraint by exercise of force or threat of force, as in Harris v. Stanioch, 150 Wash. 380 (1928) for example. The protesters are just in the way, so it's unlikely this would hold up. Self defense almost surely won't be a viable excuse. The idea of driving the car slowly through the crowd relies on the notion that you should be able to escape the alleged detention. The escape you're considering in driving through the crowd likely comes at the expense of making contact with members of the crowd. Making unprivileged contacts might be allowable in self defense. However, self defense probably hold up either. Setting aside notions of proportional defense, you have to be defending yourself against something: force or threats of it by the protesters. So if they don't use force, or threaten it, against you, then your defense is going to be really shaky. | The person turning right with a red light must yield to cars that have a green light. From the California DMV Driver Handbook: Right turn against a red traffic signal light–Signal and stop for a red traffic signal light at the marked limit line. If there is no limit line, stop before entering the crosswalk. If there is no crosswalk, stop before entering the intersection. You may turn right if there is no sign to prohibit the turn. Yield to pedestrians, motorcyclists, bicyclists, or other vehicles moving on their green traffic signal light. (Emphasis mine) It's up to the driver who wants to turn right on red to make sure the lane is clear before the person turns into it. | This varies from state to state. Here's a representative statute: Any driver or operator of a motor vehicle who, having been given a visual or audible signal by a peace officer directing such driver or operator to bring his vehicle to a stop, willfully fails or refuses to obey such direction, increases his speed, extinguishes his lights, or otherwise flees or attempts to elude the officer. See 625 ILCS 5/11-204. For a first offense, IL calls it a class A misdemeanor punishable by up to 1 year and $2.5K. but on the third offense it becomes a felony punishable by up to 3 years and a $25K fine. If the signal was meant for you, then the divided highway is a moot point so long as you realize it was for you (which might be established by you turning off the road into some neighborhood where you have no business). united-statesillinois | So my answer depends heavily on a clarification. Are the Police Suspicious or do they have a warrant? This is a big difference in the two behaviors as the former is not a thing, from a strictly legal perspective, and the police should not be harrassing Bob, who doesn't want to talk to them, when they should be making calls to get a warrant (If the police think Bob is being disorderly, they will arrest him and Bob should zip it, get an attorney down to the station, and let the Lawyer yell at the cops... and the judge... and the prosecutor and whoever else... If it's the latter case, they don't need to ask Bob to have Bob come outside... they can kick in the door and arrest Bob or remove him as part of executing the warrant. That's why you have them. In the situation as described, it reads like there was some crime in the area and the police think Bob may have some knowledge about it (he need not have done it, they could be looking for a witness). Bob does not have to say anything to the cops as per his rights against self-incrimination, so Bob tells them he does not wish to speak to them, possibly in an irksome manner and the Police won't take no for an answer. Perhaps they really think Bob might be the criminal... this doesn't necessary mean they have evidence to arrest Bob on. Perhaps Bob was identified by a guy off of security camera footage... maybe it was Bob, or maybe it was Bob's evil twin he never knew about and Bob's been home all night Keeping Up With The Kardassians (anyone knows Bob knows he can't stand going a week without knowing what Kim and Kanye are doing). Either way, it could be enough for a search warrant but just wanting to talk without a warrant, Bob can refuse and they need to respect that. Again, it's probably a bad faith arrest, but the street is not the place to have that fight... save it for the courts. | Almost everywhere, in any circumstances, it is the driver's responsibility to operate their vehicle so as not to get in an accident. When two drivers collide, responsibility can be divided among them depending on the details. However, when a driver hits a stopped object (including another vehicle), it is always the driver's fault for not operating his vehicle safely. It is possible the other vehicle may also receive a minor parking ticket or similar infraction for stopping on a shoulder or other invalid place. But that citation will not do anything at all to relieve your responsibility to operate your car without hitting obstacles. | 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. |
Can you use the Raspberry Pi 4 in your own product? Suppose I decided to create a product that used the Pi 4B as it's main processing unit. Then I made a business out of that product and had a million-dollar-company. Would the Raspberry Pi foundation sue me? Is it legal to use these computers in my own product that I'm selling? I know it's a bit more complicated than that. Suppose I was using (Linux based) Raspbian Buster, and I wrote my code in node js. No modules, APIs, anything but node. Then I used my own hardware, attached it to that, and there was my product. Would it be legal to sell? I'm no expert at law, so I'm asking this question it here. Thanks in advance! | Yes. This is a frequently asked question on the foundation's homepage, and answered without ambiguity (source): Can I use a Raspberry Pi in a commercial product? This is a very common question, and the answer is yes! Once you have bought a Raspberry Pi, it's yours to do with as you wish. You would be in good company too, as in fact the Raspberry Pi is regularly used and sold for commercial applications third parties. Note that this the default consequence of a contract of sale in all jurisdiction I know of (but I am not a lawyer): The seller does not retain property rights in the particular item, and by the mere selling of the item implies there are no other rights that might prevent the buyer from using it as they wish. Apart from the particular computer now in your property, there are other legal requirements: "Copyleft" softweare: Large parts of the Raspbian software are licensed under "copyleft" licenses (importantly, versions of the General Public License, GPL). These licenses are meant to provide your customers with the means of reproduciing and building upon the "copylefted" software. You will need to provide your customers with the source code to those software items, the tools and documentation needed for building, and a written notice. Your own programs need not be licensed under a "copyleft" license, provided that you don't build on (distribute "derative works" of) "copyleft" software. The open source licenses involved are not meant to exclude commercial use, and there are helpful compliance guides available ( a, b ). Non-free software: Make sure to not include non-free software, like Mathematica or Oracle Java, which are not licensed for commercial redistribution. Trademarks: Your use of the words "Raspberry PI" or the raspberry logo is subject to restrictions, as is usual with trademarks. Speaking of the logos: You can request permission to use their "powered by Raspberry Pi" logo. Market regulations: You need to abide by regulations, for example safety and electromagnetic interference. Repackaging the Pi might mean you'll need to test and recertify your product, I'm not an expert. Video codecs: Some Raspberry Pis (up to 3) include specialised video decoding hardware. If you want to use it with the MPEG2 codec, you'll have to buy an activation key for small one-time fee per device - £2.40 for MPEG2, £1.20 for VC-1; other codecs are already activated. I don't think you'll need a license even for commercial, for-sale devices, but I am not your lawyer. Just to be clear, nothing prevents your buyers from cloning your software. (This is not a consequence of you providing the Raspbian source code - they can just clone the contents of your SD card.) While you can retain copyright in your own code, you'll probably have no effective means of detecting infringement. However, the physical design of the rest of your device will not be affected. Your business model needs to account for this fact. | Would any offence be committed for: Having this on your person? Buying or selling this? Leaving it around for people to plug in to a computer? In the abstract, I don't think that this conduct would violate either Section 36 of the U.K. law or U.S. law, although, obviously, purposefully destroying a computer itself (i.e. actually using the device without the consent of the owner of the computer) would violate many U.K. laws and would also violate many U.S. laws at both the state and federal level. I also don't think that possession or buying or selling this product would be a crime absent some intent that it be used illegally, in which case there might be an "attempt" to commit a crime offense, or an offense that would make one part of a conspiracy to commit a crime. In the "leaving it around" example, there is arguably an intent to use it to harm another improperly, although the phrasing is ambivalent. While many statutes in the U.S. criminalize possession of burglary tools, or drug paraphernalia, sometimes with an associated intent element (although even these crimes often have an express or judicially implied intent to use element), I'm not aware of any statute that criminalize possession of tools for malicious destruction of property. So, if the tools aren't possessed or used in a manner intended as a step in the facilitation of a crime, I don't think that any law is violated. So far as I know, the U.S. does not have a counterpart to Section 37 of the British statute cited above (it isn't a terribly easy thing to search for to definitively rule out the existence of such a law because federal law has many uncodified crimes in unexpected statutes and there are many sets of state criminal statutes, not all of which are codified either). The example giving in the comments by @gnasher729 of possession of a hammer which could be used to do the same things that this object could be used to do is instructive. Arguably, this USB-like tool is more specifically targeted at malicious conduct. But, for example, when I used to work as a radio news reporter, we had a machine that was basically a high powered magnet that was specifically designed to destroy all information on magnetic media. This was, in part, so that it could be reused, but it was also so that confidential interviews wouldn't fall into the wrong hands once they were no longer needed, in much the way that one might shred paper documents. It isn't so implausible to think that a device like this one might be necessary for individuals or firms with national defense secrets embedded in their hardware and software to have on hand in order to destroy a sensitive computer in order to prevent a security breach, if necessary. In a case like that, leaving one of these devices around the office unlabeled might be negligent, but wouldn't have the intent necessary to be an intended crime. And, it is hard to imagine that the device itself, which seems pretty simple, would itself involve any technology that is a national security secret, so it probably wouldn't violate export control laws. Of course, possession, purchase or sale of such a specialized device, or leaving it around unlabeled would certainly be powerful evidence of an intent to use the device in a wrongful manner, and hence, of an attempt to commit a crime. Indeed, possession of such a device or purchase of one might very well be sufficient to establish probable cause to seize the device and arrest the person holding it on charges of an attempt to destroy a computer. But, this device would be merely powerful evidence of an intent to commit a crime, rather than something that is a crime to commit in and of itself. There are no international laws that govern this kind of thing. The only international laws applicable to individuals pertain to war crimes and nuclear and chemical weapons. Even then, most international laws direct member nations to adopt domestic laws on the subject rather than being self-executing. | In general, unless the license contains a clause which allows it to be modified at a later date through some defined means (publication, revocation of existing license etc) then you are free to continue to use the existing version of the software under the original license terms. So make sure you pin your versions! Look out for clauses such as exists in the GPL which allow the recipient of the distributed binary or code to choose what version of the GPL to apply if the original author does not state (GPLv2 Clause 9) as they then allow recipients to bind you, the distributor, to versions you might not agree with (eg the switch to GPLv3 with its patents clauses). | This can't be right. If I modify open source code as part of the work done, by nature of the open source license that code can not become intellectual property of the client. Certainly it can. That which is "developed or produced" would be the modifications to the pre-existing code, i.e the copyright on the derivative work so created. If the base code was under a share-alike or copy-left license, then the client can only distribute it under the same license (or a compatible one, perhaps). But nothing compels the client to distribute it, and for the client's use, the client owns the copyright, without fear of any future claims by the contractor. If I have my own code/scripts/settings/templates/etc that I use as a contractor, and I modify those in the interest of coding efficiency in the interest of serving the client, it hardly seems correct that these assets become property of the Client. Those are your work, and you can choose whether to sell the copyrights to the client or not. Again, only the work done for that client would be covered under the wording quoted above, unless there is another provision that grants the client a license to use the pre-existing work which you modified for the job, which there probably ought to be. Or I suppose the agreement could assign copyrights in pre-existing work to the client, but that seems an odd choice, and the language in the question would not do that. You and the client could agree on a different provision such as: The contractor grants to the client a fully-paid, non-exclusive permanent license to use all intellectual property developed under this agreement, and any pre-existing works that may be incorporated therein. The contractor warrants that s/he is entitled to grant such license, without infringing on the intellectual property of any other person or entity. That wording would have the contractor retain all copyrights and other IP, but provide a license to the client to use it without further payment or expiration. Many other ways to structure such a provision are possible, dividing the rights up however the contractor and client can agree. The price for the work might vary depending on what rights the client obtains. Both forms, and many others, are perfectly legal, it is just a question of what the contractor chooses to sell, and what th4e client chooses to buy. | 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. | By "unlicensed" you mean that it doesn't state a license for use (MIT, GPL, etc.)? Those licenses are just a codified bundle of terms of use that cover many many edge cases. You have in place a much simpler agreement that covers the primary situation: you using/modifying the code for your own use. It's just like borrowing a car. You will ask a friend "hey, could I borrow your car for a bit?" "sure!". You know there's a possibility that you'll get in an accident or something weird will happen, but you think the chances of that are minimal and you would be able to work it out. If you ask a car rental company, they'll give you a full contract covering every situation that may happen. Similarly, a large company would be hesitant to borrow a car for corporate use without a legal framework surrounding it. So you will likely be in the clear if you are just using it for a small project with minimal legal/financial implications. If you plan on turning your project into a multi-billion dollar empire, you should revisit your agreement. | There is no IP in ideas Any code would by subject to copyright (who owns that copyright is itself a convoluted and separate question), however, if the 4 of you abandoned any existing code, notes and images and start over you would have no legal impediment. | The owner of IP owns the abstract thing that is protected by law (the intellectual property), and not the concrete product that relied on (illegally) using that abstraction. The person who made the thing, or to whom he sold it, owns the object. If you buy a disk with pirated or non-pirated software, you own the disk, and if you bought it legally, you probably bought a license to use the software. Using "pirated" to refer to the class of things legally manufactured (not stolen, not using stolen components) but in violation of IP law, pirated goods might be subject to seizure by the government (it would be slated for destruction), but the goods would not be the subject of a prosecution for theft. While infringement of IP rights is often called "theft", it doesn't have all of the elements of theft: you do not deprive the owner of the thing that they own. |
Can you burn your own house down? If someone had a house with nothing flammable near it, and they wanted to burn it down (no one is inside or near it, and no fraud is involved, and nothing that releases harmful chemicals when burned is in the house), is that legal? If not, is it arson or something else? | Check with the local fire station. You will probably be required to get a permit for a large fire, but firefighters are sometime interested in participating in burns of condemned buildings because they can get training from 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. | Yes, of course. Anyone can walk up to a shop owner and ask them pretty much whatever questions they want; police have just as much of a right to do that as anyone else. The shop owner doesn't have to answer, but police are free to ask. | If you buy a house, you can generally rent out a room in the house, unless in that jurisdiction there is some law against renting rooms in houses (that's actually a condition in my neighborhood, one widely ignored). If it's legal to rent (lease) a room, it is generally legal to sub-lease that room – as long as that's allowed under the original lease contract. I have never heard of a jurisdiction that has a blanket prohibition against subleases. So as far as the actual question goes, the answer is, "yes". The links are about something a different, namely rent control law in San Francisco, and the question of whether a tenant can be evicted from a rent-controlled unit because the owner wants to move in to the unit. Owner move-in eviction requires a specific procedure for giving notice, and the links are about these requirements. Conceivably, though, the question could be whether a person can buy a house that is being rented out, do a proper owner move-in eviction, and then lease a spare room. The SF rent laws require a good faith intent to move in and use as the primary residence for 3 years, and nothing prohibit subsequently leasing a room. Those laws pertain to evictions, not re-rentals. (It should be noted that once eviction under section 37.9(a)(8) has been carried out on a unit in a building, no other unit in the building can ever be so recovered. That could mean that the room in the house could never again be recovered, if it is considered to be a separate "unit" from the "unit" that is the whole house). | In many countries (for instance, the US), churches and mosques are private property. In general, the owner of private property can throw anyone off their property; claiming you're doing an extensive period of praying doesn't matter, because they are under no obligation to let people stay as long as needed to pray (they can kick someone off the property for just about any reason). If there's a contract in play things are different, but contracts aren't in play in this situation. That said, nothing stops the church or mosque from letting the homeless stay there; this is actually not that uncommon (charity being a fairly common religious virtue). | In the United States, the government has, multiple times, destroyed homes while trying to catch a fugitive. And the homeowner sometimes makes a claim in federal court that this is an unconstitutional taking without compensation in violation of the 5th Amendment. In Lech v. Jackson, the 10th Circuit decided that the police and city were not liable for destroying a house while trying to arrest a criminal who had fled there. The Supreme Court declined to hear the case. But in Baker v. City of McKinney, Texas, less than 3 months ago, a district court declined to dismiss a case in which police destroyed a home to catch a fleeing criminal. Allegedly, in this case the police were given a key to the door, a garage door opener, and the code to the back gate by the homeowner - and instead of using those, they used explosives on the garage door and used a BearCat to knock down the fence and the front door. I'm not sure to what extent those facts, perhaps showing that the scale of the destruction was unnecessary, matter. To the best of my knowledge the case is still ongoing. | One of the biggest problems here is in proof of injury attributable to an individual... With asbestos, you can prove that direct exposure in a certain instance caused a long-term harm. Just because you were around asbestos doesn't mean you get lung cancer, so if you don't actually suffer any harm (or any harm yet), you won't get awarded damages. Similarly with lead, you have to prove both the exposure, the entity which exposed you to it, and harm that you suffered. Just being around a lead pipe or paint doesn't mean you get damages, you need to have suffered harm. The problem with second-hand smoke is that you can be exposed to it from many different sources. Any problems you have (lung cancer) would need to be proven as a direct consequence of one specific (or prolonged) exposure. I could see this working if a non-smoking spouse developed cancer from a smoking spouse being exposed to it for years, but you can't just say "I walked by Joe Camel in the street while he was smoking now I have cancer and it is his fault". So the issue becomes who is responsible for your damages. You can't narrow it down to one smoker (or even cigarette smoke, as lung cancer can develop from other sources), so just proving that your cause-effect is directly related to smoke will be difficult. After that you can't say one single person caused it (unless they forcefully locked you in a room and chain-smoked for a year). So who do you sue? All of smoking society? You might just as well sue God for putting those people on earth, really the only recourse you would have is to sue the tobacco companies, the individual smokers are not going to be held liable as a group. | The customers are able to leave, so there's no reason it could be a crime. Even if they weren't able to operate the lock themselves, they are presumably able to leave by asking a staff member. There is no way this could be remotely considered false imprisonment. Depending on the layout and size of the store and presence/lack of other fire exits, this might violate fire safety regulations. |
Is it legal to publish a guide on how to do something that's normally a crime? This is a follow-up to my question about Googling how to do something that's normally a crime. Breaking into a car is usually illegal, but there are cases where it is legal (and in some countries mandatory, but that's not relevant here). The two I know of are breaking into someone else's car to rescue a child or domestic animal in hot weather or breaking into your own car for any reason or no reason (as long as it's paid off and you don't try to make an insurance claim, of course). Since there are cases where it is legal to break into a car, is it legal to publish a guide on how to break into a car online? Does it need to have a disclaimer saying to comply with all applicable laws? Could the author be held responsible if someone uses the instructions to illegally break into a car? | Since there are cases where it is legal to break into a car, is it legal to publish a guide on how to break into a car online? It is legal to publish this guide. Indeed, it is legal to do so even if there are no cases where it is legal to do so. Does it need to have a disclaimer saying to comply with all applicable laws? No. Could the author be held responsible if someone uses the instructions to illegally break into a car? Generally not. I could imagine that there might be some very specific and exceptional fact pattern where it might, but that would be the rare exception. But see man sentenced to twenty-years in prison after pledging support to ISIS and uploading a bomb making video related to that pledge. | According to the article, the driver ran over the ducklings intentionally, when other drivers had already stopped. From the article: "Police urged animal lovers not to take "matters in your own hands" following the incident.". So the main consequences might not be legal consequences but non-legal consequences. Before you run into animals on the road, you make sure that you stay within the speed limit, that you have unobstructed view, and that you keep your eyes on the road. If there's a dog in the road, there could have been a young child as well. So having a situation where you can't stop safely is very bad. There are lots of people with expensive animals. A dog could easily be £2,000 and there are Frenchies that cost £30,000. Something to consider, so make sure your third party liability insurance is fine. And remember there might be consequences outside the law. | Threatening to report the uninsured driver to avoid payment would be blackmail and illegal / criminal. As a result, they are not going to do this. Reporting the uninsured driver on the other hand is their civic duty. So they can get your friend into trouble, but they can't get around paying. Is your friend insured now? If not, tell him to get insured IMMEDIATELY. And if they are very lucky, the other company doesn't figure out your friend was uninsured, and they get away with it when they make a claim. Alternatively, tell them to figure out how much the damage is, how much the repair will cost, and whether it is worth taking the risk. | It is definitely illegal in Russia as well, but the police will do nothing. Previous activity of this group included forcefully attacking people who tried to speak to a girl who disliked it and handling over such people to police to get fined "for hooliganism". Usual practice in Russia is to beat the people whom the random girls around dislike. This group stepped a bit further, involving police. They use illegal or questionable methods, definitely. But they use them in a manner that people would be unlikely to complain to police because they themselves either did something illegal or public opinion is not on their side. The police usually will do nothing even with much more serious violations, like beating somebody. | In Connecticut, this is covered by the firefighter's rule. Police and fire personnel entering a property as part of their official duties are considered licensees, which limits the duties of the landowner. The rules are as follows: You can't intentionally hurt or lay a trap for the licensee. If you know or should know the licensee is there, you need to exercise due care with them. You don't have to worry about obvious hazards (but keep in mind that it's harder to see stuff at night). If you're doing something dangerous, you need to watch out for them. If you know about a hidden hazard, you must warn them. I'm not sure how in-depth you need to go with the warnings; various things I find suggest the duty to warn might only be there when you know or should know the licensee is present, but signs are a good idea regardless. On the other hand, if you do need to warn them, you might need to mention the specific locations of the pits you actually know about. However, there's no duty at all to proactively look for possible hazards. This rule originated as a rule for professional firefighters responding to a negligently-started fire: the idea is that professional firefighters sign up to do a dangerous job, and letting them sue for hazards inherent in their job (they aren't called without a fire) is a bad idea. Also, since they cannot be denied entry, go in places not open to the public, and can arrive at any hour, needing to keep the property safe for them is an unreasonable burden. Of course, there's an exception if a law is passed to protect their safety, because statutes override common law. The rule has since been extended in some states to police, and to situations besides the very problem they were called for. Other states have abolished it. In any event, this is for civil liability only: this is when cops can sue for injuries caused to them. | No crime is committed if a person performs a service and ineptly describes the service. To change the context a bit, I might contract with a guy to build a wall and he says he will charge me for installing a "Swedish drain" when in fact what he will install is called a "French drain". If he installs the thing, it does not matter (legally) whether he calls it by the conventional name. I am not relying on the distinction between French and "Swedish" drains, and that is not material. However: he may specify that the drain will use 18 inches of 1.5" drain rock, but he uses (and intends to use) 18 mm of 3/8" crushed rock, and that is a material fact. In the latter case, he has committed fraud. The same considerations go into dealing with "unnecessary" service, which however is more about "what he said". Let's assume that you come in with a flat tire and the mechanic offers to overhaul the engine. If you agree to this service, that is not fraud, because he did not say something false that you depended on. If, however, you ask "Why would overhauling the engine be necessary" and he says, I dunno, "Because by law, I can't repair a tire without first overhauling the engine", or "Because you flat was caused by astral radiation from a poorly-tuned engine", then that would be fraud – the statements are false, and you relied to their truth, in agreeing to the service. On the third hand, reasonable statements like "it might help", "it could work" are not deceptive, even if it turns out they are not true. Fraud is not about statements that "turn out not to be supported by the facts", it is about statements that you know to be false. | In colorado, it appears that the kidnapping statutes do not apply if the act is not "knowing" or if the perpetrator lacks intent. § 18-3-301 Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping: (a) Forcibly seizes and carries any person from one place to another; or (b) Entices or persuades any person to go from one place to another; or (c) Imprisons or forcibly secretes any person. § 18-3-302 Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping. 2. Any person who takes, entices, or decoys away any child not his own under the age of eighteen years with intent to keep or conceal the child from his parent or guardian or with intent to sell, trade, or barter such child for consideration commits second degree kidnapping. § 18-3-303 Any person who knowingly confines or detains another without the other's consent and without proper legal authority commits false imprisonment. As @ohwilleke pointed out in this answer, this means that as soon as the hypothetical car thief becomes aware that the child is in the car and doesn't then act to return the child to their parents, it becomes second-degree kidnapping. (It's also possible that CO case law has interpreted the statutes differently than I'm interpreting them here, but the plain language seems to require the actual intent to take and/or confine a person illicitly.) | I do not know the particular legal environment in France, but in general the shop is private property and the owner decides who may enter and who may not. You have no right as such to enter somebody else's property against their will. Doing so would at least be classified as trespassing, possibly more serious considering you mention using force to enter the premise. |
Collapse of a money lending company According to Businessinsider, Nelnet is having massive layoffs and apparently is collapsing. If the actual company holding the debt has its own layoffs, and can't file lawsuits or do anything, does the debt run statute of limitations and disappear? | I find the "is collapsing" statement troubling. Companies grow, shrink, and restructure all the time. Nelnet might be coming apart, or somebody might be trying to generate clicks for a news story. The normal situation, when a company goes into bankrupcty proceedings, is that a trustee tries to recover as much of the assets as possible to pay out creditors. This would suggest an increased, not decreased, attempt to collect repayments. | 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. | Whoever buys it. When a company declares bankruptcy then its assets are owned by its creditors, as compensation for the standing debts. Since usually there are multiple creditors, what happens is that its assets are sold/auctioned, as money is easier to divide between the different creditors1. A logo or a trademark is an asset like any other and can be sold separately. If nobody did come forward for the logo, then one of the creditors could accept it as part of its repayment. 1 If a company is in bankruptcy it means that its assets cannot cover all of its debts, so creditors are usually paid only a part of their debts. | Not very nice of the employer, actually quite cowardly. Being not nice and cowardly is not against the law. Being in the EU, and having been employed for ten years, the company will have duties to find a different position in the company at the same pay, and only when that fails, the employee can be laid off and will have a reasonable amount of notice, plus a reasonable amount of redundancy pay due to him. Unfortunately, he can expect only the legal minimum if the company behaved like this already. Good companies would provide a generous redundancy pay, plus pay for you to have any agreements checked by an employment lawyer of your choice - which means the employee can be sure they are not ripped off, and the employer is sure they cannot be sued for any reason. Obviously if they want him to quit, then the one single thing your relative mustn't do is to quit. Let them pay him. Plenty of time to look for a new job. | The first step of a non-governmental debt collector would be to sue you and obtain a money judgment (if this debt collector is legitimate, something the comments touch upon). A tax debt is different, if this is a legitimate tax debt. There is usually an internal tax collection agency process that must be exhausted, resulting in an assessment of taxes which then results in a non-judicial imposition of a tax lien, upon which what is sometimes call a distaint warrant authorizing execution against assets pursuant to the tax lien is issued by a court in Oregon. Outside Oregon, the Oregon money judgment or the distaint warrant would have to be domesticated into California as a foreign judgment, which is a basically administrative process that might be possible to do without notice to you (I'm not a California law expert on these fine matters of procedure). Once there was a money judgment domesticated into California, your wages and bank accounts could be garnished, your property could be seized pursuant to writs, and liens in your personal and real property could be perfected and foreclosed upon. Of course, if this outfit is a sham, with a fake debt, this is unlikely to happen, and they might give up, or you might sue them for violating debt collection laws or engaging in fraud, or a law enforcement agency might do that based upon your complaint. It might take a civil action of some sort to set aside in invalid judgment, if it was invalid, but the process of setting aside an invalid foreign tax debt is very complicated even for an average small firm lawyer. Lack of notice of a lawsuit is generally a strong defense to a private sector debt, but is not always such a strong defense to certain kinds of tax debts (and the process for different kinds of tax debts is quite different). | I got and answer from lawyer in Netherlands. To rent out to the company is not without risks. You rent out to the company and the company rents out to the actual user of the apartment. That is subletting. The sub-lessee is protected by law. So when the company fails to pay, you can end the contract with the company (you have to go to court for this), but then you will become the lessor to the actual user (=sub-lessee) then. If you feel that that is against your interests, you have to start a court procedure within half a year to end the contract with the actual user. Also note: it is forbidden to rent out to people that don't have a legal status. So you make sure you trust the company very well if you are going to rent out to them. I recommend to seek help from a real estate agent that is well known and member of NVM or other trustworthy organisation. | The company can't force you to settle out of court. But if it pays you what it says you owe it in an unconditional payment, it can cause your claim to fail on the merits at trial for a lack of damages. A company might want to do this to avoid the collateral estoppel consequences of a judicial determination of your liability. The doctrine of collateral estoppel would make judicial determinations on the merits on particular issues resolved in the case against it binding on the company in future lawsuits against other plaintiffs. A company cannot simply pay to defeat a claim on the merits, however, in a class action suit, without paying all of the amounts owed to all members of the proposed class. Some states also have procedural penalties such as costs or attorney fee shifting when a settlement offer is refused and the outcome at trial is not significantly better than the settlement offer, but I don't know if Florida has such a provision. If it did, your net win could easily be converted to a net loss. | I reported this to my bank as soon as I found out, and Chase said that the money would be reimbursed once they completed their investigation (within 10 business days). Chase was likely indicating that the money will be reimbursed within 10 business days of completing their investigation; not 10 business days from the date you told the that someone forged checks on your account. This would make sense when you think about it, as they need to make sure that you were not complicit in the crime (you would be surprised how many people have had someone cash multiple checks from their account only to split the money with them and file a claim for fraudulent transfer/forgery). Further, checks are a negotiable instrument, unlike a credit/debit card, where specific protections exist pursuant to its terms and conditions of use. You have a duty to keep a negotiable instrument safe, and while most banks will reimburse you if it can be established that you had no involvement and you were not grossly negligent in the keeping of the instruments, it is a different animal in and of itself. It has now been 13 business days, and I have checked on the status twice and was told both times that there had been no status update, and they were unable to provide an updated ETA. Unless your bank indicated in the disclosures of the checking account application and acceptance documentation that in the event of a stolen check you will be reimbursed in X amount of days, they have the absolute right to complete their investigation before reimbursing any funds to your account. It's a fairly large amount of money, and I need to get it back as soon as possible. I'm trying to figure out if I have legal footing here. Does the law protect me from this type of fraud? And if so, does it require the bank to respond within any particular timeframe? Federal banking regulations provide broad protections to consumers when it comes to fraud involving credit/debit cards, as these are easily stolen from all sorts of means. That said, checks do not carry the same protections, although oftentimes some. National banks may be required to reimburse customers for forged checks. However, based on individual circumstances, the bank can investigate to determine if the customer is entitled to a reimbursement. There is not duty to reimburse until the investigation is complete. This is why I think you've potentially misconstrued what they said about how long it would take. They cannot promise a time certain when they don't know how long the investigation will take. Whether the bank is liable for the customer's loss depends on the specific circumstances of the case. Generally, a bank is liable for accepting a check that has been forged, altered, or improperly endorsed. However, if the bank can prove two things — that it accepted the check in good faith and exercised ordinary care and diligence in handling the transaction — it may not be liable. If your actions — the way the check or checkbook was handled, issued, completed, or made payable — contributed to the making of the forgery, you may be at least partially liable. Generally, the bank will require you to complete an affidavit. It may also request that you file a police report. ** Addition: I forgot to mention that if the checks were not "cashed" (i.e. filled out to cash or cashed in person), but rather were presented to a 3rd party for payment in receipt of goods or services, you are also going to need to contact those individuals or businesses (their name is on the check) and alert them to the fraud, and allow them to contact their banks, lest you will be assessed fees by them for insufficient funds if your bank later takes the money back as a result of the investigation. Also, in the event the checks were recreated rather than stolen, or if you don't know exactly how many were stolen, you are going to need to close your account while you wait for the investigation to bear fruit (hopefully), and open a new account, as you now have a duty to account for any and all checks stolen at that event (so, if you know a book is out there and 10 checks have cleared you know there are 15 remaining that the bank is not going to cover if you don't take steps to protect yourself). One would think they've asked you this and have already done something to prevent further checks from coming in, but if not, you need to get on it. Also, you may want to hire your own investigator if you have the funds to do so. While stolen cards are often strangers, stolen checks (unless it's one washed check) is nearly always someone you know. |
Can someone be convicted of possessing/distributing illegal pornography if no evidence can be found in search/seize? In this hypothetical, let’s say there are four people living in a family home, and all people share the same IP, but not computers. Person A has engaged in a one-time illegal online activity that has led to the possession/distribution of illegal pornographic content to a undercover cop, unbeknownst to the other dwellers. Person A later physically destroys the hard drive and, subsequently, the computer (does not make a copy of anything) , and throws it in a nearby dumpster that is later serviced. They buy a new computer from a friend. There is now nothing in the home that is “illegal”. Person B pays for the internet service and is the registered individual listed for the IP that was used for the illegal activity. A search warrant is issued on the home based on the IP address used, logs, and email sent by Person A (used a throwaway account with no identifying information). Nothing is found in the home. With four people in the home, how likely is someone to be convicted, and who? | It is possible that someone is convicted. Destruction of evidence an constitute circumstantial evidence that a crime was committed, and other evidence, such as testimony, could pin the crime to one of the four possible suspects. A jury has broad discretion to assess the weight of the evidence. | Am I as the user of this site in any way liable if the music turns out to violate copyright? Yes. In a similar way to if I give you “permission” to take my neighbour’s car. Only worse. Because stealing requires intent - you have to mean to do it - while copyright violation is strict liability - if you do it, you’re guilty. If the user that uploaded the item did not have the authority to give the site permission then the site does not have permission and neither do you. If you take reasonable precautions such as performing a reverse image source and verifying that the item appears to be owned by the same person everywhere and, perhaps, reaching out to them then your violation will be an “innocent” infringement which mitigates but does not eliminate damages. The only way to be sure with copyright is to know the provenance of the copyright/licences back to the original creator. | Yes: So long as law enforcement did not compel the hackers to hack the data and the data was recovered by Law Enforcement through their investigation of the Hacker's breeching the server's security. Evidence of a crime committed by a third party is admissiable if it came to light during an unrelated investigation. The party that did the hacking could still be liable for any crimes they committed in their retrieval of the data. There are occasions where someone who is committing a crime stumble upon evidence of a more serious crime and informs the police of the problem either because they would never want to be party to a serious crime, but also because it can help them get reduced sentancing to give up the greater evil. As an example, in "Home Alone," when Kevin tricks Harry with the film clip of the gangster murdering Snakes with his Tommy Gun, Harry is freaking out telling this to Marv, but Marv realizes what's going to happen if they get caught: They've been robbing houses in the neighborhood and the police would likely pin the murder on them rather than assume two seperate crimes occured in the same block. Marv suggests they snoop around so they can see who walks out of the house and give the cops a face with a name. This leads them to discovering Kevin's ruses and the film's climax. | I assume these are digital photos that were electronically transferred (not prints physically delivered). If they were prints physically delivered, he owns those prints, since you used to own them but you unconditionally transferred ownership to him by giving them. No backsies under the law. The photos are protected by copyright law, which means that the person who took the pictures has the exclusive right to make copies, disseminate them, and authorize making copies. In order for anyone to make a copy, they need permission – a license – from you. In the world of pre-planned business deals, the copyright holder writes up a document granting B some right to use the protected material, which typically means "you can install it on your various devices but may not give copies to others". In this case, however, you didn't create an explicit written license. So if this ends up in court, the question is what implicit license you granted. The courts will not decide that you granted him the license to unrestrictedly sell or give away copies of the protected material. The most likely outcome would be that he can only keep his copy, i.e. he will not be forced to erase the copy that you sent him. What the courts would do is try to discern what license you most likely intended to grant to him. There is a provision in copyright law that allows a licensee to make backup copies of a computer program (17 USC 117), but a digital photo is not a computer program. So the lifespan of the copy that you sent would be the lifespan of the phone (I assume) that you sent it to. Since actually using a digital photo technically requires making a copy (from disk storage to computational memory), there is a legal direction (dead-end) that you could go where the photo could exist on the phone, but never be opened again. Again, the courts would have to discern what license you probably intended w.r.t. ever opening the photo – obviously you intended that the file could be opened / viewed any number of times. You could argue that the license which you granted was conditional, i.e. "you can have and use these pictures as long as we are a thing", but establishing that this was part of the license would be tricky. Free digital content often has some "as long as" condition attached to it, i.e. "you can use this program as long as you are affiliated with University of Whatever". I don't consider a conditional license to be a ridiculous interpretation, on the other hand the particular court (judge) might decide that people who sext should be forced to live with the unpleasant consequences of their decisions. If we exclude such a line of thinking, I don't see a compelling counter-argument that your ex-partner inequitably loses a right by construing the license as conditional. I don't know if there is any case law that addresses this: at any rate, copyright law would severely limit what he could do with the pictures (the tort "invasion of privacy" also limits dissemination). | If the operators of a site post them in such a way that anyone with a browser can access them, with no login or other security precaution required, and not even any notice that the files are confidential, they are implicitly inviting anyone to view them, and thus it is legal to do so. There was a case where a site owner gave specific notice to a user not to access the site, and blocked the user's IP. When the user hired a proxy service to get around the blockage, this was held to be unauthorized access, a crime under the CFAA (Computer Fraud and Abuse act). But in that case the individual notice was considered essential to the applicability of the act. That case was Craigslist, Inc v. 3Taps, Inc et al, 942 F.Supp.2d 962 (N.D. Cal. 2015). See also This Wikipedia article and thisJaxEnter article. As the Wikipedia article put it: Craigslist Inc. v. 3Taps Inc., 942 F.Supp.2d 962 (N.D. Cal. 2013) was a Northern District of California Court case in which the court held that sending a cease-and-desist letter and enacting an IP address block is sufficient notice of online trespassing, which a plaintiff can use to claim a violation of the Computer Fraud and Abuse Act. Note that in this case web scraping was apparently impacting the craigslist site. | Of course it is illegal. You are attempting to access somebody's data without their knowledge and certainly without their consent. In the U.K. it is a crime under the Computer Misuse Act 1990, the Police and Justice Act 2006 and the Serious Crimes Act 2015. The clue here should be in the term Serious Crimes. The Human Rights Act, and indeed the ECHR, should never come into it unless it was state sponsored or corporate spying. And even then certain states have given themselves Orwellian totalitarian authority to do as they please. | Such a search would have been emotionally satisfying for many people, but it would almost certainly not have been legal. Evidence that someone committed a crime is not always sufficient to permit a search of their home. An arrest warrant requires probable cause to believe the target individual committed an offense, and a search warrant requires probable cause to believe that the target location will have evidence of a crime. So whatever evidence they had that Epstein committed a crime, they would generally need a separate warrant to search his properties for evidence of that crime. There is no "emergency clause" for search warrants. I imagine you're thinking of the "exigency" exception to the requirement that the police obtain a warrant before searching property, which allows a search in cases where there is an actual emergency, where evidence is being destroyed, or when someone ducks into private property while officers are pursuing them. "Reasonable suspicicion of possible threats to ... potential victims" would not be enough to justify a search based on an exigency. If Epstein is already in jail, he doesn't really pose a threat to anyone, he isn't able to destroy any evidence, and no one is pursuing him anywhere. | You are conflating the crime against the state of possession stolen goods with the common law tort against the owner for conversion. To your questions: How would this proceed? It seems like it would be very difficult to prove (short of getting public surveillance footage) that I even bought the item. If you read the second paragraph of the page you linked it says: In many jurisdictions, if an individual has accepted possession of goods or property and knew they were stolen, then the individual is typically charged ... If the individual did not know the goods were stolen, then the goods are returned to the owner and the individual is not prosecuted. Proof of the crime involves a "beyond reasonable doubt" standard of evidence of both the fact that you have the goods and that you knew they were stolen. If you become aware that they were stolen (e.g. the police tell you) and try to keep them then you have just committed the crime. Proof of the tort requires a "balance of probabilities" standard of evidence that you have the goods and that they belong to someone else; your knowledge that they were stolen is immaterial. In the first instance, the police would probably knock on your door, tell you why they were there and ask if the version of the story they have from the thief is essentially true. What happens next depends on your response: "Yes, I knew it was stolen; you better arrest me and I will plead guilty." This will play out as you expect. "Yes, I didn't know it was stolen, I will go and get it for you." You return the goods, give a statement and may have to act as a witness in the prosecution of the thief. You are down $1,000 but are now older and wiser. "No, I have no idea what you are talking about." Well, you have now committed the crime of hindering a police investigation and have also committed the crime of possessing stolen goods - you can no longer claim that you didn't know the goods were stolen; the police have told you they are. What happens next depends on if the police believe you or the thief. Surely they couldn't/wouldn't get a warrant to search my house? Want to bet? They certainly have enough to get a search warrant if they want one (probably). Whether they seek one probably depends on the value of the goods, how busy they are and how much you pissed them off. Could I be prosecuted if I didn't know it was stolen? Not if you return it as soon as practicable after being made aware that they were. The scam This seems like a lot of work for a very small return - spend your time worrying about things that are more likely to happen. Good Title All of this is tied up with the concept of good title. Basically, you cannot gain good title to property from someone who does not have good title themselves; if you buy goods from a thief you do not own them. For example, if A has good title to the goods, B steals them and sells them to C who sells them to D then A still owns them and can demand their return from D, D could demand the return of their money from C and C could do likewise with B but as far as A is concerned it doesn't matter that C & B have lost money; that is simply too bad for them. |
Is it legal to film a police officer while inside of a police vehicle and officers/ detainees only section of a police station if one were arrested? Is it legal to film a police officer inside of a vehicle and officers/ detainees only section of a police station if one were arrested? TLDR: are police vehicles and the inside of a police station public places? | It is not decided whether such, in areas, filming can be prohibited. In a "public forum", First Amendment rights are maximally protected, and this includes filing (Glik v. Cunniffe, 655 F.3d 78 in particular §A(1) for a summary of the law on this question). In Perry Educ. Ass'n v. Perry Educators' Ass'n, 460 U.S. 37 the court refined public forum doctrine to distinguish quintessential, limited, and nonpublic fora. In a nonpublic forum, the government may "reserve the forum for its intended purposes": but, such a reservation must be viewpoint-neutral. Grayned v. City of Rockford, 408 U.S. 104 states that "The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time". In a nonpublic forum, demonstrations can be forbidden, especially when demonstrations are incompatible with the purpose of the forum (example: military bases). The particular question you raise has not ended up in court. One may be tempted to reason that First Amendment rights can be arbitrarily curtailed in a non-public forum, but such a restriction would have to have appropriate justification – the restriction would be subject to strict scrutiny. Simply saying "We don't want people filming inside the holding area" is not a valid justification. But, the police are not required to announce their legal argument in advance. If you get busted and film, and they make you stop, you can sue for violation of your First Amendment rights. Your attorney would then need to make a good argument that this restriction is to be subject to strict scrutiny, and that it fails. | Has friend A got any chance of disputing the cost of the seizure as the police didn't issue the notification? I don't think so (see below for why), but you should pay a lawyer if you need legal advice. The met say A FORM 3708 seizure notice will have been given to the driver where practicable, giving full instructions on the reverse. A notice letter will also be sent to the registered keeper, if they were not the driver. In the meantime, this information will assist you. (my emphasis). Section 165A of the Road Traffic Act 1988 does not, so far as I can see, mention any legal requirement for the Police to issue a paper document at the time of seizure. Here's 165A in full 165A Power to seize vehicles driven without licence or insurance Subsection (5) applies if any of the following conditions is satisfied. The first condition is that— a. a constable in uniform requires, under section 164, a person to produce his licence and its counterpart for examination, b. the person fails to produce them, and c. the constable has reasonable grounds for believing that a motor vehicle is or was being driven by the person in contravention of section 87(1). The second condition is that— a. a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143, b. the person fails to produce such evidence, and c. the constable has reasonable grounds for believing that the vehicle is or was being so driven. The third condition is that— a. a constable in uniform requires, under section 163, a person driving a motor vehicle to stop the vehicle, b. the person fails to stop the vehicle, or to stop the vehicle long enough, for the constable to make such lawful enquiries as he considers appropriate, and c. the constable has reasonable grounds for believing that the vehicle is or was being driven in contravention of section 87(1) or 143. Where this subsection applies, the constable may— a. seize the vehicle in accordance with subsections (6) and (7) and remove it; b. enter, for the purpose of exercising a power falling within paragraph (a), any premises (other than a private dwelling house) on which he has reasonable grounds for believing the vehicle to be; c. use reasonable force, if necessary, in the exercise of any power conferred by paragraph (a) or (b). Before seizing the motor vehicle, the constable must warn the person by whom it appears that the vehicle is or was being driven in contravention of section 87(1) or 143 that he will seize it— a. in a section 87(1) case, if the person does not produce his licence and its counterpart immediately; b. in a section 143 case, if the person does not provide him immediately with evidence that the vehicle is not or was not being driven in contravention of that section. But the constable is not required to give such a warning if the circumstances make it impracticable for him to do so. If the constable is unable to seize the vehicle immediately because the person driving the vehicle has failed to stop as requested or has driven off, he may seize it at any time within the period of 24 hours beginning with the time at which the condition in question is first satisfied. The powers conferred on a constable by this section are exercisable only at a time when regulations under section 165B are in force. In this section— a. a reference to a motor vehicle does not include an invalid carriage; b. a reference to evidence that a motor vehicle is not or was not being driven in contravention of section 143 is a reference to a document or other evidence within section 165(2)(a); c. “counterpart” and “licence” have the same meanings as in section 164; d. “private dwelling house” does not include any garage or other structure occupied with the dwelling house, or any land appurtenant to the dwelling house. Also what consequences could Friend A face for knowingly allowing friend B to drive his (Friend A's) car whilst he was drunk and didn't hold a valid license or insurance? A few random thoughts: B is clearly committing several criminal acts and A appears to have possibly aided and abetted them. I imagine A's insurance company might consider this invalidates A's insurance. I'm just some random bloke in the intertubes, not a lawyer. | Anyone has a right to report illegal activities that it is aware of to the authorities. This is in fact where 99.9% of police investigations start. In addition, students of a school (or, more generally, members of any organisation) are eligible to be investigated/disciplined by the school in accordance with the rules of the school providing that the investigation and punishment are in accordance with the law. This would normally permit (require?) notification of any child's parent or guardian. In loco parentis does not arise - the school is acting as a responsible citizen; not as a substitute for the children's parents. | The standard for stopping someone and requesting their ID under the limitations in the U.S. Constitution is "reasonable suspicion." For example, if the officer has a reasonable suspicion that you are taking pictures for the purpose of a secure location for purposes of espionage, or to case the location for a future crime, reasonable suspicion is probably present and you can probably legitimately be asked for you ID. A creative and intelligent officer can almost always conjure up some reasonable suspicion in the situation that you identify to question you and demand ID. For example, she could state that no one else has taken a picture of that location in weeks and that is is very unusual behavior, that your demeanor or the time of day you were present doesn't seem to be that of someone taking a picture for artistic or journalistic purposes, that you seemed nervous, that a previous criminal engaged in similar behavior before committing a crime fourteen years ago, that a confidential informant (e.g. a nosy neighbor) advised him that there was someone engaged in suspicious behavior at that location, that she read in a police anti-terrorism bulletin that terrorist favor that model of camera, etc. The nature of the suspicion doesn't have to be shared with you until you challenge it in court. A dumb cop won't come up with any colorable reason, demands ID for a stated reason ("before you have to do whatever I say") that is inaccurate, admits he has no reason to stop you in a conversation captured by a body camera, and doesn't come up with pretext after the fact before going to the court. In that case, the stop is a de minimis violation of your civil rights justifying a nominal damages award of $1 to you and your attorneys' fees and costs and maybe a consent decree ordering the agency not to do that in the future. | In the United States, there is no potential liability for the municipality or the police department. There is no legally enforceable duty of police to act to prevent either violations of the law, or apprehend criminals, or to prevent suicide of people who are not in police custody. Other countries have different laws on this subject. | Yes, this can land you in jail, no matter what In France, per article 226-1 du code pénal recording without consent may be punished by one year in jail and 45000€ fine. Any recording without authorization of all parties involved (including the owners or administrators of buildings recorded either outside or inside due to copyright of the architectural image) can also land you in legal trouble either criminally or in civil court. The consent is implied if the parties involved knew about it and had means to deny authorization but didn't, but mind that any recording, secret or not, can be considered non consented, which probably discourage anyone from recording anything in France. However you can still show these images obtained illegally in a court and the judge has the right to declare such recording justified (no statute about this, it is totally up to the judge) and thus allow you to use it as evidence both in civil or penal matters. It does not, however, protects you from being sued latter for the exposure of the recorded party, but the acceptance as evidence by a judge may serve as defense. This means that many forms of recording in France, including tourists taking pictures of the Eiffel tower, obviously without authorization of the administrators of the tower or any potential passer-by, is in fact committing a crime, although obviously the law in simply not enforced for these cases. However, if a filmmaker records the Eiffel Tower and makes millions in box office, the tower administration will probably go to the trouble of collecting some money threatening to press charges if not paid. | This depends entirely on STATE law, and you need to list the state(s) you are interested in in the question. Thus, the usual legal statement "it depends." POLICE ARE NOT ATTORNEYS Don't accept legal advice from the police at face value. Police frequently don't actually know the minutiae of the law, and/or often misunderstand it. Their job is not to provide legal advice nor legal judgement, their job is to enforce the law based on certain priorities. Thus the area of enforcement is usually narrowed to specific categories so they can be experts in that area. (I.e vice cops, bunko squad, homicide division, etc.) But police are not lawyers, so don't expect them to understand the law. They did not attend 3 years of law school after attaining a college degree, which lawyers DO. Police get as little as 3 months training (in some states like Arkansas they can be put on duty without ANY training for up to a year (!) before attending the academy). THAT SAID, REGARDING CALL RECORDINGS: There are single and two party states. In single party states, any single person who is part of a call or communication can record it. In "two party" states, everyone that is part of the call must be informed. There are numerous exceptions and stipulations however. GREAT EXPECTATIONS First off, is there an "expectation of privacy." Again this varies by state and case law. Generally, if there is no expectation of privacy, then there is a clear exception to record. For instance, if you are in a busy restaurant, and people around you can hear or eavesdrop, you have no expectation of privacy. Courts have also ruled that if you are in the presence of a police officer performing official duties, there is also no expectation of privacy (not for either of you). IS IT LIVE OR IS IT MEMOREX Are you being recorded? If you are in a two/all party state, and you have an expectation of privacy (a phone call made in your home) then one of the following must occur: If the police are recording you without your knowledge, they must have a court order permitting them to do so as part of an investigation. Otherwise you must be notified with a statement at the beginning of the call that the call is being recorded. (Typically your option is to hang up or continue. Continuing the call implies your consent.) In some states the notification can be in the form of a "duck" or a beep every 15 seconds (time period varies, this is also different per state). OPINION NOT ADVICE BELOW I would think that being notified that a call is being recorded ends any expectation of privacy for any involved party. Assuming the state law and related case law supports recording when there is no expectation of privacy, this circumstance would seem to permit recording legally. Doubly so if your were talking to police in official capacity (did you notice a beep every xx seconds?) CAUTION: Because this varies so much by state, and because even the various Federal District Courts are not in unanimous agreement on the minutiae, there may be other factors to consider. | Theft is of course illegal in all US states, and pretty much every other jurisdiction. In the US that is a matter of state law, not federal. It could be reported to the local police, but it might be hard to prove. Both landlord/tenant law and privacy law are largely matters of state law in the US, not federal law. Such laws vary a good deal in different states. In many states a landlord is allowed to enter the rented premises, usually on "reasonable" notice, or without notice if there is an emergency. If the landlord actually lives in another part of the house, and simply rents a room to the tenant, the landlord may be able to enter the room more freely than if it was a separate apartment or house. In many cases where there is a written lease or rental agreement, it will specify under what conditions the landlord or landlord's agent may enter, and how much notice is required. What does the lease in the current case say about that? |
What is a Writ and who can issue one? What is a Writ and who can issue it? Can a normal person issue a writ on some normal person or should be done on an institution? I'm asking this with respect to India. Is the meaning the same across all countries? | A "writ" is a formal written order issued by a court to another entity. A "writ of mandamus" is an order to a lower court or government official to do something they are obliged to do by law. It is one of the "prerogative writs". Another well-known example is a "writ of habeas corpus": an order to produce a detained person in court, in particular to determine whether the detention is lawful. A person might ask a court to issue a writ. | What should and shouldn't happen isn't going to do a damn thing about your passport situation. Your passport isn't being 'held', it's in processing at a place that is currently not operational due to an unprecedented virus outbreak. No one is acting like a criminal or treating you like one, you are just unlucky. If your situation is that dire, you have no choice but to get a temporary passport. I seriously doubt an Indian court is going to side with you on this one. Just because the passport office is legally allowed to operate, doesn't mean that they are actually able to. If, for example, COVID-19 hit enough of their workforce, they won't have enough people to operate properly and they'll have no choice but to close. And no, '2 or 3 people' is not enough to operate such a large scale, sensitive operation with high security requirements, even just to return passports . | Everything In the sense that it means every single legal claim that a person could or might have over or in the thing. Specifically, ”right” means a legal right that can arise in all sorts of ways, ”title” means legal ownership and ”interest” means both of the above plus anything else that may be related to the thing no matter how remote or esoteric. | Issue in this sense means a person's children or other lineal descendants such as grandchildren and great-grandchildren. It does not mean all heirs, but only the direct bloodline. | 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. | Article 15(2) of the Indian Constitution prohibits restriction to any citizen of India on entry to a public hotel, restaurant or place of entertainment on the grounds "only of religion, race, caste, sex [and/or] place of birth". It is a fundamental right guaranteed to all citizens of India. The Supreme Court of India has held a "public place" to mean any place which is open to the public and to also include private places functioning to serve a non-exclusive group of people. Hence, a club or premise opened only to serve its affiliates or members shall not be considered a public place for the purpose of this provision of law. Hence, if a citizen of India is not denied admission purely on the basis of his/her religion, race, caste, sex or place of birth, his admission to a restaurant or a hotel owned and operated by the government or private concerns may be prohibited as the rights of admission may be reserved with the management of the premises. Just to conclude you can sue the hotel for denying entry | What does this paragraph mean? Line by line. I give my Residuary Estate This is a gift, effective when the person writing the Will dies, of everything that is left over after all debts and taxes are paid and after any other gifts already in the Will (e.g. leaving a car or a house or a Monet to someone in particular) have been given. to the said [Full Name] absolutely I'm going give [Full Name] a name so that it is easier to follow this explanation. [Full Name]'s name for purposes of this answer is "Luna". This says to give all that stuff to Luna when the person who wrote the Will dies, if Luna is still alive for whatever the required amount of time is after the person who wrote the Will dies. The required survival time period is either in the boilerplate provisions of the Will, or in the relevant statute if the Will is silent on the question. The Will says "absolutely" because historically, someone who received gifts of property in deed or wills in England only got to keep it for their lifetime, unless it clearly specified otherwise, after which someone else would get it. But in this case, if Luna survives this long, Luna gets all of this stuff with no strings attached. and if [Name] shall fail to obtain a vested interest leaving issue who survive me then such issue shall take by substitution If Luna dies before the person who wrote the Will does, or doesn't stay alive for the required number of days afterwards, then Luna isn't entitled to this stuff. Luna's descendants get it instead (i.e. Luna's descendants "take by substitution" what Luna would have gotten if Luna had lived, instead of Luna's probate estate getting the stuff). and if there shall be more than one of such issue they shall take in equal shares per stirpes but so that no issue shall take whose parent is alive and so capable of taking. If Luna predeceases and has exactly one living descendant who is alive when the person who wrote the Will dies, and that living descendant lives the required number of days after the person who wrote the Will dies, then the sole living descendant of Luna gets all of the stuff that is left over when the person who wrote the Will dies. If Luna has more than one living descendant, the stuff that is left over when the person who wrote the Will dies, then Luna's descendants gets broken up the way described below, which is called per stirpes: Create one share for each child of Luna who is alive and survives Luna by the required amount of time. If Luna has only one living child, that child gets everything even if Luna's child has children of their own. Create one share for each child of Luna who didn't live for long enough after the person who wrote the Will's death, if the predeceased child has descendants who are alive and remain alive after the person who wrote the Will dies by the required amount of time. This share is then broken up into one sub-share for each child of the predeceased child who is alive when the person who wrote the Will dies and is still alive after the person who wrote the Will dies by the required amount of time, and one sub-share for each predeceased child of the predeceased child who has living descendants who remain alive for the requisite number of days. Continue this process until 100% of the the residuary estate has been assigned to someone and give them their share of it once the estate is settled. If someone lives past the minimum number of days to outlive the person who wrote the Will, and then dies, that person's share goes that person's probate estate. For visual learners, a per stirpes distributions of assets looks like this: A per stirpes distribution to descendants is the plain vanilla ordinary way to giving stuff to the descendants of a dead person when you don't know in advance who will outlive you. What if Luna predeceases with no living descendants? Usually, this paragraph of a Will will be followed by another paragraph called the "ultimate contingent beneficiary" which says who gets the stuff that's left over in the residuary estate if Luna predeceases the person who wrote the Will and has no living descendants. Often, the ultimate contingent beneficiary will be one or more distant relatives, a list of friends, or a charity. If there is no ultimately contingent beneficiary in the Will, but Luna and all of Luna's descendants predecease the person who wrote the Will, then it goes to the next of kin (a.k.a. "heirs at law") of the person who wrote the Will, if there are any relatives of the person who wrote the Will who are close enough to qualify to inherit under English inheritances law. If there is no one closely enough related to the person who wrote the Will to qualify under English inheritance law, then the stuff "escheats" (i.e. is inherited by default) by the King (or Queen) of England, as the case may be. There are some circumstances when the Will can be ignored. Everything above explains what this language in the Will means. This isn't always what happens, however. There are several exceptions to the general rule that property goes to the people that the Will says it goes to. I won't list them all here, but it is important when a Will is being written to understand that this is the case. For example, if the person who wrote the Will leaves nothing in the Will to their spouse of thirty years as of the death of the person who wrote the Will, who has no assets of their own, then the Court will partially ignore what the Will says and give some of the residuary estate to the surviving spouse. Also, the Will only controls assets that are in the "probate estate". Some assets pass at death in what are called "non-probate transfers" that are not controlled by what the Will says. And, finally, of course, if the Will was written when the person signing the Will was of unsound mind, the Will can be invalidated in a "Will contest" in the appropriate court if the person contesting the Will's validity can prove that the person signing it was of unsound mind at the time. This is mediocre legal writing This paragraph gets the job done, but it is not very well written by modern legal Will drafting standards. It is adequate and probably meets the standard of care for a lawyer who hasn't committed malpractice. Lawyers in England have been writing paragraphs like this one for three or four hundred years. But it is not "best practices" legal writing in a Will. Good modern legal drafting for a Will would be much easier for a non-lawyer to understand, in addition to being clear and unambiguous. | Education in India falls under the concurrent list -- i.e. both state and union laws apply. However, there do not appear to be any codified "student rights". The relevant national body for "technical education" is the AICTE, which does have a mechanism for grievance redressal, this is often used as the primary source of complaints against ragging. You can submit a grievance here. The 2004 Guidelines for Grievance Processes require a sub-30-day resolution of complaints. In fact, all accredited technical institutions in India are required to have a local Grievance Redressal Cell and Ombudsman as per this 2012 notification. Finally, you could contact AICTE directly Students may also file grievances at the UGC (University Grants Commission). The UGC is a statutory body in charge of "coordination, determination and maintenance of standards of higher education". In 1987, they released "Guidelines for Student Entitlement". See sections 2.5, 2.6 regarding fairness in evaluation and section 5 which deals with discriminatory treatment. At a state-level, you could try Rajasthan Sampark, which only applies to government institutions. As others have stated, you need to ensure that you have documented and clear proof to support your accusation, and that you should not back down in fear of reprisal. The process of collecting evidence may help you determine if you truly have a valid complaint, or are perceiving bias that does not exist. To the best of my knowledge, in answer to your second question, no, Indian jurisprudence does not have a similar concept of student rights as the United States and some of Europe. While reading the links for the other answers and searching for policies for this post, the one thing that becomes clear is a worrying lack of depth in policies and transparently available policies and data. If you choose to take this forward, I hope that you will document and publish your efforts. |
Is this robbery a non-violent crime? Can police deliberately ignore robberies? Is it legal to violently resist a robbery? I just came across the following facebook status. I cannot testify to its veracity, although given the SF DA policy not to prosecute quality-of-life crimes it sounds believable. Anyway, this status triggered several questions: Is a robbery that includes smashing a car window with the driver inside considered a non-violent property crime? If the police witness such a robbery do they have the duty to intervene? Is it true that if the victim fights back in such situation and injures the assailant, the robbery victim may be prosecuted for using violence against the robber? Andrew Bland Robbery in Golden Gate Park: On Thursday evening, I was witness to and nearly a victim of an aggressive robbery near the bison paddock on JFK Drive in Golden Gate Park. I was photographing great horned owls. Around 8:10PM, I was packing up equipment and putting it in my car. Another photographer was doing the same further down the road behind me. As this person got in their car, I saw a small white car pull up and abruptly stop right next to it. A masked man jumped out and began smashing in the rear window of the other photographer’s car. By the time I got my wits about me and managed to get into my car and start the engine - no more than 10 seconds - they had finished robbing the other person and had now pulled up alongside me. The passenger-side door opened and the masked assailant began to step out, ready to smash his way into my car. With only a few seconds to spare, I stepped on the gas and pulled away, fully expecting that they would give up and flee. But they chased me, and pulled up alongside me, either trying to run me off the road or cut me off and stop me. I sped up and got ahead of them. Probably going 50MPH with the assailants’ car right behind me, we ran through two stop signs and barreled over speed bumps for nearly a mile before they slowed down, made a U-turn, and disappeared out the 33rd Ave gate. (Keep in mind, I bike this road nearly every day and am very respectful of more vulnerable road users when in my car. I gave the few cyclists that happened to be out a wide berth as we passed.) I circled back and by then the cops were there. I gave a statement, along with the other victim and two witnesses. Nobody saw their faces or license plate. They were fast, prepared, and extremely aggressive. The officer explained that these smash-and-grabs are merely considered property crimes and are NOT considered violent crimes (yes, you read that correctly) so they don't really pursue them, and if they did hypothetically make an arrest, the judge would just let them go, including repeat offenders. He even said if police were to witness one of these incidents occur, they would NOT chase the culprits. He also informed me that if one were to fight back and injure (or worse) one of these thieves during a robbery, then that person would likely be charged with assault for using violence against a "non-violent" criminal. Unbelievable. So scary and so very frustrating. So be careful out there. I am finished shooting pictures and video in the park. Way too dangerous, and the police are not going to be there when you need them. And even if they were, they wouldn't help you anyway. I'm sharing this story as a reminder to others to stay in groups, and always be aware of your surroundings. | Is a robbery that includes smashing a car window with the driver inside considered a non-violent property crime? Robbery is classified as a violent crime. Whether or not this fact pattern would count as robbery as opposed to burglary or theft and vandalism would depends upon California's penal statutes. Burglary is sometimes considered a violent crime (e.g. an armed home invasion burglary) and sometimes not considered a violent crime (e.g. an unarmed theft from an unoccupied residence). Theft is generally not considered a violent crime and if small in amount may not even be a felony. So is vandalism (i.e. the malicious destruction of property, rather than the taking of it). Robbery is defined in California Penal Code § 211 as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." There is a very solid argument that this fact pattern constitutes robbery, a violent crime, under California law, but it could be argued either way. The close issues would be "immediate presence" and "by means of force or fear" (which by implication mean force or fear directed at persons rather than things). The OP fact pattern is probably not burglary under California Penal Code § 459 because while theft from a car can be burglary when someone is living in the car, this does not appear to be the case here. So, if a jury did not find that this constituted robbery, it would probably be the crime of theft (for the things taken) and vandalism (for the damage to the car windows), both of which are property crime misdemeanors. If the cars were unoccupied, this would clearly be merely theft. If the police witnesses such a robbery does it have the duty to intervene? No. The leading case for U.S. Constitutional law is Castle Rock v. Gonzales, 545 U.S. 748 (2005). I am not aware of any California law to the contrary. Failure to intervene might be grounds for the chief of police to fire them, but it is not a crime and not a basis for a lawsuit against anyone. The police have effectively absolute discretion to refrain from enforcing the law. Is it true that if the victim fights back in such situation and injures the assailant the robbery victim may be prosecuted for using violence against the robber? No. A victim may use reasonably necessary force in self-defense, so long as the situation continues to be a self-defense situation. Usually, deadly force would be justified in self-defense or defense of others from a violent robbery, although a jury would have to determine that the use of force was actually necessary or that the threatened crime was actually a genuine threat, according to the statutory standard for self-defense and defense of others. The relevant statutes include California Penal Code § 197 which provides in pertinent part that: (1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person. (2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein. (3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed. But, the circumstances under which force can be used to arrest or stop a fleeing criminal are much more narrow, particularly in the case of a citizen's arrest as opposed to an arrest made by law enforcement. The U.S. Supreme Court case of Tennessee v. Garner, 471 U.S. 1 (1985) narrows the scope of the lawful use of force in these circumstances beyond what California's statutes authorize on their face. For example, suppose the robber threatens you with a knife unless you give him his wallet. You or a bystander could probably lawfully shoot him at that point to prevent the robbery. But, suppose that at that point, the robber tosses the knife on the sidewalk and runs away. If someone shot the robber in the back to stop him from fleeing (unaware of any other crimes that the robber may have committed and unaware of any other weapons that the robber may have), the person shooting the robber would be guilty of aggravated assault if the robber lived, and of manslaughter or murder, if the robber died. The facts in this case are a bit muddy on whether self-defense should have been available or not, and different hypothetical uses of force could come out different ways within this fact pattern. | A follow-up story appears on the local ABC television station, indicating that the security guard pleaded no contest to simple assault. The fact that the security guard was convicted of a misdemeanor does not necessarily indicate that the deputy was allowed to have the gun in the IRS office, only that the security guard's response to the situation was not acceptable. I am not able to locate any firearm policy for the Lucas County, Ohio' sheriff's office. Many US law enforcement agencies have a policy that their officers carry their firearms essentially at all times, so that they can respond to unexpected incidents even when they are off duty. At the same time, owners of private property ordinarily can admit people, or not, for any reason at all. Unless the officer has an official reason for entering a property when the owner doesn't want the officer there, the officer isn't allowed to enter. It appears that in this case the officer had no official law-enforcement reason to enter. But this case doesn't involve private property, it involves federal property. A digest from the FBI states "Federal laws or regulations are not superseded by LEOSA. Qualified officers may not carry concealed weapons onto aircraft under the act. They also cannot carry firearms into federal buildings or onto federal property." | Police officers can lie to you He asked to search your car. He’s allowed to do this. You said no. You’re allowed to do this. He lied to you when he said he would get the K9 to search the car - this would not be legal. But he’s allowed to tell you lies. You made an admission of criminal activity. He now has probable cause to search. He legally searched, confirmed your admission and booked you. Seems legit to me. | None, if the intention is merely trespassing, unlike burglary which requires intent to steal, commit criminal damage, or inflict grevious bodily harm or if the building is a protected site - neither of which isn't evident from the question. Note, for both offences, the actus reus is entry - there is no requirement for any form of "breaking" Further to ohwilleke's comment, unless the lock is damaged or destroyed etc, then there is no offence of criminal damage | As mentioned in a comment by @Dancrumb, the exact policies of each local police department will be different, and there are thousands of them. There is a relevant requirement at the Federal level according the Department of Justice, but it is not clear to me to what extent this applies to peers and not just supervisors: An officer who purposefully allows a fellow officer to violate a victim's Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them. | Yes and no. There are numerous cases where criminals, upon breaking in to somewhere, find evidence of a worse crime and notify authorities. This will provide reasonable suspicion enough for entering the scene. Generally, in testimony, Statements against Interest are more believable because a burgler wouldn't admit to breaking and entering if he had a way to explain why he was there in the first place. (Example: Alice breaks into a Warehouse and sees a mutilated body and blood everywhere. Alice immediately stops her theiving ways and calls 911 to let them know about the scene. Whether or not Alice stays, a dead body is enough probable cause to secure the crime scene without warrant. Its in Alice's interests to stay and help as there is trace of her at the scene and she would be pegged as a suspected murderer. If she's picked up and admits to calling the cops, it's good, but staying and helping out after the call will likely get her off on the charges related to the murder.). It could also work if they are persuing one crime and discover evidence of a second unrelated crime. (i.e. Alice robs the factory and gets away. The Factory Foreman calls the cops to investigate the crime scene, which at this point, does not need a warrant. While investigating, the Cops find security footage that Bob, the night guard, killed Chuck, a late night worker, removed his body, and cleaned the scene, all before Alice broke into the factory. The outcome of the case being made against Alice does not affect their need to prosecute Bob, as they obtained that evidence while looking for Alice in a valid investigation, not Bob, thus it is legal). Under these situations a crime that leads to a separate valid crime involving a different party is admissible. There are two possible reasons that the attorney might think this: Fruit of the Poisonous Tree: This is the obvious element... the kids committed a crime with the hopes that the cops would use the evidence found by them in their commission of a crime to get the real bad guys. The attorney parent thinks this is stupid because the kids broke in specifically to do this and thus any evidence is now tossed out of court. This isn't usually the case in how this scenario will play. Generally the cops are more than happy to look at evidence obtained by criminals that points to another crime. In fact, this is how a lot of gang enforcement units and drug enforcement units operate... pick up a small fish and cut a deal for evidence against a bigger fish (turning state's in the criminal lingo, as the witness is becoming State's Evidence to another crime). As long as it's given to the cops as part of legitament evidence seeking, the cops can follow the leads where ever they... er... lead... Chain of Custody: This is probably, if properly thinking, what the attorney parent is thinking that's a bit more probable. Lets say these kids found a dead body with a sword in it and take the sword to the police... this could get dicey as the kids have contaminated the evidence in possible ways that the killer's lawyer could get thrown out. One thing CSI doesn't always show (though there are a few episodes where it comes up, but not many) is that when something is taken in as evidence, it is carefully documented, sealed, and tagged with a check in/check out list. Every time the seal is broken, the person breaking the seal notes the time, date, and reason and when does, reseals it with a new seal, and signs the time and date of the seal again. This is so at trial, the attorneys know exactly who opened up the evidence, what they did, and what possible contaminants were introduced. You even have to sign into a crime scene before you go up to the yellow tape. A good defense lawyer would call into question any evidence from anything the kids handled to get the evidence tossed (i.e. Your honor, these Meddling Kids handled the sword without following the chain of evidence. They even let their dog handle it. They had already harrassed my client earlier today by insunuating that he was involved with a hoaxed paranormal activity to scare people away from the factory. Since they claim they found the sword, but did document it at the scene, we don't know anything about it prior to the police's chain of custody. I motion that the evidence be dismissed.) If this is successful, anything from the sword is now no longer admissible as if the sword had never been found (including blood of the victim on the blade and finger prints of the suspect on the hilt)... in effect the evidence was prossessed as best the police could but the veracity of the story of it's discovery is too questionable to be considered. The defense does not have to be right, he just has to show there could be another explanation for the sword and the evidence linking his client to the crime committed by it. In short, without specific details, the attorney parent could be right or could be wrong, or more humorously, right, but for the wrong reasons. Edit: U.S. only. See other answers for other jurisdictions. | Without a witness willing to break their silence, we will probably never be certain. It is possible that this was harassment (current ordinance, not 1999 – version in force at that time not available), defined in Arvada if one has the intent to annoy (etc.) and "Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to another in a manner likely to provoke a violent or disorderly response" (the "record" indicates that there was a pattern of such conduct). We don't actually know that he was fined (hearsay...). | First off, you cannot booby trap your property, period. It is both illegal and tortious. But, as you noted, there are already questions/answers that deal with this issue. Sure enough, if the police get a no-knock search warrant, that in and of itself is the Court order allowing entry by any means necessary. When the officers, there by right of law, breach the outer perimeter and stop at the warnings, they will not be seeking any other court orders to have you allow them "safe entry". Their warrant gives them all the right they need, as probable cause of crime and violent intent or intent to destroy evidence was already presented to a judge. If, in real life, you actually put up signage or state explicitly that they're being forewarned that you intend to harm, trap, maim, or otherwise make it unsafe to enter; or that doing so will result in an attempt to destroy evidence, that is something they have already assumed (hence the seeking and granting of the no-knock vs. a regular search warrant). However, the signs in and of themselves are not protected speech, but rather overt threats, and that would put you in a very precarious position indeed. If the police get a "no knock" warrant (the most invasive, difficult to get warrants, whereby there is a grave risk of destruction of evidence or injury to persons), the police will ensure they have safe passage – they've come prepared for dangerous entry long before your signs, but once they see them, you could rest assured they will take them as they are intended: as a direct threat to their safety, and they will deploy a SWAT or other heavily armed entry team (who is usually there anyway for these dangerous entries). You could expect things like smoke/out canister and teargas, flash bangs, and heavily armed and well armored officers attempting to force you from your dwelling. Presumably, if you need to disarm traps to escape the situation, they can enter. Assuming you're home when they invade with chemical weapons, whether you come out or not, they will force you to disarm whatever booby trapping you may have in place that may destroy evidence, likely walking you in as their human shield in the event you're lying about any dangerous ones. That is probably your best case scenario. They may just decide to throw you through the perimeter once they get their hands on you, just to see what happens! If you don't exit and are home or if you are lucky enough to be out, the bomb squad, ATF, and SWAT will converge on your property in less than typical means. Because from your warning they can assume some incendiary or explosive device exists, bringing it into the jurisdiction of other agencies. If they cannot disarm the trap, they would send a robot in first to set it off, or cut through your roof, or knock down a wall – whatever it takes to get in without using a typical means of ingress/egress, so as not to chance your trap. Regardless, you can rest assured that they will get in, and you will pay for the trap you set for law enforcement. Further, to whatever charges you'd have been faced with from evidence flowing from the original warrant will now be added additional charges like attempted murder of a peace officer; if you have any roommates or known associates: conspiracy to do those things; attempted destruction of evidence, criminal interference with a police investigation ... all at a minimum. If anyone is actually harmed, your signage offers you no shield from criminal or tort liability, and you will be lucky to live through the experience once they get their hands on you. Police tend to not like being the targets of intentional maiming, dismemberment or death. You have to understand that, according to this hypothetical, you are intentionally trying to harm law enforcement, or destroy evidence of your dangerous criminal activity. These are not invaders, or intruders according to the law; they are the people whose job it is to enforce the laws, collect the evidence (if you weren't getting arrested pursuant to the fruits of the warrant, you certainly would be at that point). The signs themselves would make excellent exhibits in the coming case of State v. you. BTW: The only reason they have left John Joe Gray alone is that he knows the Henderson County Sheriff Ronny Brownlow, who has been told that the ATF, FBI, and State SWAT, would all be happy to enter and get or kill Mr. Gray if need be. Since the Sheriff never filed any federal charges, and has determined that he doesn't want to breach (and it's in his jurisdiction to determine this), the Sheriff, aware that Gray's entire family is holed up in the "compound", decided it's not worth going in. It's as well known as it is anomalous. When the police want in, and have the right to get in, they will get in. That Sheriff just decided it's not worthwhile. |
When UK Act of Parliament refers to the Secretary of State, which exactly is meant by that? Acts of the UK Parliament often give "the Secretary of State" the power to make regulations, orders or other type of secondary legislation. For example, section 22(3) of the Human Rights Act 1998: The other provisions of this Act come into force on such day as the Secretary of State may by order appoint; and different days may be appointed for different purposes. But as Wikipedia says, there are currently 16 different secretaries of state in the UK. So when an Act of Parliament says just that the Secretary of State may do something, then which secretary of state may do it? Does it mean that any secretary of state may do it? | When the Act was originally passed it didn't say Secretary of State, it said "Lord Chancellor". So depending on when the Act came into force fully, the current wording may be moot. The text of the Act was modified by The Secretary of State for Constitutional Affairs Order 2003 to make the Secretary of State for Consitutional Affairs responsible. That office was discontinued in 2007, and the post of Secretary of State for Justice created. Not being specific in the 2003 Order allows the Prime Minister to reorganise government departments without needing to modify legislation to track the changes. Secretary of State is defined in the Interpretation Act 1978: “Secretary of State” means one of Her Majesty’s Principal Secretaries of State. So, legally, when the text of an Act isn't specific, the power isn't vested in the relevant Secretary of State but can be exercised by any of them. | Parliament in the UK is sovereign: Parliament [is] the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. If parliament passed a law saying that it was a crime for "a black American woman sat at the front of the bus" and provided that it repealed all existing laws that would invalidate that law (e.g. the European Charter of Human Rights); then there is no defence to that crime if the prosecution proves the elements beyond reasonable doubt i.e. that you are a) black, b) American, c) a woman and d) sat at the front of the bus. In the UK there is no higher law that can be appealed to like a constitution. Over the years, UK parliaments have passed laws limiting their sovereignty, however, any current or future parliament could (in theory) repeal those limits. Just like the USA could (also in theory) repeal the Bill of Rights amendments to their constitution (or even replace the Constitution as a whole); albeit the process is different and less likely to succeed. The limitations on this are political, not legal. | Here is a list of language-regulating bodies. There is none for English, but they exist for Spanish (Real Academia Española), French (Académie française) and Swahil (Baraza la Kiswahili la Taifa for Tanzania, Chama cha Kiswahili cha Taifa for Kenya). No language regulator addresses the issues which arise in the interaction between natural language and the needs of legal interpretation. Instead, these bodies generally strive to maintain the historical "purity" of the language. Rather than "define" a word like "sandwich", they decide whether to outlaw (or disparage) the word because it comes from English. The vast majority of language-related problems in law which arise in common-law countries pertains to characteristics of common law and the practice of establishing precedent. There are philosophical conflicts, for example between those to adhere to the text versus those who try to discern original intent. If we had an official agency that precisely defined what a "weapon" is, we would still have the struggle over interpretive philosophies which renders moot any rulings from the national language regulator. In the US, part of the problem of word-definition is the widespread practice of localized redefinition in statutes – the laws that say "In this subsection, 'weapon' has the meaning defined in 18 U.S. Code §920" (fictitious: §921 defines "firearm" undefined "weapon"). Tracking the scope of definition and range of variation of a word within a body of codified law is very difficult. The rule in common law is that words that are not statutorily defined are given their "ordinary" meaning. There is no authoritative resource for "ordinary meaning" in English (there is no such thing as "the" dictionary). In the US, it would require a constitutional amendment to immutably impose a particular dictionary standard for deriving word meaning (e.g. Webster's Fourth New International Dictionary of the English Language, Unabridged, forthcoming) and there would be ensuing political protests. A legally precise definition of "repair" would be very difficult to understand, and would require hiring a lawyer in order to engage in the activity of "repairing broken windows", from a legally-safe perspective. And that is just word meaning. Ambiguity in sentence-meaning cannot be resolved by listing the sentences. | An executor executes a will according to the wishes of the will. This involves disposition of the estate. Almost certainly the mental state of humans is not material to the disposition of the estate. I'm unclear what you even mean by executor. The named executor of a will only has power after a person dies. Was the will executed 19 years ago? If so, the executor's power is long long passed. The chance of challenging a will 19 years later is practically zero. Elder abuse will be managed by the state. An interested party may involve the state to create an investigation as to what is going on. | A person can be a shareholder or director of a UK company without being in the UK. Being a shareholder or director of a UK company does not give a person a right to be in the UK. The 3C leave extension is unrelated to this. A person with 3C leave may remain in the UK on that basis regardless of whether the person is a shareholder or director of a company. Attending "board-level meetings" is an activity that is allowed under the visitor rules, even if the director is paid (see V4.7), so one may conclude that doing so does not constitute "work." It should therefore be permitted for someone under 3C leave even if the person is not authorized to work. Doing work for the company other than attending meetings would not be permitted until the person gains authorization to work. | I think we're talking about In re Hennen, which dealt with the removal of the clerk of the district court in Louisiana: It all these departments power is given to the secretary, to appoint all necessary clerks; 1 Story, 48; and although no power to remove is expressly given, yet there can be no doubt, that these clerks hold their office at the will and discretion of the head of the department. It would be a most extraordinary construction of the law, that all these offices were to be held during life, which must inevitably follow, unless the incumbent was removable at the discretion of the head of the department: the President has certainly no power to remove. These clerks fall under that class of inferior officers, the appointment of which the Constitution authorizes Congress to vest in the head of the department. The same rule, as to the power of removal, must be applied to offices where the appointment is vested in the President alone. The nature of the power, and the control over the officer appointed, does not at all depend on the source from which it emanates. The execution of the power depends upon the authority of law, and not upon the agent who is to administer it. And the Constitution has authorized Congress, in certain cases, to vest this power in the President alone, in the Courts of law, or in the heads of departments; and all inferior officers appointed under each, by authority of law, must hold their office at the discretion of the appointing power. Such is the settled usage and practical construction of the Constitution and laws, under which these offices are held. In re Hennen, 38 U.S. 230, 259–60, 10 L. Ed. 138 (1839) (emphasis added). | This is an interesting question. Requirement to "Qualify" The relevant provision seems to be subsection (b) of the Presidential Succession Act of 1947 (codified at 3 USC 19. That subsection provides that: (b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President. Thus a Speaker would not become acting President unless the Speaker "qualifies". I believe this would include fulfilling all the requirements for a President, including the minimum age, and the requirement that the President be a "natural born citizen". Subsection (d)(1) further provides that: If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security. The Act has never been invoked, nor have either of the two prior Presidential Succession Acts, so there is no case law or precedent available. The Wikipedia article on the Act describes the history of all three versions, and the times when an invocation might have occurred. Questioned Constitutionality The Wikipedia article quotes a statement by Judge M. Miller Baker made during a September 2003 joint hearing before the U.S. Senate's Committee on Rules and Administration and Committee on the Judiciary. This statement argues that the Act as currently written is unconstitutional. The statement reads: The 1947 Act is probably unconstitutional because it appears that the Speaker of the House and the President pro tempore of the Senate are not "Officers" eligible to act as President within the meaning of the Succession Clause. This is because in referring to an "Officer", the Succession Clause, taken in its context in Section 1 of Article II, probably refers to an "Officer of the United States", a term of art under the Constitution, rather than any officer, which would include legislative and state officers referred to in the Constitution (e.g., the reference to state militia officers found in Article I, Section 8). In the very next section of Article II, the President is empowered to "require the Opinion, in writing, of the principal Officer in each of the executive Departments" and to appoint, by and with the advice and consent of the Senate, "Officers of the United States". These are the "Officers" to whom the Succession Clause probably refers. This contextual reading is confirmed by Madison's notes from the Constitutional Convention, which reveal that the Convention's Committee of Style, which had no authority to make substantive changes, substituted "Officer" in the Succession Clause in place of "Officer of the United States", probably because the Committee considered the full phrase redundant.[1] Since the Act has never been invoked, this contention has never been tested in a court. Given the 25th Amendment's provisions for filling a vacancy in the office of Vice-President, the likelihood of the act ever being invoked is much reduced. Notes [1]: "Ensuring the Continuity of the United States Government: The Presidency". Prepared Statement of M. Miller Baker, Joint Hearing Before the Committee on Rules and Administration and the Committee on the Judiciary, United States Senate. September 16, 2003. Archived from the original on January 14, 2021. Retrieved July 11, 2018 – via GlobalSecurity.org. [This citation is copied from the Wikipedia article.] | The cited provision is: A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex. This language originates in the Sex Discrimination (Gender Reassignment) Regulations 1999. This statutory instrument was made in response to a 1996 decision of the European Court of Justice (P v S and Cornwall County Council, C-13/94) that Council Directive 76/207/EEC of 9 February 1976 , regarding equal treatment of men and women, also covered discrimination on the grounds of gender reassignment. The regulations were made in order to bring domestic law up to date with the EU requirement, by amending the Sex Discrimination Act 1975. The definition at the time, found in the amended section 82, was: "gender reassignment" means a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process So the idea of "other characteristics" or "other attributes" comes from the 1999 version of the law. I expect that the change to "attributes" is simply because the Equality Act 2010 uses the term "characteristic" to mean something else, as it consolidates many different regimes about discrimination on the basis of sex, race, disability, etc., all of which are called "characteristics". The more recent text removes the part about "medical supervision", and explicitly includes people at any stage of transition. Explanatory Notes to the 2010 Act give the example: A person who was born physically female decides to spend the rest of her life as a man. He starts and continues to live as a man. He decides not to seek medical advice as he successfully ‘passes’ as a man without the need for any medical intervention. He would have the protected characteristic of gender reassignment for the purposes of the Act. (These notes are not binding in law but they do give a good idea of what the drafters meant to say. The concept of 'passes' is also not the most sensitive language to bring in, since trans people do not necessarily want to measure themselves by their ability to pass undetected, and may present differently in different contexts.) The example shows that someone can have the protected characteristic without having, or contemplating, any change to their body. So from this example, the other attributes of sex would include all those ways in which the man "continues to live as a man". From general knowledge of trans men, that could include using a masculine name and pronouns; wearing traditionally-male clothes; wearing a binder, baggy clothing, padding in the crotch, or other ways to suggest a more masculine than feminine body; having a traditionally-male haircut; using traditionally-masculine body language; pitching the voice lower; and so on. The situation for trans women would be parallel. These things are all attributes of sex, in that our society abounds in stereotypes of what is a "manly handshake", or a "girly drink", or otherwise associated with a particular sex. They are to do with behaviour more than the body. |
Why does airline benefits program advertising not violate truth-in-advertising laws? Advertising for airline customer loyalty programs frequently offers customers "miles" as a reward. For instance, Delta Airlines claims: Earn up to 50,000 bonus miles with the Delta SkyMiles® American Express Cards. Terms apply. (This example technically only says "up to," but there are others that do not include such a qualifier). Of course, these miles do not correspond to any common usage of the term miles, but rather represent a certain number of loyalty program points, one that would be insufficient to buy any combination of flights that would travel a distance greater than twice the circumference of the earth. On the surface, would seem like a clear example of misleading or false advertising under a number of legal regimes (including the USA): a company redefines a term related to their product (the distance travelled) in such a way as to produce a misleading impression that can result in financial benefit, without noting the redefinition in its advertisement. However, this does not appear to have caused any legal problems for airlines, so that would suggest that such advertising is legal. Why is this? | Airline miles are pegged to the miles you fly For those airlines which still call their points miles (many don’t) you usually earn 1 mile for each full-fare economy nautical mile flown. More for business and first class, less for discount fares. So, no problem. That said, the word is now generic to the extent that any loyalty program could use then without confusion. | 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". | An employee is an agent of the employer when working and owes a duty of loyalty to the employer. One of the obligations associated with a duty of loyalty is to refrain from receiving anything other than the employer authorized compensation for the work, rather than benefitting personally from work done on behalf of the employer. By appropriating additional benefit from the customer in a way that is unauthorized by the employer (the employer would be within its rights to sanction and authorize this conduct if desired), an employee who does not turn the profit in this transaction over to the employer has breached a fiduciary duty to the employer for which the employer would have a right to sue the employee for the amount by which the employee was unjustly enriched in the transaction. Would it actually play out this way in real life for these sums of money? Probably not. The stakes involved wouldn't justify the time and money of a lawsuit. But, breaching a fiduciary duty of loyalty to your employer in this context probably constitutes good cause to terminate the employment of the employee without paying severance that would otherwise be payable under Canadian employment law (in theory anyway, I've never seen a reported court case on point). | Misrepresentation At common law, if you are induced to enter a contract by a material misrepresentation then you can rescind the contract and/or sue for damages. The person concerned would have to prove on the balance of probabilities that: the misrepresentation was actually made, which, if it was only verbal and there were no independent witnesses will be problematic, the misrepresentation caused them to enter the contract. If the dealer were to deny everything, and it came down to a "he said, she said", then, on the evidence, the person should lose. The facts are equally consistent with the buyer making an unprompted mistake as to the model of the car. Unfortunately, while most cases are compelling when you only have one side's story; when both sides get to have their say the facts become less easy to determine. Outside of misrepresentation, the person can complain to whatever government consumer protection agencies there are in Florida. | Lying may be wrong, but it in the United States, it is generally not illegal. United States v. Alvarez, 132 S. Ct. 2537 (2012). For a lie to be illegal, it generally needs to fall into one of a few specific categories, usually involving either fraud or the frustration of legitimate government activities (as in perjury, falsification of records, or lying to a federal agent). In any of these cases, the First Amendment is generally going to prohibit any penalties unless the false statement is material, i.e., it had the potential to change the outcome of the event in which it was uttered. As you noted, it is generally illegal to discriminate against Asians, so I would expect a court to treat the tenant's ethnicity as immaterial and require the landlord to honor the rental contract. Of course, this assumes that the landlord is prohibited from disciminating against Asians, which is not always true. The Fair Housing Act has exemptions for (a) private clubs; (b) for buildings with four or fewer units, one of which the landlord occupies; (c) for single-family homes that the landlord is renting without the help of an agent; and (d) for religious organizations. In such a case, the landlord may be actually be permitted to disciminate against Asians, so the tenant's false statement about their ethnicity would become material the transaction, and a court may therefore permit the landlord to rescind the contract. (Note, though, that even though the FHA permits discrimination in those limited situations, it does not permit advertising discriminatory preferences. The landlord's "No Asians" language is therefore illegal, whether it is communicated on a sign in the window or in a classified ad or by word of mouth.) | In the US, people are generally allowed to charge arbitrary amounts for services, as long as they do not violate various anti-discrimination laws in doing for. For example it would be illegal to charge people of one race less than they charge people of another race, because of federal and state anti-discrimination laws. Three primary factors govern the legality of a particular form of discrimination. One is the type of interaction, for example "voting rights", "public accommodation", "employment", "housing" – medical treatment would generally fall under "public accommodation". The second is jurisdiction – there can be federal, state, and municipal laws governing a particular kind of discrimination (the lower in the hierarchy you go, the stricter the laws tend to be). Finally there is the "protected class", that is, the basis for discrimination. Protected class is extremely variable, given the preceding two factors. Age discrimination is legal in ways that race discrimination is not. "Has insurance" is not a protected class anywhere, so this does not violate any discrimination laws (per se). There are numerous legal forms of discrimination which are analogous, for example to shop at Costco at all, you have to be a member; there are numerous businesses that offer "member discounts"; some doctors work on a "subscription" basis where they don't treat you unless you are a (paid) service subscriber. The idea that a service has to treat all comers identically is legally incorrect. Co-pay rates are dictated by insurance companies, and can vary depending on the specific insurance carrier that you have. To the extent that there are no specific laws saying otherwise, a service provider is legally entitled to charge less to a person who does not make a claims for coverage by medical insurance – or they could charge more. Indeed, the "without insurance" cost of medical services is typically higher, and the insurance company insists on doctors accepting lower compensation. A "practical" but somewhat risky solution is that if you know that the copay is higher than the street price, you can simply not reveal that you have insurance. However, sometimes an office visit results in a finding that some treatment is needed, and the street price for that treatment may be substantially higher than the insured price. At any rate, contractually-determined co-pays are legal. I should mention a remote possibility for applying anti-discrimination laws, owing to sec. 1557 of ACA. See this article on health care discrimination litigation, where the law enabled "private right of action for disparate impact claims opens the door to class-based claims challenging facially neutral health care policies, treatment decisions, and insurance coverage on the basis that they disproportionately affect members of protected classes". Under this regime, if a policy effectively discriminates on the basis of a protected class, without explicitly mentioning the class, the policy could still be found illegal. If there is a strong enough correlation between race and having health insurance, then "having health insurance" could be found to be a substitute for discrimination on prohibited grounds. There isn't enough case law on this issue, that we can clearly say that such an argument would or would not work. | You’re confusing satire with parody. Parody is when you use the protected work to comment on that work, while satire is when you use it to comment on something else. If you take R. Kelly’s “I Believe I Can Fly” and change the lyrics after the first verse to be about the singer jumping off a roof and having to spend the next three months in the ICU, that’s parody — you’re making fun of the song’s lyrics by exploring the consequences of an overly-literal interpretation. On the other hand, if you used the melody for a song with totally different lyrics about clubbing baby seals, that’d be satire. If you’re sued over “I Believe I Can Break My Spine,” you have a good excuse for why you used the copyrighted ”I Believe I Can Fly” you can’t exactly make fun of the lyrics without using substantial copyrighted elements of the song. On the other hand, for a satirical song about baby seals, you don’t need to use “I Believe I Can Fly.” You’re using it because it’s easier than coming up with your own melody, but if you just want to avoid extra work you need to get a license. The distinction can get fuzzy when a work is also clearly talking about other issues. Nader’s U.S. presidential campaign in 2000 featured this ad, which was clearly based off Mastercard’s “Priceless” ads. The ad was most directly criticizing his opponents as corrupt politicians, and that would be satire. However, when sued he argued that part of the subtext of the ad was commentary on Mastercard’s ultimate message of materialism (sure, there are “priceless” moments, but you can get them with things money does buy). In contrast, a book in the style of Dr. Seuss about the OJ Simpson trial was held to not be parody — it didn't make any point whatsoever about Seuss, just about the trial. Seuss’s style was just used to draw attention, not because they were giving commentary on Seuss. In any event, fair use is complicated. There are four statutory factors: The purpose and character of the use (specifically including whether or not it's commercial) The nature of the copyrighted work. How much of the original work was used The effect of the new work on the market for the old work. All four statutory factors have to be considered; none of them can automatically make something fair use or not fair use. Even a legitimate parody might not be fair use under the right circumstances. The only way to definitively know if something is fair use or not is if you’re actually sued for copyright infringement and convince a court that it was fair use. It’s fairly common for whoever’s backing your work to demand that you get a license even if it’d almost certainly be fair use, because they don’t want to have to go to court and argue that as a whole the four statutory factors suggest that your work was fair use. | No (in almost all U.S. jurisdictions). Truth or falsity is evaluated when a statement is originally made and doesn't have to remain true forever. Also, generally the law treats an ad like that as an invitation for you to make any offer to them, not a binding offer to form a contract that is held open indefinitely. So you can't force them into a contract simply by accepting their offer. The default rule is that an ad is an invitation to make an offer rather than an offer that can be accepted. And, even if it really is an offer, when it does not state any termination date, the default rule is that it can be withdrawn at any time. |
Could the US Federal Government open abortion clinics inside Federal buildings? As an example, USCIS has dozens of offices around the US, including many states where abortion is expected to be banned soon. Could the US Federal Government dedicate a part of every USCIS building to an abortion clinic, thus denying the states the opportunity to ban abortion? Or would they still have to comply with state law? I'm asking about the extent to which the Federal government could change things without amending the Constitution or packing the courts to get a favorable re-assessment of prior case law. | The Hyde Ammendment prevents any federal funds from being used to pay for abortions. You can be certain that providing clinic space to provide abortions would be quickly challenged in court as a violation of the Hyde Ammendment. | Like many US legal questions, there is a Congressional Research Service report about this. It is not generally a violation of US law to do things in another country where the only connection with the US is that the offender is a US citizen. However, there are a number of general situations where the US has jurisdiction over federal crimes if either the victim or offender is a US citizen: if a place isn't within the jurisdiction of any country (e.g. Antarctica); a place used by a US government entity (like an embassy or airbase); crimes by American soldiers and those employed by or accompanying the military; etc. These are considered to be within the special maritime and territorial jurisdiction of the US. Other laws apply if they say so. For instance, any US national committing war crimes inside or outside the US can be punished under US law; ditto for treason. The Foreign Corrupt Practices Act makes it illegal for a US national to bribe a foreign official anywhere outside the US for business reasons (if it's inside the US, there are more requirements). For instance, you aren't allowed to pay kickbacks to a foreign government's acquisition officer to buy your product. The CRS report has more (it doesn't include the FCPA, but that appears to be an oversight). Note that extraterritorial jurisdiction doesn't just apply if the person is a US national. US laws can also confer it if the victim is a US national, if the offense has a significant US component, if it's directed towards the US, if it's in violation of international law and the offender later turns up in the US, etc. For your scenarios: Dual citizenship doesn't matter. A US citizen is a US citizen, and is required to obey all laws that apply to US citizens, unless those laws explicitly exempt dual citizens. A dual citizen isn't treated differently by the government; as far as the US government is concerned, their US citizenship is all that matters (except for certain specific purposes like security clearances). In Kawakita v. United States, a US-Japanese dual citizen was convicted of treason against the US for aiding Japan in WWII. Depends. Plenty of these laws have no requirement that anything related to the crime actually happen in the US; for sex tourism, the subsection about traveling in foreign commerce for the purposes of engaging in illicit sexual conduct is followed by a subsection about engaging in illicit sexual conduct in foreign places. "Travel with the purposes of X" or "with intent to X" means you must have intended to do X at the time you traveled, but most extraterritorial laws don't control travel with intent to X (they cover X directly). Depends on the law. Some laws (like child sex tourism) apply to any permanent resident of the US as well as any citizen. Some apply to anyone, because they're based on a conspiracy started in the US. Others apply just to US nationals; a noncitizen isn't bound by them (for instance, no one but a US national can be charged with treason against the US, for obvious reasons). Still others apply to anyone who later turns up in the US, even if that is literally the only connection between the US and the offense (this is basically reserved for crimes against international law, like genocide). | Your question: "How blatant the circumvention of the Constitution has to be for SCOTUS to act?" indicates some confusion about the big picture of how contesting the constitutionality of a law works. SCOTUS doesn't proactively do anything. The Supreme Court cannot simply review a law that has been enacted and say it is unconstitutional of its own accord, or at the request of someone involved in the political process (some countries allow this, the U.S. does not). The U.S. Supreme Court is not equivalent to the institution of a "Constitutional Court" found in many countries. It is just the last court of appeal for all U.S. Courts. It often ends up resolving constitutional questions, but only after other courts have already done so in cases where there are real tangible immediate consequences to the decision. A lawsuit must be brought by someone who is actually injured for the courts to act In your example, nothing would happen unless a home owner could show that soldiers had actually commandeered his home without consent or compensation, or places him in imminent fear of having this done. If someone can't show that, then no lawsuit to determine the constitutionality of the law is allowed even if it is blatantly unconstitutional and the question of the law's validity will remain unresolved by the courts. This limitation is called "standing" and requires that there be an actual case and controversy with a suit brought by someone who has suffered a legal injury before anyone can bring any lawsuit. In point of fact, there are all sorts of laws in the United States that are clearly unconstitutional, but which are never brought before the courts to declare unconstitutional, because the government agrees that those laws are unconstitutional and makes a point of not enforcing those laws. All cases (with exceptions not applicable here) start in trial courts Suppose soldiers do commandeer Bob's house at the express direction of the President without Bob's consent or following any procedure that amounts to due process. What does Bob do? Bob brings a lawsuit against the soldiers and their commanders up through the President and the United States in the U.S. District Court for the state where the house is located or where the defendants live. Suits against the U.S. and its employees must be brought in federal courts rather than state courts. SCOTUS can hear cases as a trial court, but only in cases involving a state or foreign country or a diplomat as a party (and in practice, even those cases are referred to a temporary judge called a special master for evaluation and SCOTUS only considers the case after receiving a recommendation from the special master). None of those circumstances apply in this case. A federal trial judge hears the case and decides if the law is constitutional or not, and if it is held to be unconstitutional may decide that Bob is entitled to a remedy. There will also be other separate issues to decide in the case. For example: Was the lawsuit brought within the statute of limitations? Are the soldiers immune to suit for damages against them personally, which depends upon how clear it was to the soldier that he was acting unconstitutionally? Were the soldiers violating orders or following orders? Did Bob meet other procedural requirements during the course of a lawsuit (like making the proper disclosures of information and showing up to hearing he is required to attend, and presenting evidence in accordance with the rules of evidence)? If the trial judge finds that the law is unconstitutional, the trial judge can issue an order saying so and that is the law of land that binds the parties (including the U.S. in any other case presenting the same issue under a principle called collateral estoppel) unless someone appeals the case. Every state and federal judge in the United States from small claims court judge to a U.S. Supreme Court justice has the power to declare laws unconstitutional if it comes up in a case properly heard in that judge's court, not just SCOTUS. SCOTUS (with exceptions that don't apply) doesn't hear direct appeals A handful of cases are directly appealed from a trial court to SCOTUS (mostly election law cases). But the vast majority of cases, including this one, would go to an intermediate court of appeals first. If someone does appeal the case, it goes to the U.S. Court of Appeals for whatever circuit the state of the District Court is located in. It reviews the judge's ruling in light of the evidence presented and can either reverse the trial judge's decision or affirm it. Only after the U.S. Court of Appeals has ruled (sometimes with one more layer of decision making within the U.S. Court of Appeals), any party can appeal the case by a writ of certiorari to the U.S. Supreme Court. SCOTUS often declines to reconsider Court of Appeals Rulings The U.S. Supreme Court doesn't have to take the case and 98% of the time that cases are appealed to it, it doesn't take the case. If it doesn't take the case, then the U.S. Court of Appeals ruling is the law and that ruling is binding on any other federal court in its jurisdiction in future case. The U.S. Supreme Court will usually only take the case if it feels the decision was wrong, or there are conflicting precedents that have to be resolved from different courts. Whichever judge decides constitutionality (a power not reserved to SCOTUS) that judge will try to follow the law to make the right decision whether the violation of the constitution is blatant or subtle. If the U.S. Supreme Court does decide to take the case, it can affirm that U.S. Court of Appeals ruling (which is then binding on all U.S. Courts as precedent), or it can reverse the U.S. Court of Appeals. In each case, at the trial court level, at the U.S. Court of Appeals level, and at the U.S. Supreme Court level, the only question is whether the law conflicts with the constitution as interpreted by the case law already decided over time. Only a handful of cases in the history of the United States have ever squarely addressed whether a law violates the 3rd Amendment so there isn't a lot of directly applicable precedent, but the judges would also consider how similar provisions of the constitution, like the 5th Amendment, have been treated and would consider law review articles and historical records about the intent of the Third Amendment as well. Judges have quite a bit of freedom in interpreting the law, but will try to rule in the way that most fairly represents what the total body of the law and interpretative information about the law says in the context of the facts before it. In this case the government would probably lose but you can never be sure In a case as clear as your example, the Government would very likely lose although no case is entirely certain, because it allows action at any time even though it is not a time of war, does not consider the home owner's consent, and does not create any meaningful procedure for exercising the right. But, it really doesn't matter if the violation is blatant or if it is subtle. The court even routinely rules that laws are unconstitutional not because they actually violate a provision of the constitution directly, but because they merely "burden" the exercise of a constitutional right. A law that effectively nullifies a constitutional provision would usually be invalidated. Sometimes lawyers informally and in private call an argument that is technically valid (for example, by creating a procedure albeit a meaningless one) "too cute." Arguments like that usually lose. The U.S. Supreme Court routinely invalidates laws that violate the constitution only in very subtle ways (e.g., requirements that have been interpreted to pose minor barriers to voting could be held unconstitutional), and the U.S. Supreme Court now and then refuses to invalidate laws that seemingly blatantly violate the constitution (e.g., "In God We Trust" on U.S. coins). Often a non-constitutional or settled constitutional law question is resolved purposely in a way that avoids the need to rule on an unresolved constitutional question Often, constitutional cases are resolved on the question of standing, or whether the right person has been sued, or by interpreting a law in a manner that is unnatural, in order to avoid having to address the question of the constitutionality of the law itself. For example, in your case, a judge might say that "at any time" in the statute, really means "at any time during a war", and that "regardless of the objections of the owner" really means "over the unreasonable objections of the owner", and that there is a duty to pay fair market value for the use of the house under the statute because the law is silent on that point, even if none of those things, in a cold plain reading of the statute would seem to be reasonable interpretations of its plain language. And then the judge might say that interpreted in this way, the law is constitutional, but the government violated the law and the court might then award a remedy to Bob, because the government violated the law so interpreted rather than because the government enforced an unconstitutional law. But, if it decides to take up a constitutional question because it isn't satisfied with how the U.S. Court of Appeals resolved the issue, it won't hesitate to do so. | It is certainly possible for the same action to break multiple laws, and be chargeable as multiple crimes. For example, shooting and killing someone may be assault, assault with a deadly weapon, and murder all at the same time. For a different example a person who simply omits to file an income tax return may be guilty of both failure to file a required return, and failure to pay tax due, and in some cases failure to par required estimated tax due as well. For yet another example, driving well above the speed limit may be a violation of the speed limit law, and also careless driving, and possibly also reckless driving. In the first case the assault etc may be lesser included offenses in the charge of murder. That means that they are automatically available to a jury (or judge) trying the accused, who can convict on one of the lesser included charges if they do not convict on the primary count. For the more general case, I don't know of any special term for the situation. It is not usual to have law A which says "do not do X", and also law B which says "you must follow law A". There is no general principle against having such redundant laws, nor is there, in the US, any Constitutional rule against such laws. But legislatures do not normally bother to enact such redundant laws. Laws which will sometimes overlap in their coverage, but in some cases do not overlap are common. | In the US, only a few states allow conjugal visits by prisoners: California, Connecticut, New York and Washington. Details of implementation for Washington are here (it is called "Extended Family Visiting"). There are various limitations, for example you can't have committed homocide within the last 5 years, you can't be on death row, and so on. Although they don't explicitly say you can have sex, you can, and they have (a small sample of) contraceptive and STD-preventing technology for prisoners to avail themselves of. If you fail to take advantage of contraceptives, then yes it is possible. There is no provision pertaining specifically to mass murder. | In the United States, the U.S. Department of Transportation, by regulation sets uniform design and signage standards for federally funded highways, which most U.S. state and local governments incorporate, either by restating them or incorporating them by reference for non-federally funded roads. I imagine that most other countries have similar regulations. Nonetheless, this is extremely unlikely to prevail as a defense to the traffic violation of speeding which is usually a strict liability offense to which almost no affirmative defenses, excuses, or justifications may be considered. | Not much. Consider the following: The father can not force the mother to abort the pregnancy. Ex post facto agreements of non-payment are, in all likelihood, unenforceable. The father will be obligated to pay child support under the laws of the state with jurisdiction over the paternity. The abortion angle won’t work. Setting aside commentary regarding the politics or ethics of abortion. I think we can agree it is a highly charged and emotional topic for some people. I point to the fact it always seems to be an issue during Supreme Court nominations and presidential elections. Given the explosive nature of the issue of whether abortions should be legal or not (in the case where the mother does not want to carry full term) could you imagine how much more dynamite it would add to the debate if the question were whether or not to allow the father to force the mother to terminate the pregnancy against the mother's wishes! One can only imagine how much more bombastic the abortion debate might then become. You can’t escape child support (most likely). To give you a sense of how difficult it is to escape the obligations of child support. Consider the following... A Kansas man was ordered to pay child support when he thought he was being a sperm donor only and signed numerous agreements with the lesbian couple he thought he was helping. In that case, the court justified its ruling on the grounds that a doctor was not involved in the insemination process. But nothing prevents future courts from making the same ruling in cases where a doctor is involved in the insemination process. Especially if that state either withdraws from the The Uniform Parentage Act, amends it, repeals it, or never adopts it in the first place. Sperm Donors and Child Support: Even in cases in which the donor is known, but holds himself out as unknown, some courts have held the donor legally obligated to pay child support. Read more here. Ex post facto agreements are problematic. Now that you've edited the question, the above link is even more useful for providing a possible avenue to try (albeit unlikely to work): a non-payment agreement. The discussion in that link describes that even if you could somehow convince the mother to go along with it, it is unlikely (though not impossible) to be enforced by the courts. It depends on the facts (e.g., intercourse vs. in vitro), circumstances (e.g., relationship vs. no relationship between the parties), timing (e.g., before vs. after the agreement), etc. of the impregnation itself. Notwithstanding all the above, if you still have questions, you might consider floating an idea of an approach you think you might try (in a separate question) and get reactions to that specific proposal. | Pursuant to well-established law in the US, the person carrying the fetus (conventionally, the mother) has the right to an abortion. Doing so might be a breach of contract. Some jurisdictions flat out ban surrogacy contracts (Arizona, D.C), perhaps even penalizes (Michigan, NY), or declares void (Indiana, Kentucky, Louisiana, Nebraska). In California, surrogacy contracts are legal and enforceable. One possible challenging scenario is that the mother refuses a requested abortion, the other is that one or both of the intended parents seek to block the mother from getting an abortion. The former case in the case of Melissa Cook, where there was an attempt made to reduce the number of pregnancies from three – Cook carried the fetuses to term despite a contrary request from the intended parents (no action was filed to attempt to force an abortion). There has apparently been no attempted case to force a mother to carry a fetus to terms because of a contract (i.e. order for specific enforcement). Under present US law, the woman carrying the fetus has the exclusive right to choose to terminate a pregnancy. No statutes or case law suggest that a surrogacy contract will override that right, and some laws explicitly deny the ability to force a mother to have an abortion (Utah Code Ann. §78B-15-808(2) & (3), Tex. Fam. Code Ann. §160.754(g), Fla. Stat. Ann. §63-213(3)(b)). A mother could be sued for breach of contract if she terminates a pregnancy – the intended parents may have suffered a financial loss from that decision, but that depends on the state. |
What was the 1879 law that Griswold v. Connecticut (1965) overturned? Griswold v. Connecticut (1965) overturned an 1879 Connecticut law that forbade married couples from using contraceptives. What was that law, exactly? | The opinion quotes the statute: §53-32 (1958 rev.) Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned. There is still a stub in the Connecticut statutes indicating that the statute was repealed. | Women can get pregnant, so men can be held to stricter rules: From https://en.wikipedia.org/wiki/Ages_of_consent_in_the_United_States Although legislation tends to reflect general societal attitudes regarding male versus female ages of consent, Richard Posner notes in his Guide to America's Sex Laws: The U.S. Supreme Court has held that stricter rules for males do not violate the equal protection clause of the Constitution, on the theory that men lack the disincentives (associated with pregnancy) that women have, to engage in sexual activity, and the law may thus provide men with those disincentives in the form of criminal sanctions. Posner, Richard (1996). A Guide to America's Sex Laws. The University of Chicago Press. p. 45. ISBN 0-226-67564-5. The case cited is Michael M. v. Superior Court, 450 U.S. 464 (1981). However, to modern sensibilities, this doesn't justify the states that have age of consent lower for women. [The pregnancy argument would mean states could punish an adult male for sex with a minor female, to protect the woman. Whereas a minor male of that same age doesn't necessarily need the same protection, at least for that concern.] Law in those states seems to be an attempt to mirror the historical tendency for men to be slightly older than women when marry - but re goal of discouraging sexual predation, those states have it backwards. I'd have to agree with the answers that speculate this is a patriarchal holdover that eventually will change or be overturned. [But US Supreme Court - having ruled it isn't inherently an Equal Protection violation - seems inclined to leave these laws alone regardless of which age is slightly lower; leaving it to the states to decide the non-symmetric circumstances of the sexes.] More detail from the case itself: (a) Gender-based classifications are not "inherently suspect" so as to be subject to so-called "strict scrutiny," but will be upheld if they bear a "fair and substantial relationship" to legitimate state ends. Reed v. Reed, 404 U. S. 71. Because the Equal Protection Clause does not "demand that a statute necessarily apply equally to all persons" or require "things which are different in fact . . . to be treated in law as though they were the same," Rinaldi v. Yeager, 384 U. S. 305, 384 U. S. 309, a statute will be upheld where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Pp. 450 U. S. 468-469. | This is from an opinion piece (albeit by Law profs.) so you'll have to bear/excuse the tone and check the details... but seemingly there some similar laws introduced earlier this year, on different topics though: But the subversion of private enforcement laws to restrict individual rights goes far beyond abortion. Since the beginning of this year, Tennessee has authorized students and teachers to sue schools that allow transgender students to use the restrooms that match their gender identity; Florida has followed suit, with a law that allows students to sue schools that permit transgender girls to play on girls’ sports teams. My opinion is that the comparison falls short on (2), as the [plaintiff] students seem to have to be from the same school, so it's not as broad as SB.8., in terms of who can sue. (N.B. found a more in-depth news article on the Florida sports law. Some of the writeups on this aren't totally clear on that though, just saying "another student" can sue. I couldn't find the exact text of the law insofar.) The promoter of SB.8, actually gave some inspirational examples in an interview, and they are somewhat older: And this is ground that's been ploughed before - under current Texas law under Medicaid fraud, for example. Any person who discovers Medicaid fraud can bring a civil case to bring that forward. The Chick-fil-A law, Senate Bill 1978 from last session about your religious freedom, that also allowed any person to bring a civil action. So it's not a new concept in Texas law, and if elected officials won't follow the law, we'll empower the people of Texas to do it, and we think it makes sense. (Hat tip to a Politics.SE answer for this latter quote.) Again, I didn't check the details... I suspect there may be some divergence from the strict letter of the (1) requirement. I bet (Medicaid) fraud is criminal as well. It seems the Chick-fil-A law failed to do its (immediately) intended job because it was attempted to be used against a city municipality, but the suit was dismissed (on appeal) due to governmental immunity... The private enforcement of the Medicaid fraud issue was apparently passed because of the huge backlog that existed at one point in the state/agency enforcement in Texas: The Office of Inspector General was lambasted in a state review last year [2015--seemingly] for, among other things, a massive backlog of cases and a failure to recover significant tax dollars from providers it accused of fraud, sometimes incorrectly. N.B., these are referred to as qui tam cases, but they don't quite entirely substitute the plaintiff, at least not in the insurance cases that were won: So-called qui tam cases allow whistleblowers to file lawsuits alleging fraud on behalf of the government. If the claims turn out to be legitimate, state and federal laws award a finder’s fee of between 15 and 25 percent of the total settlement or judgment. Interestingly higher awards are possible if the government declines to intervene, but they are still not 100% going to the private initiator (under the False Claims Act)--from Wikipedia: If the government does not decide to participate in a qui tam action, the relator may proceed alone without the Department of Justice, though such cases historically have a much lower success rate. Relators who do prevail in such cases may potentially receive a higher relator's share, to a maximum of 30%. As Wikipedia also notes, some such laws that entirely left the prosecution to a private entity were found unconstitutional, at the federal level e.g. In 2011, the United States District Court for the Northern District of Ohio held that the False Marking Statute was unconstitutional. Judge Dan Aaron Polster determined that it violated the Take Care Clause of Article II of the Constitution, because it represented "a wholesale delegation of criminal law enforcement power to private entities with no control exercised by the Department of Justice". Of some note, the FCA requires that the complaint actually be served on the government and not the actual defendant. This basically ensures that the gov't is notified of all such actions. The Texas-specific legislation on qui tam fraud cases actually seems to mirror the federal one pretty closely: A whistleblower under the Texas Medicaid Fraud Prevention Act [TMFPA] may be entitled to an award between 15% -25% if the state intervenes in the case. If the state chooses not to participate in the litigation, then a whistleblower may be entitled to an award between 25% – 30% of the amount recovered. Nonetheless, a court may reduce the award if the court finds that the action is based primarily on information disclosed by someone other than the person bringing the action. [...] Note: Changes to the Texas laws were enacted by Acts 2015, 84th Leg., ch. 1 (S.B. 219). | Effect of Bill First of all, if this bill (Idaho House Bill 675) is passed in the form linked in the question, section 4, which prohibits transporting a child outside the state, ONLY applies when this is done for purposes prohibited in subsection (1), that is, traditionally defined female genital mutilation. It does not, in its linked form, prohibit transport to violate the new section (2) which prohibits procedures to "change or affirm the child's perception of the child's sex". Thus the statement in the question that: subsection (4) of the bill purports to criminalize transporting a minor out of state (to neighboring Oregon, say) for the provision of such treatment. is incorrect. Notice that section 4 is not new, nor is it modified (except by changing th4e section number) by the current bill. My understanding is that the travel ban was, when it was passed, aimed at families who took female children outside the US, to African or Middle-eastern countries, for traditional rites that include FGM. This was done by a significant number of people with ethnic origins in such countries, and a number of US states passed laws banning such travel. This law, before the house bill, was one such law. The recent bill added "gender affirming care" into the law, by calling it another form of genital mutilation. However, for purposes of discussion, let us assume that subsection (4) is changed to refer to subsections (1) or (2), thus making the question correct. Right to Travel The right to travel from one state to another is a basic right under the US constitution. The LII page on "Interstate Travel" refers to it as: "a right venerable for its longevity, but still lacking a clear doctrinal basis." See the Wikipedia article Freedom of movement under United States law The right to travel was recognized early on, in the case of Corfield v. Coryell (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823). This case was decided by Justice Bushrod Washington, a member of the US Supreme Court, but it was decided while he was acting in his role as circuit judge, not by the Supreme Court as a whole. In that decision, Justice Washington included "The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise;" as one of the "privileges and immunities of citizens in the several states" which are guaranteed to all citizens. This passage has been influential, although not undisputed, in interpreting the "privileges and immunities clause" of the Fourteenth Amendment. In Crandall v. Nevada, 73 U.S. 35 (1868) The Supreme Court held that the right to travel between states was fundamental, and that a state could not impede it by taxing the exit of people from one state to travel into another. Subsequent cases have deemed the right to travel protected against state restrictions both under the privileges and immunities clause, and under the commerce clause. In United States v. Guest, 383 U.S. 745 (1966) at 383 U.S. 757 the Court wrote: The constitutional right to travel from one State to another, and necessarily to use the highways and other instrumentalities of interstate commerce in doing so, occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. The Guest court goes on to cite Crandall v. Nevada, 6 Wall. 35, (the case in which a tax on those leaving the state was overturned) and the Passenger Cases, 7 How. 283, 48 U. S. 492 in which Chief Justice Taney wrote: We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States." All this would mean that a law prohibiting travel would need strong justification, and is probably subject to strict scrutiny, a standard of review requiring a "compelling governmental interest" and a "narrowly drawn" law. Medical Judgement The bill declares that procedures to "change or affirm the child's perception of the child's sex" are "never necessary", any medical opinion to the contrary notwithstanding. Such an override of qualified medical opinion might be hard to justify in a criminal law. Civil Rights In BOSTOCK v. CLAYTON COUNTY, GEORGIA 590 U. S. ____ (2020) #17–1618 the Subreme court ruled that Title VII of the Civil Rights Act of 1964. prohibits employment discrimination against homosexual or transgender individuals, writing: Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. This rule may well carry over to other areas of the law. Equal Protection Clause The Equal Protection Clause of the Fourteenth Amendment reads nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws. Treating members groups differently because of group membership is often, but not always, an equal protection violation. The provisions oc the bill, if enacted, might constitute such a violation. | It is certainly possible for the same action to break multiple laws, and be chargeable as multiple crimes. For example, shooting and killing someone may be assault, assault with a deadly weapon, and murder all at the same time. For a different example a person who simply omits to file an income tax return may be guilty of both failure to file a required return, and failure to pay tax due, and in some cases failure to par required estimated tax due as well. For yet another example, driving well above the speed limit may be a violation of the speed limit law, and also careless driving, and possibly also reckless driving. In the first case the assault etc may be lesser included offenses in the charge of murder. That means that they are automatically available to a jury (or judge) trying the accused, who can convict on one of the lesser included charges if they do not convict on the primary count. For the more general case, I don't know of any special term for the situation. It is not usual to have law A which says "do not do X", and also law B which says "you must follow law A". There is no general principle against having such redundant laws, nor is there, in the US, any Constitutional rule against such laws. But legislatures do not normally bother to enact such redundant laws. Laws which will sometimes overlap in their coverage, but in some cases do not overlap are common. | I exclude Shari`a law because I don't know, but generally there would be no legal recourse that depends on the lie. A marriage is not legally viewed as a contract with enforceable obligations, so a woman could not be forced to bear a child against her will if she had earlier promised to do so, and she could not be penalized in any way. The man still has the ability to obtain a divorce. There is a difference between a fault-based divorce and a no-fault divorce, where a fault-based divorce may be quicker (dispenses with the requirement for months of separate living). In a jurisdiction that has fault-based divorce, the traditional grounds are cruelty, adultery, desertion, imprisonment, and physical inability to engage in sexual intercourse undisclosed before marriage. The latter does not include the inability to get pregnant. Division of marital assets is governed by law, where the principles of division are not punishment, they are equity (although states split into "community property" vs. "equitable distribution" based on the distinction "what is equitable" versus "50-50" – equitable distribution states do not sanction punishing a spouse for misconduct). There are also "marital torts" for certain kinds of wrongful acts, such assault, infecting a spouse with an STD, defamation etc. But as is the case with any tort, there has to be a legal duty between the parties, and that duty has to come from operation of law and not just agreement. There is no legal duty to always tell the truth or to bear children. | The relevant portion of the U.S. Constitution is the full faith and credit clause (which the Respect for Marriage act is primarily an implementation and enforcement of). This requires states to honor marriages and divorces entered into in different states (subject to limited public policy exceptions that the Respect for Marriage act further limited), and also, for example, paternity determinations and court judgments from other states. This was one argument among many used to argue that same sex marriages from other states should be recognized in other states. But the U.S. Supreme Court in Obergefell v. Hodges, 576 U.S. 644 (2015), in which it established a right to same sex marriage in all U.S. states, relied instead mostly upon a substantive due process clause analysis similar to that of Loving v. Virginia, 388 U.S. 1 (1967), which held that bans on interracial marriage were unconstitutional. The Article IV privileges and immunities clause protects very little (mostly the right to interstate travel and the right for an out of state resident to be licensed in a profession in a state). The Slaughterhouse cases, 83 U.S. 36 (1872), in the late 19th century gave a very crabbed interpretation to the 14th Amendment privileges and immunities clause, limited that only to rights arising from federal citizenship. The logic of the Slaughterhouse line of cases spilled over into the privileges and immunities clause of Article IV of the U.S. Constitution. The Article IV privileges and immunities clause applies to rights specific to state citizenship to prevent those rights from being denied to out of state U.S. citizens. But those rights are few and far between, and court crafted exceptions have been carved out in cases where it does exist (hunting and fishing license fees and college tuition, for example). | One widely-used book on the topic is Brown's Boundary Control and Legal Principles. I have the 4th edition published in 1995, and the relevant chapter is 8, "Locating Easements and Reversions". The law varies from state to state. In New England, it is likely for interstate, US, and state highways, the state will own the roadbed in fee. Smaller roads are likely owned by the adjoining private owners, with the public holding a right-of-way that allows the government to build and maintain a road; the adjoinders are restricted from using the right-of-way in any manner that would interfere with the transportation use. The meaning of "right-of-way line" depends on context, but is likely to be the line between the pubic's right of way and the portion of the adjoining private property that is exclusively under the control of the private property owner. If the public records do not reveal the width of the road, there is likely to be a statute that states a default width of the road. This is discussed, for Vermont, in The History and Law of Vermont Town Roads by Paul Gillies |
"Copyright does not protect facts" - is this always true? Under another question of mine, I got an answer that states "copyright does not protect facts". However, I'm not sure whether this is always true. For example, there is a site called whosampled.com that collects songs and their original samples (which are facts as far as I'm aware). However, the TOS of the site states the following: Our Service and all material available through our Service, including but not limited to text, graphics, logos, button icons, images, trade marks, databases, data and software (together the Content) are owned and controlled by or licensed to us, our affiliates and/or licensors. Those works are protected by copyright laws and treaties around the world. All rights in the Content are the sole and exclusive property of WhoSampled or such affiliates or licensors. You must not scrape, extract, reproduce, duplicate, copy, sell, resell or exploit any data or other material available on the Service without our express written permission. This sounds like they own the fact that one song is sampled from another, which contradicts with the original statement. Am I interpreting this correctly? | Whosampled.com is not just facts The information that a song was sampled in another is a fact. But the sample itself is not a fact! The sample is a sound file and an artistic work, for which Whosampled has most likely a license to offer, but which you under that license may not distribute. Further, the agglomerate of the whole website is more than just a mere fact, it is a database. Also, while a simple fact is technically free to reproduce, you still might contractually agree to not do certain things, like reproducing the facts. Yet, Terms of Service don't always hold water and some passages might be illegal - and thus void. | No, you misunderstand Fair use and infringed copyright Fair use only exists if enough of the four factors are given for it: The Transformative Factor The Nature of the Copyrighted Work The Amount and Substantiality of the Portion Taken The Effect of the Use Upon the Potential Market You fail on all of them: Cutting the video does not alter the meaning or expression. which means it is nontransformative and thus against OP. Music is usually with fictional works, the best you can get here is "neutral*. but I would weigh against OP. Your Video took the total of the video and nothing else. Against OP. The full-length Video has a potential market that does include underage children. Your video tried to infringe on that market. Against OP. ERGO You are not enacting Fair Use but infringe copyright. Similar case: Vidangel Vidangel had been offering films in a censored fashion without the approval of the copyright holders. A court ruled that this is not fair use and it was sanctioned for 65 Million US-dollar. | 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. | Copyright is held by the person who puts the content out there in fixed form. If A reads a prepared text and B talks extemporaneously, A has copyright to his fixed text. Whoever then records the debate holds copyright to B's talk (not a typo). If that person is B, A can point out that A's copyright was infringed, presumably leading B to an equitable arrangement that would avoid copyright violation litigation. However, if the recorder is A, then B is hosed. On the other hand, if neither party has a prepared text, then the guy who does the recording has all the rights. And if both parties have prepared texts, nobody gets to record without a copyright agreement. | According to the Wikipedia article "List of countries' copyright lengths" the only country currently having no copyright law is the Marshall Islands, and that country is said to have a non-copyright-based law providing that "Unauthorized sale or commercial use of sound & audio-visual recordings is prohibited"[1] However, if a person goes to the Marshall Islands, makes unauthorized copies of works there, and posts those copies to the net, the copyright owner could obtain an injunction under US copyright law requiring the site operator or host to remove the infringing content or be shut down.[2] Similar orders can be obtained under the laws of other countries. In addition, the copyright owner could send a takedown order under the US Digital Millennium Copyright Act (DMCA).[3] A copyright suit could be brought by the copyright owner in any country where the unauthorized copies are distributed and, if damages were awarded, property subject to the jurisdiction of the court could be seized to pay them. In the US, infringing copies could be seized by customs officers when they are imported into the US.[4] Also, If an infringement suit is won, the court an order any infringing copies to be seized adn destroyed.[5] Conclusion Of course, if such copies were made in small numbers and distributed privately, the copyright owner might not learn of it. And in any case the copyright owner might not choose to take legal action. But merely making such copies in the Marshall Islands will not make the infringer safe from civil actions, nor will it make the copies lawful in the US, nor in most other countries. Notes [1] Unauthorized Copies of Recorded Materials Act, 1991 [20 MIRC Ch.2]". [2] 17 USC 502 (a) provides: (a) Any court having jurisdiction of a civil action arising under this title may, subject to the provisions of section 1498 of title 28, grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a copyright. [3] 17 USC 512 (c)(1)(C) and 17 USC 512 (c)(3) [4] 17 USC 602 (a) provides: (a)(1) Importation.—Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501. (a)(2) Importation or exportation of infringing items.—Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under sections 501 and 506. [5] 17 USC 503 (b) provides: As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s exclusive rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced. | No-ish, it is not. The relevant sticking point would be in their DMCA takedown notice, where they have to follow 17 USC 512(c)(3)(A) and include in their notice (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. The key here is having a "good faith belief". There is a credible scenario where a company A could file multiple notices for the actually same material B posted by the exact same person C, where the person has the right to post that material, and do so in good faith. If A was not able to locate evidence of the permission to C, then they would shift the burden of proof to C – "good faith belief" doesn't mean that they have to be right, just that they have to actually think they are. If C also uses the name D, A would not be able to determine that the work was licensed to D based on the fact (once they know that) that it is licensed to C. DMCA abuse is not an permanently open escape hatch. 17 USC 512(4) states Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. See Automattic Inc. v. Steiner, 82 F. Supp. 3d 1011. The ruling judge found that "Defendant could not have reasonably believed that the Press Release he sent to Hotham was protected under copyright". The appeal court drew on precedent and dictionary to fill in gaps w.r.t. "good faith belief", that the person should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations In this case, the abuser was flagrantly abusing the takedown system, and there is some reason to believe that in the instant case, the abuser had actual knowledge of non-infringement. Rossi v. Motion Picture Association of America provides an alternative outcome. In this case, Rossi operated a website that appeared (note the word appear) to offer free downloads of movies, and the rights-holder MCAA filed a takedown notice. In fact, it did not offer any such downloads, but MCAA's investigation stopped prematurely. This court held that "good faith belief" is subjective, so Rossi did not prevail. It is no doubt crucial that Rossi actually counted on his customers thinking that you could get actual downloads of protected material. Whether or not a DMCA abuse suit would succeed would depend very much on the factual details of why the material is not infringing, and how easily the rights-holder could know that there was no infringement. | The tape is not in the public domain. Either they have granted permission to copy, or they have not taken action to pursue infringement. The current youngmoney website does not (on its public-facing page) grant any permissions, but things can change. In addition, permission could be granted in a specific instance as a personal favor or as a contract deal. There is no practical way for John Q Public to know. Datapif does not affirmatively represent that they have copyright-owner permission, and the attending circumstances indicate that "somebody" uploaded the album, but also they detected that there was some probable infringement and deleted a bunch of tracks, saying Some tracks were excluded from the zip file of this mixtape. This is most likely because a scan discovered that these tracks contained material that was commercially available. As such, we can not legally provide these tracks for download through DatPiff.com That "somebody" could have been the copyright owner, or Jane Q Public. Datapif is supposedly safe behind DMCA safe harbor provisions. In their TOS, they do say that The copying, redistribution, use or publication by you of any such matters or any part of the Site, except as allowed by Section 4, is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site. The posting of information or materials on the Site does not constitute a waiver of any right in such information and materials. So Datapif states that you may not legally redistribute the material from their website on your own. But they are not the copyright holder, only the copyright holder can authorize redistribution, so Datapif is not in a position to grant permission. | You can report it to the publisher(s) Protection of copyright is a matter for the individual rights holder: some (I’m looking at you Disney) are vigilant, thorough and draconian in protecting their rights, others don’t care at all. Unless you are the rights holder it’s none of your business. In much the same way that the guy charging your neighbour for 4 hours gardening but being long gone in 2 isn’t. If you like your neighbour or feel duty bound to do something, you tell them and then leave it to them what they do with it. This is not a matter for the authorities as it doesn’t rise to the level of criminal copyright infringement. Just like the gardener above, this isn’t a crime. |
Do people committing crimes against property have the right to self-defense against deadly force? John is stealing from James, and James threatens to shoot John. Since it is not legal to use deadly force in defense of property, can John now legally use deadly force to defend himself against John? | It Depends This will depend on the jurisdiction. In the US it will depend on the state. In some states it is legal to use deadly force in defense of property. In some an aggressor is not entitled to self defense. Oregon Rule The page "Self-Defense and Deadly Force in Oregon" by Susan G. Hauser states: According to Oregon law, “A person may use physical force upon another person in self-defense or in defending a third person, in defending property, in making a [citizen's] arrest or in preventing an escape.” “In Oregon,” says Portland criminal defense lawyer Lisa J. Ludwig, “it’s not really organized around a location so much as the reasonable perception of a threat.” One may defend one’s life, no matter the location, or use force in defense of a person or defense of property. Oregon Laws ORS 161.209 provides that Except as provided in ORS 161.215 (Limitations on use of physical force in defense of a person) and 161.219 (Limitations on use of deadly physical force in defense of a person), a person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose. ORS 161.215 provides (in relevant part) that: Notwithstanding ORS 161.209 (Use of physical force in defense of a person), a person is not justified in using physical force upon another person if: (1) With intent to cause physical injury or death to another person, the person provokes the use of unlawful physical force by that person; or (2) The person is the initial aggressor, except that the use of physical force upon another person under such circumstances is justifiable if the person withdraws from the encounter and effectively communicates to the other person the intent to do so, but the latter nevertheless continues or threatens to continue the use of unlawful physical force; or ... ORS 161.219 provides that: Notwithstanding the provisions of ORS 161.209 (Use of physical force in defense of a person), a person is not justified in using deadly physical force upon another person unless the person reasonably believes that the other person is: (1) Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person; or (2) Committing or attempting to commit a burglary in a dwelling; or (3) Using or about to use unlawful deadly physical force against a person. ORS 161.225 provides (in relevant part) that: (1) A person in lawful possession or control of premises is justified in using physical force upon another person when and to the extent that the person reasonably believes it necessary to prevent or terminate what the person reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon the premises. ? (2) A person may use deadly physical force under the circumstances set forth in subsection (1) of this section only: (2) (a) In defense of a person as provided in ORS 161.219 (Limitations on use of deadly physical force in defense of a person); or (2) (b) When the person reasonably believes it necessary to prevent the commission of arson or a felony by force and violence by the trespasser. ORS 161.229 provides that: A person is justified in using physical force, other than deadly physical force, upon another person when and to the extent that the person reasonably believes it to be necessary to prevent or terminate the commission or attempted commission by the other person of theft or criminal mischief of property. Analysis When the question states: it is not legal to use deadly force in defense of property this is incomplete. While deadly6 forcwe cannot be used to defend "property" under ORS 161.229, a person may use deadly force to defend "premises" under ORS 161.225. This includes both a home an any other building. Under ORS 161.215 one who provokes another or is the aggressor in a confrontation may not use physical force, and therefore is not entitled to assert a right of self defense. Under ORS 161.219 one may use deadly force against a person who is "Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against a person" Conclusion As John is stealing from James, it would appear that John is the aggressor, and has provoked James. Moreover, John is (probably) engaged in a felony, and may well be using physical fore in committing that felony, depending on details not states in the question. Thus it would seem that in the circumstances described in the question, John does not have a right of self-defense as against James in Oregon, and will not prevail if he raises the issue of self defense in an Oregon court | england-and-wales Alice's defence will be that she had an honest belief, given the circumstances, that force was necessary and the force she used was reasonable in defence of John (and possibly Alice). John's consent is irrelevant unless it had some bearing on that. Why did John oppose the use of force? Did John tell Alice not to shoot because he would rather die than cause a death? Irrelevant. Did John tell Alice not to shoot because he believed Bob was not a real threat due to circumstances X, Y and/or Z that he wanted Alice to heed? Relevant. | None of this affects a claim of self-defense I've described elsewhere the things that do affect a self-defense claim in Wisconsin. These do not affect it. Protesters I'm not sure what you mean by this: the existence of protesters has nothing to do with a claim of self-defense. The standard for lethal self-defense is much higher than could be satisfied by simply being near an angry crowd. Specific actions of protesters could affect it, but you'd need to detail which actions you're referring to. Rittenhouse indicating intent to protect property from protests This might affect the claim if it were his property (which it was not). Section 939.48(1m)(ar) of Wisconsin law provides for a castle doctrine if, basically, the person has unlawfully broken into or is currently unlawfully breaking into the defendant's home, vehicle, or place of business. Since it was not his property, this defense doesn't apply. | So for your first question, yelling "Stop Thief" loudly at the thief is perfectly legal (Like Yelling "Fire" in a crowded theater, it's legal if the theater is infact, on fire... the quote implied that it was a prankster who drew amusement from the reaction of the people who took him seriously). This may alert store employees, who have a specific kind of Citizens Arrest Power known as "Shopkeeper's Privilege" and is a reduced liability compared to Citizens Arrest. This is also pretty basic self defense agains people who are not engaged in any physical action against you but are starting to scare you. Suddenly shouting draws attention to you and discourages them from their behavior "I SAID DON'T TOUCH ME" being suddenly shouted in a Wal Mart is going to get notices from the immediate crowd drawn to you, and by poximate location, the person who is making you uneasy. For your second question, maybe, it depends... since the cop is clearly chasing the guy, you meet the qualification to use non-deadly force in stopping the criminal (i.e. you are witnessing a person committing a crime, in this case, resisting arrest or persuit) and it would certainly be reasonably non-deadly force if you were to trip, grab, or push the fleeing suspect. Citizens Arrest doesn't specify a minimum time to qualify, so if the officer is seconds behind, and you detain the criminal in this action until the gap is closed, it still counts. | In principle, police are liable for the safety of anyone they detain. If an officer creates a hazardous condition, as was described in this scenario, he or his agency (which effectively means the taxpayers who fund his agency) can be held liable for damages resulting from that action. (Whether it is the officer or instead the taxpayers who get stuck with the bill is a separate question of "qualified immunity.") This idea has been formalized under two theories: The "special relationship doctrine" would apply in this case because the officer was detaining the driver. Otherwise, the liability could be argued under the more broad "state-created danger doctrine." | Your ability to assert your Fifth Amendment right against self-incrimination is not limited to cases where you are on trial or have been accused of a crime. Your ability to assert that right is also not an absolute bar against being ordered to testify: if you are given immunity, you can be forced to testify. Alice cannot hold Bob in contempt – only the judge can. Bob can explain to the judge why a simple truthful "yes" or "no" answer is not possible, if he knows how to do that (does he understand the notion of a false presupposition, or unclarity?). He could for example assert truthfully that he does not understand the question (pointing to the distinction between "Charlie's body falling on the vase, causing it to fall and break", and "Charlie acting with apparent intent to break the vase", since it's not patently obvious that the former scenario constitutes "breaking the vase"). However (changing the scenario a bit), he has to understand that if the question is "Did Charlie shoot Delilah?" and the fact is that Ethan forced Charlie to shoot Delilah, saying "No" based on a theory of blame is not reasonably interpreted as truthful testimony. Taking the 5th, without setting forth your basis (not understanding the question) runs the risk that the prosecution will grant immunity from prosecution, and therefore you don't get to avoid answering the question. Immunity covers various things except that it does not cover prosecution for perjurious testimony. See US v. Apfelbaum, 445 U.S. 115: the Fifth Amendment does not prevent the use of respondent's immunized testimony at his trial for false swearing because, at the time he was granted immunity, the privilege would not have protected him against false testimony that he later might decide to give. Immunity is conferred under the control of some applicable statutory law, such as 18 USC 6002 which says that no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. | This area of law is dependent on affirmative defenses that states may choose to provide. I found two law review articles that present the situations in Georgia and Indiana.1, 2 Georgia Georgia Code 16-3-23 provides a defense for the occupant in this situation. Epstein argues that this statute is somewhat ambiguous but it most likely even applies when the occupant only has a reasonable belief that the entry is unlawful (i.e. the entry doesn't have to actually be unlawful).1 Indiana Indiana Code 35-41-3-2 provides a similar defense. The Indiana Legislature enacted 35-41-3-2 in response to a court decision that did not allow a jury to consider self-defense to an unlawful police entry. Patterson analyzes Indiana's statute and comes to the same conclusion as Epstein did about Georgia's: "the statute allows an individual to use force on a reasonable belief that a police official is unlawfully entering their home".2 Policy conflict Both Epstein and Patterson note the policy conflict that arises when states allow both no-knock warrants and affirmative defenses when an occupant reasonably believes an entry may be unlawful. They both suggest that states with such defenses available remove the permission for no-knock entries. 1. Epstein, Dimitri (2009) "Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police," Georgia State University Law Review: Vol. 26: Iss. 2, Article 5. 2. Patterson, C. (2014) "Don't Forget to Knock: Eliminating the Tension Between Indiana's Self Defense Statute and No-Knock Warrants," Ind. L. Rev., 47, 621. | The legal division is between law enforcement officers (or some similar expression, defined by law), and everybody else. A security guard falls in the category "everybody else", so like everybody else, they can use force to defend themselves from an attempted murder. Nevada law simply defines "security guard" as "a person employed as a watchman, guard, security consultant, patrol officer or in any other similar position". The main reason for mentioning them at all is to exclude them from license-related laws applicable to private investigators and security consultants. This section of Nevada law defines those who have "powers of peace officers" – it doesn't include security guards or private investigators. One important distinction, stated here, is that If necessary to prevent escape, an officer may, after giving a warning, if feasible, use deadly force to effect the arrest of a person only if there is probable cause to believe that the person: 1. Has committed a felony which involves the infliction or threat of serious bodily harm or the use of deadly force; or 2. Poses a threat of serious bodily harm to the officer or to others. An ordinary person cannot do this, instead that can use deadly force in self-defense, and not to effect an arrest. The law does not allow anybody, including officers, to do otherwise-prohibited things unreasonably. The law does allow everybody to discriminate, except in specific cases such as you cannot discriminate based on race when hiring or beating a person (in the later case, it's called a "hate crime"). Questions about trespassing generally arise in connection with a rowdy person in a public place such as a bar, which are deemed to be "public accommodations". You are not allowed to discriminate on the basis of race in access to public accommodations, therefore you cannot eject a person for being the wrong race. However, your home is not a public accommodation, so you are not required to be racially-neutral w.r.t. your home. There is no LEO exception with respect to non-discrimination requirements.; there is no ordinary-person exception either. As for trespass warnings, the law says A sufficient warning against trespassing, within the meaning of this section, is given by any of the following methods:...By the owner or occupant of the land or building making an oral or written demand to any guest to vacate the land or building. |
Visit Canada while on US tourist visa I'm traveling in US on a tourist visa and want to also visit Canada for a day. Is there anything that will make it difficult for me to get back to the US? For example, are there laws on how soon you can return back to US as a tourist? | Be very cautious about this! It depends on whether your visa is "single entry" or "multiple entry". From the US State Department: Depending on your nationality, visas can be issued from a single entry (application) up to multiple/unlimited entries. If you have a single entry visa and leave the US for Canada, you will NOT be allowed to renter the US from Candada. You'll have to return to your home country and apply for a new US visa. I know of grad students who went on a day trip to Vancouver BC from Seattle and were not allowed to re-enter the US from Canada. It was a disaster for them. | Legally speaking, very many nations grant asylum, and religious persecution is one of the most basic grounds for granting asylum, following the 1951 Refugee Convention. This newspaper article compares asylum statistics in Ireland versus other parts of Europe. The Irish immigration authorities spell out the details for an asylum application. Note that you must already be in Ireland, to apply for asylum in Ireland (you should apply when you enter the country). One could also apply to Norway (almost an English-speaking country), but again you have to be in Norway to do so. There is a generic solution to the "what if I'm not in country" problem via the UNHCR, which can propose resettlement into various countries. I need to add that getting a visitor's visa from certain countries can be extremely difficult. To take an example, Norway (which is fairly open to refugees) is pretty up-front on the chances of getting a visa, based on country. To take a random example, they are not very optimistic about visitor's visas from Iran, and they say "we consider how probable it is that you will return to your home country or the country you live in when the visit is over. We consider the situation in your country and your own situation", "If we believe that it is unlikely that you will return, your application will normally be rejected" and "If you plan to visit Norway as a tourist, you will normally not be granted a visa". This is the fundamental problem that refugees face, the problem of getting there. One country that allows visa-free admission from Iran is Turkey. This guide (which is in Farsi so I can't comment on) provides practical information on the UNHCR asylum process "the political asylum process for Iranians in Turkey": that may indicate that apostasy is a different matter. Other evidence suggests that this option is worse than staying put. Only for the sake of discussion, Svalbard is a theoretical possibility. Svalbard (next to the North Pole) is part of Norway, but Norway treats it as being somewhat outside of Norway. It is outside the Schengen visa area, and it is a visa-free zone, meaning that nobody requires a visa to visit or live there. This is due to the Svalbard Treaty whereby Norwegians and treaty nationals have equal rights to the islands, and while most nations are not treaty signatories, it has been policy to extend those rights to everybody. The Governor does have the power to expel anyone who is a burden on local society (e.g. unemployable). Normally one would have to get a Schengen area visa to get there, which would be an obstacle, but it is apparently possible to get a same-day visa-free transit at Oslo Airport, if travelling non-stop to Svalbard (I cannot find a definitive policy statement on this matter, but I also am not sure where exactly to look). There are some air routes from outside Schengen where the first Schengen stop is Oslo. The Governor's office gives appropriate warnings about local problems (ridiculous prices, housing shortage, work shortage, more polar bears than people, really cold). | As far as I know, airline crew members have to pass through US immigration on arrival, just like everyone else. So they'd need a visa. Airline crews are eligible for a D visa which is specifically for crew members on layovers. Under the current version of the travel ban, citizens of the designated countries are allowed to enter if they already have a valid visa, which current crew members presumably would. However, if they don't, or if it expires, they might be refused a new visa. This would effectively prevent them from working on flights to the US. | A list of potentially expatriating acts may be found at https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Advice-about-Possible-Loss-of-US-Nationality-Dual-Nationality.html As the page explains, one will lose one's citizenship when performing one of these acts with the intention of losing one's US citizenship. In most cases, the presumption is that such intention does not exist. One obvious exception is an explicit renunciation of citizenship before a consular officer. The others are accepting a "policy-level position" in a foreign government, serving in a foreign military engaged in hostilities with the US, and committing treason. | A US citizen who resides abroad can register to vote in federal elections in the last state or territory where they resided in the US. So in your example, the US citizen who was resident in Puerto Rico, and who moves to Canada without first residing in any other state or territory, would register to vote in Puerto Rico. Since he is registered to vote in Puerto Rico, he does not vote in an election for choosing presidential electors since Puerto Rico doesn't have any presidential electors. Only the 50 states and DC have presidential electors, and each of them chooses the electors based on elections by people registered to vote in that state (or DC), so he would have to be registered to vote in some particular state or in DC to participate in an election for choosing presidential electors, but he does not qualify to register to vote in any of the states or DC, because he was not resident there last. Yes, US citizens who are neighbors in Vancouver, Canada, one of whom is a former New Yorker and the other of whom is a former Puerto Rican, would be registered to vote in two places (one in New York and the other in Puerto Rico). They would get two different ballots, and may even have different dates for elections (for elections that are not held on the November election day). They would have different offices to vote for, and, in the case of the ballot for the November election in a presidential election year, the New York ballot would contain an election for a slate of presidential electors, while the Puerto Rico ballot would not. | The order itself is here. It applies to "any United States person", which includes citizens, LPRs, entities with a US basis, and any other person in the US including tourists. It applies to transactions, and not static possession. There is no exception to the effect that "you can trade as long as it's not on the NYSE", and it says Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, causes a violation of, or attempts to violate the prohibitions set forth in this order is prohibited The order is not just directed at brokers, or the NYSE, it applies to everybody / everything everywhere, if you are a US person. Apparently there was some unclarity on the OTC question, which was clarified by the Office of Foreign Assets Control, to the effect that it includes OTC trading. | I think that the plain meaning points to (1). The "other than an alien lawfully admitted for permanent residence" modifies who "is admissible", in the present tense, i.e. at the time of seeking admission. It doesn't modify the departure. Also, if it were (2), there would be weird issues like, if the departure doesn't count as a departure for the purposes of this section, then what about the unlawful presence? Does it stay accrued until a future departure, or does it just get wiped clean with no consequences? If it stays accrued, then in some cases it may be worse than interpretation (1), because interpretation (1) starts the 10-year period earlier while it doesn't affect you while you are a permanent resident, so that if you lose your permanent residency in the future the ban will be over earlier. The only case I know where a departure doesn't count as a departure for the purposes of this ban is when you leave on a grant of Advance Parole, as ruled by the BIA decision in Matter of Arrabally. But the reasoning in that case was that Advance Parole was specifically granted to allow the person to travel abroad an preserve their eligibility for Adjustment of Status, which a ban would defeat. But this reasoning wouldn't really apply to the case in this question, because permanent residency isn't specifically granted for travel abroad, and a returning permanent resident isn't subject to this ban anyway, so interpreting it as a departure doesn't defeat the maintenance of permanent residency. The issue you are asking about is rare. In most cases, when people become permanent residents, they stay permanent residents or naturalize to become US citizens, in which case they do not have to worry about this ban after becoming permanent residents. Only if they lose permanent residency would this question come up. I am not aware of any guidance or case law regarding this case. | Yes for individuals, and yes for vehicles. They're customs laws rather than immigration laws. |
What happens if a driver refuses to sign a speeding ticket? Hypothetical Facts A driver is pulled over for speeding. The officer writes a ticket and asks the driver to sign it. After questioned by the driver, the officer explains a signature is not an admission of guilt, but only indicates "acceptance" (receipt) of the ticket. The driver refuses to sign the ticket. What will most likely happen next? | It depends on the jurisdiction. Some states don't require a signature. In California refusing to sign is grounds for arrest: CA Codes (veh:40300-40313) 40302) Whenever any person is arrested for any violation of this code, not declared to be a felony, the arrested person shall be taken without unnecessary delay before a magistrate within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made in any of the following cases: (a) When the person arrested fails to present his driver's license or other satisfactory evidence of his identity for examination. (b) When the person arrested refuses to give his written promise to appear in court. (c) When the person arrested demands an immediate appearance before a magistrate. (d) When the person arrested is charged with violating Section 23152. | 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 the United States, the U.S. Department of Transportation, by regulation sets uniform design and signage standards for federally funded highways, which most U.S. state and local governments incorporate, either by restating them or incorporating them by reference for non-federally funded roads. I imagine that most other countries have similar regulations. Nonetheless, this is extremely unlikely to prevail as a defense to the traffic violation of speeding which is usually a strict liability offense to which almost no affirmative defenses, excuses, or justifications may be considered. | A fact cannot by itself constitute reasonable suspicion; the word "reasonable" describes not only the relationship between the fact and the possible existence of a crime, but also the officer's knowledge about the fact. The officer must not only sincerely believe the truth of the facts constituting reasonable suspicion, but must also reasonably believe it. I do not know whether a hallucinatory experience may be found reasonable for this purpose; I suspect that it would be a matter of dispute at trial. The first example is perhaps more straightforward, as there are probably a few possible explanations for the officer's failure to notice the turn signal. Still, are they reasonable? If the officer could not see the turn signals because something blocked the line of sight, it would not be reasonable for the officer to conclude that the driver had failed to use the signal. Rather, the officer has no evidence one way or the other, and absence of evidence is not evidence of absence. The question deals in hypotheticals, where we can assume that the officer is sincere. But in a trial, the jury (or judge in a bench trial) cannot do that. They will look at the evidence, including the officer's testimony, and assess the officer's credibility. They will form an opinion about whether the belief was sincere and reasonable before they look at whether the facts, as the officer believed them to be, reasonably indicated that a crime was being committed or was imminent. | One wouldn't be able to make a claim about a driving record without it being testimony. Testimony will be challenged during cross examination. The prosecutor won't be able to bring up prior bad acts (such as previous speeding tickets) but will most certainly be allowed to rebut any claim of no prior bad acts made by a defendant. When the defendant claims a spotless driving record the defendant is introducing character or a character trait into the trial. Once introduced by the defendant the prosecutor will be allowed to challenge the credibility of that statement and, therefore, the credibility of the witness. Imagine the following interaction: Defendant: I have a spotless driving record. Prosecutor: Are you saying you've never been issued a traffic ticket? Defendant: Um, Uh, well... When a defendant goes to court they are facing a specific charge. The prosecutor will present evidence that supports that charge and it is up to the defendant and his attorneys to sow reasonable doubt within the jury, or at least one juror. By presenting character, the defendant may appear to be saying either, "Hey, it was my first time let me off," or, "I've never done it before so I couldn't have done it this time." Either way, it probably won't create reasonable doubt in the juror's mind about the specific charge they're weighing and it has the potential to open a can of worms that would be unfavorable to the defendant. | Are you at fault for the fact that Car C read ended you? Close call. A jury could go either way. Can this accident which is now appearing on your insurance be disputed as Car A did not report anything? Essentially I'm just wondering what the odds are that this can removed from Car A's record. I think that it is unlikely that the situation you suggest would happen, even though anything is possible. Usually there needs to be a claim of actual damage for an insurance company to treat it as an accident. The usual rule is "no harm, no foul" (unless someone is cited for a traffic violation). Insurance company accident records are not regulated to the same extent as say, credit reports. You could threaten to sue the company for negligent misrepresentation, or the driver of Car C for defamation, in order to try to get this statement removed, but those would be hard cases to win since you are at least arguably at fault and fault is to some extent a matter of opinion. It would be much easier to win a suit like that if the accident didn't happen at all. Here, it would be undisputed that an accident happened at a particular time and place involving certain cars and drivers, and the dispute is only over who was at fault. | No. I'm going to assume we're talking about the US, where being convicted of a crime requires proof "beyond a reasonable doubt." Thus, our hypothetical friend has NOT committed murder. Nor has he committed manslaughter (as this too requires that somebody die) or attempted murder or manslaughter (as that requires an intent that the person should die). If it could be proven that the person our hypothetical scumbag ran over died as a result of being run over, our hypothetical scumbag would likely have committed negligent homicide or involuntary manslaughter; however, as these imply a lack of intent, they lack "attempted" versions (see People v. Hernandez, http://law.justia.com/cases/colorado/court-of-appeals/1980/76-813.html though state laws differ and some may be weird). In short, he has not committed any flavor of murder or manslaughter. So, what other enterprising charge or legal proceeding might we be able to level against him? I'm sure one exists. I'll edit it in once I find it. Civil suit for wrongful death Normally, our hypothetical scumbag would find himself on the receiving end of a wrongful death lawsuit. This would require that he (1) owed the dead man a duty of care (which he clearly did; all motorists are obliged to exhibit reasonable care in operating their motor vehicles) and that he (2) breached that duty (which he presumably did), but also that (3) this failure caused the death of the guy he ran over (which you have stipulated that we cannot "even guess," which precludes a "preponderance of the evidence" (the standard for civil matters)) and that (4) that person's death has caused actual, quantifiable damages to the plaintiff (which it can't as "nobody knows him"). Reckless driving charge In most states, our hypothetical scumbag's behavior meets the threshold for reckless driving. For example, in VA law: [In reckless driving cases, e]ither the driver is believed to have driven recklessly in a manner that threatened people or property, to have driven 20 miles per hour or more in excess of the speed limit, or to have exceeded 80 miles per hour, no matter the speed limit. http://manassascriminalattorney.com/2015/10/can-reckless-driving-in-virginia-be-a-felony-charge/ In some states, this may be felony reckless driving; in others, it may be a mere misdemeanor. Misc links https://www.virginia-criminallawyer.com/homicide-laws-virginia-code.html http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html A forum discussion that (thank heaven) cited its sources: http://www.top-law-schools.com/forums/viewtopic.php?t=155412 | Your friend can get into a lot of trouble for this. Those stickers were given to you for renewing your registration. The stickers are meant to be a quick way for police to tell whether your license plates are still valid, but applying them does not make the plates valid - they are only stickers that have no legal meaning as standalone devices. You still need the registration renewal recorded in the state's system for your particular license plate, which can only be done by going and renewing the registration at the DMV, not by buying stickers. Without the stickers, your friend would only be guilty of driving with an expired registration and subject to relevant punishments for that. However, with stickers purchased from someone else, he is also adding an additional gross misdemeanor in Minnesota for intent to escape tax, which can additionally include up to a year in jail and a $3,000 fine on top of the usual $115 fine for the expired registration. |
Are there exceptions for not crossing solid yellow double lines while driving, such as to pass a parked mail vehicle or horsedrawn carriage? I've noticed that in some scenarios, such as when a mail vehicle (USPS, Amazon, etc.) parks on a road or when a horsedrawn carriage is going really slow, and the road has two lanes for each direction separated by solid yellow double lines, that drivers seem to consistently pass despite such being illegal, at least under most circumstances. Does the law make exceptions under such extreme circumstances? | Ohio Revised Code Section 4511.25 indicates it is acceptable to drive on the left side of the road when there is an obstruction, and it is otherwise safe. Section 4511.31 indicates it is acceptable to pass in a no-passing zone if the slower vehicle is traveling less than one-half the speed limit, if it is otherwise safe. It does not contain an explicit exception for obstructions. It explicitly overrides Section 4511.30, but not 4511.25. It would take some investigation to figure out which section prevails. | germany In Germany, the described situation could lead to a fine up to € 2000. As the rider of a horse, you are subject to the existing traffic rules and regulations for all vehicle traffic (§28(2) StVO). As the 'driver' of the vehicle, it is your responsibility to ensure that the vehicle is safe to drive (§23(1) StVO). The administrative offense for the rider of a horse is defined in §49(2) StVO and the possible fine for this offense in §24(3)(5) StVG. Straßenverkehrs-Ordnung (StVO) 2013 Road Traffic Regulations no English version of law text § 23 - Sonstige Pflichten von Fahrzeugführenden (1)... Wer ein Fahrzeug führt, hat zudem dafür zu sorgen, dass das Fahrzeug, der Zug, das Gespann sowie die Ladung und die Besetzung vorschriftsmäßig sind und dass die Verkehrssicherheit des Fahrzeugs durch die Ladung oder die Besetzung nicht leidet. ... § 23 - Other obligations of vehicle drivers (1)... Anyone who drives a vehicle must also ensure that the vehicle, the train, the combination, the load and the occupants are in accordance with the regulations and that the road safety of the vehicle is not impaired by the load or the occupants. ... § 28 - Tiere (2) Wer reitet, Pferde oder Vieh führt oder Vieh treibt, unterliegt sinngemäß den für den gesamten Fahrverkehr einheitlich bestehenden Verkehrsregeln und Anordnungen. ... § 28 - Animals ... (2) Anyone who rides horses, leads horses or cattle or drives cattle is subject to the existing traffic rules and regulations for all vehicle traffic. ... § 49 - Ordnungswidrigkeiten (2) Ordnungswidrig im Sinne des § 24 Absatz 1 des Straßenverkehrsgesetzes handelt auch, wer vorsätzlich oder fahrlässig § 24(3)(5) StVG: Geldstrafe bis zu € 2000 ... 4. Als Reiter, Führer von Pferden, Treiber oder Führer von Vieh entgegen § 28 Absatz 2 einer für den gesamten Fahrverkehr einheitlich bestehenden Verkehrsregel oder Anordnung zuwiderhandelt, ... § 49 - Administrative offenses ... (2) Anyone who acts intentionally or negligently is also an administrative offense within the meaning of Section 24 (1) of the Road Traffic Act [§ 24(3)(5) StVG: Fine up to € 2000] ... 4. As a rider, handler of horses, drivers or handlers of cattle, contrary to § 28 paragraph 2, violates a traffic rule or order that applies uniformly to all traffic, ... What is a 'vehicle' (Fahrzeug)? Everything that is not definded in §24 StVO: (1) Schiebe- und Greifreifenrollstühle, Rodelschlitten, Kinderwagen, Roller, Kinderfahrräder, Inline-Skates, Rollschuhe und ähnliche nicht motorbetriebene Fortbewegungsmittel sind nicht Fahrzeuge im Sinne der Verordnung. Für den Verkehr mit diesen Fortbewegungsmitteln gelten die Vorschriften für den Fußgängerverkehr entsprechend. (2) Mit Krankenfahrstühlen oder mit anderen als in Absatz 1 genannten Rollstühlen darf dort, wo Fußgängerverkehr zulässig ist, gefahren werden, jedoch nur mit Schrittgeschwindigkeit. (1) sliding and push rim wheelchairs, toboggans, strollers, scooters, children's bikes, inline skates, roller skates and similar non-motorized means of transportation are not vehicles for the purposes of the regulation. For the marketing of these means of transport regulations for pedestrian traffic apply accordingly. (2) With wheelchairs or with other as mentioned in paragraph 1 wheelchairs may be driven where pedestrian traffic is allowed, but only at walking speed. What is a 'Motor vehicle' (Kraftfahrzeug)? §1 - Zulassung - Straßenverkehrsgesetz (StVG) ... (2) Als Kraftfahrzeuge im Sinne dieses Gesetzes gelten Landfahrzeuge, die durch Maschinenkraft bewegt werden, ohne an Bahngleise gebunden zu sein. (2) Motor vehicles within the meaning of this Act are land vehicles that are moved by machine power without being tied to railway tracks. | Is it illegal to display a flag in front of a store? Maybe - not because it's a flag but because it could be an unlawful obstruction of the highway (which includes the pavement) contrary to section 137(1) of the Highways Act 1980: If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding level 3 on the standard scale. (i.e. £1,000) Many shops fall foul of this if they don't have a licence, especially with 'A' boards and goods displayed for sale. | Law enforcement sometimes use "pacing" as a speed enforcement tool. The basic idea is that they consistently drive a certain speed - which is at or above the speed limit and notice that the "alleged speeder" is either keeping pace or exceeding the pace. The details are complicated and a police officer would know them much better than me. But basically They have to calibrate their speedometer - because if their speedometer is broken pacing is obviously worthless. They need to bring the calibration results to court. Not having those calibration records for your speedometer means that many police departments will be reluctant to issue a speeding ticket to the other motorists. They rely on the fact that most state laws allow law enforcement leeway to exceed the posted limit. Not being a lawyer or a police officer, I do not know the exact circumstances, but if they were not allowed to slightly exceed the limit for pacing then logically every pacing enforcement should result in 2 tickets - one being for the officer. If you can swear that your speedometer is good then they can use that evidence to write you a speeding ticket, because whatever allowances the law allows law enforcement for pacing are not granted to you. I am sure they can overcome the calibration issue with regard to a ticket issued to you by your certification that the speedometer is correct. If they issued a ticket to me based on your certification that your speedometer was correct, I would call bullshit. Talking to the police can only hurt you. | As mentioned in the comments, the simple answer is 'probably not' because you probably haven't yet gotten around to taking your halftrack in to get the necessary paperwork to demonstrate eligibility for registration, even if said halftrack was eligible for registration. I'm also going to confine this answer to whether you can legally drive the halftrack on public roads. I am not aware of any special laws about merely owning a halftrack that (say) you keep on a farm as decoration, but in any case I think you are more interested in whether the vehicle in question can be registered. Vehicle registration standards are (mostly) dealt with under State and territory law. I can give you an answer for Victoria, to at least illustrate the issues and where to look for answers. However, (at least some of) the relevant standards appear to be uniform across Australia. The starting point is that it is an offence to operate a vehicle on a public road without registering said vehicle: Road Safety Act 1986 (Vic), s 7. The Act provides that: the Regulations may prescribe how registration is applied for and granted or refused: s 9; and the Minister may prescribe standards for registration by notice in the Gazette: s 10. The standards cover "the construction, efficiency, performance, safety, design and equipment of, and the method of identifying" vehicles. I'm not good at searching Gazettes so I'm going to wave my hand over a gap and skip straight to things like: 'Guide to Modifications for Motor Vehicles' on the VicRoads website (VicRoads being the road traffic authority in Victoria, the government agency in charge of registering vehicles): https://www.vicroads.vic.gov.au/~/media/files/documents/safety-and-road-rules/vsinumber8guidetomodificationsformotorvehicles.ashx?la=en 'National Code of Practice for Light Vehicle Construction and Modification (NCOP)', which is an Australia-wide document: https://infrastructure.gov.au/roads/vehicle_regulation/bulletin/vsb_ncop.aspx This is one of those areas where you probably need a mechanic more than a lawyer. Once you have satisfied yourself that your halftrack meets the applicable standards, you need to go and get a 'VASS Approval Certificate' ('Vehicle Assessment Signatory Scheme') from a certified tester and then register the vehicle with VicRoads. Happy driving! | You will still have to pay A ticket can be ammended if the state so chooses (they can look up what color and model your car is). The car is probably on video. The officer can testify if they wrote your car info down somewhere else. And if they identified you inside the car as the violator, the car's color hardly matters. The idea that minor mistakes or omissions on tickets can get you off is a myth. From an actual lawyer | I'm not a lawyer; I'm not your lawyer. Victoria The Road Safety Act 1986 (Vic) s 73A makes the obstruction of the operation of a safety camera or speed detector an offence. It is likely that the obstruction of a mobile speed camera would fall within this offence. The law does not restrict the operation of the device to police, and so it may not be relevant whether the car was marked or not. New South Wales Certainly, the obstruction of an authorised officer is an offense as per the Roads Act 1993 (NSW) s 240 and the Road Transport Act 2013 (NSW) s 173 Obviously these apply to NSW and Victoria only; I haven't researched the other states yet. It's possible, though not definite, that other states will have similar laws. It is also likely, though not definite, that people who attempt to obstruct it may be charged with obstruction of traffic in some way, as most states require you to not obstruct the normal passage of traffic unreasonably. (eg Road Obstruction (Special Provisions) Act 1979 (NSW) s 4) | You (probably) did not commit a crime in Colorado. The answer to your question though is probably Driving an unsafe vehicle Colorado Revised Statutes Title 42. Vehicles and Traffic § 42-4-202 (1) It is unlawful for any person to drive...on any highway any vehicle...which is in such unsafe condition as to endanger any person, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this section and sections... The above is not a crime , it is (5) Any person who violates any provision of this section commits a class A traffic infraction. A class A traffic infraction is a civil violation. Note that some driving offenses are crimes: In Colorado, driving more than 25 mph over the posted limit is a class 2 misdemeanor, and doing so in a constriction zone is a class 1 misdemeanor. Also note that I say probably because it is possible that they charged you with something more extreme- reckless driving? violation of noise or pollution ordinances?- but for a fine small enough that you don't say, 2 points, and you did not have to go to court (you could have if you wanted for the ticket, but not required) it is very unlikely. |
Would a robot controlled by sentient AI have a right to self-defense? If someone built a robot controlled by a sentient AI that had a will to live, could the robot use force to defend itself against a person trying to harm (or unplug) it? | No. Oregon does not recognize this as within the scope of its self-defense law justification, except insofar as its owner is allowed to use non-deadly force to protect property. But, a sentient AI is also not a proper party to a criminal case and can't commit a crime. | The law on self-defence in England is very clear Under Common law, a person is allowed to use necessary, reasonable and proportionate force to defend themselves, another or their property from imminent attack. Further, Section 3 of the Criminal Law Act 1967 provides that: (1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. (2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose. Is John's action self-defence? It would appear that John could avail himself of both the common law, because he is being attacked, and statutory defences because the attack would appear to be a criminal assault. Both defences require that the force used be reasonable. The definitive statement on reasonable force comes from Palmer v The Queen [1971] AC 814, 832: The defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. … Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. … It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence… If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. Essentially, if the jury is satisfied that John struck out to stop an ongoing attack, this would be self-defence. If the attack was over, and John struck the aggressor as they were leaving, this would not be self-defence. | An example of where this is not allowed is Seattle, WA. Municipal code SMC 12A.06.025 states It is unlawful for any person to intentionally fight with another person in a public place and thereby create a substantial risk of: Injury to a person who is not actively participating in the fight; or Damage to the property of a person who is not actively participating in the fight. B. In any prosecution under subsection A of this Section 12A.06.025, it is an affirmative defense that: The fight was duly licensed or authorized by law; or The person was acting in self-defense. You can see from adjacent sections that "mutual combat" is not legal. I recognize that there is this meme about Seattle, but this is a distortion of an incident when the police turned a blind eye to a fight. We have police issues, no doubt: there is nothing legal about such fights. Of course, for a licensed event, you can "fight". Of course the potential legality depends on how mutual combat is defined. Illinois v. Austin 133 Ill.2d 118 and citations therein, subsequently Illinois v. Thompson, 821 NE 2d 664 define it thus: Mutual combat is a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat. Similar death-definitions are found in Donaldson v. State, 289 SE 2d 242, Iowa v. Spates, 779 NW 2d 770. The law looks askance of such behavior. For the sake of clarity, a term other than "mutual combat" would be preferable. | The relevant (criminal) defence is Sec 11(b)(3) [the Civil defence in Sec 11(a)(iii) is an easier one]: (3) Notwithstanding any other provision of this Act, it shall be a defence to prosecution under this subsection if the defendant committed the offense based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual, from bodily harm from any endangered or threatened species. I would say that the defendant could easily demonstrate a "good faith belief that he was acting to ... any other individual, from bodily harm from any endangered or threatened species." Even if there were other ways to rescue the child other than lethal force to the gorilla they all would have necessitated exposing the child to a longer period of danger, exposing another person to danger or may have had less predictable outcomes (e.g. tranquilisers have an onset time) all of which would be unconscionable. | 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. | This would be illegal in Australia (Criminal Code Act 1995 part 10.7: any unauthorised impairment of electronic communication to or from a computer), the US (Computer Fraud and Abuse Act) and any other jurisdiction that I can think of. There is no exception allowing vigilante action in case a person has a reasonable belief that the material on a website is offensive or illegal. In general, the law does not allow immunization against criminal prosecution in case the victim of an attack is himself a criminal. Only the government has the right to punish criminals. | "If it were not assize-time, I would not take such language from you." (said while grabbing the handle of sword) This is a famous conditional threat where the speaker/actor was not found to express intent to do harm; perhaps better called a negative condition. This probably confuses matters but if you are to search for more answers this could be a good place to start. One of the elements of common law assault is that the threat must be able to be carried out immediately; it must be imminent. I do not have a cite for this but I recall that this means that conditional threats are excluded from assault. So calling a politician on the phone and telling them that if they do not drop out of a race you will hurt them is not assault. So, "You cut that out now or you’ll go home in an ambulance" sounds a lot like, "stop or you will get hurt." The victim has the opportunity to avoid the danger; the threat is not imminent. But the facts here are interesting because the speaker touched the victim while speaking which might mean fear of imminent was real. But they were in a crowded room in front of cameras - could the victim really feel that threat was imminent? Plus, the "you will go home" implies a future harm. Oh, and the speaker does not say "I will hurt you," maybe she was actually trying to protect the victim from someone else's actions. Like when my teacher knew someone was waiting outside the classroom to fight me and she told me, "if you go out there you will get hurt!" I would hope that a jury would consider this hard bargaining. | I am not a lawyer and I have never even been to the UK. You will not go to prison if your neighbor's dog attacks you and it dies as a result of you defending yourself. You might go to prison and/or owe the owner damages if: You are somewhere you do not technically have a right to be. It can be shown you could have retreated from harm but chose instead to stand your ground. The force you used was deemed excessive - it showed intent to harm the dog more than necessary to protect yourself You contributed to the confrontation in a way that a reasonable person would think might cause trouble You might be able to protect yourself from problems by: taking pictures or videos of the dog behaving badly or aggressively note dates and times when you observe the dog behaving badly or aggressively formally contact the dog's owner with your concerns and/or evidence in which you assert your rights to access the areas you walk through and your right to defend yourself in the event that you are attacked by the dog if possible, change your route or schedule to avoid the problem entirely Good luck |
What happens if someone who intends to steal a car decides to rescue a child after breaking in? This is similar to my question about breaking into a car in order to rescue a child in hot weather. The events are basically the same, but the intent of the person breaking in is different. John sees a car in a parking lot and wants to steal it. He checks every door on the vehicle, and they are all locked. (He did this because breaking into a car decreases its value, not because he was trying to follow any laws.) He then breaks into the car with the intent of stealing it. He uses the minimum amount of force necessary to enter, but again, this is to preserve the car's value, not to comply with the law. After breaking in, however, he sees that the driver had left a child in the car. The weather is hot, and being left in the car would be dangerous for the child. John gets the child out, calls 911, and does not steal the car. He "Remains with the child or animal in a safe location, in reasonable proximity to the motor vehicle, until law enforcement, emergency services or the owner or operator of the motor vehicle arrives." Has he committed a crime? | Yes However, unless he confesses to his intent he’s not going to be caught. | Barring manufacturer negligence (and even this is a dubious theory, given that recovery would be for pure economic loss), there is probably no legal theory that would allow recovery of any loss of resale value. I am assuming that the promise to replace/repair the engine if it fails is part of the contract of sale. This is typical for a warranty that the manufacturer will repair certain failures. Assuming the manufacturer fulfils what it agreed to in the warranty, then the buyer is getting exactly what they contracted for and there is no contractual theory that would support any further recovery: there is no breach. The buyer bought a car that included a warranty to repair. I cannot imagine that they bought a car that included a promise that it would not fail. | Basically, it is up to the court. The relevant law is the Police and Criminal Evidence Act (PACE). You don't give much in the way of specifics, but it sounds like you confessed something to the police at the side of the road immediately after the accident, and now wish to dispute that confession. If you are taken to court and the police want to introduce your confession as evidence then you (through your lawyer) can ask the court to rule it out. You may be able to do so on a number of grounds. Was the confession properly recorded at the time? Were you treated in an oppressive manner, such that you felt you had to say what the police wanted to hear. Did you think you might get more favourable treatment if you said what the police wanted? For instance, did you think you might be allowed to go home once they were satisfied? Were you given a proper rest, or were you in a mental state that might cause you to say things without understanding the consequences (it sounds like this would be your main argument, but consider the others too). [Edit] If you needed medical treatment that would also be relevant. Were you properly cautioned (that speech beginning "You do not have to say anything...") before the police asked you questions. If you think you may be facing criminal charges then you should get yourself a lawyer sooner rather than later. A lawyer will know all about this and be able to navigate the relevant legal processes on your behalf. A bit of background: back in the 1970s the police frequently attributed incriminating statements to suspects when arrested, such as "Its a fair cop, guv", or "Who ratted on us?". The rules in PACE were made to stop such "verballing". | 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 | (assuming United States law here, though I'd be surprised if it were significantly different in other jurisdictions with such restrictions) Your friend is incorrect: that would be a new offense, for which Person A could be prosecuted anew. If your friend's logic were correct, once a person is convicted of robbing a store, they'd be free to rob that store without repercussions for life. It's worth noting that the conviction isn't relevant: the prohibition of double jeopardy in the United States prevents even multiple prosecutions (except, in some cases, for separate state and federal prosecutions or foreign prosecutions). | You may contact a towing company; they will ask who you are, and will politely inform you that since you aren't the property owner, they aren't authorized to take someone else's car that is trespassing on the property. [Addendum] The first step in unraveling the legalities of the situation is seeing that only the property owner can give permission to enter (park) on the property. That permission can be rescinded, but only by the owner. The owner seems to have given permission and has stated in advance some conditions under which permission might be rescinded. The towing company could be called (by the owner) to act as the agent for the owner and remove the offending vehicle; but the towing company cannot just up an do this on their own. If they were to spontaneously tow a vehicle without officially acting on behalf of the owner, they would be liable for damages, owing to their having torted some guy's chattels. So the company will want to know that they are protected, in acting as the agent of the property owner. One way to do that is to verify that the person calling the towing company is the owner. Another would be to get the caller to swear that they are the owner and indemnify them against damages, in case they get sued. That pound of cure is more costly and annoying than the ounce of prevention of making sure that you're towing a car with proper authorization, so it's unlikely that they would just tow the car on your say-so. You might try suing the complex owner for some kind of breach of contract, if you think you have a contractual right to a parking space and they are negligent in doing what's necessary to meet your contractual right. The lease says "we may...", not "we will", so they haven't promised to absolutely enforce this rule. Or, of course, you could call the manager and mention that there's still a problem. | None, if the intention is merely trespassing, unlike burglary which requires intent to steal, commit criminal damage, or inflict grevious bodily harm or if the building is a protected site - neither of which isn't evident from the question. Note, for both offences, the actus reus is entry - there is no requirement for any form of "breaking" Further to ohwilleke's comment, unless the lock is damaged or destroyed etc, then there is no offence of criminal damage | It's important to keep in mind that charges don't really tell us much about what crimes actually occurred. Sometimes cops file charges that aren't justified; sometimes they don't file charges that would be justified. There can be lots of reasons for the gaps between the evidence and the charges. My best guess is that the officers involved don't have quite as much information about his intent as they'd like to have when they go in front of a judge to argue for keeping this guy locked up. If they're going to hold him for attempted murder, they'll need to present evidence about what he was thinking and demonstrate that he intended to cause the officer's death (ARS 13-1104). That's possible, but it's a lot tougher than what they'd need to show for aggravated assault, which only requires a showing that he "intentionally [placed] another person in reasonable apprehension of imminent physical injury." (ARS 13-1204) They'll probably bring him up on murder charges, but they probably don't lose much by just booking him now on something easy to prove but serious enough to justify holding him, and then letting a grand jury indict him on the most serious charges. |
What happens if one neglects, or declines, to pay one's council tax? This link suggests that there are possibly no criminal implications, either summary or indictable, which is a little counter intuitive and somewhat hard to believe. As a form of tax, one would expect that declining to pay it would be some form of criminal offence. But the case seems to only rule on one narrow particular aspect of the question, that is of disclosing one's address of residence, rather than addressing the broader matter of payment or non payment of council tax itself. A popular fad among self styled common law sovereign citizens is to claim that there is no need to pay tax which seems highly dubious. But then one of them has cited among all of his rambling an actual news report on an actual court ruling. I suppose that it is slightly different from some (many? All?) Other forms of tax in that it is levied/collected by local authorities, rather than the slightly more reputedly ruthless HMRC. Do taxes not collected by HMRC have different statutory statuses as well? Another common trope to be addressed in a correspondingly separate question that is often spread with this one is that there is no need to pay one's domestic utility bills. But in any case, what eventually... "Happens" if one fails to pay one's council tax? Reference: https://www.localgovernmentlawyer.co.uk/litigation-and-enforcement/400-litigation-news/40025-court-of-appeal-rejects-legal-duty-for-council-tax-purposes-to-disclose-fact-of-residence | what eventually... "Happens" if one fails to pay one's council tax? Short Answer: Ultimately... You can be sent to prison for up to 3 months if the court decides you don’t have a good reason to not pay your Council Tax and you refuse to do so. Long Answer: But before then... If you miss Council Tax payments Your council will send you a reminder notice giving you 7 days to pay if you miss a payment. If you don’t pay within 7 days, you’ll have to pay the whole year’s Council Tax instead. You’ll be sent a second reminder notice if you miss another Council Tax payment. You’ll only get a maximum of 2 reminder notices in a financial year - this runs from April 1 to March 31 of the next year. Your council will send you a final notice saying you must pay the whole year’s Council Tax if you miss a payment for the third time. If you don’t pay your whole year’s Council Tax within 7 days, the council may take legal action to get the Council Tax you owe. Legal demands for payment Your council can ask a magistrate for a ‘liability order’ if you owe them unpaid Council Tax. This is a legal demand for payment. The council’s legal costs, eg for hiring a lawyer, may be added to the money you owe. You’re allowed to go to the court and give your reasons for not paying if you want. If you receive a liability order you should speak to your council or your local Citizens Advice bureau about your options. If you still don’t pay Your council can get your employer to pay your unpaid Council Tax directly from your wages. Your council can also apply to take money from the following benefits: Employment and Support Allowance Income Support Jobseeker’s Allowance Pension Credit Universal Credit If this means you don’t have enough money to pay other bills, you can ask your council if you can make smaller payments. Your council doesn’t have to agree but will usually try to make an arrangement with you. Bailiffs Your council can send bailiffs (‘enforcement agents’) to seize your property if there’s no other way to recover your debt. They’ll tell you how much you owe before the bailiff visits you. The bailiffs’ costs can be added to the total amount you owe the council. Court Your council can take you to court if you don’t pay the money you owe and the bailiffs can’t recover enough property to cover it. The court will consider whether you: can afford to pay the bill have a valid reason to not pay You can be sent to prison for up to 3 months if the court decides you don’t have a good reason to not pay your Council Tax and you refuse to do so. If the court decides you have something to pay back you may be able to make an arrangement to pay your debt over time. Source, gov.uk's guidance Pay Council Tax arrears | Actually, neither the council nor a private owner are responsible for illegal actions by unauthorised people on their property. This is obvious: if an intruder enters your property and, while there, shoots someone you cannot be held responsible. However ... Since you have made them aware that there are intruders on their property acting illegally and causing a nuisance to the neighbours and they have done nothing they are quite likely negligent, even recklessly negligent. Rather than sue them, consult a lawyer and get them to write a letter that if they do not take action by X date you are going to sue them. | No. Reason: Taxes are not a contract for specific services, so even if the government did nothing for you in return for your taxes, you do not have recourse to a rebate for "breech of contract." The only recourse is political. Theoretically if the government failed to provide a service that was required by law or Constitution, there could be legal action to force the government to do that action but you still don't get your tax money back. It might be an interesting act of civil disobedience, but no not legal. That is the answer. But to address some of the other premises of your question (Note: these are irrelevant because see above answer): The U.S. government runs at a deficit anyway, meaning the amount spent each year is more than the amount of revenue collected. For example, in May, 2018 the CBO estimated that for FY2018: BUDGET PROJECTIONS FOR FY 2018 (As of May 24, 2018 ) OUTLAYS $4.1 Trillion REVENUES $3.3 Trillion DEFICIT $793 Billion DEBT HELD BY THE PUBLIC (End of Fiscal Year) $15.7 Trillion So even if in the partial shutdown, gov saved 20%, every cent of your taxes would still go to the expenditures; the deficit would just be a little less. The U.S. government is saving quite a bit of money by not paying some subset of its employees, etc. .... believe that many of those employees will not receive back-pay. Probably not true. In the past modern shutdowns, employees received the back pay, whether they worked as emergency employees or were home. A bill as already been proposed in Congress to ensure that all will be paid when this ends. Some contractors might not get paid because they get paid by their employers, not directly by the gov. So in some cases no work, no pay. There are bills proposed to get them paid also. Note- I do not at all mean to downplay the effect on people's finances and morale. Missing a paycheck today even if the money will/might come eventually is a real hardship. | A special case is not paying the income tax that the company is supposed to be paying on behalf of its employees. If an employee makes £4,000 a month, and the employer is supposed to pay £1,000 tax and doesn't, that's not the employer's money, that's the employee's money. Not paying the employee's money is a much more serious matter than not paying your own taxes. A google search found this article http://www.gaebler.com/Not-Paying-Payroll-Taxes.htm which says that a person not paying taxes for employees is personally liable, that this liability does not go away with bankruptcy, and that jail is possible. So their advice is: Whatever other debt you have, paying taxes for your employees' payroll is the absolutely highest priority (higher priority than paying wages, paying the rent, paying company taxes and so on). | What is the name of the crime and/or tort I have committed? You are guilty of the crime of fraud, the crime of theft of the money and the item (I can't point you to the precise statute). You have breached your contract of sale. You are probably liable for fraud civilly (i.e. you could be sued for fraud). But, if one was really creative, I imagine that one could find more grounds for civil and/or criminal liability, although they would probably be unnecessary since the victims have plenty of remedies to secure all possible relief already. Who gets to keep the object? Under the Uniform Commercial Code, Article 2, in the United States, the general rule is delivery of possession by the seller (which didn't really happen here to one distinct person), but for unique goods, title passes when the unique good is identified to a contract with a buyer, so first in time to contract, first in right to the car, would probably prevail. But, I don't know what the rule would be in England and Wales. Is it handled differently if the "valuable physical object" is real estate? Land is harder to defraud someone with, because a reasonable person knows that in England and Wales real estate title is (usually, but not always) represented by a certificate of ownership maintained by a public official in the Land Registry, and is easily checked (about 15% of land in England and Wales show in the link is not registered so the possibility for deception is somewhat greater in that context). Also, generally, you don't pay for real property until you simultaneously receive payment in good funds, while brief extensions of credit for a non-perfectly contemporaneous sale transaction are more common in cases involving tangible personal property. | There is no intention to commit theft, so there is no criminal act on the part of the customer. Even if there was a criminal act, the ability of the restaurant to detain the cusomer (citizen's arrest) is very limited in most jurisdictions. The restaurant can ask the customer for his name and address, but there is no legal obligation on the customer to provide this. Refusal to do so, however, might be evidence of intention to avoid paying and at that point the restaurant might call the police. The customer can leave, and the restaurant can pursue the debt through the civil courts if they have means to do so - they may have CCTV of the customer and his car registration which can be traced. Petrol stations, where people often fill up and then realise they can't pay, usually have established "promise to pay" procedures where they take the customer's details and the customer has 48 hours to pay before police or civil enforcement action is taken. | 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. | Small claims court was created for such matters. There is the possibility of a fee waiver, and if you prevail, you could get some of your costs covered (though there are other hoops to jump through if you need enforcement). A formal letter (written by you) stating that you intend to seek a legal judgment against him/her in the amount owed might be sufficient motivation for the person to pay what is owed. |
Do pastebin sites have to delete content on request? A pastebin site, hosted in the US, allows users to post data anonymously. However, its intended purpose is for sharing information about one's computer, including the username (which is sometimes PII). Under GDPR, is the site owner required to allow users to delete posts, even though there's no way to verify who posted? What if all posts are automatically deleted after one day or some other period of time? | 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. | Yes such a username would be personal data. It is information that relates to an identifiable person. In this context,a person isn't identifiable only if you can infer their real-world identity, but already if you can single out one person's records. Thus, your random IDs and any linked information would be personal data as well. Just because something is personal data doesn't mean that processing it is illegal. It just means you need a legal basis. That could be necessity for performing a contract with the data subject (like saving game progress), a legitimate interest, or consent. Taking into account GDPR principles like "data protection by design and by default", it could be sensible to hide a players stats from the leaderboard until they give consent. On the other hand, you may have a legitimate interest to provide leaderboard data for ranking/comparison, especially if the leaderboard entries are pseudonymized. In any case, it should be clear to the users which information is visible to others. | No. According to GDPR consent must be: Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement Scrolling down is not a clear, affirmative, specific or unambiguous indication of consent, and therefore does not fulfill the requirements for GDPR. | 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. | Building off @DigitalFire's answer, I looked into the TOS related requirements that Google Analytics puts out and I found this on Google Analytic's TOS: You will have and abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from visitors to Your websites. You must post a privacy policy and that policy must provide notice of your use of a cookie that collects anonymous traffic data. Apparently, Google themselves also requires you to notify users when you are using their service to track people (That's pretty good of Google). Here is a simple example of what a privacy policy would look like. There doesn't appear to be any issues with laws in other countries either. For my purposes, I'll just implement an agreement that pops up during installation that users will have to accept. | I decided to rewrite this after the clarification in the comments. You can find the old version in the history. The question is not, actually, about a browser extension. It is about a web service that can be accessed by the browser extension. The way to access the service should make little difference, it could be clay tablets, homing pigeons, or this browser extension, what matters is the service. The service has two functions: Receive PII of the victim, sent by the customer, to calculate the probable email of the victim, and return this PII to the customer. The service operator could argue that the customer is really the data controller under GDPR rules, and that the service operator is only the data processor, but that is not a plausible use case. The customer would need to get and document the consent of the victim before the probable mail is calculated, so why would the customer pay the service operator for a service like this? There is already contact with the victim. Generate a database of specific company email patterns to enable 1. This would also use PII, from random employees of the company in question, and there is no customer to shield the service provider by pretending that consent was collected. The way around the first issue might be to sell the database and have all calculations on the customer's system, but that doesn't resolve the second issue, that of creating the database. This involves looking for patterns in PII of individuals, unless the target company is obliging enough to make the pattern public. | First of all, although the GDPR is stated to apply to any site which processes the data of any person who is in the EU, it is not clear how a site not located in the EU, does not business in the EU, and does not primarily target EU residents as its audience can be required to comply with the GDPR. To the best of my knowledge, no such case has yet been brought, much less decided. There has also been some debate on whether an IP address constitutes Personal Data under the GDPR, and if it always does so, or only under particular conditions. The European Court of Justice (ECJ) held that (under the predecessor Directive 95/46/EC) that a dynamic IP address was personal data. But in that case the web site was run by the German Federal Government, which surely has wider scope for getting info from a German ISP than a small private US web activist does. There is not yet any case law that I know of on the applicability of the GDPR to IP addresses in any case at all similar to the one in the question. Joe would in my view be wise to at least learn that logs are being kept, and post a disclosure of this on the site. Whether Joe needs to do more than that is less than clear at this time. | You are right that a visitor of a website does not expect to be tracked upon opening the website. But when using Google Analytics configured in the way explained in my other post, the visitor is not tracked. At least not in a way which violates the GDPR. You worry about the cookies. I also found this article which also does and suggests to either: change the _ga cookie to a session cookie, so it will be removed when the browser is closed. To do this, set the Cookie Expiration variable in your Google Analytics Settings to 0. completely disable cookies. (GA does not require cookies). To do this, set the storage field to none: ga('create', 'UA-XXXXX-Y', { 'storage': 'none' }); If you do not disable cookies, cookies can be used for tracking, which is more general defined in the GDPR as profiling. Profiling is defined in Art. 4 GDPR as: ‘profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements; Art. 22(1) GDPR disallows profiling. Therefore in the settings menu from Google Analytics you have to disable data sharing and data collection. So data will only be used for the analytics function. But because you have configured to Anonymize your visitors IP Address, the part of the IP address used for this, is no longer considered personal data. This is because approx. 250 other users share the same part of the ip address which is stored, so data is not distinguishable between those 250 users. The anonymisation used by google is currently considered good enough. At least by the Dutch DPA. This might change if someone proves it is not good enough anonymized. Note that I am not a lawyer either, but I have read from multiple experts that analytics can be a "legitimate interest", the same way marketing can be a legitimate interest. This way configured the privacy impact is considered very low. It is also very important to note that a DPA consideres GA Google Analytics compliant. Even if a court would not agree in the future, you are acting in good faith if you follow those instructions, so you will probably not be fined. The DPA does currently not suggest to change the _ga cookie to a session cookie, or disable cookies completely. Note that the GDPR does not require doing anything to make it technical impossible to track someone. If a website has access to the data to track someone, but "promises" not to do that, that is fine. And rules regarding the usage of cookies in general, is not part of the GDPR, but (currently) part of the ePrivacy Directive. Only the way to ask for consent for storing cookies is defined in the GDPR. |
Do corporations have the right to keep arms? A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Does "the people" include corporations? Obviously, they can't bear arms, but can they "keep arms", which is generally owning and having them in possession of its agents? | There are no cases interpreting the Second Amendment to have that meaning at this time. Even when regulations on corporate gun dealers are held unconstitutional, this holding, thus far, has always been because the regulations burden the rights of natural persons who own guns to bear arms. But, while corporations do not have the right themselves, they do have standing to bring suit regarding regulations of their corporations that burden the Second Amendment rights of their customers in a way that allegedly violated the right. | In the US, rights are independent of "responsibilities". But, responsibilities is a very broad concept: some aspects of responsibility are encoded in law, others are not. You have an absolute legal obligation to not murder or steal, as defined by the law. Some people say you have a social responsibility to put others before your own interest: this may be legally true in certain contexts, especially fiduciary contexts where your broker is supposed to make decisions on your behalf that benefit you (regardless of personal effect on the broker). Contracts are another source of obligations – you gain a right (access to someone else's property) in exchange for something, which may include standards of behavior. You thus have a legal obligation on SE to not be hurtful in your postings (enforcement is via suspension, in the worst case). The rights spelled out in the Bill of Rights are about the government – it says what the government may not do, it isn't a source of permission for you to exercise your rights. Generally, the traditional US understanding of "rights" is that they are inherent in people and are not "granted" by the government, so the Bill of Rights is a codification of what that means. Therefore, (morally, intellectually) irresponsible speech is also protected. | None because the principle is Freedom to contract There is a general right of any being (natural like a person or even a company) to contract with anyone. Buying someone's service is a contract. A contract forms when: They offer something You offer something Both sides agree on it. (meeting of the minds) It is totally legal for a company to make wears a mask in our place of business a part of either being admitted onto the property or agreeing to contract with you. Noncompliance means as a result that they don't agree to serve you and don't offer to you. In fact, they explicitly reject to contract with you unless you wear a mask, which is their right unless there is a law that would specifically make that reason illegal. There are laws that reduce the freedom of contract, such as the civil right act (protected classes, such as religion, race, sex and more), the Americans with disabilities act (demanding reasonable accommodation), and labor laws (outlawing labor practices or limiting the amount of work or minimum payment) as well as anti-discrimination laws (establishing further classes). However note, that laws need to be written in such a way that they don't discriminate against the company either! One case where freedom to contract was attacked using an anti-discrimination law was Masterpiece Cakeshop - which was decided on first amendment grounds based on the rights of the owner: the law can't force someone to make a product he would not support the message of. Currently, there might only be some ordinance that bans mask policies in Texas, but it is dubious if that might be even an enforceable order from the Texas governor - Especially since OSHA just made adjustments to standards and mandates on the federal level - which include adjustments to respiratory protection fields. | Legally there is no problem. What you say is protected speech under the 1st Amendment as long as it is either true or a matter of opinion. However Ron Beyer's comment is a good one; while legal this sounds very inadvisable. You would be far better off hiring a lawyer. The Mr Dicks of this world make money from the widespread fear of legal action. He will probably fold as soon as he sees a letter from a lawyer threatening a lawsuit. Until then stalling doesn't cost him anything so he will carry on doing it. BTW, don't delay. I don't know about the US, but over here in the UK there are a number of ways that people like Mr Dick can make it hard to collect. Don't give him time to play shell games with his assets. | Yes Companies can own companies - that’s what subsidiaries are. On a practical level, you know this is true because you actually have an example. Companies House would not have allowed its registration (barring error) if it was illegal. Why can’t it open a bank account? Banks (or any other business) can choose who they will and won’t do business with. Unless it’s discrimination on the basis of a protected characteristic, it’s not illegal. Since juridical persons don’t have protected characteristics (apart from nationality) it’s virtually impossible to illegally discriminate against them. | not in germany Germany has laws about founding, operating and financing political parties, the Parteiengesetz which demands certain organisatorial structures, and the Parteifinanzierungsgesetz, which is very explicit about how they can finance themselves and what a party needs to report. The only allowed gains are property proceeds (like from owning property or selling goods), membership fees, gifts to the party, and state sponsorship. Also, non-citizens are not allowed to give to a party unlimitedly. The parties also are also obligated under the basic law to report all financing they get, down to the cent. Their organisation form is strictly limited: Parteien sind frei gebildete Personenvereinigungen im Sinne des Artikels 9 Absatz 1 GG, die sich auf der Basis des privaten Rechts nach den vereinsrechtlichen Regelungen des Bürgerlichen Gesetzbuches (§§ 21 bis 79 Bürgerliches Gesetzbuch - BGB) gründen. Sie sind in der Regel nicht rechtsfähige Vereine This precludes them from being Aktiengesellschaften: they have to be organizations of people (Personenvereinigungen) that follow the BGB, and thus are not allowed to organize as an AG under the Aktiengesetz, which demands that an AG to not be an organization of people. So, a party can't be a stock company, and selling stock in a political party in Germany is not allowed under the framework and is thus neither possible nor legal. | I'm not convinced that there is a U.S. Supreme Court case with such a clear holding. For example: May a private entity running a public access channel ban speakers based on the content of their speech—something a government entity running the same channels could not do? Yes, the Supreme Court held in a 5-4 opinion in Manhattan Community Access Corporation v. Halleck (2019). Why? Because the First Amendment doesn’t apply to private entities in this instance. You may be looking for one of the cases discussed in Halleck which notes (in the official syllabus) that: "A private entity may qualify as a state actor . . . when the entity exercises “powers traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U. S. 345, 352 [1974]. The Court has stressed that “very few” functions fall into that category. Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 158 [1978]. Per the official syllabus in the link above, Jackson held that: The convergence between the actions of a state and a heavily regulated private utility company do not rise to the level of state action if the utility company has a partial monopoly in providing electrical service and uses a procedure that the state utilities commission finds to be appropriate under state law in terminating service to customers. As the linked material explains: A private entity performing a public function can be classified as a state actor, but merely being regulated and overseen by the state does not equate to performing a public function if the company is managed by private actors. In this decision, the Court placed limits on the public function doctrine, which otherwise could have grown into a massive exception permitting the inference of state action. Thus, heavy state regulation of a private entity still doesn't constitute state action which can violate a constitutional right, in this case, even though if the state has had greater control over the nominally private entity (e.g. appointing its board of directors), the private entity's actions would be state action. Per the official syllabus in the link above, the primary holding of Flagg Bros. was that: A warehouseman's proposed sale of goods entrusted to him for storage, as permitted by [New York State's Uniform Commercial Code] § 7-210, is not "state action," and since the allegations of the complaint failed to establish that any violation of respondents' Fourteenth Amendment rights was committed by either the storage company or the State of New York, the District Court properly concluded that no claim for relief was stated by respondents under 42 U.S.C. § 1983. In reaching this conclusion, the U.S. Supreme Court reasoned that: The challenged statute does not delegate to the storage company an exclusive prerogative of the sovereign. Other remedies for the settlement of disputes between debtors and creditors (which is not traditionally a public function) remain available to the parties. Though respondents contend that the State authorized and encouraged the storage company's action by enacting [the statute], a State's mere acquiescence in a private action does not convert such action into that of the State. In other words, enactment of a state statute authorizing private action is not state action that can violate a constitutional right. | No. The Fourteenth Amendment says: nor shall any state deprive any person of life, liberty, or property, without due process of law; The Supreme Court has determined that this clause incorporates much of the Bill of Rights. The logic is mildly tortured, but it's basically that "due process of law" means "due process of a law that is compatible with the fundamental rights of a free society." This logic is known as "substantive due process," because it reads in to "due process of law" requirements about what those laws can do (as opposed to procedural due process, which is about the actual procedures being used). It's pretty settled that the Bill of Rights, after the 14th Amendment, should apply to the states. There's another possible way to get there: the 14th Amendment says "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," which Justice Thomas recently thought meant that the Second Amendment applies to the states in a concurring opinion. But as of now, substantive due process is the standard logic for it. Virtually all of the Bill of Rights is incorporated against the states. There are a couple things which aren't (like juries in lawsuits, and grand juries), but the Establisment Clause is incorporated (see Everson v. Board of Education, 330 US 1). |
Would sentient aliens be legal persons? Suppose some sentient aliens figure out how to receive our radio and TV broadcasts. They eventually decode the English language, and a few of them study it enough to be fluent. They land somewhere in the United States, perfectly capable of conversing with humans. Are they legal persons? Since they obviously aren't citizens, are they illegal "aliens" (in the legal sense of the word "alien")? If a person stole from one of the aliens, could the alien sue? | Quite possibly such hypothetical non-human intelligent beings would be treated as legal persons, but one cannot be sure in advance. If when humans first encountered such beings, they routinely treated them as persons, that might well influence any later legal treatment. If, on the other hand, humans initial treated such beings as "dumb animals". Eventually, there would no doubt have to be new law passed, or a court ruling on how existing law was to be applied to such beings, rt quite possibly both. One wouldhope that the law would treat such beings as fully human, but such past cases as Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) make tyhst less assuted than one might wish. | As someone with ties to the "foreign" community in the United States, I see these "marriages of convenience" from time to time. In their most "legitimate" form, the couple will move to the same address and "technically" live together, but without consummating the marriage so that it can later be legally annulled. American immigration authorities counter this by asking each spouse about the other's underwear (literally!). Some "marriages of convenience" are legal, insofar as they technically conform to the marriage documents, e.g. regarding "co habitation," even while violating the spirit of the law. Others don't. Your best chance of attacking such "marriages" is not regarding the marriage itself (basically only the couple can decide what constitutes a valid marriage), but rather "compliance" with the marriage documents. That's something any law enforcement officer can understand. | Wikipedia explains this well enough: Particular numbers can be trade secrets, and their reproduction and dissemination may be particularly proscribed, e.g., by the U.S. DCMA. As a coarse analogy: Your social security number is not "illegal." But if somebody entrusted with it shared it in violation of law or contract then their communication of the number in a context that allowed potential identity thieves to associate it with you would be illegal. To answer follow-up questions in the comments: Sure, "mere possession" of a number can land one in jail for all sorts of crimes, just like "mere possession" of stolen property can. For example, if you possess a bank account number, credit card number, or PIN, and you "conspire, confederate, or combine with another" person who actually commits fraud or theft using that number, then you can be convicted of the same crime. This is so common that a search for "conspiracy to commit wire fraud" or "credit card fraud" provides ample reading. | Part answer to Q1: Is my conceptualization correct? No, insofar that your Points 1 to 4 are all "completely illegal" regardless of how the authorities deal with them, and the rest are not, on the face of it, crimes but presumably civil wrongs (which can be dealt with by, for example, fines or restraint / good behaviour / banning orders etc without one having a "criminal conviction"). Also: if the authorities, for whatever reason, decide against dealing with crime then it hasn't been "decriminalised" - that is the remit of the law makers, not the law enforcers. It's still a crime but with a lower political/ operational etc priority. | There is no such law in the US, although there many laws prohibiting specific forms of harm, for example laws against murder, theft, assault, arson. All laws are predicated on the idea that an illegal act causes harm, but I don't get to deem, for example, that you are harming society by opposing Satan. There are no laws prohibiting any belief in the US, and such a law would be unconstitutional (in violation of the First Amendment). So being a Satanist could not possibly be illegal. | 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. | Of course it is illegal. You are attempting to access somebody's data without their knowledge and certainly without their consent. In the U.K. it is a crime under the Computer Misuse Act 1990, the Police and Justice Act 2006 and the Serious Crimes Act 2015. The clue here should be in the term Serious Crimes. The Human Rights Act, and indeed the ECHR, should never come into it unless it was state sponsored or corporate spying. And even then certain states have given themselves Orwellian totalitarian authority to do as they please. | The difference is that the person was originally invited to live there, so they do have a claim of residency. A tenant recently allowed someone to move into his apartment as his caregiver. This is the problem here, the person was invited to live in there in exchange for a service. This person now has a legal right to occupy the property and the eviction process must be followed. If the person broke into the house and occupied a room, that is trespassing since there was no original legal right to occupy the property. The trespasser cannot claim any legal right to the property and therefore is trespassing. Can it really be so that he is legally bound to allow these strangers to share his apartment with him because of a technicality that classifies them as "squatters"? Unfortunately yes. This should be a lesson to the tenant that they need to properly run background checks and have solid contracts with live-in caregivers/roommates. Unfortunately this is not only inconvenient, but will probably be an expensive lesson as well. |
How do common law concepts like torts get named? For example, some torts have names that aren't used in other contexts in English and appear to have come in from French for their legal usage's purpose. But what is the origin of the name of trover for that civil wrong, and what causes a judge in a common law case through the ages to decide that instead of simply ruling on an issue before him at hand, he is going to define and name and in a certain sense completely canonise a more general and fundamental concept? | This is a purely linguistic question, despite the hope to discover a special legal process. Somebody uses a word or phrase in order to communicate an specific idea. Somebody else thinks "That's a good way to put it" and uses the same or very similar expression to convey that idea. Enough people do this and it becomes "conventional". The word itself is not made up, it already existed, and was simply applied in a specialized way (e.g. "tort" is an ordinary French word meaning "wrong, mistake" taken into English in a more specialized manner). If you want to know the history of a legal term, you have to read relevant historical rulings to see when the word was first used. That is how we know that current technical term "consideration" derives, from around the time of Henry VIII, that it derives from rulings referring to "assumpsits" which were made "in consideration of" an obligation. "Trover" is a sufficiently old term in law that you will have a hard time pinning down first use and the pattern of expansion. | The question should not include France and Germany, and should be limited to common law jurisdictions that are similar to India, because the function of judges differs starkly between adversarial vs. inquisitorial systems. The adversarial model pits two parties against each other, with the judge serving as the decider (of law, and perhaps of fact). The parties can offer witnesses, who can be compelled to respond to questions, and the attorney asking the question gets to control the question asked (subject to a possible objection by the other party, to be ruled on by the judge). The judge can rule on requests (which are not questions) i.e. petitions by either party. Otherwise, the judge sits there more or less mute, soaking up the argumentation being presented. Appellate proceedings are somewhat special in that the justices may address questions to the attorney, in order to better understand the logic of the proffered argument. The burden is on the attorney to make the case. There is no direct burden on the justice to "make a case". The "court of public opinion" may be relevant in a jurisdiction where the justice is an elected office or is appointed for limited time. Or, the contrary opinion of a higher court may have some influence on a justice's rulings – this is not the case with a Supreme Court. In other words, it would be highly dysfunctional within the adversarial system for a party to be allowed to interrogate a judge. Formal petitions are allowed, as long as you follow proper form. | Does the legal usage of the word court as in a court of law derive from the idea of a royal court, as an expression of the idea that the original courts of law were ultimately simple vehicles for the exercise or discharge of royal authority on behalf of the royal sovereign? Yes: The meaning of a judicial assembly is first attested in the 12th century, and derives from the earlier usage to designate a sovereign and his entourage, which met to adjudicate disputes.... | Is it that in the UK, there could be "pain and suffering" independently of another tort, while in the U.S. it could take place only in connection with some other offense (e.g. the broken vase)? The whole question is too much for me to take on (there are significant differences in the law of non-economic damages between the U.K. and the U.S. beyond those discussed below), but I'll answer this part. The short answer is "yes," there could be "pain and suffering" awards (more often and more accurately called "non-economic damages" awards) in the U.S. that are not in connection with another offense that cause physical harm to the person bringing the claim or their property, even though defamation liability is more narrow in the U.S. than in the U.K. Non-economic damages may include pain, emotional anguish, humiliation, reputational damage, loss of enjoyment of activities, or worsening of prior injuries; in some states, they are referred to as pain and suffering. The U.S. recognizes a common law tort known as "intentional infliction of emotional distress" a.k.a. "outrageous conduct", that can award damages for purely non-economic harm that is independent of any physical harm to anyone. This has to be a course of conduct intentionally calculated to utterly crush someone emotionally without justification, generally through some form of humiliation. The nature of the conduct must far exceed what would ordinarily be considered harassment or taunting. There is also a closely related concept called a prima facie tort which involves intentional and unjustified harm to others not covered by another recognized tort, which is much less widely recognized. The U.S. also recognizes a common law tort known as "negligent infliction of emotional distress" which applies to allow a non-economic damages recovery from someone in the "zone of danger" of an accident that causes physical injury to another person or to property. The classic case would be brought by a parent holding hands with a child whose child is hit by a car and grievously injured or killed right before their eyes. This tort is not very common and not accepted in all jurisdictions. Closely related to negligent infliction of emotional distress damages are awards for loss of consortium, which is a claim for non-economic harm caused to a spouse by tortious conduct that injures the spouse by the non-injured spouse directly against the wrong doer by the non-injured spouse (in some states a parent can also make a loss of consortium claim with regard to a child). Also somewhat related is the concept of a wrongful death lawsuit, which is typically vested by statute in the next of kin of the person wrongfully killed, rather than in the decedent's probate estate, and can include both economic and non-economic damages. Often in a wrongful death case, rather than seeking economic damages, one can seek a flat compensatory amount fixed by statute called a "solatium" that is primarily representative of non-economic harm to the next of kin. There are also other U.S. torts which can give rise to non-economic damages without physical or economic harm to person or physical property. Non-economic damages without physical harm are frequently awarded in civil rights lawsuits brought against someone acting under the color of law pursuant to 42 U.S.C. § 1983 even when the right violated, such as a right to vote, or a right to use public accommodations in a manner not subject to discrimination, does not involve damage to person or property. Similarly, a violation of a discrimination or sexual harassment statutes, such as the federal Civil Rights Act of 1964, by a private individual can give rise to a claim for non-economic damages even without proof of economic damages. The U.S. also recognizes some privacy torts (not all of which are recognized in every state) and claims for breaches of fiduciary duty, for which there may be a cause of action for non-economic damages even in the absence of proven economic damage. For example, if an attorney breaches his duty of confidentiality to publicly reveal highly embarrassing personal facts about you, you could sue the attorney for non-economic damages. Claims for nuisance (e.g. from a neighbor's noisy or smelly conduct on the neighbor's own property) can give rise to claims for non-economic damage, and while they would often include claims for related economic damage (often quantified in the form of lost rental value of property), this isn't always required. Most U.S. states have abolished their heart balm torts such as alienation of affection (i.e. causing someone to divorce their spouse), "criminal conversion" (i.e. adultery), and also torts related to broken engagements to marry, but a few states, most notably, North Carolina, retain them and essentially allow private adultery lawsuits for both economic and non-economic harm (or one without the other). Claims for libel per se, which involve a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis) or dishonesty in business, can give rise to a claim for non-economic damages, in the absence of any proof of specific economic harm arising from the related damage to your reputation. The U.S. does not recognize defamation lawsuits based upon truthful statements, even though, under many historical criminal defamation statutes, statements tending to harm the reputations of the dead, and statements calling attentions to the natural deficiencies of the living (i.e. mocking mentally or physically disabled people) were actionable. Under U.S. law, freedom of speech protects those statements. | There isn't a difference. The terminology in England and Wales that means the same thing is "litigant in person", with the source of these Latin phrases have abandoned them in favor of plain English terminology. The variation of usage, however, does not necessarily break down on a federal v. state court basis. Pro se is the majority usage, but the variation is more regional, within state courts, than it is a federal v. state divide. California and Michigan, for example, use both terms and use them interchangeably. If there is a historical reason for the variation in terminology, I haven't groked it. Incidentally, there was historically a subtle distinction between the two concepts related to consent to the personal jurisdiction of the court that has long since become obsolete (more than a century ago), but which movements such as the "sovereign person" movement errantly believe has great legal importance to the power of a court over them. | It's a gray area. You won't know for certain until a case is tried by a court. Regulatory bodies are notoriously assertive on the matter of jurisdiction. If there is a gray area, they often assert jurisdiction first, then let the judiciary limit their authority. Also, if you try to ask the regulatory body for an opinion or "permission" in advance (as a prudent person might think to do), they might offer you one if you are lucky. But they will most likely qualify it as "non-binding." In other words, they give themselves wiggle room to change their mind at a later time to file an action against you. The long and short of it is, the scenario you describe is likely to at least cost John Smith a fortune in legal fees to litigate the matter with the California authorities. So it would be prudent not to give the advice in the first place. Even if he were to ultimately eventually prevail on the action. | I don't know of a specific legal term but such clauses are quite common in contracts which consist of more than one document. The English words "priority", "prevail" and "precedence" have the meaning you want, however, "precedence" runs the risk of being confused with "precedent" which does have a very specific legal meaning. A clause similar to: If there is any inconsistency or ambiguity between the English and Japanese language versions of the contract, the English version shall prevail. You need to make very sure that this clause can be translated unambiguously into Japanese! | 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. |
Is it legal to break into a locked car to get a child out in hot weather? The NHTSA's page about heat stroke in cars seems to imply that if you see a child left in a locked car on a hot day, you should break into the car to get the child out. "If you see a child alone in a locked car, get them out immediately and call 911." The only way to "get them out" of a "locked car" would be to break in. Is this legal? | Oregon allows it, see ORS 30.813. One who enters a motor vehicle, by force or otherwise, to remove a child or domestic animal left unattended in the motor vehicle is not subject to criminal or civil liability You have to verify that the car is locked, you have to have a good faith and reasonable belief that breaking in is necessary because of imminent danger of suffering harm, you must notify the police and you must remain with the child / animal until police arrive. | How does the victim know that there is water in the bottle? And not some strong acid? I think there will be a difference between someone cleaning their windows and spraying someone with the same bottle they used for cleaning the windows, and some woman's jeaulous ex-boyfriend sneaking up on her in the night and spraying her in the face with fluid from an unknown container. In UK law: "An assault is committed when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force." So spraying water out of container labelled "acid" would be assault. Spraying water on a person after threatening them with an acid attack would most definitely be assault. If the victim expects to be injured then it is assault. Even if the victim fully expects that the fluid is water, I could imagine that you would be charged with assault if a bride to be just spent two hours getting her hair and makeup done, and you destroy the work just before the wedding by spraying her with water. | Legally speaking, it's hard to say, because it depends on the laws in the particular jurisdiction. There is a wide variation in how these warnings are phrased, and how they relate to local law, for example it may be limited to "when flashing" (which seems to be the pattern in Washington, but that's more a matter of practice than state requirement). Federal Way WA can indicate school speed limits "when flashing" or "when children present", in case 1.) School Children are occupying or walking within the marked crosswalk. 2.) School children are waiting at the curb or on the shoulder of the roadway and are about to cross the roadway by way of the marked crosswalk. 3.) School children are present or walking along the roadway, either on the adjacent sidewalk or, in the absence of sidewalks, on the shoulder within the posted school speed limit zone. It appears that "when present" is a theoretical option in that town, and instead they rely on flashing lights and photo-enforcement. This definition follows from a state administrative rule 468-95-335 that defines "when children present" this way, and the state no longer uses the "children present" standard. In another state / town, the law could be different. | In addition to the general considerations of (1) who is allowed to use non-deadly physical force to maintain order in a shop (which I think that one could do if "deputized" by the property owner or to protect the property of another as well), and (2) the use of non-deadly physical force to make a citizen's arrest (which many of these scenarios would justify as the disorder would be a crime if committed by an adult), (3) I suspect that there is also some point at which a bystander may intervene to prevent harms associated with an unsupervised minor being at large and in need of supervision. Generally speaking, intervention with the minimum reasonable non-deadly physical force to prevent property damage, or an assault, or a threat, is going to be permissible. As to the third reason: for a mentally normal ten-year-old that might be a stretch; for a four-year-old or a clearly impaired older child it might not. One could approach the child, say, "where's your mom or dad", "do you have a babysitter or sibling around?", "what is your name?", or "are you lost?" and detain the child until a satisfactory answer is provided or a suitable authority arrives, to prevent the problem of a child being lost, abducted or hurt by the child's own actions. It would be quite hard for a parent, guardian or babysitter to complain about this kind of conduct when the child was unsupervised and is released as soon as you confirm that this really is a responsible adult or older minor who is responsible for the child. It would be important in doing so to not secret away or isolate the child, to try to determine the location of the child's caretaker, to refrain from doing anything that would harm the child, and to seek assistance from an authority within a reasonable time. Typically, if no caretaker appeared, a cop would come and the cop would oversee the situation until a social worker could come. For example, Colorado has the following statute that would apply once a cop arrived (omitting lengthy provisions that apply to newborn children): § 19-3-401. Taking children into custody (1) A child may be taken into temporary custody by a law enforcement officer without order of the court: (a) When the child is abandoned, lost, or seriously endangered in such child's surroundings or seriously endangers others and immediate removal appears to be necessary for such child's protection or the protection of others; (b) When there are reasonable grounds to believe that such child has run away or escaped from such child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has not made a report to a law enforcement agency that the child has run away from home; . . . (1.3) A child shall be taken into temporary custody by a law enforcement officer without order of the court when there are reasonable grounds to believe the child has run away from the child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has made a report to a law enforcement agency that the child has run away from home. (1.5) An emergency exists and a child is seriously endangered as described in paragraph (a) of subsection (1) of this section whenever the safety or well-being of a child is immediately at issue and there is no other reasonable way to protect the child without removing the child from the child's home. If such an emergency exists, a child shall be removed from such child's home and placed in protective custody regardless of whether reasonable efforts to preserve the family have been made. (2) The taking of a child into temporary custody under this section shall not be deemed an arrest, nor shall it constitute a police record. A child is considered neglected or dependent under circumstances including the following (provisions related to drug or alcohol abuse by parents omitted): § 19-3-102. Neglected or dependent child (1) A child is neglected or dependent if: (a) A parent, guardian, or legal custodian has abandoned the child or has subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring; (b) The child lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian; (c) The child's environment is injurious to his or her welfare; (d) A parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for his or her health, guidance, or well-being; (e) The child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian; (f) The child has run away from home or is otherwise beyond the control of his or her parent, guardian, or legal custodian; I don't have easily at hand legal authority authorizing a third-party who is not a law enforcement officer to take custody of a dependent or neglected child until a law enforcement officer arrives, but I strongly suspect from the context that this is allowed either under common law, or a statute that I have not located, or some legal fiction (e.g., that the citizen is implicitly deputized by the law enforcement officer after the fact), or simply as a matter of custom and ordinary practice not codified in any authoritative legal source. | No. The laws specify what you can and what you cannot do. If the intent of the authority was that you were allowed to drive at 45 mph, you would have a speed limit of 45 mph, not a speed limit of 40 mph. If you go at 41 mph, you are breaking a law and can be punished. That said, law enforcement officers usually have some leeway on how to enforce the law, and they could very well let it pass with just a warning (or even ignore it if they have more pressing issues); the circunstances of it are specific to every situation and officer. The only point that could be made would be if the difference was so small that it could be argued that it can invalidate the evidence on the basis of margin of errors. If the radar catches you driving at 41 mph but the error margin of the radar is 5%, you could argue that you were driving at 39 mph and that the reading is due to the error in the radar1. That would enable you to challenge the evidence (but here the point is not that you are allowed to drive at 41 mph but that there is no proof that you were driving at 41 mph). From what I know, most police forces will be aware of that and avoid issuing fines unless you are well above that margin of error2. 1In fact, in Spain word of the street is that radars are set to account to possible margin of error of the radar, plus possible margin of error of the vehicle speedometer -even if it is the vehicle owner's responsibility to ensure that it works correctly- and some leeway. 2Some people post on the internet the "magic formula" of how many % of speed you can go over the posted speed limit based on those calculations. Of course those magic formulas rely in the radar and the speedometer being 100% accurate and the driver never getting distracted a few seconds and passing it. So, even assuming that those magic formulas are correct, if either the radar or the speedometer are not accurate or the driver gets distracted for a few seconds, you are at risk of getting a ticket. | Yes, this is illegal. If by "across the state" you mean some distance away but in the same state then the exact law will depend on which state you are in, but as a rule any "conversion" of property to the use of another counts as theft. In this case your aunt has "converted" the property to the use of your Nan (funny legal phrase). The fact that the people doing this are your relatives makes no difference. (When asking about the law here you should always say which state you are in.) Although theft is a crime, you could also start a civil case to get your property back without involving the police. The details depend on where you are, but try googling "(your state) small claims court". Many states have a process for collecting low-value debts or other property without needing lawyers. You need to have a firm conversation with your aunt about this. Tell her that you want your property back, and don't back down. Also call your Nan and explain this to her as well; she may not have realised that she is in possession of stolen property, which is usually a separate crime. If you want more advice on how to get your property back without starting a family row then you might ask on the Interpersonal Skills SE, but it might be better to start with "When are you planning to return my property?" and leave "You are a thief" as a last resort. Edit: As Eric Nolan points out in the comments, you may be a minor. If you are under 18 then your aunt has authority over you that she wouldn't have if you were older. For instance, if she is concerned about your use of video games impacting school-work then confiscating your console and putting it out of your reach would be perfectly legal. | If you can persuade them to release the car without paying – but with a promise to pay – they could sue you to recover what you owe them for towing and storage (breech of contract). If not, you would have to sue them to recover the money you paid (which is the damage that they did to you). I cannot imagine a towing company releasing a vehicle without first being paid. There is no state which requires a towing company to release a towed vehicle just because the owner asks. | In Germany, there is no statutory offense of “breaking in”. Instead, break-ins are (depending on the nature of the crime) prosecuted as trespassing (Hausfriedensbruch, § 123 StGB), criminal damage (Sachbeschädigung, § 303 StGB) and/or theft (Diebstahl, § 242 StGB). (Some cases may fit additonal statutory offenses, e. g. tampering with an electronic lock can be computer fraud (Computerbetrug, § 263a StGB) and hurting someone can be robbery (Raub, § 249 StGB) and/or personal injury (Körperverletzung, § 223 StGB).) This means: If your brother breaks the lock, then that's vandalism. If your brother walks in (without authorization), it's trespassing and if your brother steals your stuff, it's stealing. On top of that, since your brother is living in the same household as you, breaking into your room may also be considered domestic violence. The violence protection act (Gewaltschutzgesetz) is very harsh when it comes to domestic violence: The offender can be ordered by court to hand over their home to the victim and to stay away from the home. This means that if your brother breaks into your room, your brother may be removed from the house by court order. Non-compliance with a court order issued under the Gewaltschutzgesetz (e. g. your brother tries to show up at your house after he was ordered to stay away), can be prosecuted under civil and(!) penal law. You can read the English translation of the German penal code (STrafgesetzbuch, StGB) here (although I prefer to use German because all translations at gesetze-im-internet.de tend to be low quality): https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html And the Violence protection act is here (unfortunately untranslated): https://www.gesetze-im-internet.de/gewschg/BJNR351310001.html |
Were the ten commandments the first laws of civilization? As the Ten Commandments were written in stone and writing had hardly developed anywhere else to that time, are those the first laws of civilization? | Nope. Even if we were to accept this definition of law as some written decree, and I'm unsure that's the case1, there are civilisations with written law that predate the Ten Commandments. Babylonian Law (c.1800 BC) predates the Ten Commandments. Also, the Code of Ur-Nammu predates even that (c.2050 BC). 1. Most definitions of law don't require that it be written, but rather that it is some system of rules that govern the behaviour of some group of people. | No, but... Common law does not apply in countries that follow the legal school of Code Civil, aka civil law legal system, such as Germany or France. Some basic principles are common between them and common law: While there's generally no right to a jury, the innocence part actually stems in both cases from ROMAN law: in dubio pro reo - in the case of doubt, (you have to decide) for the accused. The similar Ei incumbit probatio qui dicit, non qui negat - Proof lies on him who asserts, not on him who denies - is the source: It was butchered into "innocent until proven guilty", but the sentiment is the same. Other countries that have no relation to common law are based on Sharia and Fiqh. There is absolutely no relation to Roman law either. However, there is a presumption of innocence, or as one of the largest Scholars of Islamic law Caliph Ali ibn Abi Talib said in the mid-600s: "Avert the prescribed punishment by rejecting doubtful evidence." However, what is considered doubtful is quite different. On the other hand, presumption of guilt was the foundational principle in other legal systems! | One can find contradictory claims out there. Here is an English version of the marriage law. There is a surprising amount of legal rigamarole (in Norway, as well) pertaining to clearing "impediments". Assuming that the parties have done their part, then we move to Chapter 4. Article 16: Marriage may take place before a minister of the church, a representative of a registered religious organization empowered to perform such ceremonies, cf. Article 17, or before a civil official so empowered So turning to Article 17: Religious solemnization of marriage shall be performed by the ministers of the National Church, and priests or other representatives of registered religious organizations in Iceland who have been empowered to perform such ceremonies by the Ministry of Justice and Ecclesiastical Affairs and that is now part of the Ministry of the Interior. I can't find any indication that ULC has been approved. There are 49 religions officially listed by Statistics Iceland, including Siðmennt, a secular humanist organization which gained official status on May 3rd, 2013 when the organization was officially registered as a secular life stance organization under a law passed in the Icelandic Parliament on January 30th of that year. A formal ceremony was held by the Interior Minister Ögmundur Jónasson who had strongly supported our cause, to mark this historical event. As a result, Siðmennt gained the same legal and funding status as religious life stance organizations in Iceland. Weddings conducted by Siðmennt celebrants since then are legal and couples no longer have to go to government offices for that purpose. In light of the fact that Siðmennt is officially listed and ULC is not listed, I would conclude that you did not accidentally marry anyone, even if they had dealt with the impediments. | Yes. France invented the civil law system and adopted it in connection with the French Revolution. Napoleon commissioned it in 1804. The summary of the story is here. As Wikipedia explains: Before the Napoleonic Code, France did not have a single set of laws; law consisted mainly of local customs, which had sometimes been officially compiled in "custumals" (coutumes), notably the Custom of Paris. There were also exemptions, privileges, and special charters granted by the kings or other feudal lords. During the Revolution, the last vestiges of feudalism were abolished. Specifically, as to civil law, the many different bodies of law used in different parts of France were to be replaced by a single legal code. The Constituent Assembly, on 5 October 1790, voted for a codification of the laws of France, the Constitution of 1791 promised one, and the National Assembly adopted a unanimous resolution on 4 September 1791, providing that “there shall be a code of civil laws common for the entire realm.” However, it was the National Convention in 1793 which established a special commission headed by Jean-Jacques Régis de Cambacérès to oversee the drafting process. His drafts of 1793 (for which he had been given a one-month deadline), 1794, and 1796 were all rejected by a National Convention and Directory more concerned with the turmoil resulting from the various wars and strife with other European powers. The first contained 719 articles and was very revolutionary, but was rejected for being too technical and criticized for not being radical or philosophical enough. The second, with only 297 articles, was rejected for being too brief and was criticized for being a mere manual of morals. The third, expanded to 1,104 articles, was presented under the Directory, a conservative regime, but never even came up for discussion. Another commission, established in 1799, presented that December a fourth scheme drafted in part by Jean-Ignace Jacqueminot (1754–1813). Jacqueminot's draft, the so-called loi Jacqueminot, dealt almost exclusively with persons and emphasized the need to reform the Revolutionary divorce laws, to strengthen parental authority and increase the testator's freedom to dispose of the free portion of his estate. It was, of course, rejected. Napoleonic reforms Napoleon set out to reform the French legal system in accordance with the ideas of the French Revolution, because the old feudal and royal laws seemed confusing and contradictory. After multiple rejected drafts by other commissions, a fresh start was made after Napoleon came to power in 1799. A commission of four eminent jurists was appointed in 1800, including Louis-Joseph Fauré and chaired by Cambacérès (now Second Consul), and sometimes by the First Consul, Napoleon himself. The Code was complete by 1801, after intensive scrutiny by the Council of State, but was not published until 21 March 1804. It was promulgated as the "Civil Code of the French" (Code civil des Français), but was renamed "the Napoleonic Code" (Code Napoléon) from 1807 to 1815, and once again after the Second French Empire. The process developed mainly out of the various customs, but was inspired by Justinian's sixth-century codification of Roman law, the Corpus Iuris Civilis and, within that, Justinian's Code (Codex). The Napoleonic Code, however, differed from Justinian's in important ways: it incorporated all kinds of earlier rules, not only legislation; it was not a collection of edited extracts, but a comprehensive rewrite; its structure was much more rational; it had no religious content, and it was written in the vernacular. The development of the Napoleonic Code was a fundamental change in the nature of the civil law system, making laws clearer and more accessible. It also superseded the former conflict between royal legislative power and, particularly in the final years before the Revolution, protests by judges representing views and privileges of the social classes to which they belonged. Such conflict led the Revolutionaries to take a negative view of judges making law. This is reflected in the Napoleonic Code provision prohibiting judges from deciding a case by way of introducing a general rule (Article 5), since the creation of general rules is an exercise of legislative and not of judicial power. In theory, there is thus no case law in France. However, the courts still had to fill in the gaps in the laws and regulations and, indeed, were prohibited from refusing to do so (Article 4). Moreover, both the code and legislation have required judicial interpretation. Thus a vast body of case law has come into existence. There is no rule of stare decisis | This kind of quotation, for commentary, criticism, or reference, is generally allowed without obtaining permission. In the US, this falls under fair use (see 17 USC 107. In the UK and most commonwealth countries, it falls under fair dealing. In other countries there are various exceptions to copyright that will probably cover this. Even answers that do not directly quote the rule books often use information from those rulebooks to write an answer. Facts and ideas are never protected by copyright, so this is not going to be an issue. See 17 USC 102(b), which provides: (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. As a comment by user Trish reminds, game rules are facts and are not protected, although their exact wording may be. | In Bacon's time, common law countries had a greater proportion of legal rules articulated in case law precedents, and a small proportion of legal rules articulated in statutes passed by the legislature than it does today. Further, meaningful access to case law resources for litigants was much more difficult in Bacon's time than it is today. There were fewer secondary sources, few of those were comprehensive and organized at the top level by subject matter, you couldn't do word searches or key note searches, and even primary sources, consisting of statute books and case reporters, were limited in number, expensive, and hard to use. The private sector working together with civil society institutions would subsequently produce in American law, the digests and the "restatements" of the common law rules that Bacon sought (neither of which are themselves binding precedent). Characterizing the distinction as between a "rule based" system and a "formless" one is in my opinion not a description that furthers understanding. In many respects, the common law of Bacon's era has more black and white "rules of law" that could be applied umpire-like by judges arising out of an already substantial collection of case law precedents, than civil law countries whose statutory laws often stated "standards" that set for vague general principles without little guidance regarding how they are applied in particular circumstances (as opposed to more specific and unambiguous "rules"). Precedents provided clear guidance in common law systems in a lot of specific fact patterns (e.g. the working of the "mailbox rule" for contact formation), but civil codes lacked the same level of nitty gritty detail. In Europe, in contrast, lawyers had whatever late Roman Empire legal digests had considered, in summary form, but there was no elaboration or development of this in fact patterns present at the time the court was making decisions but not in Roman times. The Napoleonic Code and other major civil codes of Continental Europe hadn't been drafted at the time that Bacon lived. But what it did have what a subject-matter organized digest of the holdings of legal cases decided in the Roman Empire during Emperor Justinian's reign which were functionally treated as binding statutory authorities by the Latin speaking educated elite starting in the Renaissance and "early modern" period in European history which is known in legal circles as the process of the "reception" of Roman law after it had been dormant for centuries, a process that Britain did not participate in itself. The issue was not that the common law system of Bacon's time lacked legal rules, or that it was formless in the sense that there was not a clear, albeit, somewhat latent structure to those rules, although few people had access to the whole of the relevant authorities. Instead, what was missing in Bacon's time was a compact, comprehensive, statute-like, widely available authoritative statement of private law (the law governing the interaction of non-governmental parties) and criminal law, that could fit easily in a hefty volume or three (written in Latin) on a library bookshelf. This meant, in practice, in common law systems, that it was much harder to deal with legal questions (both transactional and litigation issues) without the assistance of a highly trained specialist lawyer who had spent years learning the system, while in civil law countries, an educated individual who was literate in Latin without other formal legal training had much more of a fighting chance of figuring out what the law required and said, reducing (but not eliminating by any means) the benefits associated with having highly trained legal counsel. | This was attributed to Dumblaws.com, which is now mercifully nonexistent. It is false, as is the supposed law against fishing for whales on Sunday (seriously? Whales in Ohio?). If someone makes such a claim and gives a specific citation like "ORC 1533.02", you can look that law up. Otherwise, you can go to the state's repository of laws, which is searchable (not all states are as enlightened). No laws mention "whale" or "housefly", and only 23 address "fly", only referring to insects in a couple of cases where e.g. bakery showcases must keep out dust and flies. You might take on this collection, hosted by a law firm. I haven't bothered to check if "It is illegal to drive a camel on the highway" in Nevada – that a least verifiably refers to a law that did exist. | It is purely ceremonial. The tendency in modern jurisprudence is towards the practical and away from legalisms and technicalities. Even if a judge used a gavel in some way inappropriately, it would be unlikely to have any legal significance for anyone but the judge. An argument based on gavel misuse would fall into the "fringe-on-the-flag" category of legal arguments (yes, there are people who think that the court's powers are determined entirely by the fringe on the courhouse flag). The gavel is a traditional trapping of a common law courtroom, but has no legal significance. |
Where to find all laws/codes/statutes/etc. for every legal system / country online? I found this constituteproject.org, which seems to have the constitutions for every country in a nice and easy to parse format online. I see the US Code here, and the statutes at large for the US. That's all I have found for US stuff, is there any more to be found in terms of legal documents? Then the main part of the question is, what about finding this similar information for other legal systems around the world, is there any straightforward way to do that? Or must I go dig into each country's website and figure it out for each specific case, there is nothing centralized/standard? Wikipedia has a statutes at large in text format starting it seems, but nothing in the US goes back to the 1700's in computer readable text format it seems, unless I missed it. | Nowhere Collectively The US doesn't know the number of laws on all the federal, state, and city books. Often the lowest level of laws and ordinances are only in a city database, and sometimes not on the internet. As a result, there is already an impossibility to get all the laws in the US in one database - and there are even countries that have not taken any steps to make their laws accessible on the internet at all. For example North Korean Law. This is compounded by different entities proclaiming their laws and regulations in only their own language and on different proclamation platforms. Where available at all, the countries have country-wide laws and ordinances on their own dedicated websites. But again, federalism for the win: there will be different proclamation platforms for lower levels of legislation. For example germany has its justice department host https://www.gesetze-im-internet.de/ which hosts all federal german laws. Schleswig Holstein hosts their state-level laws in corporation with the service Juris on https://www.gesetze-rechtsprechung.sh.juris.de/jportal/portal/page/bsshoprod.psml and the town of Kiel has all of its ordinances and special orders on https://www.kiel.de/de/politik_verwaltung/ortsrecht_bekanntmachungen/index.php Why a conglomerate is a bad idea Now, making a conglomerate of all the laws is actually a bad idea for several reasons: Updates. The different entities that are in making regulations with the force of law only update their official proclamation site. Often, such changes are not announced too loudly for the lowest levels, and with the number of cities in a single federal state, it's near impossible to keep the database up to date on a complete level. This is why different databases usually only scrape the federal levels. Scraping will break quickly. Each of the websites I pointed to in Germany has a different system setup, making scraping these websites for the relevant information basically useless. Compounding that, City ordinance pages are redesigned at a somewhat elevated pace, resulting in the scraping of these pages to break quickly, even if you manage to set it up. Citability. In a court of law, only the official text is relevant. If an update is missed, then the whole text is useless - you'll have to look up the actual, currently in-force version of the law or ordinance, so the conglomerate is not helping. You want a ginormous database. In some countries, judgments also make law as precedent. So you want every judgment in your database. Which quickly runs into a different problem: The US alone generates millions per day. | 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. | While it is true that jury instructions are typically less than optimal, it is ideological hyperbole or cynicism to claim that instructions are purposely confusing. The ultimate source of the confusion is that the legal system has to assume (pretend) that it has clear-cut rules that any reasonable person can easily understand and automatically apply. In order to maintain uniformity of the law, there is an externally-defined instruction that a judge may read (rather than giving his personal spin on what "reasonable doubt" means or what the relationship is between "reasonable doubt" and convicting a defendant). Once the relevant body of government (committee of judges and lawyers) has established the apparently correct formula for expressing the applicable legal concept, they don't mess with it, until SCOTUS overturns decisions enough times based on crappy instructions. Legal professionals are trained to carefully scrutinze language so as to achieve a single interpretation of a given clause (never mind the fact that there turn out to be many such interpretations). Since they can apply these interpretive rules, it is assumed that anyone can apply them. But in fact, we know that people don't just use literal semantic principles to reach conclusions – but the law resist pandering to that imperfection in human behavior. There is a huge literature on problems of jury instructions, some of the better of which relies on psycholinguistic experimentation to establish that a given instruction is confusing or gives the wrong result. See for example Solan's "Refocusing the burden of proof.." (and references therein) that addresses the problem of the "beyond a reasonable doubt" instruction, which has the unintended consequence of implying that the defense has an obligation to create a doubt (which is not the case, and allows conviction if there is the weakest imaginable evidence which hasn't been refuted). But who gets to decide what the improved instructions should say? The instructions have to correctly state what the law holds (where "the law" means not just statutes, but the trillions of relevant court decisions and applicable regulations). Thus there is massive inertia, and improved jury instructions will not come about quickly. | What Do England And Wales Share Legally? Why are they so closely associated with each other as to have just one tag on the site, but Northern Ireland and Scotland each seem to be their own worlds? Most laws of general applicability, such as criminal law, and private law (i.e. the law governing the interactions of private parties like property law, contract law, landlord-tenant law, employment law, etc.) are enacted by the National Parliament at Westminster (or effective as part of a shared English common law of case precedents) and shared by England and Wales which have a uniform integrated court system. In contrast, Scotland and Northern Ireland have greater autonomy to enact laws of general application because more authority has been devolved to those regional governments than to the National Assembly of Wales. They also have their own court systems. Historic Causes Wales was basically fully integrated into England starting in the 1200s and subsequently restored some autonomy. Scotland never lost its high level of autonomy and was initially joined to England only by virtue of having the same monarch, rather than being the same country. The United Kingdom was formed first by the personal union of monarchs from 1603 (under King James VI of Scotland a.k.a. King James I of England) followed by a federal style merger of governments approved by the Scottish and English parliaments in 1706-1707, rather than by conquest and it has much more government autonomy in generally applicable legislation and its judicial system than Wales does, and more than Ireland had when it was ruled by England. On the other hand, Scottish sentiment towards independence was not exactly unanimous in support of staying with the U.K. in the last referendum in 2014 when 44.7% of votes cast were for independence with 84.6% voter turnout (including voters as young as age 16). Northern Ireland's story is a bit more complicated as Ireland had a legal status similar to Wales from a similar medieval era, but this was complicated by the Irish independence struggle ultimately leading to the creation of the Republic of Ireland and Northern Ireland. The fine line and complexity of the situation in Northern Ireland is illustrated by this map, and strong autonomy was necessary to allow it to maintain the fragile Protestant-Roman Catholic balance in a divided society there: Each of the components of the United Kingdom has a separate and historically determined status that is not exactly parallel to any of the others. England has no national assembly of its own, sufficing to use the national parliament for its laws despite the fact that some seats in that parliament that govern it are selected in Wales, Scotland and Northern Ireland. Likewise, before the U.S. gained independence, different parts of the U.S. had distinct relationships to the U.K., as did the various colonial possessions of the U.K. (e.g. India, Australia, Canada, New Zealand, Kenya, Tanzania, Hong Kong). The U.K. is an exemplary example of the philosophy that consistency is the hobgoblin of small minds. To pluck out just one more random example of the English tendency, "Scotland Yard", the national police force headquarters in the City of Westminster within the City of Greater London in England, has jurisdiction over England and Wales, but not over Scotland. Legal Distinctions Between England And Wales To provide a few other examples in addition to the example of language related laws noted by @WeatherVane (noted on my recent visit to England and Wales) and to embellish on that point a little further, the Welsh language is resurgent in Wales where it is a mandatory subject in public schools (often in the North with Welsh as the primary language of instruction) with about 30% of the population (more than 800,000 people) who either speak it as a first language (which is common among the very old and among young people in Northern Wales) by people who are mostly bilingual with English (but may reach for an English word or two now and then) or as a fluent second language. The Anglican Church is the established church in England, but not in Wales where it was disestablished in 1916. The legal implications of this are subtle, but not non-existent. Government agencies are not required to hoist the British flag with primacy over the Welsh flag, and indeed, the British flag is rarely seen there. Primary and secondary education are administered separately in England and Wales with attendant laws on issues like truancy, dress codes, financial arrangements, testing, and certain holidays. This distinction primarily exists to facilitate Welsh language instruction, which is the primary language of instruction in some schools, and a secondary language in others. More generally, the manner in which many government services (e.g. public housing) is administered, and in which tax dollars are expended is not precisely the same between England and Wales. Certain laws regulating immigrants (related to immigrant financial security and leases to immigrants, more or less) differ between England and Wales, although this is a temporary matter and the long term plan is for these laws to be integrated across the United Kingdom. The Welsh Senedd (a.k.a. National Assembly for Wales, i.e. the regional parliament) has some independent legislative power, although honestly, the scope of its legislation is typically closer to what you might see in a U.S. home rule city or a school board, than in a U.S. state government. In particular: The 20 areas of responsibility devolved to the National Assembly for Wales (and within which Welsh ministers exercise executive functions) are: Agriculture, fisheries, forestry and rural development Ancient monuments and historical buildings Culture Economic development Education and training Environment Fire and rescue services and promotion of fire safety Food Health and social services Highways and transport Housing Local government National Assembly for Wales Public administration Social welfare Sport and recreation Tourism Town and country planning Water and flood defences Welsh language I suspect, but do not know, that land use regulation and occupational and business licensing in Wales is less favorable to big businesses and franchises, based upon the fact that such businesses are far more common in England than in Wales, even controlling for places that are similar in population density. But this could be due to historic or economic factors. | Why do attorneys have these? Originally to use as references, although some kinds of books (e.g. case law reporters, Shepard's citations, Martindale Hubble directories, and serial analysis of case law like Am. Jur.) are rarely used that way any more. When I started practice in the mid-1990s, it cost several hundred dollars an hour to access online legal sources (that were less comprehensive and had lower quality search functions than the service that comes free with my bar membership today), so the vast majority of legal research was done with hard copy case reporters, digests and annotated statute books. A complete set of case reporters for a single state would typically run to hundreds of volumes with new ones arriving monthly. A full set of Shepard's Citations (which told you if a case have been overturned or questioned in later cases or just where it was cited with approval) took roughly a full shelf of a full sized book case when limited to a single state. Any law firm that is at least fifteen or twenty years old needed them when they bought them and lawyers hate to throw anything away. Case law research is now predominantly online. The last time I used Shepard's citations and hard copy case reporters on a regular basis was a decade ago. Law journal research is also predominantly online now. I sent most of my uglier and numerous law books (including several dozen volumes of an outdated legal encyclopedia summarizing case law) to the recycling bin about six or seven years ago. Do they actually reference them, especially when so much information is searchable and indexed online? Lawyers still routinely use statute books in states where they practice, court rules, standard jury instructions, and to a somewhat lesser extent treatises on different areas of the law (including the Restatements of Law). Now and then, lawyers will still use a hard copy of a West Digest. And, I have yet to encounter a lawyer who doesn't have at least one or two decent sized book cases full of law books. In statutes and court rules (and regulations), typesetting details that can get mangled online are important and browsing a structured text can be easier to do on paper than online. There are some regulations available only in online versions that I print for ease of use (e.g. Colorado's marijuana regulations and its Medicaid regulations). I also print for ease of use my state's title standards (for use in determining if someone has marketable title to real estate), even though they don't have the force of law. I also keep a few hard copy model statutes with the official commentary. It can also be hard on the eyes to look at a computer screen non-stop all day, so looking at something you use regularly on paper can be a relief. Are the books updated regularly? or are these the books they graduated with, and are rarely changed out? Statutes and court rules and jury instructions are typically updated annually, following each year's legislative session. Treatises are updated with "pocket parts" every year, that are added to a hardbound edition that is updated at most, every several years. A pocket part is a softbound update with the same section organization as the underlying treatise that has a flap the fits into a pocket in the back flap of a hard cover treatise. Bigger "pocket parts" are printed as thin softcover bonus volumes to the original treatises. I also keep a current softbound "Bluebook" (the reference regarding how legal materials should be cited to in legal documents and legal scholarship) and several high end dictionaries including Black's Law Dictionary, the OED and a few others in hard copy (because browsing is easier when you don't know exactly how a word is spelled). I keep many of my law school textbooks, which some people do, and other people don't, and I buy new treatises especially when I move into a new area of law practice where background guidance is useful. Do the books exist purely for psychological impressions, or is there a utilitarian purpose? Both. Sometimes old books that don't have much ongoing practical use are kept on the shelves because they are pretty. For example, I don't really need a hard copy of my outdated New York State Statutes, but they look good (even though I practice mostly in Colorado and look up New York State statutes online when I need to actually use them). But, I use hard copy statutes and court rule books for the state where I practice on pretty much a daily basis and use hard copy treatises at least several times a week in my law practice. In that respect, I am not atypical, although I probably use hard copy books more than younger lawyers do. Of course, even among these books, some volumes are used much more often than others. I look at a volume of insurance industry regulation statutes at most, once a year, while I read the volume related to divorce and probate at least once or twice a week, for example. Hard copy books are also useful for pinning down the corners of blueprints and surveys when you are in litigation where those kinds of oversized paper documents are at issue. ;) | No. The Fourteenth Amendment says: nor shall any state deprive any person of life, liberty, or property, without due process of law; The Supreme Court has determined that this clause incorporates much of the Bill of Rights. The logic is mildly tortured, but it's basically that "due process of law" means "due process of a law that is compatible with the fundamental rights of a free society." This logic is known as "substantive due process," because it reads in to "due process of law" requirements about what those laws can do (as opposed to procedural due process, which is about the actual procedures being used). It's pretty settled that the Bill of Rights, after the 14th Amendment, should apply to the states. There's another possible way to get there: the 14th Amendment says "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," which Justice Thomas recently thought meant that the Second Amendment applies to the states in a concurring opinion. But as of now, substantive due process is the standard logic for it. Virtually all of the Bill of Rights is incorporated against the states. There are a couple things which aren't (like juries in lawsuits, and grand juries), but the Establisment Clause is incorporated (see Everson v. Board of Education, 330 US 1). | Websites are not ships that can choose a flag of convenience to govern which country's laws govern them. Generally speaking an analysis of which jurisdiction's law applies (which is strictly speaking a "choice of law" question as much as it is a jurisdiction question) isn't undertaken on a website by website, or business by business basis. Instead, jurisdiction and choice of law are evaluated on a claim by claim basis. The owners of a website may be subject to some claims in India, to some in Bhutan, and to others in the United States, depending upon the claim. Without knowing who is trying to sue for what, you can't know. Generally speaking, a business that operates in multiple jurisdictions, like a website, will be subject to the laws of all of the jurisdictions in which it does business in regard to claims with a connection to those jurisdictions. Of course, as a practical matter, only claims that can be enforced against the owners of the website are relevant, which usually means that only claims brought where the owners reside or own assets are relevant. If the website owners own property or have amounts payable to them in India, there is a very good chance that India can, as a practical matter, assert jurisdiction over them. And, it is likely, as a practical matter, that Saudi Arabia or China would not be able to assert jurisdiction over them in a meaningful way. The fact that businesses can be conducted through legal entities further complicates the analysis. But, at any rate, the place to begin is to realize that the question "Under which country's jurisdiction does a website fall?" is basically a category error. You need to ask "Under which country's jurisdiction does a website fall when it is sued or prosecuted for X kind of matter by someone who lives in Y?" So, really, this one question is actually dozens or hundreds of questions that each have to be analyzed individually. | Yes and no. [note, the following is all written about US law. In other jurisdictions laws are, of course, different (though usually not drastically so.)] In the US there are (at least) three different bodies of law that might apply to code: copyright, patents, trade secrets. Copyright covers original expression. Anything you write is automatically, immediately protected under copyright. The copyright applies to the code itself, and anything "derived" from that code. It's up to the courts to decide exactly what "derived" means. One case that's long been viewed as a landmark in this area is Gates Rubber v. Bando Chemicals. The Court of Appeals for the tenth Circuit decision includes a section titled: "The Test for Determining Whether the Copyright of a Computer Program Has Been Infringed." Note that you can register a copyright, and that can be worthwhile, such as helping recover some damages you can't otherwise. Patents are quite different from copyrights. Where a copyright covers expression of an idea, a patent covers a specific invention. Rather than being awarded automatically, a patent has to be applied for, and awarded only after the patent office has determined that there's no relevant prior art to prevent it from being awarded. A patent, however, covers things like somebody else independently discovering/inventing what's covered by the patent. A trade secret could (at least theoretically) apply to some process or procedure embodied in the code. A trade secret mostly applies to a situation where (for example) you're trying to form an alliance with some other company, and in the process tell them things you don't tell the general public. If you've identified the fact that what you're telling them is a trade secret, and they then tell a competitor (or the general public, etc.) or more generally use that information in any way other than the originally intended purpose, it could constitute a trade secret violation. As a side-note: patents and copyright fall under federal law, so they're basically uniform nation-wide. Trade secrets mostly fall under state law, so the exact details vary by state. Absent a reason to believe otherwise, I'd guess your interest here is primarily in copyright infringement. The key here would be showing that one piece of code was derived from the other. That is, it specifically would not apply in a case where there were only a limited number of ways of doing something, so anybody who wanted to do that had to use one of those ways. Since this would not indicate actual derivation, it would not indicate copyright violation. |
Can a family member break into my room and can I take legal actions against it? Here is the situation. I still live with my family like my brother (we are both of legal age) . We never had a good brother relationship. We always try to avoid each other as best as we can. In the past there where several incidents where he would unallowed just enter my room and steal some of my money or my things. Because of that our parents gave us different keys for our bedrooms. Everything worked fine. And nothing like that ever happend again. We are both a little bit on the aggressive side. After a very heated and very aggressive dispute which involved a girl we both are on the verge of fighting each other. My parents are on vacation and I thought that there could be no better time for me and my new girlfriend to also leave and travel somewhere nice. My worries are now that he could break into my room while I’m gone. So my question. If he breaks into my room...could I take some kind of legal action? I wouldn’t do it. I just want to know if I could take legal actions. Because if I could, I would let him know that to scare him off. If He knows that I could take legal actions against him for breaking into my room, then he wouldn’t do it. Thank you for reading everything and sorry for my bad English. | In Germany, there is no statutory offense of “breaking in”. Instead, break-ins are (depending on the nature of the crime) prosecuted as trespassing (Hausfriedensbruch, § 123 StGB), criminal damage (Sachbeschädigung, § 303 StGB) and/or theft (Diebstahl, § 242 StGB). (Some cases may fit additonal statutory offenses, e. g. tampering with an electronic lock can be computer fraud (Computerbetrug, § 263a StGB) and hurting someone can be robbery (Raub, § 249 StGB) and/or personal injury (Körperverletzung, § 223 StGB).) This means: If your brother breaks the lock, then that's vandalism. If your brother walks in (without authorization), it's trespassing and if your brother steals your stuff, it's stealing. On top of that, since your brother is living in the same household as you, breaking into your room may also be considered domestic violence. The violence protection act (Gewaltschutzgesetz) is very harsh when it comes to domestic violence: The offender can be ordered by court to hand over their home to the victim and to stay away from the home. This means that if your brother breaks into your room, your brother may be removed from the house by court order. Non-compliance with a court order issued under the Gewaltschutzgesetz (e. g. your brother tries to show up at your house after he was ordered to stay away), can be prosecuted under civil and(!) penal law. You can read the English translation of the German penal code (STrafgesetzbuch, StGB) here (although I prefer to use German because all translations at gesetze-im-internet.de tend to be low quality): https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html And the Violence protection act is here (unfortunately untranslated): https://www.gesetze-im-internet.de/gewschg/BJNR351310001.html | It is almost certainly illegal. I was unable to find UK provisions but the penalties for stealing an Australian passport are 10 years imprisonment or a fine of up to 1,000 penalty units (at time of writing a penalty unit was $170 so, $170,000) (Section 32(4) of the Australian Passports Act 2005). Under this law, the crime is knowingly having it in your possession when you know it isn't yours. Obviously, normal familial relationships would not be prosecuted (i.e. one member of the family carrying all the family's passports). Certainly, if the true owner asked for it and the possessor refused, that would trigger the crime. Furthermore, it is completely pointless - all the original owner has to do is report it stolen and apply for another one. | If one day the child goes around to the father's house, perhaps in a state of upset, and says, "That's it, I'm staying," what is the legal position of the father? An eleven year old child really has no say in the matter. A judge in a custody case may consider what the 11 year old has to say but is unlikely to give it much weight. (In contrast, a judge is likely to give a lot of weight to the views of a child who has a job, who is doing O.K. in school, and is a year or two from becoming a full fledged adult.) This is up to his parents to resolve absent circumstances not present here (e.g. the child has made bona fide allegations of child abuse, or the parents are both incarcerated). And, if the parents can't resolve the dispute, it is up to a court in a case where parenting time is at issue (probably either a legal separation or a divorce in this case). For example, while (as noted below) the police will not generally drag a child kicking and screaming to the other parent without a court order, if the child is at his father's house, the father can absolutely drag the child kicking and screaming to the child's mother's house, no matter how much the child doesn't like it. Moreover, while the father will not be violating any law, if he does not do that, a child custody judge is likely to look dimly upon a parent who intentionally withholds visitation from another parent without good cause, when the court considers what kind of child custody arrangements to put in place. And, the court has extremely great discretion in these matters. The judge is also likely to be pretty unhappy with both of the parents for failing to be capable of communicating or cooperating over child rearing related issues, because they are apparently so focused on not getting along with each other over their issues with each other. In particular, if the mother calls the police claiming "child abduction," what will be the police position? Will they come to the door of the father? Will they drag the child kicking and screaming back to mother's house? It is not generally illegal for a married parent in a situation where there is no child custody order in place to have that parent's child with them over the objection of the other married parent. Absent a court order to the contrary, the police will probably call this a "civil matter" and will be unlikely to take any action until there is court guidance, absent exigent circumstances like evidence of recent not previously adjudicated claims of child abuse or neglect. The way to resolve this would be with a court filing of some sort seeking to resolve the parenting time issue, if necessary, on an emergency basis. Post-Script Whether or not the parents want to end the marriage, this situation is long overdue for court intervention. I've had couples who "pull the trigger" too soon, but this would not be a case of that type. Either the father or the mother needs to find a solicitor (if at all possible to afford that) and get the court system involved. If there is a breakdown in communications over matters related to the child, and the child is not cooperating in the face of an ambiguous parenting situation involving two parents who can't communicate about their child, the situation is out of control. Prompt court action could prevent a more negative outcome in the future by creating stability and structure in the situation. | Actually, neither the council nor a private owner are responsible for illegal actions by unauthorised people on their property. This is obvious: if an intruder enters your property and, while there, shoots someone you cannot be held responsible. However ... Since you have made them aware that there are intruders on their property acting illegally and causing a nuisance to the neighbours and they have done nothing they are quite likely negligent, even recklessly negligent. Rather than sue them, consult a lawyer and get them to write a letter that if they do not take action by X date you are going to sue them. | I do not have anything official proving that I gave him the 2-months worth deposit What did you do, hand him a wad of cash? Pay by check, and put what it's for on the memo line. You've been there for nine months and there are several other people who can testify that you've been living there, so it would be difficult to claim that you aren't a renter. If you can show that the landlord is aware of your residence, that definitely helps even further, as does receiving mail there, registering to vote or with the DMV with that address, etc. Question 1 : what would be the best course of action to force the landlord to give me the requested lease agreement? You can't "force" someone to give you an agreement. That's kinda part of the definition of the word "agreement". If you find the conditions unacceptable, you can find another place to rent. When I asked the landlord about what he was planning to do regarding that, his answer was that it was not his business. It doesn't seem like it is. You could take the money you would have given to the other roommate, and give it to the power company instead. If paying for the utilities is part of the renters' responsibilities, and the renters are not paying for the utilities, then it's their choice to not have power. In California, landlords are required to make power available, but that just means that they can't interfere with you purchasing it from the power company, not that the landlord has to pay for it (if the landlord had agreed to pay for it, and isn't, then you can deduct the cost from the rent, but you can't simply withhold all rent, and your question indicates that the landlord hasn't agreed to pay for power anyway). Am I protected in any way, or can the landlord just come in my room and throw everything away, or worse just point me with a gun and force me to move? It would be difficult for the landlord to get rid of you, and would probably take several months to do legally. Performing an eviction himself, rather than getting the sheriff's department to do it, would expose him to serious charges, especially if a gun were used. Besides criminal charges, "If this or other unlawful methods, such as locking a tenant out or seizing his possessions before an eviction process has ended, are used to force a tenant to leave a property, a landlord may be subject to fees up to $100 per day of unlawful method use." http://homeguides.sfgate.com/tenants-rights-utility-billing-california-8073.html However, while the legal process will take a long time, at the end you will still be liable for back rent, and you will have an eviction on your record, which will make it harder to rent in the future. | "As we know non-adults aren't allow to carry weapons" This is not something that we know or an obvious point. It is also not obvious that a knife would qualify as a weapon for these purposes. This would not be true in most jurisdictions in the world. I have no idea what knife control laws look like in China or Taiwan. A reference to why you think that this is the case would be helpful. Even if there are laws banning possession of knives (i.e. carrying knives) when one is in public for use as a weapon, it would be very surprising to me if teens weren't allowed to possess knives in a kitchen, or a work site where a knife was a necessary tool. It would similarly surprise me if a teen working on a knife design in a craftsman's workshop would be illegal. What makes you think that any of these things are illegal in China or Taiwan? This might have been illegal in Japan in the 1600s when metal blades were highly regulated (this is one of the reasons that most Japanese food is served with portions pre-cut to be bite sized), but I very much doubt that teen possession of knives for practical purposes is illegal in any of those places today. There is also, in general, nothing wrong with factories run by adults making knifes from other people's designs. They do that all the time and it wouldn't be illegal to do so just because the designer wasn't allowed to use the product of the factory in public. I would be surprised if a factory even asked how old the designer was, particularly if he was operating through a company formed for him (something an adult might have to do). The harder question would be whether the teen can enter into an enforceable and valid contract with a factory without having the co-signature of a parent or guardian. Many countries don't allow this so that the teen is not exploited into agreeing to a big contract on unfair terms. Also, many countries make a distinction between criminal acts committed by adults and the same acts committed by minors. A teen, particularly a young teen, may be under the relevant law, capable of only engaging in juvenile delinquency, rather than an adult felony. But, again, I don't know how this is handled in Taiwan or China. In general, the legal system in Taiwan strongly resembles that of the legal systems in Continental Europe not long after World War II (i.e. in the 1940s), with its own local developments since then. But, China's legal system is quite unique and is not very similar to the common law legal systems of England and former or current English colonies, or the civil law legal system of Continental Europe (or for that matter, Islamic law). China's legal system is different at the level of very deep concepts of legal process, of what is and isn't law, and of many core legal concepts. It also has piecemeal bits that are imposed by treaty even though they are not organically natural fits with the rest of the Chinese legal system (e.g. its intellectual property laws). | I do not know the particular legal environment in France, but in general the shop is private property and the owner decides who may enter and who may not. You have no right as such to enter somebody else's property against their will. Doing so would at least be classified as trespassing, possibly more serious considering you mention using force to enter the premise. | There is no law against lying in these circumstances. In fact, for a very modest sum, security companies sell dummy CCTV cameras to make this lie more convincing. However, trespass only happens if people have been warned so this works for literate people who speak English and see the sign. That leaves a very large group of people who would not be trespassing even with the sign. A further problem with a sign on the house is that people have no idea how far away they have to get in order to stop trespassing. In addition, legitimate visitors (uninvited or not) are not trespassers. It seems that people are coming onto your property because they are thirsty. A better way to deal with this is go to your local hardware store and replace the tap with a vandal proof tap that has a removable head. Keep that inside and put a sign next to the tap saying "Refrigerated Water $2 - knock on front door". |
Do I have legal obligation to change the payment method at a restaurant, if they refuse to (but have the ability to) accept my credit card? I ate in a restaurant one day and paid with my Discover credit card. The restaurant reluctantly accepted it but told me that this card incurs a higher fee to them. The next day after my meal, they refused to accept this same credit card. I happened to carry enough cash with me and paid with cash instead. My question: Do I have the legal right to insist on making the payment with my Discover credit card? If not, what if I only carry one Discover credit card with me? That is, what if this is the only payment method that I can offer? Just a side note: Discover's website says that "Discover is accepted nationwide by 99% of the places that take credit cards." But practically many places have the ability to charge a Discover card but prefer not accept it. Not a legal issue but a frustrating observation. Edit I called Discover customer service and here is their response: Just go to places where Discover Credit Cards are accepted. Doesn't sound very helpful. | You have the legal (contractual) obligation to pay the amount that you owe for your meal. The restaurant can refuse to accept a particular kind of payment, such as check, cash, credit cards (generally or brand-specific), various cash-transfer programs, foreign currency, bitcoin or ridiculous numbers of pennies. There is no requirement that they do today what they did yesterday. If you have in your possession only a Discover card, and if they are unwilling to accept service barter as payment (washing dishes is classical), then you would have a debt to the restaurant which you must pay in a reasonable time, using an acceptable medium (such as cash, unless they don't accept cash). They cannot make it impossible or highly burdensome for you to discharge your obligation (e.g. they cannot demand Krugerrands or Mongolian ᠲᠥᠭᠦᠷᠢᠭ as the alternative payment, unless you are in Mongolia). You were given advance notice of this possibility of non-acceptance, yet you willfully proffered a card that you knew that they were not likely to accept a second time. Your hands were not clean, and if this had gone to court, you could not expect mercy from the court on the grounds that you were surprised that they didn't accept your card. | There is no misrepresentation by the bank as you describe it, there is negligence by the account holder to comply with the terms of the account. The bank made no representation at all regarding a balance due. If you want the bank to be at fault, they the customer would have to demand a declaration as to the existence of a balance due (choose your words carefully), and the bank would have to have falsely asserted that there is no present or future obligation. This is not going to happen. All the bank can say is that they have no present record of charges. The customer's question might be something like "Do you guarantee that there will be no charges to this account as of now". Of course, the bank cannot know whether there is a forthcoming paper charge that was made at some mountain resort. If case they did make such a promise, you could disavow the debt, using your reliance on their assertion as the basis for denying the debt. There is no law requiring banks to warn people of their contractual obligations when they close an account. I've never encountered a credit card contract that includes such a clause, but I suppose some bank might include a mandatory-warning clause, in which case they could be in breach of contract. | This follows from a term in your agreement: in opening the account, you agreed to a binding arbitration clause. The general reason why they can do this is because it is not prohibited by law to have such clauses in agreements (in fact, the Federal Arbitration Act protects such clauses from legal challenge). For the same reasons, the clauses can impose deadlines on opt-out or require opt-out by mail as opposed to email or phone call. The premise is that if you find such terms unacceptably onerous or unacceptable, you will not patronize that business. That assumes that the customer read and understood the agreement that they signed, which I grant is often untrue. | Until it was found to be unconstitutional, Florida had a law against surcharges for using a credit card (the statute is still on the books, however). That was the only law against "convenience fees" related to making payments. Whether or not a business will accept a particular form of payment (check, credit card, money order, traveler's check, cash) is up to business. Apart from credit cards, there has been no law against charging for accepting a particular form of payment, but that charge would have to be part of the contract – the lease would have to specify in advance what the processing fee is for money orders vs. cash vs. credit card. The residential tenancies law of Florida does not prohibit incorporating fees into the terms of a lease (as some states do), so the lease can specify "$1500 for rent plus $10 for payment-processing, every month". | In general, "making a reservation" does not create a contract, except when it is obvious that you have a contractual agreement. That would be the case with an airline reservation, and one clear sign is that you have to pay for the ticket when you make the reservation; or, it you don't, then there is no contract, and they can cancel or change the price. You would look for clear signs of an agreement, such as a "agree to terms" button that you have to click. Paying a deposit is another clear sign. Then you would simply look at the terms of the contract to see what their obligation is, and what yours is. They may have strongly committed to providing service in which case you might have a cause for legal action if they break that commitment, or they might have made no specific promises about service in case of intervening events (such as if the chef has a heart attack, or the power goes out). If we do think of this as a contractual matter, you breached your duty as a customer, to be there by 7:30, so even if there is a contract, they didn't break it. The note that you added renegotiating the arrival time was insufficient – it is outside of the contract, and possibly something that they didn't see (they only look at the names and official time blocks reported by the web page). In lieu of a contract, there could be some statutory obligation, i.e. a specific regulation in Sweden saying "if a restaurant accepts a reservation, they absolutely must hold the space available for the entire reserved time", which is an unreasonably onerous business practice that no nation requires. | It doesn't even have to be pennies. Any cash denomination is open to discretion. The Federal Reserve tells us "There is, however, no Federal statute mandating that a private business, a person, or an organization must accept currency or coins as payment for goods or services. " | "One day and that day may never come" If a company never invoices me, am I obligated to do anything? No (given that they know how to contact you i.e. you are not evading being invoiced). That said, you will still owe the money. When/if they ask it to be paid, you will need to pay. But there is no need to proactively bug them to take the payment. Until invoiced, you can enjoy the money as a zero-interest loan. | The same page at the ICO website also lists what an organisation should do if they refuse to comply with a request: What should we do if we refuse to comply with a request? You must inform the individual without undue delay and within one month of receipt of the request. You should inform the individual about: the reasons you are not taking action; their right to make a complaint to the ICO or another supervisory authority; and their ability to seek to enforce this right through a judicial remedy. You should also provide this information if you request a reasonable fee or need additional information to identify the individual. Even if they did not inform you about this, the last two bullet points basically list your options. You can make a complaint (Art. 77 GDPR), or go to court (Art. 79 GDPR) requesting the online retailer to comply with your request. (Or do both). You can request a compensation for damages, but it is often difficult to prove if you have suffered (non-material) damages. |
What happens when the opinion of the Court misrepresents the facts of the case? In Kennedy v. Bremerton School District (2022), the Court ruled 6–3 in favor of a high school football coach who had been leading players in prayer and was instructed by the school district to stop. [PDF] Justice Sotomayor's dissent disputes some of the characterizations in the majority opinion: To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. For purposes of this question, let's assume that the above statement is correct that the majority opinion is wrong. What are the effects of substantive factual errors in an opinion? Like, for example: I assume that this specific ruling is not affected in any way by the text of the opinion? (Like, I assume that even an opinion of the form "We got high and decided to rule wrongly for fun" wouldn't actually negate the ruling?) How does this affect the precedent? Will courts in the future consider the true facts of the case (whatever they perceive them to be), or will they accept as legal fiction that the facts were as the Court describes them? Could it be legal for the district to repeat exactly the same set of actions in exactly the same set of true circumstances as before, since those won't be the same circumstances that the Court claimed to rule on? In this instance, the Court seems to be reversing the lower court's ruling directly; but sometimes the Court remands a case to a lower court in order to decide it on a different basis than it had. In such a case, is the lower court bound by the Supreme Court's characterization of the facts of the case, or can it use the true facts of the case as long as it obeys the ruling itself? | What are the legal consequences of substantive factual errors in an opinion? None. I assume that this specific ruling is not affected in any way by the text of the opinion? Correct. I assume that even an opinion of the form "We got high and decided to rule wrongly for fun" wouldn't actually negate the ruling? Probably not, but it might precipitate a constitutional crisis or lead to an impeachment. How does this affect the precedent? It doesn't. Will courts in the future consider the true facts of the case (whatever they perceive them to be), No. will they accept as legal fiction that the facts were as the Court describes them? Yes. Could it be legal for the district to repeat exactly the same set of actions in exactly the same set of true circumstances as before, since those won't be the same circumstances that the Court claimed to rule on? In such a case, is the lower court bound by the Supreme Court's characterization of the facts of the case, Generally speaking the lower courts are bound by characterizations of the facts made by the appellate court. But, it depends to some extent on the procedural posture of the case. In most cases, the findings of fact made by the trial court following an evidentiary hearing are binding on appellate courts in the U.S. unless they are not supported by any admissible evidence presented at trial, but there are some exceptions to this rule and there is considerable art as well as science that goes into properly characterizing the evidence presented at trial. But, for example, many appellate cases are appeals from a dismissal of a case on a motion to dismiss at the outset of a case, in which all allegations of the Plaintiff's complaint in a civil matter are taken as true for sake of argument, and the legal issue presented is whether the Plaintiff can prevail if all of those facts are true. In a case in that procedural posture, assuming that the appellate court reversed the trial court and found that the facts alleged state a claim upon which relief can be granted, then the remand would be to move forward with discovery and other pre-trial procedures in the case and ultimately a trial, if necessary, to determine the actual facts of the case as opposed to the facts as alleged by the Plaintiff in the complaint or petition. Not infrequently, when appellate courts are divided over what happened in the trial court, one side of the debate, looking at the raw testimony and exhibits presented at trial, will conclude that the admissible evidence presented at trial did not support the findings of fact in a mixed question of fact and law made by a trial court judge, while another side of the debate will accept the trial court judge's findings of fact uncritically. It often isn't easy to know, from reading an appellate court opinion alone, which side is which in this regard. can it use the true facts of the case as long as it obeys the ruling itself? Usually not. Usually, facts relied upon by an appellate court are by definition the correct facts (apart from clerical errors - e.g., an appellate court once misspelled my name in a court opinion, and the lower court wasn't bound by that mistake). This said, as noted above, the precise procedural posture of the case, nature of the court's opinion, and scope of the remand order is highly relevant to what a court can do on remand. | It would be dismissed sua sponte on grounds including absolute judicial immunity from civil liability. While conflict of interest rules for judges generally prohibit ruling on lawsuits in which you could potentially have an interest, there are narrow exceptions in cases where all judges are affected. The Colorado Rule, which is similar in all U.S. jurisdictions, states: In limited circumstances, the rule of necessity applies and allows judges to hear a case in which all other judges also would have a disqualifying interest or the case could not otherwise be heard. Colo. Code. Jud. Cond. 2.11(D) ("Disqualification"). | The court's job is to resolve the dispute. The parties are in court specifically because there isn't agreement on what the terms of the contract were or even if there is a contract at all. If one of the parties contends that there is no contract then the court will have to determine if there is or isn't. Even if both parties agree there is a contract the court will need to satisfy itself that there is. This is a jurisdictional matter; in the absence of a contract the court can't make a ruling. Having decided there is a contract, there is something about the contract they don't agree on - if they agree then why are they in court? Each party will state their position on the dispute and provide evidence that supports that position. The court will decide based on the evidence and on the balance of probabilities which version is more correct. It is a given that the parties are in dispute about the exact terms of the contract, whether this was because of an initial misunderstanding, someone didn't read it or someone saw an opportunity to screw someone else doesn't matter. The court will decide what it thinks the parties thought (or should have thought) at the time on the basis of the evidence and the law. | Is truth the ultimate defense to a defamation lawsuit in the USA? Truth is an absolute defense to defamation lawsuits in modern U.S. law (this was not always the case historically) as a matter of constitutional law in every state. In some kinds of defamation lawsuits (but not all kinds of defamation lawsuits), "actual malice" which means knowing falsity or reckless disregard for the truth, must be shown, so even a negligently stated falsehood is not actionable in those special kinds of defamation cases (mostly cases with public figure plaintiffs, media defendants, and/or case involving matters of public concern). Does a defamation defense vary between states? While most aspects of defamation law are mandated by the U.S. Constitution and a shared common law tradition, there are some slight and subtle differences between the states in defamation law, mostly concerning defamation suits by non-public figures against non-media defendants concerning matters that are not a matter of public concern. This impacts whether "actual malice" must be shown and can influence the burden of proof in defamation cases. Statutes of limitation for defamation suits also vary significantly between states. Even if the release of truthful information results in permanent career damage (i.e. loss of job, reputation, etc.) to someone, the truth would protect the author from a defamation lawsuit, correct? Yes. Keep in mind, however, that a defamation lawsuit is a suit for damage to one's reputation caused by a false statement. Sometimes disclosures of truthful information constitute an actionable tort other than defamation, however. For example, there would potentially be a civil action against someone who had signed a non-disclosure agreement for revealing truthfully information that the person sued contractually agreed not to disclose (e.g. the terms of the settlement agreement in a court case with a non-disclosure/confidentiality term, or the recipe for a restaurant's secret sauce that is a trade secret). Similarly, a doctor who revealed confidential patient medical information that was true could be sued. But, usually, in the absence of a particularlized confidentiality duty, truth is an absolute defense. | Some simplified points of basic defamation law as background: A critical element of defamation law is that the defendant said something false. You therefore can't win a defamation case if it's based on a statement that can't be proven false: "You are annoying." "You are ugly." "You are a bad lawyer." If a statement can't be proven false, it is considered opinion. Statments of opinion are virtually always protected by the First Amendment. Powell's brief relies on this framework to argue that because her statements were statements of opinion, no defamation could have occurred. It's like defending against a murder charge by saying that no one died. Although it isn't generally referred to as the "reasonable person standard," reasonableness comes into this question because part of the calculus in assessing whether a statement is fact or opinion is to ask whether a reasonable person would understand the statement to be making an assertion of fact. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). By leaning into that language, Powell is not saying that reasonable people would not have any reaction or would not have any specific reaction to her statements; instead, she is saying that reasonable people would not have understood her statements to be assertions of fact. Her argument seems to turn on the fact that she was speaking as an attorney representing a political candidate in a lawsuit, and that reasonable people understand statements made in that context to be "inherently prone to exaggeration and hyperbole” and "view them only as claims that await testing by the courts through the adversary process." For what it's worth, that seems to me like a pretty weak argument. While people expect a certain amount of puffery from their candidates, they also expect that lawyers representing the President of the United States aren't going into court with frivolous allegations. More importantly, though, I think she's running the analysis incorrectly. Rather than asking whether a reasonable person would understand her statements to assertions of fact, she's asking whether a reasonable person would think that she was prone to exaggerate in the setting in which she made those statements. As I understand it, a speaker cannot cloak statements of fact from liability by merely refraining from uttering them until she finds herself in a context where people expect some amount of loose speech. Even if you're a partisan hack with no credibility appearing on a TV show hosted by another partisan hack with no credibility, you generally can't accuse your opponent of being a murderer or child molester or something like that. Those are still assertions of fact, even if they're bookended with statements that "Donald Trump is the greatest president this country will ever have." The brief does not rely at all on Hustler or the First Amendment protections for parody that were discussed in the previous answer. These tests are closely related, however, as both defenses claim that the speech was not "false" in the relevant sense. | Unless you are an ambassador or one of the US states, SCOTUS doesn't have original jurisdiction over your lawsuit, so they can't hear it either. If you've named all the judges of all the courts that do have jurisdiction, then one of them will handle it anyway, under the doctrine of necessity noted before. For cases that do fall within the Supreme Court's original jurisdiction, a jury trial is theoretically possible, but it appears it has not occurred since the 1790s, and only one has surviving records: Georgia v. Brailsford in 1794. See "Special Juries in the Supreme Court" by Lochlan F. Shelfer, Yale Law Journal 123:1, 2013-2014. Otherwise, non-jury original jurisdiction cases are usually delegated to a special master, a sort of "contract judge" who hears all the evidence and recommends a judgment that the full court typically rubber-stamps. | I assume you are asking about horizontal stare decisis: a court following its own previous holdings or those of courts of coordinate jurisdiction (e.g. courts at the same "level" in the judiciary). I say this because your incredulity does not seem to extend to the notion that appellate courts can bind lower courts. You ask: why are prior judges’ powers of interpretations automatically seen to be more capable and robust than, so as to bind and prevail over, subsequent judges’ interpretative abilities? This is not the rationale for horizontal stare decisis. The doctrine is not at all based on the premise that the first court or judge to answer got it correct. Justification was given in a concurring opinion in R. v. Kirkpatrick, 2022 SCC 33: Stare decisis promotes: (1) legal certainty and stability, allowing people to plan and manage their affairs; (2) the rule of law, such that people are subject to similar rules; and (3) the legitimate and efficient exercise of judicial authority (citations omitted). And horizontal stare decisis is not absolute. Common-law jurisdictions have developed limited avenues for departure. For example, in Canada, a lower court can depart from previous decisions of courts of coordinate jurisdiction when (R. v. Sullivan, 2022 SCC 19): The rationale of an earlier decision has been undermined by subsequent appellate decisions; The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or The earlier decision was not fully considered, e.g. taken in exigent circumstances. Even apex courts have developed a sense of internal obligation to follow their own precedents. But departure from previous decisions may be justified where (see the Kirkpatrick concurrence at para. 202): The Court rendering the decision failed to have regard to a binding authority or relevant statute (“per incuriam”); The decision has proven unworkable (“unworkability”); or The decision’s rationale has been eroded by significant societal or legal change (“foundational erosion”). This has been viewed to "strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law" (R. v. Sullivan, 2022 SCC 19). "Adherence to precedent furthers basic rule of law values such as consistency, certainty, fairness, predictability, and sound judicial administration." | The general rule is that in the opening statement, the lawyer may describe what he expects the evidence and testimony to show: We will present Mr Smith, who will tell you that he saw the defendant miles away at the time of the crime But cannot make statements of fact as such. I don't see why this rule would be different for a pro se defendant. In a closing argument, as i understand the rule, the lawyer may and often will say things like "As witness X testified, there was no time to stop" but is not supposed to introduce new alleged facts not supported by the evidence. However, in a closing, a lawyer can and often does draw conclusions from facts supported by testimony. "My client was proved to have been in the next town 20 minutes earleri, so obviously he could not have committed the crime." Again, i don't see any reason why these rules would be different for someone acting pro se. |
Could two people be convicted for the same crime? Suppose a serious crime is committed, and there is no dispute that one person, acting alone, committed the crime without any assistance. Police wrongly believe that person (A) committed the crime. Person (A) is wrongfully convicted and sent to prison. The real perpetrator is person (B). After person (A) is already in prison, the police discover proof that person (B) committed the crime. Do the police and prosecutors have to exonerate person (A) in order to charge person (B)? (Obviously it would be incredibly unethical to charge B without exonerating A, but I'm asking whether it is legal.) | If the prosecutor (P) knows or strongly believes based on this new evidence that A is innocent, ethically P should start proceeding to have A's conviction reversed or reviewed. But in far too many cases P does nothing of the sort. If P simply files a charge against B and proceeds to try B for the crime, P leaves it open to B's Lawyer to ask "Didn't you already convict A for this crime? what about that?" as part of a defense, which might well embarrass P and lose the case. So P may well choose to file charges against B claiming that A & B acted together as accomplices, even if this requires misstating the evidence, or suppressing part of it. Or, P may simply ignore the new evidence, leaving A in prison and B free. This is unjust, but requires no effort on the part of P, and may seem less likely to raise embarrassing questions about why P got the case against A wrong. P can always claim that s/he did not believe the new evidence. That might even be true, there is such a tendency to believe what we wish to believe. The relative frequency of these responses on the part of those in the position of P here is really not possible to asses. The last two responses involve P suppressing or at least burying relevant evidence, and unless it is brought to the attention of others who publicize it enough that action is taken, it will not be generally known and cannot be tabulated in any statistics. P's office will certainly not respond to any survey which asks "How many times this year did you suppress the true facts to leave in place an unjust conviction you had previously obtained?" | A problem with the question is that it uses the loaded term "victim". If you change the question to "Are there actions that you can perform involving another person, which are crimes even if the other person consents to participating in the action", then there are very many. Selling alcohol to a minor; selling heroin to anyone; selling sex in most US jurisdictions; selling firearms to a convicted felon. Also, for a physician to assist a person in suicide, in most states. Formerly in the US, various forms of sexual intercourse were acts that consent did not make legal. Whether or not the person is a "victim" in these cases is open to debate. In the case of physician-assisted suicide in Washington, the doctor is allowed to prescribe (oral) drugs that the person ingests: only a doctor is permitted to do this, both under the DWD Act and as a consequence that only a doctor can prescribe the drugs. There seems to be a belief that it is a crime to assist a person in committing suicide, which is probably correct if the assistance is shooting the person in the head, or in general directly causing the death (thus, "I give you permission to shoot me in the head" doesn't cut it). But from what I can tell, it is not generally against the law in Washington to help a person who commits suicide (e.g. supplying the means of self-dispatching). In some countries, suicide and helping with suicide is illegal, e.g. in Kenya Penal Code 225 says Any person who (a) procures another to kill himself; or (b) counsels another to kill himself and thereby induces him to do so; or (c) aids another in killing himself, is guilty of a felony and is liable to imprisonment for life. No exception is created if the person consents to being aided to kill himself. | There's no legal requirement in Canada or US that the police do anything to investigate a crime, so there's no requirement that they do anything specific to investigate a crime. If the police officers are satisfied by the witness accounts, or have some reason to think viewing surveillance recording wouldn't be useful they don't have to, either by law or policy. Note that ordinarily, police won't consider a physical altercation between two grown men a serious enough crime to warrant charges. If there was no serious injury and there wasn't a large discrepancy between the strength of the two men, police will often decline to lay charges even when they believe the evidence would sustain them. In this case the police may have decided it wasn't worth investigating further because it wasn't worth wasting the time of an already overloaded court system. The victim here still has legal options despite the lack action by the police. He can subpoena the video evidence if he wants to bring lawsuit for damages. In Canada, it's possible even to lay your own criminal charges in a private prosecution, although this much more expensive than a civil lawsuit. | You asked, "could that guy as defendant claim self defense and win?" First let's try to make it clear what is meant by "win". In the Rittenhouse trial, the defendant was charged of the following crimes: First-degree reckless homicide First-degree recklessly endangering safety (x2) First-degree intentional homicide Attempted first-degree intentional homicide Possession of a dangerous weapon by a person under 18 (dismissed) Failure to comply with an emergency order from state or local government (dismissed) Rather than thinking of the defendant as a "winner", it might be more appropriate to say that he was "acquitted" of these charges. If someone that was involved in the conflict fired first, as you described here: "They encounter each other when each is leaning or reaching or tripping, or whatever it would take for them to unintentionally point their gun at your head. You react and you raise your gun in defense, he spots your move and points his at you. You both fire. You shoot each other and you both are gravely injured. Like, paralyzed", then would they also be acquitted of all of the non-dismissed charges listed above? If everything was as you described ("unintentional", "reactionary", and "in defense"), then likely they would also not be found guilty of those crimes. It's not like they would "win", it's more like they will not be found guilty of committing one of those crimes. The precise outcome will depend on all the facts involved in the case, and the jury's decision based on those facts. So there is no single answer that always applies to every situation, but it sounds like you're wondering about some hypothetical situation that appears to be paradoxical because in this case only one person was charged with crimes: if someone else was the first shooter, the sequence of following events would first of all depend on whether or not they got charged with a crime, and I wouldn't characterize the outcome as a "win" or "lose" but as an "acquittal" or "conviction", and yes it is possible to be acquitted if everything is "accidental" as you described, and presumably not "reckless" (often meaning that a reasonable person in the same situation would have done the same thing). About your more broad question: "Is mutual self defense a thing?" It depends on what crime is being charged against the defendant. In the Rittenhouse case there was only one person that was charged. If you're asking about a hypothetical situation in which two people involved in a 1-on-1 conflict both claim self-defense, I hope I can assume that they were both charged with a crime against which to defend themselves in court in the first place. It is indeed possible for a State to prosecute both parties of a 1-on-1 physical conflict, and for both of them to successfully claim self-defense in order to eventually be both acquitted. It wouldn't be called "mutual self-defense", but each defendant would make their own self-defense case individually. | Double jeopardy applies to the same facts, not to the same sorts of crimes. Say if you are tried and acquitted of murder of person A, that won't later save you from being tried for murder of person B. Same applies to your question: if the documents/testimony on the second occasion are different from the first occasion, there is no protection. If they are the same, there is. | If the victim is unable to prove who the culprit was, then it will be impossible to prosecute that person criminally or sue them for civil damages. Incidents like these are rarely enough to cause a police department to throw sufficient investigative resources at it to crack the case without some reason to believe that it is part of something bigger. An unfortunate fact of life is that most perpetrators of crimes and torts get away with it and are not caught. And, if the only available witness is willing to lie to cover up the name of the guilty party (probably out of a desire to not have the dog put down), it is that much harder. A private investigator might be able to solve the case, but the cost of hiring a PI would probably exceed the benefit that could be obtained if the PI was successful. | The defence sees the prosecution evidence; witnesses don’t From context, it appears that Ms. DeCoutere was a prosecution witness, not the defendant. As such, she would not be privy to the evidence that either the prosecution or defence had or intended to present. No doubt both the prosecution and the defence would have known about the photograph and, I would imagine, it was introduced by the defence precisely because it contradicted the witness’ testimony. Further, revealing such evidence to her by either side would be misconduct - witnesses are supposed to recount the facts as they recall them without prompting or aide memoirs (police are an exception - they are allowed to refer to their own notebooks). | Yes, a crime is committed as is a tort. The exact crime would vary from state to state. The most common description of this crime and tort would be "fraud" but the way that criminal conduct is allocated between particular offenses in states varies considerable. Theft (in jurisdictions where it is broadly defined) and shoplifting (in jurisdictions where it is a distinct offense) would be two other plausible offenses. |
Is the superhero American Crusader in the public domain? If so, what aspects of the character can be safely used? I'm planning on making a comic that has a few public domain superheroes in it, among which is the character of American Crusader. I'm quite interested in knowing how much of the character, if any, I can use safely? | Is the superhero American Crusader in the public domain? I have insufficient knowledge of the actual practice of individual and corporate owners of rights in superhero characters to protect their rights in individual characters to provide a definitive answer the first part of the question about American Crusader without extensive research. Copyright Considerations The character debuted in August 1941 to April 1944, published by Better Publications, and lots of works from that date are still not out of copyright. Better Publications, later renamed Standard Comics, folded in 1959, which leaves open the possibility that it failed to renew its copyrights as it would have been required to do in the time period not long before the expiration in 1967-1970 of the first of two possible rounds of copyright protection under prior law, but it appears that the copyrights may have been sold to a third-party when the company folded, and that third-party may have preserved the copyright in a timely fashion. If the copyrights were renewed, they benefited from an extension of copyright periods for copyrights still in force when the current law (pre-amendment) was in force, and from a later extension of copyrights under that law. It also depends to some extent on who holds the copyright. If the copyright was held by the natural person author, whose identity isn't clear, the date of that author's death matters (even thought the date of death had not been relevant when the copyright was originally issued under prior law. Alan Moore with America's Best Comics revived the character in 1999. There was also an earlier revival by AC Comics, which is also not out of copyright. So, any public domain aspects of the character would at a minimum not include anything derived from either revival. It isn't clear if either revival was done with the permission of the copyright holder, or if either company reviving the character had determined that the copyright had expired. Trademark Considerations Better Publications and its successors may also have had trademarks related to American Crusader, but those probably expired from lack of use prior to two recent revivals of this character. But, even if the copyright on the original version of the comic in 1941 has expired and provides a public domain core upon which you can expand independent of AC Comics or Alan Moore's revival with ABC, either AC Comics or ABC may have a trademark in connection with American Crusader that materially limits what you could do with this character. There is one live American Crusade trademark on file with the U.S. Patent and Trademark office: The summary of the registration is as follows and it does not appear to apply to the comic book character: Mark Image Word Mark AMERICAN CRUSADER Goods and Services IC 008. US 023 028 044. G & S: Filleting knives; Fishing knives; Folding knives; Hunting knives; Pocket knives; Sport knives. FIRST USE: 20160215. FIRST USE IN COMMERCE: 20160215 Standard Characters Claimed Mark Drawing Code (4) STANDARD CHARACTER MARK Serial Number 86896152 Filing Date February 3, 2016 Current Basis 1A Original Filing Basis 1B Published for Opposition December 27, 2016 Registration Number 5159010 Registration Date March 14, 2017 Owner (REGISTRANT) Patriot Outfitters, LLC LIMITED LIABILITY COMPANY KANSAS 206 Maple Hill Road St. Marys KANSAS 66536 Attorney of Record Joseph T. Leone Type of Mark TRADEMARK Register PRINCIPAL Live/Dead Indicator LIVE The dead trademarks which can be reviewed via an easy internet link also do not refer to the comic book character. So, you probably only have to worry about copyright considerations and not trademark considerations, although there could still be a state trademarks (arising from state law filings), or common law trademark rights in it (arising from use in commerce in a particular geographic area), asserted. If so, what aspects of the character can be safely used? If it is in the public domain (not just under copyright, but also under trademark law which does not have a fixed expiration date), then you can use all public domain aspects of the character. For example, it isn't a coincidence that there are lots of Sherlock Holmes and King Arthur and Merlin and Aladdin and Brothers Grim fairy tales, and Jane Austin book based stories in TV and movies, because those characters are in the public domain, so no one other than the staff used to create their versions of those characters needs to be paid a royalty or needs to provide permission to do so. In the case of Sherlock Holmes, part of the Sherlock Holmes works are in the public domain, and other parts of the original Sherlock Holmes works are not, so anything specific to the copyrighted portion of the original works are still protected by copyright. | All of your works would be considered to be a derivative work. This is because your work, is based on the work of someone else's. A good test for this to see if something is a derivative work is to see whether the new work can effectively exist without the original. Most copyright laws worldwide are similar, thanks to the Berne Convention for copyrighted works. Since derivative works are normally a right that is exclusive to the copyright holder, you can't make such works without permission (generally through a license or expiry of copyright). So now, let's take a look: The Mona Lisa was made hundreds of years ago. It's definitely in the public domain. You're in no breach of copyright laws here. Yes, of course. Microsoft retains copyright on their icons, and possibly trademarks as well. However, they may have trademark guidance that allows you to use their icons - as long as you follow it. Likely the same as microsoft - you can assume it's similar for most large companies. Code is copyrighted as a literary work - the layout and visual aspect is copyrighted as an artistic work. That artist retains copyright, unless you obtain the work with a license, or the copyright is expired. If you create a derivative work, you infringe on their rights. | Your example powers are tropes and their basis in public domain The Queen of Pain's scream is modeled after the Banshee, which had a scream that would kill... and there are LOTS of variants of Banshee. In fact, "Our Banshees Are Louder" is a trope. Hiding in a shadow or walking through it is for example a typical feature of Ninja stories since the Edo Period, and a common Trope as "Shadow walker". That makes those two powers older than You can not have a copyright on concepts, facts, or ideas. Facts are not copyrightable, which was decided LONG ago over Feist v Rural. Neither can you copyright concepts or ideas. You won't get a claim on the concept of a damaging scream or turning into shadow. See also Copyright.gov (emphasis mine): How do I protect my idea? Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work. | If a work is in the public domain, then there are no particular requirements on its use; in particular, it can be used on a book cover without a copyright notice, a public domain notice, or any other kind of notice or mark. Wikimedia Commons' public domain template says, "You must also include a United States public domain tag to indicate why this work is in the public domain in the United States." This is a notice to users of Wikimedia Commons, informing them that if they upload a public domain image to Wikimedia Commons, they must include a public domain tag. That's a policy of Wikimedia Commons. It doesn't apply to people using the image outside of Wikimedia. | Yes, such a site can be created without infringing copyright Facts about the game are facts.They are not protected by copyright. Criticism of, and comment about the game, is an activity protected by the US First Amendment. Making such comments is very likely to be fair use under US copyright law. In general the author of a work, such as a book or a game, or the maker of a product, has no right to grant or withhold permission to discuss or comment on the work. This is true not only under US law, but also in the law of most countries (perhaps of all countries). The name of the game might well be protected as a trademark. But that does not allow the trademark owner to prevent discussion of the game, clearly identified by the name of of the game. As long as nothing is being sold or rented, or advertised for sale or rental under that name, and there is no attempt to claim that the site is sponsored or approved by the trademark owner, and there is no likelihood of confusion, there is no trademark infringement. This is true under US law, and under the trademark laws of most other countries. A wiki is a specific technology. It can be used for community discussion, or for a company's internal documentation, or for any of many other purposes. Wikipedia has popularized this technology. Not all community discussion sites are wikis, however, nor are all wikis for community discussion. Just as not all novels are books printed on paper, and not all books are novels. In any case, setting up a wiki about a topic such as a game, a movie, or a novel does not require permission from the owner or creator of the game or of any trademarks associated with the game or work. The same would be true for a discussion forum about such a game or work that is not a wiki. If a wiki uses excessive quotes from game dialog, or uses the game's logo without permission, or reproduces other game assets, such as character art, maps, and the like without permission, that might be copyright infringement. | If the "Pokeball" image is copyrighted and/or a trademark of Nintendo/whoever makes the Pokemon games, then whoever put that image out there under CC 3.0 BY is in violation and can be sued and will probably lose, and you would be in violation and can be sued and will probably lose. Your penalty would almost certainly be less since your violation was "innocent", that is, you had no way of knowing that the "Pokeball" imagery was somebody's protected intellectual property. ... Except you kind of maybe should know that, unless whoever made the Pokemon games (Nintendo or other) put the image out there and you can verify that, that maybe this license could be bogus and you should consult with who you imagine the owner of that IP may be or an impartial professional who could tell you for sure. I'm thinking if it were me I would do a little more research - and maybe get a paid opinion - if I was really thinking about using this for any but private purposes. | TL;DR: Probably not. Per Wikipedia, under USA law, for any audio recordings published after February 15, 1972, the earliest it it will enter public domain is 2043. CBS Mystery Theater was published from January 6, 1974 through December 31, 1982, per Wikipedia. Therefore, these recordings are not likely to be in the public domain until after 2043. If CBS, or whichever company now owns CBS Mystery Theater were to have made it available under a sufficiently permissive license, it's likely that it would, in practice, be in a very similar status to being in public domain. However with a quick search, I couldn't find any evidence that the owner of CBS Mystery Theater has in fact done so. Of course, my searching is imperfect, and Wikipedia might be wrong. It's possible that it is indeed released under a sufficiently permissive license, though I wouldn't personally bet on it. Finally, I'm not a lawyer, so my reading of the whole situation might be really wrong. | Alice has been developing her own enhancements, and they're pretty similar to Bob's. Neither Alice nor Bob has copied the other's enhancements, so neither has violated the other's copyright in the enhancements. Whether that could be proved in court is another matter, of course, but since the original work is licensed under creative commons the question unlikely to arise in court. Would Alice be prevented from coming up with enhancements to her own game if other people could prove they thought of and released the idea first? No. Copyright does not protect ideas. It only protects a particular expression of those ideas from being copied. Theoretically, if two authors come up with identical 500-word descriptions of something and can establish that each did so independently, neither has a claim against the other. The practical problem there, of course, is that it would be impossible to prove such a thing. Could Alice outright claim Bob's "Adapted Material" because he developed it on her original work? Assuming that in publishing his adaptations Bob followed the terms of the creative commons license with respect to the original work, Alice's only claim would be that he copied her adaptations without following the terms of the license. If Bob can show that he did not do so, her claim would fail. In a comment, you wrote: Suppose Alice went ahead and intentionally, somehow provably ripped off Bob's "Adapted Material" because she liked the content so much, does Bob reserve any rights on his adaptation, or is Alice able to commercialize the work that Bob did in extending her original work? If we assume that Bob complied with the license of the original material, we know that he licensed his adaptations under "the identical terms," so Alice would be able to use Bob's adaptations under those terms for non-commercial purposes. Since the assumption here is that Alice provably copied something of Bob's, I think it is fairly clear that she would be liable for damages if she exploited that material commercially without paying royalties. |
Is a hello world program really protected by copyright? This article discuss the question of whether a "hello world" program is protected by copyright. It comes to the conclusions that it is not (under US copyright law) because most of it is required by the implementation leaving only the phrase "hello, world" which by itself is too trivial to be copyrightable. I believe the same reasoning would apply for my jurisdiction which is the UK. However, some on the open source stack exchange disagree (see comment on first linked question below for example). Is a hello world program really protected by copyright? At what point does something become non trivial so that copyright applies? I've asked some related questions on opensource but it has been suggested that law might be more appropriate for this kind of question: https://opensource.stackexchange.com/questions/12997/when-does-an-implemention-cease-being-trivial-and-become-covered-by-copyright?noredirect=1&lq=1 https://opensource.stackexchange.com/questions/12986/legality-of-publishing-code-for-a-stackoverflow-answer-as-an-example-implementat https://opensource.stackexchange.com/questions/12998/is-an-offset-pointer-implementation-trivial-enough-not-to-be-covered-by-copyrigh?noredirect=1&lq=1 | It is highly unlikely that any such program would be protected, insofar as there is minimal expressive creativity involved in the code – for a standard "hello world" program. For instance, the following REXX code is not creative: say 'Hello world' The language itself determines that the relevant statement is "say", and I did not create the text, somebody else did and I just copied it. A version that goes outtext = 'Hello world'; say outtext is not creative either (this approach to typing text is implicit in "programming", and the variable name is a patently obvious choice. It would be possible to write code that is very creative, but which only types "hello world". So it depends on the code. | The general rule is that the author of the software owns the copyright, so that would be the student. This is regardless of whether the student writes the code for fun, or for a thesis. If a student is hired to write that code, then it kind of depends on the university rules, and who hires the student. In the case of a "work for hire", the employer owns the copyright. However, it is non-trivial to determine whether that principle is applicable in the case of a student hired by the university. In part, it depends on which country this is in because work for hire laws are not exactly the same everywhere, and in part it depends on the details of the employment my a university. In a typical US institution RA appointment, it would come down to university policy – some universities declare that copyright in all student-written software is retained by the student. You would need to look for something resembling an "IP Policy" – here is a sample, note that such policies are subject to revision. | 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. | Software doesn't infringe any patents. Creating a product that includes the software may infringe the patent, and may infringe that patent because the software is included, but the software itself doesn't. Software on its own doesn't have any effect that could be patented, only as part of some machine. On the other hand, if you want to distribute software that is under the GPL v3.0 license, then a requirement is that you give everyone a patent license for all patents that would be infringed by using the software (as part of some machine), and if you are not the patent holder, then in practice that means you are not allowed to distribute the software. With your grand plan that you write software and then let the end users do the patent infringement, that will backfire in two ways: First, you'd be likely sued for contributory patent infringment, because it is you who enables the patent infringemnt. Second, you can be sued for copyright infringement because you have no license that allows you distribution of the software, depending on the Open Source license used. | Stack Exchange questions are not public domain, they are protected by copyright. Authors have granted a license under Subscriber Content, specifically 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 4.0) As long as you comply with the terms of the CC BY-SA 4.0 license, you may copy user content. | No. GPL works are copyrighted (as are most creative works basically everywhere in the world, as soon as they're created, whether or not the author does anything about it), and copyright is what gives the GPL "teeth". Without copyright, you would generally be able to duplicate and distribute programs without any kind of license or permission from the author. Copyright law restricts your ability to do those things. The GPL is a license, which means it's a grant of permission. It says that you may copy and modify and do other things, provided that you comply with the other provisions set out in the license. Quoting from the GPL v3: You are not required to accept this License in order to receive or run a copy of the Program. [...] However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. So if you were to distribute some GPL-licensed software in a way that didn't comply with the terms of the license, the legal framework that would allow someone to sue you to stop you doing that would be copyright law. | The GPL does require you to keep any existing copyright notices: You may copy and distribute verbatim copies of the Program's source code as you receive it, in any medium, provided that you [...] keep intact all the notices that refer to this License and to the absence of any warranty [...] The GPL also recommends adding a notice to each file: Copyright (C) yyyy name of author - This program is free software[...] From my reading of the GPL, if the software you modify contains such notices, which is likely, you must preserve them. This effectively attributes the original author. However, as far as I can see, there is no requirement to have a list of acknowledgements (as is customary in scientific papers), which lists all the software you used. How to attribute parts that are integrated in source form? (Where licence information is given in the file header) If you keep the original file header (and possibly add to it), that should be enough. How to attribute parts that are integrated in binary form? As far as I can see, there is no additional attribution required for distribution in binary form. The GPL requires you to supply the source code along with the binary form, so the attribution in the source code will be available. | What you're talking about is called black-box reverse engineering. It can be done, and as long as you are meticulous in your record keeping the fact that it has been done should be an appropriate defence against copyright infringement. But that doesn't help against patent claims - while in copyright cases the fact that code has or has not been directly copied is critical, in patent cases it its irrelevant: if you use a patented method, it's a violation. You therefore will need to be careful about any patents that may have been issued to the original author, as well as avoiding copying. |
Why can't news organizations release the name of an accused person in Britain? I noticed several news articles reporting that an unnamed sports star has been arrested for a serious crime. All the articles mention that the accused could not be named "for legal reasons". I could assume that the news organizations do not know the identity of the accused, but the articles are unclear and in my opinion, make it seem like they know the persons identity, but are prohibited from disclosing it. See https://www.theguardian.com/football/2022/jul/05/premier-league-footballer-further-arrested-over-two-more-allegations and https://www.mirror.co.uk/sport/football/news/how-police-discovered-link-between-27407720 I have never heard of this in the United States, and I was curious to know what laws or "legal reasons" that would prohibit a news organization from releasing the identity of a suspect if it is known. I understand that making unknown or false statements like "person A is a rapist" could be libelous if untrue, but just reporting that "person A was arrested for a serious crime" would be OK as long as this is a true fact and actually happened. What "legal reasons" would prevent a news organization from releasing the identity of the accused? | england-and-wales From your first link: "A leading Premier League footballer arrested on suspicion of rape has been further arrested on suspicion of two incidents of rape against a different woman." As he was arrested that means there are now 'active' 'criminal proceedings' against him within the meaning of the Contempt of Court Act 1981 (as amended). Therefore reporting is now subject to the 'strict liability rule': "it is a contempt of court to publish anything to the public which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, even if there is no intent to cause such prejudice." Reporting Restrictions in the Criminal Courts April 2015 (Revised May 2016), Judicial College Per the Contempt of Court Act there are four defences: s3(1) "A person is not guilty of contempt of court under the strict liability rule as the publisher of any matter to which that rule applies if at the time of publication (having taken all reasonable care) he does not know and has no reason to suspect that relevant proceedings are active. s3(2) "A person is not guilty of contempt of court under the strict liability rule as the distributor of a publication containing any such matter if at the time of distribution (having taken all reasonable care) he does not know that it contains such matter and has no reason to suspect that it is likely to do so. s4(1) "a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith" s5 "A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion." Really the publication is mitigating its legal risk at the present time and it will no doubt report the name of the footballer if he is tried or does not proceed to trial. | An accused would be arrested for the purposes of arraignment ("even a scheduled arrest is still an arrest"). That does not entail that the accused would be held in custody pending or during trial. Many commenters are of the view that Mr. Trump would be released under his own recognizance without bail. Reference: AP News. | united-states In some countries there are laws prohibiting publishing a person's picture without that person's consent. The US has no such general rule, and many other countries do not either. The details of such laws, where they exist, vary from country to country. In the US there are two kinds of legal action that might be used by a person to stop that person's image from being published. These are a suit for invasion of privacy, and a suit to enforce a person's right of publicity, also called a right of personality. These torts vary from state to state, and are not recognized at all in some states. Invasion of Privacy This has several variants, such as "intrusion upon seclusion", and "disclosure of private facts". Intrusion generally applies when someone has entered a private place, such as a dwelling, without permission, and has then taken a photograph, made an audio or video recording, or perhaps a written account, and has published or attempted to publish the image, recording or account. If and only if the publication would be "highly offensive to a reasonable person" then the subject or lawful occupant of the place invaded may be able to obtain money damages, or an injunction against publication. This would not apply to the fact pattern in the question, because the parents would have had a right to be in their own home, or anywhere that such baby photos are likely to have been taken. Intrusion can also apply to one who observes private activities without permission, even if no recording is made. But the "highly offensive" standard still applies. A "private facts" case generally applies when a person (or a small group, such as a family) has attempted to keep certain facts private, but some other person or business has published them (or attempted to publish them). A successful suit will in most states that allow such suits require evidence of some positive effort to keep the facts private, and that the publication would be "highly offensive to a reasonable person". This might possibly apply in the fact pattern described in the question. But note that the "highly offensive" standard applied to both of these privacy torts. Most typical baby pictures would not be considered "highly offensive", this is a fairly high bar. It would be a decision ultimately made by the jury or other finder of fact, I believe. For comparison, peeping on a couple having sex in a hotel room has been found to be highly offensive. When a person had sex with another, and had secretly arranged to record a video of the sexual encounter, and later distributed it, that was found to be highly offensive. Right of Publicity This generally prohibits using a person's, name, image or likeness, or "persona" to endorse or advertise anything, or for other commercial purposes, without consent. It is most often applied to unauthorized celebrity endorsements. Most US states have some form of this, but the details vary significantly. Unless the baby pictures were being used to advertise something, or in some commercial manner, this would not apply. If the parents sold baby pictures to someone who used them to advertise, say a day-care, or some baby product, this might apply, although it might be that the parents would be held to have had the right to act as the child's agent. If someone else downloaded the baby pictures from Facebook (or any other such site) and used them in ads, this might well apply. Conclusion It is unlikely in the US that a child could successfully take legal action against a parent for having posted pictures of the child, even if they were embarrassing, unless they were also "highly offensive". Even then such a suit would be unusual, and might not be successful. It is more likely that a request to the parent would be successful, unless the parties are on vary bad terms. A request to the site to take down such images might work, depending on the site's terms. A DMCA takedown would not work, because the subject does not normally hold copyright to an image, the photographer initially does (unless it is a work made for hire, in which case the employer initially does). This conclusion is specific to US law. The outcome would be different in at least some other countries. | When the suspect is being arrested for this indictable only offence, are the police allowed to then arrest the suspect for the summary only offences too whilst the police are still inside of the suspect's house? YES, as long as the arresting officer suspects an offence has been committed and believes the arrest is necessary for any of the reasons given in s.24 PACE summarised here Could a suspect have those summary only offences thrown out of court? NO. There may be other reasons to offer no evidence at trial, but being arrested for a summary only offence in the circumstances described is not one of them. | 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. | In the UK, no offence is committed, however many public locations cite the Data Protection Act 1998 as a reason to stop people taking pictures. DPA does not mention this topic at all, and is a red herring (however informing the location of this is unlikely to help, I have discovered) In fact, in the UK, the only laws that appear to exist cover either specific locations and properties (eg military installations) or using photography to take pictures of individuals in areas where they have an expectation of privacy. The Photographer's Rights Guide published by digitalcameraworld in 2012 is still current as far as I can see. It has this specific guidance: Photographers Rights: Taking Pictures of People in Public Are you breaking any law when you’re taking pictures of people in public? Probably not, but the position under UK law is uncertain. There are currently no general privacy laws under UK law, but the UK courts must take into account the European Convention on Human Rights, which gives everyone the right to respect for their private and family life. As this is an area of law that has been developing rapidly over the last few years, it is hard to be certain what will constitute an infringement. The key issue is whether the place the image is taken is one where a person would have a reasonable expectation of privacy. For example, it has been suggested that the right of privacy of a child could be infringed by publishing a photo of them with their parents in a public street. It is therefore advisable to be careful when taking photos intended for publication, even where the subject matter is in a public place. Failure to obtain a model release for the use of an image will certainly make it harder to sell the picture to stock libraries. Photographing children The same laws apply to adult and child subjects, but a child does not have the legal capacity to consent and a parent or guardian must therefore do so on their behalf. Be aware that schools, leisure centres and places where children and adults gather usually have their own photography restrictions. Although decent photos of children (see our tips for better pictures of babies, children and teenagers) taken in a public place may be fine for non-commercial use, seek permission from the child’s parents or guardians and don’t shoot covertly with a long lens. For commercial images, you’ll need to get a model release signed by the parents. Also read the section on the powers of police and security guards. | Posting such a pic and statement may give grounds for a lawsuit, but probably not Overview That is going to depend very much on the the jurisdiction, and on the specific facts. If the statement that the pictured person owes a debt is false, this may be a case of defamation, but that was explored thoroughly in Can you post a picture in your business to embarrass or defame a customer? and its answers. See FindLaw's page "What Is Invasion of Privacy?" for an overview of the classic privacy torts. See also this page quoting the Restatement (2nd) of Torts, § 652 See further the Wikipedia article "Privacy laws of the United States" which gives a history of the four torts. Note that not all US states recognize all, or indeed any, of the privacy torts. Nor do all non-US jurisdictions. In some places these torts have been recognized, or blocked, by legislation, in others by court decision. And in the US they are limited by the federal First Amendment's guarantee of freedom of speech. Right of Publicity,aka Appropriation There is, in general, no right to privacy in one's physical appearance under any of the standard privacy torts, except that if one's likeness is being used to advertise something, or imply sponsorship or approval of a commercial product, many jurisdictions protect a right of publicity (sometimes called the tort of Appropriation of Name or Likeness). But here it does not appear that the image is being used to advertise or promote or sponsor anything, so that would not apply. Intrusion upon Solitude and Seclusion The tort of Intrusion upon Solitude and Seclusion would only apply if the picture were taken on someone's private premises or somewhere else there the person had a reasonable expectation of privacy. Otherwise it would not apply, there is no general right to privacy for a picture taken in public. Private Facts The tort of Public Disclosure of Private Facts could possibly apply if the fact of the unpaid debt had been carefully kept secret, and if its disclosure would be highly offensie to a reasonable person. But nothing that is a matter of public record can be the subject of such a suit anywhere in the US, because under Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) publication of facts derived from public records is protected under the first and fourteenth amendments, even against a specific state law granting protection. This will obviously not apply outside the US. False Light If the statement of the debt were true, but in some significant way misleading, the tort of False Light might apply. This is described by the Restatement of Torts (2nd) § 652E as: One who gives publicity to a matter concerning another before the public in a false light is subject to liability to the other for invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in a reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Note that the standard of (b) above is the same as the "Actual Malice" standard for defamation cases where the plaintiff is a public figure. False light cases are in many ways similer to defamation cases, and some jurisdictions have treated themn as identical tro defamation, while otrhrs do not recognize them at all. Nothing in the facts stated in the question would imply a false light claim, but more context might possibly support such a claim,. Conclusion Nothing in the question clearly indicates that any privacy-based tort would apply, but the facts are stated it a very brief way in the question. Further context and detail might clarify the answer one way or the other. This answer is largely based onunited-states law, althoguh some of it will apply elsewhere. | This is currently untested but the U.S. Supreme Court did leave the door open to allow someone to plead the 5th amendment in order to hide their identity. In Hiibel v. Nevada the U.S. Supreme Court held that the petitioner did not have a 5th amendment right to withhold his name from a questioning police officer. The Supreme Court held that Mr. Hiibel could be arrested for failing to identify himself because Nevada's statute requiring identification was narrowly tailored and was not vague. The police officer who stopped Mr. Hiibel had reasonable suspicion that a crime had occurred and Mr. Hiibel could have satisfied Nevada's statute by simply stating his name; there was no requirement to turn over any papers or other documentation. The final paragraph of the opinion speaks of the importance of the narrow scope of the disclosure requirement and then goes on and states: ...Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances...Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We do not resolve those questions here. While the court is leaving unanswered the question of whether there are circumstances where one may refuse to identify themselves, they are making it quite clear that such a situation would be very different than the case decided in Hiibel. There is a strong hint that they would uphold Fifth Amendment privilege in the situation you posit. |
Is this considered copyright infringement? Location: United States Let's imagine... A created web design. B is inspired by A's design. B creates similar design. Is B's work deemed as copyright infringement? Person A Design Person B Design Similarities labeled | It's highly unlikely that A would even recognise this as similar. It's really bog standard. A coloured patterned background (in a different colour and with a different pattern). Two buttons. A picture and a testimonial. All things that have been done thousands of times. In the end, it is _copy_right. What exactly is B supposed to have copied? | Liable, yes. How much liable, depends. There would be copyright infringement, and with copyright infringement the exact facts count. Like did you commit copyright infringement to make money, were you aware that you committed copyright infringement etc. With your contract, it seems clear you didn't set out to commit copyright infringement to make money (because you paid someone else telling them not to commit copyright infringement). Up to the point where you learned what happened, you didn't know it was copyright infringement. After this, you better remove all the infringing works, because now you know it's copyright infringement, and now you are saving money by not hiring a second developer. Obviously you can sue the employee for damages. | 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. | Copyright would generally protect all aspects of the Windows operating system. Therefore, to the extend that Kali is visually similar to Windows, it might be illegal infringement. It would not be infringement if those elements were used with permission from MS (note that the product is available on the Microsoft store). Since you semi-stipulate that they do not have permission, we can move to the possibility of a fair use defense. That defense might be successful since at least apparently there would be no effect on market and the copying is somewhat transformative. Finally, the finder of fact would have to decide if those elements of Kali are "substantially similar" to the Windows originals. It could be found that the similarity which you perceive is due to "copying the idea", not copying the expression. E.g. the idea of a manila folder as an icon is not protected, so it becomes a fairly technical discussion centering on copyright law and "look and feel". | Yes. This is infringement. This infringement might be excused by a "fair use" defense but it probably isn't. At a very small scale tailor to a very specific educational program, for example, for just members of a thirty person English class that they are currently taking, it might qualify as educational fair use. But I get the impression that the contemplated translation project is far more ambitious than that. The underlying content of the events reported in the news are not protected by copyright, but the language used to report those events and any translations of that language, is protected. The only reliable way to solve it is to get permission to do so from the holder of the copyright of the source of the new reports you are translating. | Yes. The copyright owner of a work has the exclusive right to "reproduce the copyrighted work" or to make "derivative works" of it. 17 USC 106. Copyright law is older than the photocopier, and it applies to copies made by means of any technology. If your intent is to duplicate the protected work, whether you do it by tracing, photocopying, or even freehand, you are infringing that right. It is possible that you could squeeze into one of the copyright exceptions, such as fair use, but these are much narrower than people tend to assume they are (especially outside of the U.S.), and they boil down to: "Well, yes, I copied your copyrighted work, but..." The bottom line is: is it copyrighted? Did you copy it, in whole or in part? Then, unless you have a very good reason, you've infringed the copyright. Whether you do it by means of tracing paper, jellygraph, or iPhone doesn't matter. | You are creating a derivative work. You are only allowed to do this if the library comes with a license that allows this. If you want to give your derivative work to anyone else, copying it is copyright infringement unless the license allows it. Copying the derivative work and attaching a different license is most likely to be copyright infringement. And if people receive a copy with an open source license that is not justified and rely on it, that’s creating one unholy legal mess for everyone involved and can be massively more expensive than plain copyright infringement. No license means you don’t have permission to do anything with it, not creating derivative work, not distributing it, and certainly not publish it with an open source license. | You can report it to the publisher(s) Protection of copyright is a matter for the individual rights holder: some (I’m looking at you Disney) are vigilant, thorough and draconian in protecting their rights, others don’t care at all. Unless you are the rights holder it’s none of your business. In much the same way that the guy charging your neighbour for 4 hours gardening but being long gone in 2 isn’t. If you like your neighbour or feel duty bound to do something, you tell them and then leave it to them what they do with it. This is not a matter for the authorities as it doesn’t rise to the level of criminal copyright infringement. Just like the gardener above, this isn’t a crime. |
Can a municipality ignore the rules of evidence for charges relating to violation of a municipal ordinance? My Township has an ordinance relating to grass needing to be cut on a regular basis. The penalties for violating include fines up to $1,000 and jailtime. Presumably the latter is not used on the regular, but given it is written into the ordinance as a penalty I would think that means violating this ordinance constitutes a criminal offense. For the purposes of adjudicating this ordinance, the administrative rules stipulate that a hearing by a Public Officer must occur and that the, "rules of evidence prevailing in the Courts shall not be controlling in hearings before the Public Officer." Given the penalties for violating this ordinance include a loss of liberty, is it unlawful for this ordinance to dismiss the rules of evidence? It seems to be this would deny a defendant the right to a fair trial. | united-states In the United States, only a very few rules of evidence (most notably the "confrontation clause which is similar to the hearsay rule but not identical) have constitutional status. Other rules of evidence are not constitutionally required so long as the proceedings as a whole do not deny the defendant due process of law. Often, local government court systems are not required to follow the rules of evidence that are adopted in the state court system. | State law may provide for criminal prosecution for vandalism, which could result in a fine or even imprisonment. The state can prosecute you, private individuals cannot. Fines imposed by a private organization are only enforceable through contracts, where damages could be recovered, but penalties cannot be assessed. ("Late fees" are in the class of "liquidated damages", where the agreement says what the late fee is – they don't just make up a number). Ga. Code § 44-3-223 does require you to "comply with all lawful provisions of the property owners' association instrument", but if it isn't in the instrument, you do not have to comply. | The district court judge, as reported in this news story has held that there was probable cause to arrest Daniel Robbins in this case, and that his rights were not violated. If this ruling stands, officers acted legally, although they might still be required to return the phone with the images. Whether there is probable cause for an arrest (or a search) is always a very fact-based issue. I have not found the judge's actual decision, only a news summary of it, which can often be misleading. Specific facts about exactly what Robbins did or said may be important in determining whether there was in fact probable cause. It appears that Robbins intends to appeal this decision. If he does there may be an opinion from a Circuit Court of Appeals expanding on whether there was probable cause or any violation of rights, and why. Previous cases have established that normally there is no reasonable expectation of privacy for acts performed in public; that one my photograph or video record such public acts legally from anywhere that one may legally be; that there is a right photograph or record police officers engaged in official actions or the use of police powers; and that laws attempting to forbid such recording are unconstitutional when so applied. However, it seems from the news story that here the police officers were off-duty and not engaging in any official acts or use of police powers. That might change the ruling. I rather expect the district court's decision to be overturned, but there is no case exact;ly on point that i know of, and one can never be absolutely sure what a court will do in a particular case. I can see why police officers may have felt threatened, and why the Judge may have been inclined to sympathize with them, although I think the decision was incorrect. But a Judge of the Appeals Court might possibly feel the same way. Until the Appeals Court rules, one cannot be sure what the law in this matter will finally be. (It is possibly, but statistically a bit unlikely, there there will eventually be a ruling from the US Supreme Court on this case.) This article from Nolo Press discusses the issue of recording police, primarily in the context of police who are performing their official duties. It says: Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) police officers in public while they are performing their duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law. The courts' primary rationale for allowing police officer recording is that the First Amendment includes the right to freely discuss our government, and the right of freedom of the press and public access to information. Given the prevalence of personal filming devices, more and more “news” is being gathered and disseminated by members of the public. The courts have found that freedom of the press applies to citizen journalists and documentarians just as it does to formal members of the press. (See, for example, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).) The Nolo article goes on to discuss whether a Section 1983 Federal suit against police officers who arrest someone recording their actions will succeed, indicating that this will depend on the specific facts of the case. The Nolo article mentions that one is not allowed to interfere with an officer during process of recording. What exactly constitutes "interference" is not fully clear, and will depend on the facts of a specific case. The Nolo article mentions other circumstances when recording an officer may not be legal. | I know one can "make a complaint" but I'm wondering if there's generally any legal obligation for these complaints to be taken seriously, and if there's any feasible way a driver could validate the encounter. . . . Furthermore, even with evidence, is there any way a citizen could ensure that legal action be taken against the officer for a proven traffic violation? Beyond reporting it to the department and hoping for the best? A prosecutor is under no legal obligation to press charges (and police have no affirmative duty to enforce the laws on the books) ever, even if there is blatant and clear evidence of murder, let alone a traffic violation. Usually, there is absolutely no way to compel charges to be brought against the offender (with a handful of states providing an exception where one can seek the appointment of a special prosecutor to investigate and prosecute if the circumstances warrant that would never be invoked for a mere traffic offense). Very few states allow anyone other than a prosecutor (or sometimes in minor cases, a law enforcement officer) to bring criminal or quasi-criminal charges. Of course, if compelling evidence of a violation is found and shared with the media, there may be powerful political pressure to bring a prosecution, but how that is developed would entirely depend upon the circumstances. Still, the relationship between prosecutors and law enforcement is so symbiotic, that prosecutors are loathe to press charges against law enforcement officers in all but the clearest of cases, especially for offenses occuring while a law enforcement officer is on duty in his home jurisdiction. Legally speaking, do civilians have any right to apprehend an officer for a traffic violation? While this would depend upon state law, most states treat traffic violations as a class of offense different from other misdemeanors and infractions and never authorize a citizens arrest for a traffic violation. Normally, only law enforcement officers can stop and cite people for traffic violations that aren't actually misdemeanor crimes. For example, in Colorado, true traffic infractions are defined as civil matters for which someone may be stopped and subjected to a citation but not arrested (even by a law enforcement officer). See Colorado Revised Statutes § 42-4-1701(1). In Colorado, only more serious traffic offenses (e.g. hit and run) are crimes subject to arrest. In the case of a traffic offense which is a crime (probably not speeding), the general rules applicable to citizens arrests would usually apply. | Unless there is enough evidence to convict one or more of the suspects, none will be convicted. In general the argument: We know it must be one of you, but we don't know whch, so we find you all guilty. is not allowed in any non-dictatorial jurisdiction. Just how much evidence is needed for a conviction varies by jurisdiction in theory, and by judge or jury in practice. Also, it would be possible to charge several of the residents with having acted jointly in the crime, but there would still need to be sufficient evidence against each defendant to obtain a conviction. | I'm assuming you are talking about something like this You didn't specify where you live, but in many places it is illegal to block the sidewalk with a car. I just looked up my local ordinances and it is there. In fact, it is your driveway, but often the land up to and including the sidewalk is considered part of a public easement. Typically you are required by law to maintain any grass in the easement, but if the sidewalk were to fall into disrepair, the local government would fix it. Information on easements can also be found in your local ordinances, here is an example in my area. Should I fight this ticket? You can try, but I doubt you will win. Is there anything I can do to my driveway to allow me to actually use it? I would suggest asking on Lifehacks. And post a link here to your question if you do, I'd be curious to know what they come up with. | what if it is established in court that you knowingly or through gross negligence included a falsehood, or a claim you have no evidence for, just to clear that initial hurdle? What would the consequences be for that? The case proceeds and if it goes to trial, the finder of fact determines if the case prevails or not. Also, note that except in the case of a verified complaint, a complaint in a civil case is not made under oath or under penalty of perjury. In the rare and unlikely event that it is established that you knew that your case had no factual basis at the outset, you (and your attorney in many cases), can be sanctioned by the court, usually in the form of the attorney fees incurred by other side as a result of the knowingly false statement. | 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"). |
What are the limits of "Fresh Pursuit?" Generally speaking, state and municipal police are permitted to exercise their arrest power outside the geography of their jurisdiction, so long as they are in "fresh pursuit" of the suspect apprehended. This is to prevent criminals from simply fleeing across state lines to escape criminal liability for their actions. What is the definition of "fresh pursuit," and where are its limits either in geography, timeliness, or the like? Hypothetical if it helps: As part of an investigation into charges of solicitation for prostitution, a police officer - posing as a prospective client - enters a vehicle the suspect is driving without alerting the suspect to the fact that they are a police officer in order to continue to gathering evidence prior to making the arrest. The evidence that the officer is looking for occurs across state lines. May the officer make the arrest there and then, in the foreign jurisdiction, on the grounds that their investigation constitutes pursuit? Or must they wait until they are driven back to the state they hold jurisdiction in to announce their identity and make the arrest? | This determination is largely a facts and circumstances specific test to be evaluated with little additional legal guidance by the judge or jury faced with evaluating the question (usually a judge in the way that the issue usually presents itself). Like many fairly vague legal standards, it leaves open the possibility that there will be inconsistent rulings on this question in circumstances presenting similar facts. | It would not work. There is apparently a common misconception in Georgia that this would be the case, based on Article IX, Section II, Paragraph III (b)(1) of the Georgia constitution, which says: No county may exercise any of the powers listed in subparagraph (a) of this Paragraph [including police protection] or provide any service listed therein inside the boundaries of any municipality or any other county except by contract with the municipality or county affected. What many people miss is the clause right before that: "Unless otherwise provided by law." Georgia courts have held that the law does provide otherwise when pursuing someone for a traffic offense: The plaintiff contends that when the collision occurred, the policeman-deputy sheriff had no authority to be pursuing the Mitchell car because he was outside the county in which he had a power of arrest. While ordinarily a peace officer has power of arrest only in the territory of the governmental unit by which he was appointed, there are two exceptions to the rule present in this case. Code Ann. s 92A-509, which deals with arrests for traffic offenses, provides by implication that certain officers (including deputy sheriffs) have arrest powers for these offenses outside their appointed territories. City of Winterville v. Strickland, 127 Ga. App. 716, 718, 194 S.E.2d 623, 625 (1972). What that case decided in 1972, the principle was in place well before the boys began their hijinks. I don't know of any state where the law is different, though the answer would be different if the boys crossed into another state. | A state's criminal jurisdiction normally applies to acts committed in that state's territory. So if you consume something in state A, you can't be charged in state B for violating state B's prohibition against consuming that thing. However, if state B has a prohibition against public intoxication, and you enter its territory while intoxicated, you could be charged for violating state B's prohibition on public intoxication. The fact that you're crossing state lines also increases the possibility that the federal government would want to get involved; the location of the federal prosecution could be in either state, although neither state's court system would be involved. | Prior to Tennessee v. Garner, 471 U.S. 1 (1985), common law allowed police to use deadly force to effect the arrest of a person suspected of a felony. Even though SCOTUS there held that such a practice violates Fourth Amendment civil rights, I was surprised to find that in some states it is still lawful for police to use deadly force to effect an arrest! Let us examine the most extreme case, which is that the police can legally shoot at you to effect your arrest. As explained here, you are always allowed to resist "excessive force." If you make it to court, these qualifications (e.g., "necessary" and "excessive") are ultimately decided based on what a "reasonable person" would have believed in the situation. So if a cop shoots at you, and you "dodge" the bullet, it is possible for you both to be found not guilty of any crime. I.e., the cop can be found to have acted "reasonably" because he believed you were a violent felon and shooting you was the only way to stop you. And you can be found to have acted "reasonably" because you believed you were being subject to excessive force. While this is an interesting hypothetical, in practice of course by the time a cop is shooting at you you are almost certainly going to be charged with resisting arrest. Or, if the cop fired in self-defense (rather than to effect an arrest) you will be charged with a number of far more serious crimes (starting with felony assault, reckless endangerment, and going on from there...). | New Jersey, Pennsylvania, Rhode Island and Virginia still allow private prosecutions that can result in incarceration. See also a state by state summary here. A bar on conflicts of interest (e.g. having the same lawyer pursue a private prosecution and a civil case against the same defendant) greatly limit the practice in Virginia (see also here). There is an argument that this limitation has federal constitutional force. But see, Cantrell v. Commonwealth, 229 Va. 387 (1985) (analysed here). Is there anyone currently in jail/prison as a result of a private prosecution in one of the states which allow them? If not, when was the last time this occurred. They are very rare, and often limited to misdemeanors. I suspect that there is currently someone in incarcerated on the basis of one, but it isn't easy to determine as there are no one who maintains statistics regarding this. Convictions in private prosecutions have resulted in appellate decisions as recently as 2020 in Virginia. A private prosecution resulting in a conviction with a one-year suspended sentence and one year of probation was affirmed on appeal in 2001 in Rhode Island. In many Rhode Island cases, this involves prosecutions by police officers (see also here noting that this is also common in "New Hampshire, New Mexico, South Carolina, and Virginia, where police officers can act as prosecutors throughout the entire misdemeanor process—from a defendant’s first appearance through a plea or trial"). A (pay per view) 2011 law review article reviews the practice of victim prosecutions in New Hampshire (where incarceration may not be sought), New Jersey, and Rhode Island. | Can a vigilante perform an arrest? This depends on whether the vigilante has the power to perform a citizen's arrest. The rules depend on the jurisdiction (and vary from state to state in the US), but generally the power to perform a citizen's arrest is quite limited. It may include the power to 'pre-empt' an offence if the would-be offender has attempted to commit the offence. However, often the power is limited to particularly serious offences (eg. felonies). There may also be a requirement that the crime occurred in the citizen's presence, or that the citizen was unable to contact the police instead. Is evidence obtained by a vigilante admissible? In the United States, the constitutional exclusionary rule generally prevents evidence from being admitted if the government obtained it illegally. I answered a general question about the scope of the exclusionary rule here. However, the Fourth Amendment exclusionary rule does not apply to evidence obtained illegally by a private individual: Burdeau v. McDowell, 256 U.S. 465 (1921). In Burdeau, the defendant's papers had been stolen and turned over to the government, which proposed to present them as evidence to a grand jury. The Supreme Court said: In the present case, the record clearly shows that no official of the federal government had anything to do with the wrongful seizure of the petitioner's property ... there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another ... We assume that petitioner has an unquestionable right of redress against those who illegally and wrongfully took his private property under the circumstances herein disclosed, but with such remedies we are not now concerned. However, the exclusionary rule in some states goes beyond the Fourth Amendment. For example, article 38.23 of the Texas Code of Criminal Procedure provides that evidence illegally obtained 'by an officer or other person' is inadmissible. This provision was apparently enacted to deter vigilantes: Bubany and Cockerell, 'Excluding Criminal Evidence Texas-Style: Can Private Searches Poison the Fruit?' 12 Texas Tech Law Review 611 (1981), p 625. Can such evidence be admitted even if the vigilante is not present? Assuming that no exclusionary rule applies, evidence obtained by a vigilante can potentially be admitted through the testimony of a police officer or other witness, subject to the rule against hearsay and the question of reliability. The rule against hearsay means that a police officer cannot give evidence that a vigilante told them that the accused was guilty. Evidence of this kind is not admissible because the accused has no opportunity to challenge the reliability of the source of the information in cross-examination. The rule against hearsay does not apply when the probative value of the evidence does not depend on the truth of the absent vigilante's assertion. If the evidence provided by the vigilante is really 'damning' then it might fall into this category. For example, a vigilante might provide the police with a weapon that has the accused and victim's DNA on it, or tell the police that incriminating evidence can be found at a particular location. A police officer can then give evidence that the weapon was tested and found to have matching DNA, or a search warrant was executed and the incriminating evidence was found. There is no admissibility issue here. However, the fact that the police were tipped off by a vigilante who has broken the law and is not present to face court may cause the jury to reject the evidence as unreliable (ie. it could have been planted). | The police performed an "open air sniff". Federal and Pennsylvania law differ on this. Under Federal law, this is not considered a search and can be done on any vehicle- usually to get cause for a more invasive search. (Illinois v. Caballes, 543 U. S. 405 (2005).) Under Pennsylvania law, an open air sniff requires reasonable suspicion. This is lower than probable cause- all it requires is that a reasonable person could suspect from the facts that a crime may have or could be committed. Being overly nervous during a routine traffic stop driving someone else's car could potentially be considered reasonable suspicion- as I only have your second-hand account, I won't speculate further. If there was no reasonable suspicion, any evidence found by that search, or evidence found by a search justified by it would be suppressed. Fourth Ammendment rights also apply here. The police cannot detain someone solely for the purpose of waiting for a sniffer dog. They have ways and techniques to waste time for this purpose, but if the stop was concluded before the dog arrived, your husband would be free to leave. Again, I have only your second-hand account so I won't speculate on whether this happened. He should speak to his lawyer about specifics of the case. | If the police are able to attain a warrant that for some reason identifies your room and your things in particular, then they can search your room and seize your things. Ideally the police would have to give the judge or magistrate reasonable suspicion that their target has put some evidence in your room, or that some of your things are evidence relating to the purported crime. In practice, warrants err on the side of generality, so the police can easily get a warrant to search "the whole residence" without contemplating the nuance of which tenants use which rooms. Likewise, when determining what to seize, the police can certainly choose to err on the broad side and seize anything that meets the criteria of the warrant without stopping to determine who owns what. "Respect" of any sort is not a legal factor in the execution of an approved warrant. |
Is laches an applicable defense for a debt that was never contractually agreed upon in writing? A tenant has a parking spot in their building for a period of 8 years and was never billed for it by the management. Management discovered their book keeping error and has turned around to retroactively bill them for the entire time. Is laches applicable in this situation? It should be noted that no written agreement was ever signed by the tenant. The monthly price for the parking also was raised during that period and no written notice was ever provided to the Tenant. Tenant was being charged a minimal fee for the 'rental' of a remote to access the garage but no other charges ever appeared on their monthly statements. Now they are being asked to pay $10K+ in back fees. | The equitable defense of laches is not applied the same way in every jurisdiction. Some jurisdictions apply it only to equitable claims. Others also apply it to claims arising in law or by statute. A claim for breach of an oral contract arises in law, so in some jurisdictions only the statutes of limitations and not laches applies, while in others, laches as well as the statute of limitations might apply. If laches does apply in this jurisdiction, one must typically show (1) a delay in asserting a right or a claim; (2) the delay was not reasonable or excusable; and (3) either acquiescence in the act about which plaintiff complains OR prejudice to the defendant resulting from the delay. The second and third elements are typically the issues in dispute in a laches claim. A prejudice argument might be that the person using the parking space wouldn't have continued to use it if he had believed that the person leasing it was going to impose a charge beyond the one actually imposed. Ultimately, this would be a fairly close call if the defense of laches is available for this kind of claim in this jurisdiction. There is also an argument that the right to collect the charges has been waived, although not a very strong one. With respect to the statute of limitations, there are different ways to characterize the violation. If each month of parking without paying is viewed a separate breach of contract and the statute of limitations is three years, only 3/8th of the amount claimed would be timely. But, if it is viewed as a single continuing violation, the entire claim might be timely. To the extent that the parking agreement is viewed as a lease for a time in excess of one year, the statute of frauds might require it to be in writing for it to be enforceable, in which case it is not a breach of contract case, but is instead a trespass case. Viewed as a trespass case the statute of limitations would typically be different and shorter, and the tort might only arise (and compensation might only start to be due) once a demand is made upon the person using the parking space to pay a higher amount (resulting in a much, much lower amount owed). | Unfortunately, your relative is more in the wrong here First, the COVID situation does not change anyone's rights and obligations under a contract (see What effect does an event like the current Covid-19 pandemic have on contractural obligations?). So the landlord (through their agent) is obliged to provide the property and your relative is obliged to pay the rent and to occupy the premises (most residential leases contain a requirement for the tenant to live in the premises and not leave it empty). Your relative (through you) has indicated that she will be in breach of her contract. The agent has considered her position and has offered two (IMO generous) alternatives: Allow her to continue with the lease without taking possession providing the rent is paid. To release her from her obligations under the contract and return the rent. To put it in perspective, if your relative simply "walked away", she would be liable for the rent until a new tenant was found and, if that new tenant was paying less rent than she was, the difference for the duration of the lease plus the costs of finding a new tenant - advertising, agent's fees (usually 1 month's rent) etc. Now, the landlord has an obligation to minimise your costs so advertising the property could just be prudent. However, if they lease it when your relative's contract has not been properly terminated then it is they who are in breach. Surely they can't take the rent and offer to re-let the property at the same time? Surely they can. What they can't do is relet the property without properly terminating your relative's lease. Would they even be entitled to retain the deposit under these circumstances? Absolutely. The deposit is to cover their losses if your relative breaks the lease - as she has indicated she is going to do (this is called anticipatory breach). Finally, I'd rather not go down this route but is there any protection for my relative for not being forcefully 'evicted' - since she's paid the deposit, rent - and those haven't been returned? Having never taken possession, she is not being evicted. | In the lease agreement we stipulated that rent would be 50% off until the building received full services and then the full rent payment would be due. Ouch. I bet the lease agreement also says something like "no other agreements verbal or otherwise are in effect for this agreement." So what you did was release the landlord from the responsibility to make the building habitable. Pretty sure you will need a lawyer to unwind this. | You agreed to pay these fees when you applied for the apartment, so unless they explicitly say that one or both of these fees is waived in case you don't take the apartment (virtually no chance that they said such a thing), you owe that money. Your obligation is not contingent on them convincing you that the fee is just, so it doesn't matter that they won't explain the difference. However, if they said you can pay electronically, then you can pay electronically, since that too is part of the agreement. | The question does not say what reasons the other party gives for not paying, and so one cannot judge whether such reason is covered by the terms quoted in the question. In general a contract need not be highly specific if the intent is clear. However, any ambiguity will usually be resolved against the party who wrote the contract, so it is in that party's interest to be as clear and specific as possible. It is not clear from the quoted terms that they form a contract at all. No consideration is stated. Contractual provisions which deny all recourse are not always enforceable. They may be overruled by law or regulation, or by prior court decision or by an equitable decision. If there is a serious problem with the service provided, particularly in a consumer transaction, a court might reject a provision denying all refunds even if it is quite specific and clear. The question does not list the jurisdiction (country and, for federal countries, state or province). Laws on contracts and enforceable terms vary significantly in different jurisdictions. Without this a specific answer is not possible. | At what point passed the original ETA is the contract still valid? There is no hard limit or deadline other than the one (if any) the contract itself provides. The contract remains valid regardless of a party's breach or non-performance. The remedies that would be available to you are in the form of rescinding the contract --without having to pay the cancellation fee--, or forcing the store to deliver the furniture soon. The longer the delay, the clearer your entitlement to either remedy. The manager's allegation about other customers is unavailing: Your description does not reflect that the contract or estimates are in terms of the delay that non-parties tolerated. Their contracts are totally unrelated to yours. The contracts might not even be comparable. The purpose of estimates is to give the counterparty some rough information that is known to likely influence his decision-making. Accordingly, a huge departure from the estimate supports the finding that the store deprived you of information that was material to your decision. The store's failure to timely inform you strikes the contract law tenet that you entered the contract knowingly. Furthermore, the store's deliberate act of specifying even the day of the month [mis-]led you to rule out that the delivery might actually take years. Typically furniture is purchased with the expectation of being able to start using it relatively soon, not years later. In addition to breach of contract, the store might also be in violation of statutes against unfair and misleading practices. | Let's analyse the landlord's claims: You have an assured shorthold tenancy agreement. The fact that there isn't a written contract doesn't change this as a verbal agreement is legally binding. That's true. A tenancy exists even if this was never written down, and it's an AST by default if the requirements for being one are met. Payment of rent constitutes acceptance of these terms. Payment of rent by the tenant, and its acceptance by the landlord, is sufficient for a tenancy to be regarded as existing. The tenancy can only be terminated early from the permission of the landlord. That's rubbish. A tenant can always end a tenancy, but there may be restrictions. In particular, a tenant cannot end a tenancy before the end of a fixed term without the agreement of the landlord, but the landlord has an obligation to find new tenants if this happens. However, I've been unable to find any information as to whether a fixed term exists if there's no written agreement. Assuming there is no fixed term, then for a month-to-month tenancy, the tenant must provide one month's notice to end the tenancy, with that month ending at the end of a rental period (i.e. the day before the next payment would be due). If you leave early this is legally abandonment and you are still responsible for paying rent for the duration of the tenancy That's true. ... if you do leave next month I'll consider you in rent arrears and pursue payment through legal means That is possible - but if you give notice as described above, then the tenancy will end, and (assuming you're up to date with the rent) you'll no longer be liable. | Your question is not particularly clear, but it sounds like you're describing a situation where: The tenant doesn't pay the rent The landlord files an action to evict the tenant, and The tenant files a request for a jury trial. The act of filing for a jury trial doesn't guarantee that the tenant won't be evicted, but it will likely make the eviction process more time-consuming and expensive for the landlord. I'm assuming the tenant is entitled to a jury trial--otherwise this would be useless as a stalling tactic. In that case, the question you really want answered is, can the landlord force the tenant to waive any right to a jury trial by contract, for example in the lease? In California, the answer is no. The linked document suggests that you may be able to specify some form of ADR, which would avoid the expense of a jury trial, but the California courts won't let you get away with a straight jury trial waiver. |
Terminlogy: lack of cause due to context IANAL and choose this very basic, if not obvious, example to setup the question. Bob is tried for shooting a person. Bob pleads innocence in the form of self defense: the other person drew his pistol and pointed it at Bob. The findings of fact reveal: Bob was an armed bank-robber at the time of the shooting Security video show the security guard drew his service revolver and Bob fired: striking the guard Is there a concise legal phrase or word that communicates the notion that because of Bob's action (robbing a bank), Bob is unable to invoke self-defense? Possibly: Bob lacks / forfeited standing to invoke self-defense? | The terminology used may vary some by jurisdiction, but in many it will be said that Bob provoked the confrontation, or that Bob was the aggressor, or that Bob was engaged in a felony and so cannot claim self-defense. This fact patter is highly unlikely to arise in real lie, because if Bob has even a half-competent lawyer, the issue of self-defense, sure to fail, will not be raised. Doing so only wastes the court's time, and may well make them think worse of Bob, which may cost him. In less open-and-shut cases, the general rule is that one who provokes a confrontation, or who is the aggressor, may not claim self-defense. But the exact rule varies by jurisdiction, and the line will be drawn in different ways in different jurisdictions. In some one who seeks a confrontation may be denied a right of self-defense. | colorado In the U.S., this is largely a question of state law and while similar from state to state, it is not identical. In Colorado, which basically follows the majority rule, there are a couple of justifications that could be available: (1) the use of force justified for defense of property, and (2) the use of force justified for a citizen's arrest. In the case of defense of property, the rule is as follows: Use of physical force in defense of property A person is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use deadly physical force under these circumstances only in defense of himself or another as described in section 18-1-704. Colo. Rev. Statutes § 18-1-706. In the case of a citizen's arrest, the rule is: A private person acting on his own account is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to prevent the escape from custody of an arrested person who has committed an offense in his presence; but he is justified in using deadly physical force for the purpose only when he reasonably believes it necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force. Colo. Rev. Stat. § 18-1-707(7). Can the victim shoot the pickpocket and claim heat of passion as a defense? No. Deadly force is not authorized against a pickpocket, and shooting someone almost always counts (often by definition) as a use of deadly force. The "heat of passion" defense only downgrades a murder charge to manslaughter and probably wouldn't apply in any case in these circumstances. Can the victim grab, tackle, or punch the pickpocket? Can the victim say, "Give back my wallet or I will punch you"? Does the answer vary depending on which of the two people would be at an advantage in a physical confrontation, based on size, age or gender? The law doesn't answer these question at this level of specificity. Whether the force used was "reasonable and appropriate" and was "reasonably believed to be necessary" are determined after the fact on a case by case basis by the finder of fact (i.e. the judge in a bench trial, or the jury in a jury trial). | Self-defence has nothing to do with whether you are performing an arrest (lawful or otherwise) Self-defence is a plea that you used reasonable force to protect yourself, others and in some jurisdictions, property, from immediate harm. There is, as you say, a “whole spectrum” of both the perception of the threat and the force used that go into determining if the actions of the defendant amounted to self-defence or not. That’s why it’s up to the jury to decide on a case by case basis. A person who has the power of arrest (law enforcement officers and citizens who actually witness a crime) is authorised to use reasonable force to effect that arrest. Of course, effecting an arrest may cause a situation to escalate to the point where self-defence becomes an issue. | The common law adversarial system is just that: the prosecution must prove its case beyond reasonable doubt. The defense is not obliged to call evidence at all. They are allowed to though: they will do it merely if they feel that the prosecution evidence needs rebuttal — in order to discredit the evidence or, at least, raise that "reasonable doubt". | You've got four cases there with four different reasons for substantial delays: In the case of the Aurora theater shooting, the shooter pled not guilty by reason of insanity. There's no doubt about who did it, but doubt was raised about the mental status of the shooter. Murder is not a strict liability crime, so the ability of the defendant to form the intent to commit the crime is relevant. In the case of the Charleston church shooting, the defendant was twice evaluated for competence to stand trial. Again, no doubt about who did it, but most if not all jurisdictions require a defendant to be sufficiently sane to participate in their defense. In the case of the Parkland shooting, the initial delay was confusion over who the defense lawyer would be. Florida will only provide a public defender to someone who cannot afford their own defense lawyer, and it took nearly a year to determine that the defendant had inherited enough money to afford a private lawyer. Due to this delay, the trial was initially scheduled for mid-2020, which caused it to be delayed by the COVID-19 outbreak. In the case of the Tree of Life shooting, it appears to be straight-up delaying tactics by the defense. There are a great many motions, appeals of motions, requests for delay, and other things a lawyer can do to slow things down. Since the defendant is currently being held without bail, the prosecution probably isn't strongly motivated to speed things up. | The crime of theft generally requires two elements - taking control of property, and the intent to deprive the rightful owner of it. If Bob had no intent to leave without paying, he may lack the intent often required for theft. In the scenario described, it's possible Bob has not committed theft, but his actions may indeed constitute theft depending on the jurisdiction. As pointed out in the comments, some jurisdictions codify the concealment of merchandise as prima facie presumption of an intention to steal, or may even codify the act of concealment itself as a crime. There are some shoplifting laws statues that specifically call out "willful concealment", which does not require leaving the premises of a store to have committed a crime - merely concealing the item may be a crime in itself, although perhaps not the crime of "theft". Whether a court would find Bob guilty of theft will depend on a number of factors, depending if there is leeway in inferring intent, and how that intent is inferred. If Bob's actions are found to be sufficiently inconsistent with the behavior of someone who truly intended to pay, the court may find him guilty. If a reasonable person would infer a lack of intent to pay from Bob's actions, he may be found guilty. | I'm no expert, but I had assumed this clause was present in case of the following situation. Joe is arrested for a robbery of a London bank. Joe says nothing under questioning. At trial, Joe's defense is that at the time of the robbery, he was in Sheffield drinking beer with his brother. On the basis of common sense, a jury could think: "Surely if Joe were really innocent, he would have told the police of his alibi at the time he was questioned, and saved himself a lot of trouble. Since he didn't do that, maybe a more likely explanation is that he wasn't actually in Sheffield, but that sometime between arrest and trial, he came up with the idea of faking an alibi in Sheffield, and convinced people to testify falsely to that effect. Yes, that does seem more plausible. So we are not going to give much credence to Joe's supposed alibi." So it really would be the case that not mentioning the alibi during questioning would harm Joe's defense at trial. The warning, then, is intended to keep Joe from doing this inadvertently. If Joe's alibi is genuine, but out of a misguided desire to exercise his right to remain silent, he doesn't mention it during questioning, he may accidentally increase his chances of being wrongly convicted. Everybody has an interest in avoiding this. | Deliberately causing an accident is illegal. However, in some (probably many) jurisdictions there is a "necessity" defense against criminal charges. In Washington it goes like this: Necessity is a defense to a charge of (fill in crime) if (1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm; (2) harm sought to be avoided was greater than the harm resulting from a violation of the law; (3) the threatened harm was not brought about by the defendant; and (4) no reasonable legal alternative existed. The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge]. It is possible, if B is attempting to kill the pedestrian, that you have defense of others available as well. |
Why are lawyers not called "doctor"? I don't quite understand the education process for lawyers, but I do understand there are a number of different degrees, and one of them is 'JD', the juris doctor. My Latin is quite rusty, but I believe that is "Doctor of Law." So why are they not called "doctor" in common practice, like any PhD is? Is the JD actually not similar to a doctorate program? If not, then why does it take the name doctor? I understand that the JD is what they call a "1st degree" and there are even higher degrees. The LLM, for example, is a "Master of Laws", which really confuses things now because "master" degrees are normally less than "doctor" degrees. So if a JD is not not called a "doctor" for some logical reason, what about the LLM, since it is a higher degree? | The answer isn't really legal (though some jurisdictions regulate the use of such titles through statute), but academic. It depends on specific countries. Italy, for instance, allows all graduates, including undergraduates, to use the title doctor. However, in general the title doctor is reserved for those in medical professions, upon graduation, or holders of post-graduate doctoral degrees - the PhD, DLitt., LLD, and so on. The purpose is, for medical graduates, to allow them to identify themselves as medical practitioners. However, for doctoral graduates, the purpose is to recognise your contributions to the academic field. The JD is a qualifying degree - you've hardly contributed to the field. The JD is absolutely not similar to a doctoral program. It is far more similar to the LLB, however its origins are rooted in the equalisation of professional degrees in the USA - the LLB was conferred upon those who had already completed their first degree, and so the change to a JD was merely so that they could confer a "second" degree. | Exactly the same thing that stops the same rogue lawyer from putting on a mask and robbing a bank. One is the crime of fraud and the other the crime of armed robbery but they are both crimes. People commit crimes all the time; that is why nearly 1 million people in the U.S. are in jail right now - some of them may even be in there for crimes they actually committed! Were your lawyer to commit this crime he may get caught or he may not; if he does he's going away for a long time and can never work as a lawyer again. So it's simply a matter of risk assessment; oh, and ethics | The law is known to everyone in theory. But as various people are said to have said, In theory, theory and practice are the same. In practice, they are not. Starting from zero and actually finding out what law is applicable to your circumstances is not a trivial matter. To have an answer you can rely on you need to do the following: Find out what law calls it. Sometimes this is obvious, but not always. Go and find the law in question. Over the last 10 years this has got much easier. It used to mean going to your city library and looking up the relevant law. These days we have Google (other search engines are available). Find any other laws which might have bearing on the matter. This can be a long way from obvious (see below). Find any relevant appeal court cases in which something like your circumstances have arisen, and figure out how they relate to your actual situation. You may find that some of the laws which you read in Stage 3 have been ruled unconstitutional, or that the standard of evidence required to prove or disprove something about it has been set impossibly high, or that the penalties or damages have been set absurdly high or absurdly low. If you are in the US then maybe some of those precedents were set in other circuits, in which case you need to figure out what your local circuit is likely to do about it should the occasion arise. Make a calm, dispassionate decision about what to do about your situation. Many people find this extremely difficult. The answer might be life-changing. Under these circumstances making a good decision is very hard. Just to give you an idea about (3), suppose you are planning on importing something for your business. Here is a list of areas of the law you might fall foul of, off the top of my head and I've probably missed some: Tax. Trade in endangered species. Drug prohibition. Environmental protection. Biosecurity. Health and safety. Consumer protection. And that is just the criminal laws. Theories of civil liability can get really complicated. But OK, lets suppose you figure out the law, but despite your best efforts you find yourself in court (criminal or civil). Now in addition to all the law you find yourself enmeshed in a complicated bureaucratic set of rules, depending on the type of court and where you are (e.g. US rules of civil procedure). At this point you need to learn not just the rules but how to play the game they describe. Think of it like playing chess; learning how the pieces move is only the first step on the long road to becoming a competent chess player. And the legal system is like chess in another way; there are no do-overs if you make the wrong move. (Incidentally, anyone who says "Well lets just get rid of all the complicated rules and laws" is committing the fallacy of Chesterton's Fence. Just because you can't see why the rules are there doesn't mean there isn't a good reason). Or you could just hire a lawyer. | As your question is concerned on English law, a clear answer is yes but is specific for English law. Barristers from the same chamber may represent opposing sides in a case. This is normal and common practice. Barristers are independent practitioners in the British and many other common law systems who represent clients in court but are not in charge of the case as a whole. As a result, they may be instructed to represent clients whose interests diverge, and each barrister is responsible for deciding whether or not to accept a particular case. While each barrister acts independently and is free to take on any case they choose, chambers are groups of barristers who share resources and facilities. Even if they are representing opposing sides in the same case or different cases, barristers are typically required to adhere to the professional code of ethics and maintain client confidence. It is important to note that ethical rules prohibit lawyers from representing opposing sides in the same case, and the concept of barristers and chambers does not exist in some jurisdictions, such as the United States. | In most jurisdictions, practicing law without a bar license is a serious offence, which, inter alia, is the primary reason why a non-lawyer would use this disclaimer. Lawyers also use this disclaimer to avoid any 'constructive implication' of attorney-client relationship. | Almost none of this is written down anywhere in official court rules but there are some widely adopted standards for this practice. Most courts require that only one lawyer be in charge of speaking at any given stage of the trial. But, it wouldn't be unusual, for example, for one lawyer to question most of the witnesses and for a different lawyer who is more familiar with the specialized subject matter in question (e.g. electrical specifications), usually a junior lawyer, to question the expert witnesses in a case. Also, if the usually designated lawyer is absent for some reason (stuck in traffic, sick, etc.), the "second chair" lawyer can (and is often required to) take over the case for the client until the "first chair" lawyer is available again. Mostly, second chair lawyers (I've spent plenty of time over the years in this role) do the following (a non-exclusive list): take notes, pay attention to how the judge and jury are reacting to testimony, provide input into jury selection decisions, reminds the primary lawyer of points that still need to be covered in the examination of a witness, reminds the primary lawyer of exhibits that still need to be formally offered into evidence, scrambles to find rebuttal or impeachment evidence for unanticipated testimony, prompts the primary lawyer to make objections if the primary lawyer was paying attention to something else, identifies and has at the ready exhibits needs to present (or to follow the other side's examination), looks up points of law that are relevant or will need to be referenced that come up during trial, handles logistics for witnesses who are not on the stand (keeping them in the hallway if the witness is sequestered, trying to obtain the appearance of no show witnesses or reshuffling their order, saying thank you to witnesses who are no longer on the stand, etc.), carries some of the litigation team's stuff into and out of the court room, provides informed commentary and suggestions during breaks and working lunches, etc. Also, in addition to the usual "first chair" and "second chair" roles, often supplemented by a paralegal or legal assistant, there is a different kind of arrangement in which different lawyers for the same person can fully participate. This far less common arrangement happens when the person showing up in court is wearing "more than one hat" and has a different lawyer in different capacities. For example, suppose that someone is the President of a corporation and both the corporation and the President individually are both sued. There might be one primary lawyer for the corporation and one for the President personally, and both lawyers might participate fully. | If you want to study the basics of law, where should you start? Don't try memorizing individual laws. That would be a waste of energy, in part because --as you rightly point out-- laws change. There are many introductory books. Law 101, by Jay M. Feinman, is an excellent starting point. The next step --broadly speaking-- consists of reading court decisions (aka court opinions). Opinions released by upper (aka reviewing) courts are available online for free. If you are interested in jurisdictions in the US, Leagle.com is one of many very good resources; EU cases are available here; and so forth. Acquainting yourself with court opinions is quite beneficial. First, court opinions [collaterally] teach how to formulate one's legal positions. Rather than merely being formulaic and a copycat, a litigant is to convey that his legal position is more consistent (compared to the adversary) with the laws and underlying doctrines. His points are easier to get across by adapting his presentation thereof to how courts are used to handle the legal principles involved. Second, court opinions identify the statutes that are relevant to the type of disputes that arise between parties. This is indicative of importance that a statute or procedural rule entails in relation to other laws. Third, court opinions reflect how statutes, rules, and doctrines are interpreted. Oftentimes the way how legislation is worded leads "laypeople" to have misconceptions on the interpretation of laws and rules, when in reality these are construed usually in a much narrower way. Law journals are a good source once you have gained some background in law and are interested in a sort of monograph about a topic that is new to you. But, as explained above, court opinions also serve that purpose (perhaps less scholarly). Having a legal dictionary is always a good idea. Courts in the US oftentimes quote definitions from Black's Law Dictionary for crucial terms which statutory law does not define. What is most applicable to real life? Without knowing whether you are interested in a particular field, it is safe to say that contract law is the most applicable. Entering contracts is part of our everyday life even if laypeople don't notice it when they purchase goods & services, reach an agreement, or engage in a course of conduct which reasonably fosters expectations. And good news is that the principles of contract law are largely similar among modern jurisdictions, including the America (the continent, not just the USA), many member states of the EU, and Asian countries. The Restatement (Second) of Contracts is a very useful formulation of contract law. Courts in the US very often cite the Restatement for premising their decisions on contract disputes. In countries with a civil law system, the principles of contract law are usually formulated in one or multiple sections of the [countries'] Civil Code. Procedural law (aka rules of criminal or civil procedure) is also highly applicable: Large portions thereof apply to all disputes which are brought to court. To a great extent these rules are very similar across the jurisdictions of one same country, but the litigant ought too ensure his compliance with the rules lest he loses the case for a technicality. Lastly, procedural law can be remarkably boring unless the person anticipates he will be involved in litigation. | Hire a lawyer Just like you shouldn’t search the internet for medical advice, you shouldn’t do it for legal advice either. It takes a university degree and several years of on-the-job training to become “comprehensively aware”. |
What's the significance of boxed text in a document? What is the lawful implication of text enclosed within a (stroked) text box in a document? I have heard this means this text is left out of the contract, or possibly adds an exception to it. I included an example of what I describe. | What is the lawful implication of text enclosed within a (stroked) text box in a document? I have heard this means this text is left out of the contract, or possibly adds an exception to it. You are mistaken. The boxed language means that the notary public who authenticates the document has liability only if an imposter signs the contract, not for anything else in the contract. The liability of the person signing the contract is not affected by the boxed language. For example, suppose that someone purporting to be Fred signs an affidavit of Fred in a real estate transaction that falsely states that the real estate is free of toxic waste when the person signing it knows that it is actually a toxic waste burial site. If the affidavit that Martin, a notary public, notarizes is actually signed by Jane, then Martin and Jane both have liability to anyone harmed by the fact that the buyer in the real estate transaction believed that the affidavit was signed by Fred when it was not. But, if the affidavit is actually signed by Fred, then Fred may have liability to someone harmed by the fact that the affidavit was false, but Martin will not have liability for notarizing Fred's signature. This is the default rule of U.S. law in any case, so the boxed language doesn't actually have any legal effect. The boxed language is probably present to alert people, such as people from Latin America or Europe, who are familiar with a legal regime in which a notary public has a more expansive set of responsibilities than a notary public does in the U.S. | The contract is enforceable No one is in any doubt that the parties to the contract are you and Smith Homes and everyone knows that Smith Homes means Smith Homes LLC. The written document is only evidence of the contract, the contract is the entire commercial relationship. Contracts are not invalid because they have typos or minor irregularities- otherwise virtually no written one would be. The law can be very pragmatic sometimes. | Like many other jurisdictions, in the UK sites like the Daily Mail are liable for the content they host. In other words, the legal issue here is they either do not have the staff available to (or simply do not want to) spend the time moderating the comment sections in order to remove potentially defamatory or otherwise illegal content. As Lag added in a comment below: another legal reason may be liability for publishing something that creates a substantial risk of seriously impeding or prejudicing the course of justice in some ongoing legal proceeding. Far easier to prevent it beforehand than moderate it (and risk missing it) later. Content on Twitter (for example, replies to their own tweets), on the other hand, is not the Daily Mail's problem to moderate. | 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. | Because the ordinance does not say "and from each entrance", it cannot be interpreted to mean that the signs must both be visible and readable anywhere in the area as well as being visible and readable from the entrance. The use of distinct prepositions in the conjuncts means that the notice requirement can be satisfied by different signs: it's not that a sign has to have both properties. | 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. | While "clause" has a specific definition in linguistics, that is not how it is used in laws and legal documents. These terms have no standard definition for legal writing. Documents or legal codes that use both generally use "article" to mean a larger division than "clause" does. In discussion of the US Federal Constitution, for example, the largest divisions are called "articles", each of which is divided into several "sections", and each section generally contains several "clauses". Some of these are actually grammatical clauses, being part of a sentence with a verb and a subject, while others might be called paragraphs in ordinary prose. A given document or legal code should ideally define which terms it will use for its parts, and which contain which others. This can be done in whatever way the drafters wish, but it is desirable that it be clear. In addition to the terms you have mentioned, terms often used include "subsection", "subsubsection", "title", "paragraph", "subparagraph", "chapter", "part" and "division". These are not used consistently, and I have never seen a single document or code that uses all of them. The Us law code is divided into titles, each of which contains sections. In some of these sets of related sections are grouped into chapters. Sections may have subsections or paragraphs. In my experience smaller contracts or business documents rarely use "articles" and some just use "section" for any named or numbered part of the document. Usually titles or section headers are explicitly stated to have no legal effect, and the division into sections or other parts is simply to facilitate reference, and does not have legal significance. Whether a provision is called an article, a section, or a clause will not normally change its legal effect. However, where one part of a document refers to another part, such as "as specified in section 23" then the reference will be found in and only in the designated part, and will not be looked for in some other part. | The question contains an incorrect assumption -- the assumption that this manuscript or any ancient manuscript is protected by copyright. As can be seen in this well known chart under US law an unpublished document, such as a manuscript, is protected for only 70 years after the death of the author, or 120 years after the work was created if the death date is not known, or the identity of the author is not know, or the work is of corporate authorship. A work written by a person who lived from circa 950 to circa 1010 is in the public domain under US law, with no room for doubt. The exact term of copyright protection may vary somewhat under the laws of other countries, but in none of them is a document written by a person who died over 1,000 years ago protected by copyright. This work is in the public domain, and no one owns any copyright in it. (A manuscript whose author died after 1948, or that was created after 1898 might well be protected by copyright.) [The statement in italics above is apparently incorrect. It seems that under UK law such a work may be under copyright if it is unpublished. IMO this is a bizarre result but such seems to be the law.] The current owners of the physical manuscript can control who has access to it, and on what terms. Thy could use an NDA or other contract to prevent such people from publishing or distributing the text. But if they allow general access to it, they have published it, and anyone may legally republish it as they see fit. Any person allowed access under a restrictive contract to which s/he has agreed may do whatever that contract permits, and not what it does not. A modern derivative work, such as an annotated edition, or a translation, would have its own copyright, but this would not protect the original text. If the original question means that there is an unpublished manuscript recent enough to be under copyright, then its author or the author's heir or the person or entity to whom the copyright was sold or given or left owns the copyright. In that case, no one may make a copy of the manuscript, including a transcription, or of any part of it, unless with permission from the copyright holder, or in such limited ways as is permitted by fair dealing (in the UK and much of Europe) or fair use (in the US). The question does not give enough detail to judge if the partial copy suggested would qualify -- this always depends heavily on the specific facts of the case. It seems that under UK law some unpublished works are protected which would be in the public domain if they were published. I am not sure how they can be share without being legally "published" and so lose protection. |
guns and red-flag laws There's a lot of talk lately about red-flag laws being used to take guns away from someone reportedly dangerous to himself or others. No crime has been committed with the gun. If the police confiscate a weapon that isn't owned by the suspect, would they have grounds to keep it? For example, let's say the gun was owned by a friend or parent? What if the gun was owned by a Trust with several trustees? Could the owner (personal or trustee) recover the gun from police custody independently of a court finding on the suspect? An example might be where a gun is confiscated via red-flag law, where no crime has been committed, but the suspect won't get his day in court for 6 months. Would the true owner, or partner owners if in a Trust, be denied their property or could they go ahead and recover it pre-trial (ie. the day after it was confiscated)? I know the concept of red-flag gun laws vary by state, so I'm just asking in-general. Thank you | If the police confiscate a weapon that isn't owned by the suspect, would they have grounds to keep it? Not forever. For example, let's say the gun was owned by a friend or parent? What if the gun was owned by a Trust with several trustees? Third party owners of property lawfully seized from someone else can recover it. For example, I once took legal actions to recover a gun for a client that was in a gun repair shop that was seized in a criminal investigation because most of the inventory of the shop where it was being repaired consisted of stolen firearms and the primary business of the gun repair shop was fencing stolen property (a fact of which my client was completely unaware and shocked to discover). But, that was only possible once the trial was over because the guns seized were part of the evidence in that trial. A similar process applies when there is a civil forfeiture of property owned by a third-party. Could the owner (personal or trustee) recover the gun from police custody independently of a court finding on the suspect? Sort of. But it isn't entirely independent, since the firearm might be needed as evidence or might need to be kept out of the possession of the person from whom it was seized to effect the red flag order while it was in place in a way that that the third-party owners would have to assure. An example might be where a gun is confiscated via red-flag law, where no crime has been committed, but the suspect won't get his day in court for 6 months. Would the true owner, or partner owners if in a Trust, be denied their property or could they go ahead and recover it pre-trial (ie. the day after it was confiscated)? In the case of a red-flag seizure, the existence of the gun wouldn't be evidence in the court proceeding, so it wouldn't have to be retained for that purpose prior to trial. But, the owner of the gun would probably have to petition the court to regain possession and would have to demonstrate that the red-flag order would continue to deny the person who had the gun possession of it until the red-flag order period expired (if ever). If the trustee was the red-flag order target, or was someone related to him (or her), that might be a showing that the trustee could not make. Caveat Of course, red-flag laws are specific pieces of state legislation. Each one is different. Many would provide a specific statutory procedure for how this issue would be handled. For example, in some places, the proper means to regain possession of property held by law enforcement in connection with a criminal case is a motion filed by a third-party intervenor in the criminal case, while in others, the property process is to bring a civil action for replevin (a lawsuit to regain physical possession of particular items) against the law enforcement officer in possession or constructive possession of the property in question. | It is unlikely that those requirements would be held to be unconstitutional. A fundamental right such as the right to bear arms can only be restricted in specific ways ("strict scrutiny") – compelling government interest (keeping people from getting shot accidentally), being narrowly tailored and the least restrictive. If, for example, the law also required passing an exam on the history of firearms, that would be overly broad. If the registration fee were $2,000, that would be too restrictive. But the law says that The sheriff may charge a new application processing fee in an amount not to exceed the actual and reasonable direct cost of processing the application or $100, whichever is less. Of this amount, $10 must be submitted to the commissioner and deposited into the general fund. The application fee is not just for the actual cost of applying for the permit, it also includes what looks like a $10 revenue source, and that sort of looks like an unnecessary restriction. I expect, though, that the state would argue that this $10 is necessary to defray actual long-haul expenses that could not be recovered given the $100 limit imposed by the law. The law does not actually require a person to pay for a training course, it just requires a person to take a course (or hold employment as a peace officer in the sate within the year). | The police officers themselves are covered by Qualified Immunity - to put it briefly, a government official acting in their official capacity in a discretionary act (as in, they have some discretion in whether/how they carry out the act) is immune from suit so long as they pay reasonable deference to relevant law. In the case of the police, so long as the search or seizure itself is reasonable (either because there is a warrant, or because they had probable cause), they can take appropriately destructive measures to carry out their duty. Even if the search or seizure is later found to have been unreasonable, an officer may still have Qualified Immunity unless their action violated "clearly established statutory or constitutional rights of which reasonable person would have known" (Harlow v. Fitzgerald). However, a search/seizure doesn't give the police license for arbitrary destruction, whatever they do has to be reasonably pursuant to the legal search/seizure. For example, if a suspect is barricaded in a house with a gun, they can knock down doors, windows and walls to apprehend them. On the other hand, that does not mean the officers can then break open safes to try and find evidence - once their probable cause for the entry is fulfilled (apprehending the suspect), they need to get a warrant to do more than a plain sight search of the house. Warrants will specify what items are being searched for, so even with a warrant the police have to take reasonable measures to carry it out - an example of an unreasonable measure would be to tear into walls in order to try and find a stolen bicycle. On the other hand, tearing into walls could be justified if their warrant included searching for drugs from a dealer, where it is not uncommon to hide them in the walls. States and the Federal Government enjoy Sovereign Immunity from suits in most cases. There are some exceptions, but none would apply in this case so long as the general policy of the police department was not illegal or unconstitutional. However, county and city governments do not enjoy Sovereign Immunity and state governments and the Federal Government often allow suits against them for negligence from their actors, so someone injured by unreasonable police action can usually try to recover damages from the officer's department. | The district court judge, as reported in this news story has held that there was probable cause to arrest Daniel Robbins in this case, and that his rights were not violated. If this ruling stands, officers acted legally, although they might still be required to return the phone with the images. Whether there is probable cause for an arrest (or a search) is always a very fact-based issue. I have not found the judge's actual decision, only a news summary of it, which can often be misleading. Specific facts about exactly what Robbins did or said may be important in determining whether there was in fact probable cause. It appears that Robbins intends to appeal this decision. If he does there may be an opinion from a Circuit Court of Appeals expanding on whether there was probable cause or any violation of rights, and why. Previous cases have established that normally there is no reasonable expectation of privacy for acts performed in public; that one my photograph or video record such public acts legally from anywhere that one may legally be; that there is a right photograph or record police officers engaged in official actions or the use of police powers; and that laws attempting to forbid such recording are unconstitutional when so applied. However, it seems from the news story that here the police officers were off-duty and not engaging in any official acts or use of police powers. That might change the ruling. I rather expect the district court's decision to be overturned, but there is no case exact;ly on point that i know of, and one can never be absolutely sure what a court will do in a particular case. I can see why police officers may have felt threatened, and why the Judge may have been inclined to sympathize with them, although I think the decision was incorrect. But a Judge of the Appeals Court might possibly feel the same way. Until the Appeals Court rules, one cannot be sure what the law in this matter will finally be. (It is possibly, but statistically a bit unlikely, there there will eventually be a ruling from the US Supreme Court on this case.) This article from Nolo Press discusses the issue of recording police, primarily in the context of police who are performing their official duties. It says: Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) police officers in public while they are performing their duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law. The courts' primary rationale for allowing police officer recording is that the First Amendment includes the right to freely discuss our government, and the right of freedom of the press and public access to information. Given the prevalence of personal filming devices, more and more “news” is being gathered and disseminated by members of the public. The courts have found that freedom of the press applies to citizen journalists and documentarians just as it does to formal members of the press. (See, for example, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).) The Nolo article goes on to discuss whether a Section 1983 Federal suit against police officers who arrest someone recording their actions will succeed, indicating that this will depend on the specific facts of the case. The Nolo article mentions that one is not allowed to interfere with an officer during process of recording. What exactly constitutes "interference" is not fully clear, and will depend on the facts of a specific case. The Nolo article mentions other circumstances when recording an officer may not be legal. | Can someone be arrested for not being ‘nice’ to police? Yes. The arrest may later be declared unlawful, and the cop could later be disciplined by his boss, but if a cop wants to arrest you now for any reason they just can. Seems weird and an abuse of power to me. The available means of dealing with abuse of power have never been in excess. Could they win such a case? Yes. So could your friend. It depends on many many factors. | Not with that license Your post makes clear that you have a sports license, not a hunting license. In that case, it was delivered in accordance with R312-40 of the code de la sécurité intérieure: Peuvent être autorisés pour la pratique du tir sportif à acquérir et à détenir des armes, munitions et leurs éléments (...): 1° Les associations sportives agréées (...) 2° Les personnes majeures (...) Sauf dans le cadre des compétitions internationales, ces armes ne peuvent être utilisées que dans les stands de tir des associations mentionnées au 1° du présent article. A license to acquire and own arms, ammunitions and related elements (...), can be granted to: 1° Accredited sports associations (...) 2° People older than 18 (...) Except within the framework of international competitions, those weapons can only be used in shooting ranges of associations mentioned at 1°. | Tow truck drivers in general might be allowed to carry firearms if they have a concealed weapons license, but the shooter in the case at hand wasn't merely a tow truck driver. He was actually repossessing a car, and therefore under Florida Statutes 493.6101(21) he was acting as a recovery agent. Under 493.6401 he was therefore required to hold a Class "R" recovery agent license. And under 493.6118(1)(x)(9), Class "R" license holders are prohibited from: Carrying any weapon or firearm when he or she is on private property and performing duties under his or her license whether or not he or she is licensed pursuant to s. 790.06. The story says that the car was in a driveway, so it sounds like he was on private property. This would be grounds for discipline under 493.6118(2), up to and including revocation of his license. It could be that criminal penalties also apply, but I have not found them so far. | It depends on your jurisdiction. Check the applicable laws; there's probably a section named something like "definitions" that gives the meaning of terms such as "loaded". For example, from RCW 9.41.010 (the "Terms defined" section of the "Firearms and Dangerous Weapons" chapter of the Washington State laws): (17) "Loaded" means: (a) There is a cartridge in the chamber of the firearm; (b) Cartridges are in a clip that is locked in place in the firearm; (c) There is a cartridge in the cylinder of the firearm, if the firearm is a revolver; (d) There is a cartridge in the tube or magazine that is inserted in the action; or (e) There is a ball in the barrel and the firearm is capped or primed if the firearm is a muzzle loader. So in Washington State, any of your examples 2-4 would be considered "loaded" for the purposes of firearms-related crimes. |
Germany (BW): What can I do about extremely loud neighbors: extremely loud music, loud kids that bang on our windows I have extremely loud neighbors, who are disruptive to me and other neighbors, and who have done the following: Regularly drive their car slowly by my house while their music is blasting--and these are the type of people who buy a sound system for their car before getting a babyseat for their newborn. They, and their kids, will literally scream at the top of their lungs; or pretend to cry (knowing that when they pretend to cry, I am not going to ask them to keep quiet). Their parents (or guardians, or whoever is with them) will shout half-heartedly a few times, then, without anything changing, the so-called guardians will just go back inside their house. Their kids have banged on my windows, with the excuse that they "want to see the dog". Their kids have also destroyed property on my neighbors lawn: including their flowers and some pottery. Their kids have gone into private property (my garage and my neighbors backyard--which sits behind a gate). I have attempted to "reason" with them, several times, to no avail. Their general excuses are: The curfew on sound starts at 10pm, so as long as it is before 10pm, they are free to be as loud as they want to be. Their kids are "just kids" and not only can they "play outside" but they need to do so directly outside my house because that is a "public street" (mind you, I live in a small German village, where the "public street" is extremely narrow and is not even a through street). This has bothered me for the following reasons: Disrupted my work. Disrupted my baby daughter's sleep. What can I do about this? Whenever I tell them that I am not against their kids playing outside, I would just prefer they did not do it directly outside my house when my daughter is trying to sleep, I am either ignored or told that "they will talk to their kids" (which results in nothing). There is literally a beautiful, public, free to access park (Sportplatz) right down the street, where I walk my dog daily: it has soccer fields, basketball courts, and several hiking and biking paths, but when I raise this as a suggestion, they say that their kids can play on the "public street", meaning directly outside my house, where they scream, shout, pretend to cry, and "play outside". | In Germany, the noise of playing children is defined as not noise according to §22 BImSchG. Normal industrial/commercial limits do not apply. This aims mostly at playgrounds, kindergartens, etc. The noise of cars, stereos, etc. is not unlimited even before 22:00, but it is considerably harder to get the police to intervene during daytime. You might consult with a lawyer to find out if they are unreasonably noisy, you are unreasonably thin-skinned, or both. Similarly, the driving you describe may be violating traffic regulations, but proving that will be difficult. As to actual damages to your premises, what happens depends on the age of the children and if they had proper supervision by their guardians. Proper supervision does not require the guardians to stand next to the children around the clock. If you have a specific case, and if the "perpetrator" was over 7 years old, you can ask for repayment and then sue if they refuse. This is most likely more hassle than the damage is worth, even if you do get a judgement against a minor, but it could change the tone of the relationship with your neighbours. They would have to explain in court what they did to supervise their children ... | In germany, a child below the age of 14 cannot be guilty of a crime. However, a family court may order measures regarding the welfare of the child. In a case like the one you describe, or even somewhat less extreme ones, this might be taking the child out of the family and into a care home where the child would be locked up for his or her own good. | "Does the needlessly obnoxious and antisocial manner in which they're behaving and clearly drugged intoxication create any kind of charge like disturbing the peace or something like that?" Probably. But you don't want to take the law into your own hands. Call the police and have them make the judgement. There is a lot of discretion involved; some police officers may simply tell the preacher to move on; others may detain him on public intoxication or being a nuisance, according to local and UK laws, as well as check for permits and licenses for street/public performances. Many people gathered around the busker to express support and appreciation for him as well as disgust toward the preachers unnecessary disrespect. That's well within rights, as long as the behavior doesn't degrade into the same type(s) that the preacher is exhibiting and possibly be a nuisance or worse (i.s., assault) as per the law. | This recently came up in a local PA homeowner association. Legally they own the roads in their development, but they have erected stop signs to make it clear who has the right of way and asked the township police to enforce them. A resident challenged the right of the police to enforce traffic laws on private property, but lost his appeal (albeit at the municipal level). The judge explained that the residents and any visitors had a reasonable expectation that the traffic signs would be obeyed, and that therefore violating them was just as dangerous as violating them on public roads, and that the same law and penalties would therefore be applied. | “You put that, of course, respectfully?” You bet your ass Heydon is telling Newlands off. Knock down drag out fights in a courtroom are more subtle than in a barroom and the judge always wins. First we have the trivial issue that the barrister interrupted the commissioner while he was speaking! This is extreemly disrespectful and Heydon was pointing that out by calmly but sarcastically suggesting that the interruption should have started with “With respect ..,”. The clear implication that the interruption should not have happened at all. It doesn’t matter if you disagree with what the court is saying, you don’t interrupt, you wait for your opportunity to respond. You will be given it. That’s respect. More germanely, the barrister is in a tricky position. I don’t know what came before the video starts but it was clearly one Newlands did not expect but that Heydon thought was foreseeable. Newlands is trying to hide behind “I haven’t been instructed on that” but is having trouble because the client (or at least, the client’s representative) is in the room and can instruct him right now. Not being prepared in court is also disrespectful. At a rough guess, just the people you see in the video are costing somebody north of $10,000 per hour. You don’t show up for the big game, tell the coach you can’t play because you forgot your boots but that it’s not your fault. Particularly when the person standing behind you is holding your boots. | This hinges on what you mean by "spy". Generally, a landlord cannot enter a leased or rented property* without the tenant's consent, nor can their agents. (They can arrive and ask to enter, as can your neighbors whether or not you own your home, but you are not required to acquiesce in either case). A landlord can view the publicly viewable portions of the property at their leisure, as can their agents, or any member of the public for that matter. A landlord could possibly be notified of a tenant's actions in a number of ways: such as viewing the public portions of the property, being notified (or billed) by utilities or public agencies, or receiving complaints from the neighbors. A neighbor has no more, and no less, legal ability to spy on you if you owned your home vs if you rent your home. So, they would have no more right to, say, spy at your house with a telescope than if you owned the property yourself, but no less right to complain if you have a loud (or audible) party or a large number of guests; the only difference being they can complain to someone who could potentially do much more than they could if you owned the property yourself. Thus, the answer to your question depends on what is meant by "spying". *This assumes that this is a separate property; a landlord who rents out a room in their own home often has far greater rights. | The California Constitution gives you the right to privacy, but your neighbor also has the right to have cameras on his house. https://oag.ca.gov/privacy/privacy-laws That means that it is up to the courts to balance those rights. If you did go to court, the judge would have to look at the cameras and decide if they significantly violated your right to privacy in regard to audio and video. Just because the camera can see part or all of your yard doesn't make them illegal, because the neighbor has the right to record his property and may not be able to avoid recording your yard. If the cameras can be re-positioned to only see your neighbor's yard the judge might order that. You would have to show it would not violate his right to record while it substantially violates your right to privacy though. Audio is different because it can pick up conversations. California requires you to notify people when you record their conversations in a place where they would be expected to be private. If the camera is recording your conversations, that would be illegal. | 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. |
What is the current standard with regards to "fighting words"? Since Street v. New York, the Supreme Court has significantly narrowed the grounds on which speech can be considered "fighting words" and thus could legally be banned. In Collin v. Smith, SCOTUS held that Nazis marching in uniform and displaying swastikas through a neighborhood of Holocaust survivors was protected speech. In Snyder v. Phelps, SCOTUS held that protesting against dead soldiers at their funerals, including signs that Phelps himself said were intentionally outrageous was protected speech. So if I can march around a Jewish neighborhood in an SS uniform, and I can shout about how dead soldiers are burning in hell at their funerals, what can't I do? What are some examples of speech that is not protected due to being classified as "fighting words"? | The content of the "fighting words" doctrine seems to be reduced to certain personal insults, and the term plays a minimal role in court rulings. In Snyder v. Phelps, the expression is used twice, once referring to the position of the dissent, and once in scare quotes where it is a third-generation quote from Chaplinsky (and at any rate, the conclusion was "this isn't that"). Virginia v. Black, 538 U.S. 343 seems to be the most recent positive invocation of the concept by SCOTUS: a State may punish those words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572; see also R. A. V. v. City of St. Paul, supra, at 383 (listing limited areas where the First Amendment permits restrictions on the content of speech). We have consequently held that fighting words-"those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction" -are generally proscribable under the First Amendment. Cohen v. California, 403 U. S. 15, 20 (1971); see also Chaplinsky v. New Hampshire I find are no concrete examples of epithets held to be actual "fighting words" from the past 50 years. In Chaplinsky, it was held that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace There has been a steady retreat from this conclusion for almost 80 years. Feiner v. New York, 340 U.S. 315 upheld a conviction for a provocative speech, making "derogatory remarks concerning President Truman, the American Legion, the Mayor of Syracuse, and other local political officials". The court found that the actual effect on the crowd was what mattered, not the content of the speech, and there is no report of what the "fighting words" were. Texas v. Johnson, 491 U.S. 397 dials the fighting words concept back further, to being words "likely to be seen as a direct personal insult or an invitation to exchange fisticuffs" – but Johnson did not utter fighting words, so again the court did not definitively point to any actual "fighting words". | 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 | The First Amendment generally prohibits the government from taking any actions to limit your speech, the same as adults. There are certain exceptions, particularly if you are enrolled in a public school, which has some latitude to impose speech restrictions to “avoid substantial interference with school discipline or the rights of others” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, (1969). While you are a minor, though, your parents have virtually unlimited freedom to limit your freedom of speech. If they want to punish you for buying a hat or saying things they disagree with, they can generally do that. EDIT: The hat you've linked to probably would not fall within the Tinker exception. A similar case arose in Schoenecker v. Koopman, 349 F. Supp. 3d 745 (E.D. Wis. 2018), where a student was removed from class for wearing similar apparel supporting Second Amendment rights. The school made a vague allegation that his shirts were disruptive, but the court found that its concerns about disruptions were largely unreasonable and unsubstantiated. See also N.J. ex rel. Jacob v. Sonnabend, No. 20-C-227, (E.D. Wis. Nov. 6, 2020). | It is not decided whether such, in areas, filming can be prohibited. In a "public forum", First Amendment rights are maximally protected, and this includes filing (Glik v. Cunniffe, 655 F.3d 78 in particular §A(1) for a summary of the law on this question). In Perry Educ. Ass'n v. Perry Educators' Ass'n, 460 U.S. 37 the court refined public forum doctrine to distinguish quintessential, limited, and nonpublic fora. In a nonpublic forum, the government may "reserve the forum for its intended purposes": but, such a reservation must be viewpoint-neutral. Grayned v. City of Rockford, 408 U.S. 104 states that "The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time". In a nonpublic forum, demonstrations can be forbidden, especially when demonstrations are incompatible with the purpose of the forum (example: military bases). The particular question you raise has not ended up in court. One may be tempted to reason that First Amendment rights can be arbitrarily curtailed in a non-public forum, but such a restriction would have to have appropriate justification – the restriction would be subject to strict scrutiny. Simply saying "We don't want people filming inside the holding area" is not a valid justification. But, the police are not required to announce their legal argument in advance. If you get busted and film, and they make you stop, you can sue for violation of your First Amendment rights. Your attorney would then need to make a good argument that this restriction is to be subject to strict scrutiny, and that it fails. | Yes. The First Amendment protects all speech, outside a few historically recognized exceptions, which include libel, perjury, incitement, and true threats. There is no exception for speech that injures the speaker himself. | Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case. I think you are indeed reading it wrong. In the Walsh case, the court says: We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which we expressed in the McAlpin case (supra), but we think that the question of the defendant's negligence was erroneously submitted to the jury in the Stout case, and that we ought not to follow it as a precedent. It's clearly repudiating Stout here, and not just as it applies to that case. It literally says they think it should not be followed as precedent. | Let's back up. It's premature to say that SB 8 "avoids the constitutional restrictions on banning abortions". The constitutionality of SB 8 has not been resolved; the Supreme Court said so explicitly (page 2). In fact there is good reason to think that is unconstitutional under existing interpretation of the Constitution per Roe v. Wade and the like. (Whether the court will actually follow existing interpretation is another question, of course.) But the courts do not determine the constitutionality of laws just because someone asks them; they only do so when it needs to be decided to resolve a particular case. For instance, if a person is charged with a crime, they can challenge the constitutionality of the law under which they are charged, and courts will address that question unless the case is resolved some other way. There are also ways that a person who wants to violate the law can pre-emptively sue the government to prevent them from enforcing the law, if they can show such enforcement is likely to affect them. The issue in SB 8 is that since it wouldn't be the government enforcing the law, it's unclear who an abortion provider can pre-emptively sue. In Whole Woman's Health v. Jackson, they tried to sue the State of Texas, its courts, and a private party who they thought might be likely to sue them. The SCOTUS majority found that none of those defendants were relevant. However, if and when an abortion provider actually does get sued, there'll be a clear case which has proper parties and is ripe, and courts then will have to consider whether SB 8 is constitutional or not. So if your hypothetical gun control statute were treated similarly, the law might avoid pre-emptive challenges, with a chilling effect on gun sales. But sooner or later, someone would probably violate the law (maybe deliberately as a test case), and the courts would consider whether it was constitutional or not. Under prevailing interpretations of the Second Amendment, they'd probably find that it wasn't. A key difference, of course, is that abortions are much more time-sensitive than gun purchases; being temporarily blocked from having an abortion is much more consequential in most cases than being temporarily blocked from buying a gun. The other subtext is that, although SCOTUS said their decision in Whole Woman's Health is not based on the constitutionality of SB 8, it's widely suspected that several of the justices are not all that keen on the constitutional right to abortion found in Roe v. Wade, and might look to overturn Roe when it comes up. As such, they may not be very motivated to look for procedural avenues to block SB 8 in the short term, since they might be inclined to uphold it in the long term. The dissenters in Whole Woman's Health certainly thought those avenues were available. But in the case of your hypothetical gun control bill, if a majority of justices were pretty convinced that the law was unconstitutional, they might try harder to come up with grounds to block it pre-emptively. | If a newspaper publishes an article that is actually defamatory (i.e. publishes false statements that cause you quantifiable harm), and you successfully sue the publisher, you might get a court order requiring them to retract the statements or remove them from their web page. An archive like newspapers.com isn't making false statements, it is making true statements about what the Poughkeepsie Journal published. At any rate, you name is not defamatory, it is (or was) a fact. |
Can a minor be bound to a contract if a parent co-signs? James Doe, John Doe's minor son, wants to sign a contract with Mary Smith, an adult. Is the contract binding on James if he and his father both sign it? What if only his father signs it, but makes it clear he is signing on behalf of James? This is a contract that would clearly be voidable by James if only he had signed it. | 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. | First of all, a contract is valid without a signature and even without being in writing; all that is needed is consent by the parties. Therefore, the signature is merely evidence of that consent and is only relevant if a dispute arises over the general consent or the particular terms that were consented to. A digital signature would make it harder for Bob to argue that those were not the terms he signed but if I have Bob's signature on them then the onus of proving he didn't sign rests with Bob, I don't have to prove he did. All of the methods you suggest are valid as would an email saying "Got the contract. I agree. Bob." | In principle, a verbal contract is just as binding as a written contract. The catch is that it can be difficult to prove what was said. Unless you have witnesses, it would just be your word against his. As DStanley says in the comments, if you have proof that you paid half -- canceled checks or receipts or whatever -- that would be evidence that there was some sort of agreement. Whether your daughter is allowed to drive the car on a specific day depends not just on who owns the car but who has legal custody of your daughter. If a friend of hers said that it is okay with him for her to drive his car to a wild party where there will be drugs and an orgy, the fact that he has full title to the car does not mean that her parents have no right to tell her she can't go! You didn't say what the custody arrangements are, but if you have full custody or shared custody, this would give you certain rights to tell her what she is and is not allowed to do. | It depends on where you live, but "restrain" doesn't mean telling a person that they have to stay put, it implies either a physical blockage (locking the door) or a threat of force, and neither of those are present or suggested by the sign. We don't know what the consequences are, for example they might report you to your parents or even restrain you if you are a minor (that's who is in most "gym classes"). If you are an adult, the consequence could be some contractual sanction (read the contract) or termination of the contract for breach (read the contract). You can simply ask a supervisor how they intend to enforce this restriction. | What does the contract say? When you signed on for these classes, you signed a contract. This will spell out each party’s rights and obligations. Since the rec centre drafted the contract it probably gives them the right to expel you and probably doesn’t require them to reimburse you if they do; but you would need to read it to be sure. | Read the terms It’s quite likely that, if you took this to court, the employer would be liable to pay your daughter interest on the underpayment and possibly be fined by the state for failing to follow the law. The terms probably are offering to pay the back pay with no interest and your daughter agreeing to confidentiality about the breach. Probably - I haven’t read them. In other words, they’re asking her to sign a contract saying she gets $XXX now, and can’t make any further claims against them. Such releases are commonplace when setting a dispute and there’s probably nothing underhanded going on. Probably - I haven’t read them. Because minors can void contracts if they are not in their interest, they want you, as her legal guardian, to also sign so that can’t happen. A relatively prudent precaution on their part. The alternative is to not sign the document and they presumably won’t pay. It will then be up to you whether to sue them which will cost you money, possibly more than you will get if you win. As to whether there is a dispute: they want your signature, you don’t want to sign - that’s a dispute. Any admissions they have made in their settlement offer are almost surely without prejudice, meaning they are inadmissible in court. If you want to sue, you would have to prove the underpayment without relying on their admissions. As stated above, maybe there is no underpayment. Only you and your daughter can decide if this is a good deal. | A contract that tells one party or another to do an illegal thing is void ab initio: courts will not recognize it or give force to it. A contract which doesnt explicitly tell either party to do something illegal but if during the course of fulfilling either party's end of the bargain they commit an illegal act it is up to the courts discretion what happens, whether to find the contract void or to maintain the contract (its a matter of public policy whether they allow the contract to continue existing, or if the contract was such that illegal acts were expected to be commited then the court will likely remder it void) Either way, you cannot indemnify someone for committing an illegal act. | 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. |
Does attorney-client privilege apply to someone talking to an attorney over the phone in public? John Doe is talking to his attorney on the phone in a public place. He admits to the lawyer that he had committed a crime. A police officer overhears this conversation. Does attorney-client privilege protect John? | No John spoke where the police officer could hear him without conducting an illegal search. The police officer is not his attorney. | NJ Rev Stat §9:6-1 may be the source of the rumor (since it was in the news), but that law prohibits "the habitual use by the parent or by a person having the custody and control of a child, in the hearing of such child, of profane, indecent or obscene language". The NJ Supreme Court recently declined a First Amendment argument for overturning the law. Otherwise, a candidate is disorderly contact, NJ Rev Stat § 2C:33-2(b), A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present. N.J. v. Burkett somewhat tests this law, though the specific acts (which were found to be puerile yet legal) are not adequately described to test the limit on this ban on profanity (as a subcase of coarse language). The statute still stands, but seems not to have been otherwise prosecuted. | The first thing to keep in mind is that, before appearing on the stand, an expert witness will have given a sworn deposition and delivered a written report of his or her findings. They could expect to be questioned about anything they say under oath that contradicts something else they said under oath. It’s not illegal for an expert to admit they were wrong before, or that there are other facts that support a different conclusion—indeed, a witness on the stand might be obligated to—but it might not do their professional reputation and their credibility with the jury any good, either. In the U.S., the opposing counsel is generally allowed to contact a witness, and take a statement, but may not ask the witness to testify falsely or offer any inducement prohibited by law. (See Supreme Court Rule (SCR) 173/Model Rule (MR) 3.4.) It would certainly be illegal for a witness to take money from both parties in the case without informing them or the court, or to swear that whatever the highest bidder pays them to say is their expert opinion. If this happened under direct examination, the lawyer would probably cut their losses by asking no further questions and getting the witness off the stand. Putting the witness on the stand would give the other side an opportunity to cross-examine them. Grilling your own expert as a hostile witness, even if the judge allowed it, would only make your position seem tendentious. Nothing stops an expert witness from giving testimony that is more helpful to the other side. They are witnesses, not lawyers, and their duty is to tell the truth, not to zealously advocate on behalf of some client. | is spousal immunity a defense for a forced restraining order by a biological father if he won't even speak to a suitor (i.e. may I take your daughter on a date)? There is no such thing as "spousal immunity". Your post is replete with unclear references, unclear statements, and seemingly unrelated questions. But it is noteworthy that spousal privilege (not "immunity") does not preclude obtaining and enforcing a restraining order. The only relevance of spousal privilege is the evidentiary issue of precluding a spouse's testimony from being obtained and entered as admissible evidence in the court proceedings to which the respondent is a party. In the context of restraining orders, spousal privilege might be available only if the respondent invokes it during the proceedings for civil or criminal contempt that resulted from respondent's violation of the restraining order. If the restraining order is pursuant to, or in the context of, divorce proceedings, spousal privilege is inapplicable. See, for instance, MCL 600.2162(3)(a) and other exceptions listed therein. At least in theory (since courts often do whatever they want), a party's conduct & statements (in or outside of court) regarding his/her spouse may forfeit spousal privilege regardless of whether the respondent or spouse ever spoke to a suitor (whatever that means) at all. | California Penal Code 647f states that being intoxicated in public is prohibited. When the police arrived, they were confronted with probable cause for an arrest. They (presumably) became aware of the matter because the doctor called the police, since she believe that you would drive drunk. (We can inquire into whether that was a reasonable belief, but it doesn't matter, what matters is that she had the belief and acted on it). Now the question is whether the doctor acting on the belief (making the call) was legal. A negative answer does not affect the legality of the arrest. There is also a law imposing on medical professionals a duty to report, which is fairly wordy, but does not seem to directly require reporting the fact that a person is publicly intoxicated. However, attending circumstances could have suggested one of the triggering causes for mandatory reporting (wounds, for example). Again, it does not matter (to a point) if, in the light of close scrutiny, the doctor's conclusions were mistaken. When doctors are required to report facts to the police, reasonable over-reporting is not penalized. There is also no law against calling 911 to report a potential DUI (the usual public-campaign focus is on those actually driving). So calling the police under the circumstances falls between "allowed" and "required". The HIPAA privacy rule could be relevant because that theoretically could block the doctor from making the call. (Note that the doctor, and not the patient, is bound by the confidentiality requirements). §160.203 allows exceptions to the confidentiality requirement if "necessary... For purposes of serving a compelling need related to public health, safety, or welfare", so an exception may have been granted. If this was done within the scope of a mandatory reporting law, it is legal to disclose PHI; under §164.512 it is allowed, "to prevent or lessen a serious and imminent threat to the health or safety of a person or the public". A confidentiality agreement would not increase your chances of being arrested. If the doctor's confidentiality statement were less restrictive than HIPAA, HIPAA prevails (the law trumps contract terms). If it is the same as HIPAA, it has no effect (and simply states what HIPAA says – the normal case). If the agreement were more restrictive, it is possible that the doctor calling the police would be a breach of contract, unless the call was required by law. You would have to see what in the agreement would have prohibited calling the police. But that would not affect the validity of the arrest. To re-phrase the matter: the arrest was because you were found to be intoxicated in public. The police were there and could judge your state (probable cause). They were there by permission of the property owner, so the arrest was not unlawful for lack of a warrant. That is as far as one can go in searching for an illegality to the arrest itself. One might go further and ask whether the doctor has committed an actionable wrong by calling the police with her suspicions. This could go either way: it really depends on the full set of details, regarding your condition. If the doctor suspected that your actions fell under one of the mandatory reporting categories, she had to report, and otherwise it is not prohibited under HIPAA. If a person is intoxicated and answers the question "Would you normally proceed to drive home in this state?" in the affirmative, then it is a reasonable inference that the person will do so. An answer "No, absolutely not", on the other hand would work against the "public danger" inference: that has no effect on the arrest, but could have an effect in a suit against the doctor (violation of the privacy rule). In such a suit, the doctor's defense would presumably be that despite the answer, she still had a reasonable belief that you were a public danger. Then the matter would reduce to what other facts she knew of that would support a public danger conclusion. | england-and-wales - present day... Would the contents of the envelope be considered privileged? No Although it is possible to argue that the letter is a communication to the lawyer (albeit by mistake) its purpose is not in relation to seeking or receiving legal advice, so it fails to meet the definition of legal privilege: There are two forms of legal professional privilege: Legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice. Litigation privilege protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, either actual or contemplated. Would the lawyer be required to divulge it if asked by the police or in a court? Yes, No, Maybe If the lawyer is a suspect/defendant then there is no requirement to answer any questions whatsoever. Similarly, there is no obligation on a witness to answer questions unless a statutory provision has been triggered, such as the lawyer being given a Serious Organised Crime and Police Act 2005 Disclosure Notice. Would he be required to report the matter to the police on his own? Yes Although there is no general requirement to report a crime (of this nature) to the police, the lawyer's profession is in the "regulated sector" which requires Suspicious Activity Reports to be submitted to the authorities: ... in respect of information that comes to them in the course of their business if they know, or suspect or have reasonable grounds for knowing or suspecting, that a person is engaged in, or attempting, money laundering... What difference, if any does it make that the client apparently did not intend to send these contents to the lawyer? None that I can see ETA The status of legal privilege in 1925 seems to have been the same as now, and this Wikipedia article, under the heading History offers this in support: The common law principle of legal professional privilege is of extremely long standing. The earliest recorded instance of the principle in English case-law dates from 1577 in the case of Berd v Lovelace ([1576] EngR 10 (& Ors)) | It's a bit like talking to the police: anything you say might be used against you, so the conventional wisdom is to say nothing. It is a good rule of thumb. When you are paying a professional to represent you, why make things complicated by speaking on your own behalf about the same issue? As you point out, not everyone follows this rule. In some circumstances there might be benefits to discussing your case publicly, such as fundraising or deterrence. Whether the risk outweighs the benefits will depend on the details of the legal case and your role in it. Lawyers are likely to emphasise the following risks: If you are a witness whose credibility is in issue, any public statement could potentially become a prior inconsistent statement which is used against you in cross-examination. Again, one of the purposes of hiring a lawyer is to be careful about how you communicate your position on a litigious matter and reduce the risk of careless remarks having unexpected consequences. Speaking publicly undermines this goal. In Commonwealth countries, there is a significant risk that public comment on a case before the court could amount to sub judice contempt of court. Attempting to litigate the case in the media can be perceived as undermining the authority of the court. Lawyers are expected to uphold public confidence in the administration of justice and would be reluctant to condone anything that could be regarded as a contempt. This contributes to a culture where discussing active litigation is "not the done thing" and may itself cause problems with a witness's perceived credibility, aside from the risk of a contempt allegation. Speaking publicly about litigation is risky and the consequences are difficult to predict, which is why people often engage lawyers to do it. When the client continues to make their own statements without legal advice, it makes the lawyer's risk management job more difficult, so they are likely to advise against it. | First of all, there are 3 crimes here: the hit and run committed by you the accessory after the fact crime committed by your friend the "attempt to pervert the course of justice" (different jurisdictions call it different things) committed by you and your friend. Second, the lawyer is your friend's lawyer - they have no client privilege towards you. Third, your lawyer cannot help you break the law - any attempt to get them to do so by say, attempting to pervert the course if justice, is not privileged. |
Can you pay someone else's income taxes? Is it possible to pay someone else's federal income tax if you know how much they owe? | Yes That would be a gift from you to them which may have tax implications of its own. They can theoretically refuse to accept the gift but the IRS is not going to give the money back. | In the eyes of the IRS, income is income It doesn't matter if that income is in the form of dollars, or gift cards, or red kidney beans, so long as you pay the correct tax on the income the IRS is happy. | Tell your parents Given the circumstances it is a near certainty that the least he will do if you do not pay for the damage is make contact with them. It will be far, far better for you if they learn it from you rather than him. What could he do? He (or his insurance company) can contact your parents - he will almost certainly do this. He (or his insurance company) can sue you for negligence. Children are responsible for their own torts providing they have the capacity to recognize and avoid risk and harm - based on your question I have (and a court would have) no doubt that that you are. If you lose the case, and don't pay, he can have the government seize whatever you own in order to sell it to pay the debt you owe. If this happened in British Columbia or Manitoba he can sue your parents. He could report you to the police - they may or may not choose to prosecute if what you did was criminal: it probably wasn't but the police may investigate to determine this. If he is insured he may be required to notify the police. | This is neither unusual nor illegal, assuming that the buyback price is specified in the agreement. If your friend does not wish to take advantage of the "nice discount" he can decline the deal, and decide for himself whether he wishes to buy shares without restriction, at the market rate. (It would be interesting to know what happens if he sells his shares and then leaves the company. I am fairly sure the agreement will cover this, but requiring an ex-employee to buy shares and then give them to the company could be considered unconscionable. That might be worth asking a lawyer about). | Not as such. As the contract author, you must clearly and specifically identify risks that you want to other party to accept. Your whims i.e. "our own discretion" are not a clearly identified risk. The trivial solution is to state that there are two payments, €150 up front and €850 afterwards. Then, you claim the right to waive (at your sole discretion) part or whole of the second payment. It should be noted that the tax implications of such a contract could be non-obvious. You probably have to claim the whole €1000 as income when the contract is signed, and any waived payment as a discretionary expense. You're unlikely to get a VAT refund on that €850, I suspect. So given that you'd have paid €187 to the Irish government, refunding €850 would be hard. | I do not have a written agreement of her saying she will pay 1/5 of utilities cost. Can I still take her to small claims court to get my money back? Yes. This type of agreements does not need to be in writing. Proving the other roommates' timely payments is strong evidence that also she is under a similar agreement. You did not elaborate on the form of her refusals. If these are stated in writing, they might evidence elements that further weaken her legal position. For instance, these might reflect her inconsistencies and/or bad faith. Even if you were unable (which seems very unlikely) to prove that there is an agreement to the effect of splitting costs, you might still prevail on grounds of equity. | You agreed to pay these fees when you applied for the apartment, so unless they explicitly say that one or both of these fees is waived in case you don't take the apartment (virtually no chance that they said such a thing), you owe that money. Your obligation is not contingent on them convincing you that the fee is just, so it doesn't matter that they won't explain the difference. However, if they said you can pay electronically, then you can pay electronically, since that too is part of the agreement. | I am not aware of any U.S. state that allows amounts owed for future child support to be paid in a lump sum that cannot be modified in the future if there is a change in circumstances (e.g. increased or deceased incomes of the parties, or changes in parenting time). There may be an exception for very high income families where the child support guidelines set under state law (but mandated by federal law), apply and the maximum guideline amount is paid in a lump sum. Lump sum alimony (a.k.a. spousal maintenance), however, may be paid in a lump sum, as may child support for periods that have taken place in the past, whether or not they are past due. |
Why does the EU place the requirements with regard to goods on the retailer, not the manufacturer or importer? Short (skippable) intro: I was reading the question about software updates, started searching, and came across EU Directive 2019/771, in particular Article 7, Point 3. In the case of goods with digital elements, the seller shall ensure that the consumer is informed of and supplied with updates, including security updates, that are necessary to keep those goods in conformity, for the period of time: (a) that the consumer may reasonably expect given the type and purpose of the goods and the digital elements, and taking into account the circumstances and nature of the contract, where the sales contract provides for a single act of supply of the digital content or digital service; or (b) indicated in Article 10(2) or (5), as applicable, where the sales contract provides for a continuous supply of the digital content or digital service over a period of time. That seems to place the odium of providing software updates on the retailer. Warranty requirements are also placed on the seller. It seems that generally in EU consumer protection laws the responsibility always falls on the seller. Not on the importer or the manufacturer. Why is that? Is it just so that it's easier to enforce? Manufacturers (especially for electronic goods) are often foreign entities, which may not have local representation, so it seems reasonable. Importers? Is it because of the missing chain of custody? Because a given retailer may source the same item in multiple places? Is there anything more to it? | Because they are consumer protection laws The purpose of the laws is to protect the consumer and the consumer’s relationship is with the retailer. Therefore the laws make the retailer responsible for dealing with the consumer’s problem. The retailer profited from the deal so why shouldn’t they be held responsible for sourcing only from reputable manufacturers/importers? | Companies that operate worldwide have to comply with the law everywhere they operate. Some jurisdictions consider mandatory arbitration in standard-form consumer contracts to be unenforceable - providing the out may overcome this. | As always, it depends. However, it is by no means certain that any public facing hobby project, such as a web app, is exempt from having to comply with the GDPR. Since the GDPR is only a few days old, we have of course no case law based upon the GDPR itself yet. However, when considering this, one should take the following two facts into consideration. 1. The "personal use exeption" in the GDPR is not new. The personal use exemption is unchanged from the article 3(2) of Directive 95/46/EC. (There as a lot of lobbying for removing "purely" from the sentence – but drafters wanted to keep it.) 2. Case-law under the previous regulation restricts the scope of the exception The ECJ has ruled on the scope of the personal use exception in two cases: C-101/01 C-212/13 In both these cases, the ECJ took an extremely restrictive view, and concluded that the personal use exemption did not apply to the processing done by these individuals. In C-101/01 it can be argued that the hobby project as a blogger was connected to the controllers professional activity (she was a catechist in a local church, and blogged about her work. including her colleagues). But in C-212/13, there no such connection to professional or commercial activity. Here, the controller operated a CCTV to protect his home, but set it up to also capture public space, and that was enough for the ECJ to decide that the personal use exception did not apply. Discussion Case-law based upon Directive 95/46/EC is in no way binding for a future court that need to rule based upon the GDPR. We need to wait for case-law decided under the GDPR to be able to have some degree of certainty about the scope of the "private use exception" under GDPR. However, given what we know about how the ECJ has ruled in these cases in the past, I think it is hazardous to think that just because what you are doing on the web is just a "hobby project" not connected to professional or commercial activity, you are exempt from complying with the GDPR. Conclusion IMHO, you may be exempt, or you may not be exempt. I think it really depends on your activity in your hobby project, and to what extent this project processes the personal data of other people than yourself. | However, if a website is based in the US and the terms of service say that the law governing the terms is US law, how can GDPR have any affect? It is unlikely that the EU will be able to enforce financial penalties against a company with no presence in the EU. But they could for example block your website in the EU, depriving you of your EU user base. The actual measures that they could or would take against such a company are still unclear, since the GDPR is quite new, and there has been no action under the GDPR against foreign companies. I'm not a lawyer, but I've signed many contracts in my life and nearly all of them have some form of "governing law" clause. The governing law clause in a contract identifies the law that will be used to interpret the contract and to resolve any disputes arising from the contract. The law identified in the clause does not become the sole law governing every aspect of the relationship between the parties, however. For example, a business in New Jersey could have a contract with a client in New York with a clause specifying New Jersey law as the governing law of the contract. But that does not mean that New York's consumer protection law doesn't apply to the transaction. | Is it actually necessary for businesses (such as a Small Town News USA Inc) that do not reside in EU to care about GDPR? Only if they offer goods/services to or monitor behavior of people in the EU (Art. 3(2)). Note that: having a commerce-oriented website that is accessible to EU residents does not by itself constitute offering goods or services in the EU. Rather, a business must show intent to draw EU customers, for example, by using a local language or currency. If it is then how (and by whom) would compliance be audited and/or enforced? Supervisory Authorities will care of it. | For paper contracts there are even statutory "prominence" requirements, generally applicable to "disclaimers": see this Q&A (using local talent), based on UCC §2-316. In a given jurisdiction there will be various contexts where a disclaimer must be made prominently such as in Washington this one regulating life insurance contracts that there must be a "prominent statement that the contract does not provide cash surrender values if such is the case". "Onerous contract" is taken to be an accounting term about costing too much to comply, and I assume (from recent context) that you don't mean that specialized usage. This article goes through US law in terms of website agreements, which are one kind of "fine print": the points here apply to paper contracts as well. If the terms are not physically in "the agreement", they they must be incorporated by reference, thus "some reference must be in the contract that the customer actually sees it", see E.J. Rogers, Inc. v. UPS, 338 F. Supp. 2d 935. Various cases address the amount of notice required (Manasher v. NECC: must "indicate a clear intent that the provisions would be considered part of the agreement"). International Star Registry of Illinois v. Omnipoint Marketing clearly established that a signed paper contract can refer to online terms (url provided, a "have read and agree..." statement above the physical signature). For clickwrap contracts, see Hugger-Mugger, L.L.C. v. NetSuite – clicking agree means that you are held to have read and understood the terms, as long as the terms meet the standard for incorporation by reference. The central requirement of notice is that there has to be a clear indication that the external document is incorporated into the contract, and the party must be clearly told where that document is. While a seller / service-provider can change the terms of a contract, those changes do not automatically apply to an existing party to an earlier version – Douglas v. US District Court, 495 F.3d 1062 and references therein – unless the customer is actively notified of a change in terms. As far as I know, there is no case law establishing a computational specification of what it means to "notify" a customer of incorporated terms. There are plenty of terrible web pages where links go nowhere (can fine print be in invisible ink?). One might assume that a diligent customer would trace all of the relevant documents to see what they agreed to if they are told that they must agree to these non-existent terms. One might also assume that since there is nothing there, agreeing to a null document adds nothing to the contract, and the vendor bears the responsibility for making the terms actually findable, though they bear no responsibility for making sure the customer looked. | Under the GDPR, consent is not the only legal basis that allows processing of your personal data. Other legal bases such as legitimate interest exist as well. So the question is: does the company have a legitimate interest to send you these emails? The answer is that this case is more about direct marketing, less about personal data. The circumstances under which direct marketing emails can be sent are covered by the ePrivacy directive, which is implemented in the UK via PECR (Privacy and Electronic Communications (EC Directive) Regulations 2003). PECR and ePrivacy introduce a concept known as soft opt-in: where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use. (ePrivacy Directive, Art 13(2)) In plain language, they are allowed to send unsolicited marketing emails to existing customers, under the following restrictions: this only applies to customer relationships the marketing must be for similar products or services you must be able to object to further messages, i.e. unsubscribe upon collection of contact details you were given the opportunity to opt out | It is not possible for someone to forfeit their rights because the GDPR is compulsory law. In the EU, laws can be regulatory or compulsory. In case of an agreement, regulatory laws can be set aside, if both parties agree on that. But compulsory laws cannot be set aside. Of course laws can also be partly compulsory. For example provisions which cannot be changed in disadvantage of a consumer. So there is freedom of contract, but it's freedom is reduced by law for the common good or for example to avoid misuse of bargaining power. In particular consumer related laws are often compulsory because it has little power against the other parties. Companies can have their negotiations done by lawyers, so they can make a well informed an well negotiated decision. As an extreme example, you cannot kill someone, even if that person has given you written permission. See also "Peremptory norm" on wikipedia for international law examples. |
Breach of contract implies bad faith in New York? Apparently in New York, breach of contract implies bad faith in New York, so there is no necessity in making a separate complaint of bad faith when filing for breach of contract. However, this seems kind of irrational to me because obviously a person can fail to fulfill a contract through no fault of their own due to accident or bad business planning or whatever and none of these ordinary causes for failure to perform involve acting in bad faith. Furthermore, I thought bad faith claims were important because if, for example, a debtor acts in bad faith, then they may not be able to receive protection in bankruptcy for example. What am I missing here? | I belive you have misread the linked article: "A Narrow Lane: Navigating Claims for Breach of the Duty of Good Faith and Fair Dealing"/ It says thst all conrtreacts involve a duty of good faith: It is a settled principle of New York law that “all contracts imply a covenant of good faith and fair dealing in the course of performance.” 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 153 (2002) (collecting cases). Courts have described this covenant as a duty “encompassing any promises which a reasonable person in the position of the promisee would be justified in understanding were included and which are not inconsistent with the contract.” It goes on to say that it is tempting for a plaintiff to include a bad faith claim in any contract dispute: After all, most plaintiffs probably believe that the defendant did not act in good faith and/or that the result was unfair. But it says that courts are reluctant to honor such claims in ordinary contract disputes: ... courts are loath to make rulings that might vary the terms to which the parties agreed. A party’s conduct either breaches the terms of the agreement or it does not; if it does not, that is generally the end of the line for a breach of contract claim. A party seeking to impose an additional duty on the ground that it is “implied” bears a heavy burden. In short, claims for breach of the duty of good faith and fair dealing fail far more often than they succeed. This article explores some of the nuances that make such claims particularly thorny. ... “[t]he law encourages ‘efficient breaches’”; that is, breaches committed based on the breaching party’s calculated determination that it “will still profit after compensating the other party for that party’s expectancy interest.” 28A N.Y. Prac. Contract Law § 23.2. Absent a specific provision in the contract that requires good faith, a “bad faith breach” is no different from any other. ... although a claim for breach of the duty of good faith and fair dealing requires that the parties have a valid contract ..., such a claim will fail if it is based on the same alleged conduct that forms the basis for a cause of action for breach of the contract’s express terms. See Kim v. Francis, 184 A.D.3d 413, 414 (1st Dept. 2020). So the article explicitly says that a claim for breach of contract does not automatically imply a breach of good faith. To the contrary, something more is required. | I'm confident that there has been no successful breach of contract lawsuit on that basis: that is not the right legal basis. Actions against a shoplifter would either be under tort law or, much more likely, criminal law. Put simply, theft is a crime, encoded in the laws of all nations, and the government will shoulder the burden of punishing a shoplifter. Since the goal of criminal law is to guarantee a well-ordered society (not to restore the victim of the crime), a victim of theft may have to pursue their own legal case against the criminal, if they want to be restored for their loss (let us say that the criminal also ate the evidence). | 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). | I'm assuming you're talking about U.S. federal bankruptcy law (Title 11). Once bankruptcy is declared, any claims against the debtor are subject to the bankruptcy laws, and any claims against the debtor in any other court are automatically stayed under 11 USC 362. That means if you bring an action against the debtor for conversion, a court will not hear it, because the debtor's bankruptcy stays any such action. It gets more complicated if you want to sue the brother. In general, except in limited circumstances, the brother is not protected by the bankruptcy stay. [source]. So you can likely sue the brother. Your question about "priority," however, may be based on a misunderstanding of how the law works. If you sue the brother and win, you will get a judgment against the brother, which you can then attempt to collect from the brother's assets. If the trustee convinces a court that the property in question is, in fact, the property of the estate, the trustee can recover it from the brother, or from anyone the brother subsequently gave it to, until it is transferred to a bona fide purchaser for value--who must be unaware of the fraudulent nature of the conveyance. See 11 USC 550. Because you were aware of the fraud, you are not a bona fide purchaser for value, and the statute seems to give the trustee the ability to recover the money from you, just as it would from the brother. In practical terms, this will rarely happen--but if it did, the bankruptcy estate would win, because the avoidance of a transfer means the property was never the brother's in the first place. | Is there any legal precedent for suing a city to amend or terminate an agreement due to fiscal nonfeasance? There is not really any legal precedent for prevailing in such a lawsuit. Obviously, of course, the detailed facts and circumstances matter. If a state statute prescribed other terms, for example, and expressly gives someone standing to enforce the statute, then that is another matter. In many states, standing to enforce violations of municipal laws governing their finances and contracts is vested by statute or the state constitution in the state attorney general. Is there any legal recourse for a resident who believes their city is committing financial nonfeasance? Probably not. Certainly not in court. Usually, individual citizens or taxpayers do not have standing to bring suit related to acts which affect all citizens or taxpayers equally or proportionately, but do not constitute an individualized injury to the particular taxpayer. Municipal governments have broad discretion to enter into contracts with other municipalities on rates that they deem fit which do not have to approximate cost or be profit maximizing. Some states and cities allow citizens to petition to have legislation that has been adopted (agreements are generally adopted by city ordinance) to be placed on the ballot for a vote if a sufficient number of people vote on it within a sufficient time of the ordinance or law being passed (this is called a "referendum power"). But, most do not. Otherwise, your sole recourse is to get a majority elected to city council and a new mayor, to change the policy when the agreement expires. wouldn't the city have to prove that there IS a benefit to the city? No. Assuming for sake of argument that someone suing the city had standing to sue, the burden of proof is always on the person bringing the lawsuit. Ordinances are presumed valid unless this is disproven beyond a reasonable doubt. For example: It is an axiom of our judicial system that legislative enactments are presumed to be constitutional. Parties attacking their validity carry a heavy burden of proof: invalidity must be established clearly and beyond a reasonable doubt People v. Beaver, 549 P.2d 1315, 1316 (Colo. 1976) The constitutional test in the face of an equal protection challenge (assuming for sake of argument that there was standing) would be a "rational basis test" and there would be a rational basis for (1) saying that the city benefit from its neighbor not having adequate fire protection which could spread to them, (2) on the basis that the marginal cost might be low, and (3) on the basis that the municipality probably has a legal duty to aid a neighboring municipality if it has the ability to do so in the absence of an agreement without necessarily having a right to compensation under a doctrine called mutual aid when the proper conditions are met (sometimes formalized by agreements and/or governed by state statutes such as the Tennessee's Mutual Aid and Emergency and Disaster Assistance Agreement Act of 2004, Tennessee Code Annotated § 58–8–101, et seq.,). The rational basis test is met if you can describe some rational reason why the law might make sense for the city to pass (which is not expressly prohibited by law or a constitutional right), even if the rational reason is not empirically correct, and even if the rational reason wasn't the actual reason for passing the law. This ordinance would almost certainly pass the rational basis test. In general, a disagreement over the price term of an agreement being too high or too low almost always fails. A municipality is not obligated to negotiate a "fair market value" or "fair" price for services that it provides to other municipalities. | No. If the person who reviews the contract is in fact a lawyer, and does the review in his or her capacity as a lawyer so that there is in fact an attorney-client relationship, the lawyer would be subject to malpractice liability if the review failed to meet the required standard of care. This generally means that the lawyer made errors that no reasonably careful attorney would make. It would also require proof of loss caused directly by the negligent legal advice. See the Wikipedia article on Legal Malpractice. If the person reviewing the contract is not a lawyer, or there is clearly no attorney-client relationship, there is probably no liability (although there might be a case for unlicensed practice of law, depending on the jurisdiction). A lawyer might be able to use a written disclaimer to indicate that there is not an attorney-client relationship, but I am not at all sure of that. I am not addressing the issue of why a lawyer would be willing to provide such advice for free, nor the ethics of asking for such free advice, as mentioned in the comment by @Studoku above. If a lawyer is willing to give such free advice, that is his or her decision. This answer assumes US law, since no jurisdiction is stated in the question or comments. Details may depend on the specific state. Laws elsewhere will likely be roughly similar, but may not be. This answer is not to be construed as legal advice, but merely as a general opinion on the state of the law, for educational purposes. | Don’t ignore the debt collects In most jurisdictions, your failure to pay can and will be recorded on your credit history. This may affect your ability to obtain finance or the rate you pay for it. For credit reporting, there is no need for the creditor to prove the debt before doing this. For example. In general, you are not legally allowed to default on a contractual obligation (i.e. not pay the bill) even if the other party has defaulted on theirs (i.e. failed to complete the work). It is not clear that you have explained to the contractor that you are withholding the remaining payment until they have fixed the alleged defects or if you have just not paid the money. When you have a contract dispute you need to be clear and take active steps to resolve it. Perhaps head office thinks all these items have been resolved. Perhaps you think they are defects or omissions but they are actually within normal tolerances or are exactly what you contracted for. Unless you talk to them, you can’t resolve it. When you have set out the disputed items, given them a time to fix them, told them you will pay when they are fixed, and possibly set out an alternative method of resolution (like you accepting the defects for a 5% discount) then you have a bona fide dispute. At that point you can tell the debt collector this and they must stop pressing you and remove your name from the credit reports. | A business has the right to refuse service, except in the case of unlawful discrimination. "Sued us" is not a protected characteristic. Unless part of the settlement was that the business must serve that customer in future, there is no way this could be considered contempt. |
National Referendums What is the process for an ordinary citizen to get a national referendum on the ballot? An example might be: All voting districts must be determined by a grid system thus creating a uniform system of redrawing districts for the entire USA. Follow up questions: Can ordinary citizens propose national referendums? Is there any history of ordinary citizens getting national referendums on the ballot? | united-states What is the process for an ordinary citizen to get a national referendum on the ballot? It can't be done. There are no national referendums in the United States and there is no means by which they can be held. Many states individually provide for state initiatives, referendums, and recall votes (and sometimes even local ones), but this doesn't exist at the national level. On rare occasions, Congress passes a law calling for a referendum on terms of its choosing in territory outside of any U.S. state, usually on the issue of whether that state shall become a state or otherwise change its legal status. The most recent one was in Puerto Rico. These also cannot be proposed or placed on the ballot by ordinary citizens, and are sometimes binding, but sometimes only advisory in nature. Can ordinary citizens propose national referendums? No. Is there any history of ordinary citizens getting national referendums on the ballot? No. | I am not sure what you mean by "accept". A citizen need not agree that any particular law is desirable, or good policy, or even rational. What a citizen must do is comply with all laws, or risk proceedings to enforce them, criminal or civil depending on the law in question and the specific circumstances. More exactly all valid laws must be complied with. In the US and many other places there are mechanisms for challenge laws as invalid. It is not generally a defense against an accusation of breaking a law that the law is not rational. | Art. I Sec. 8 Cl. 17 states that "The Congress shall have Power" To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings which then happened in 1 Stat. 130 (1790). It is there referred to as "a district of territory" but more often simply as a "district". Unlike territories, its existence for its actual purpose as seat of government is specifically enabled by the Constitution. Then via 2 Stat 103 (1801), DC was politically brought within the control of Congress, so that residents were no longer residents of Maryland or Virginia. In this act it is consistently termed a "district". | 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. | Why does the one country that promotes constitutional democracies above all others not have a judicial branch specifically for those matters? I know SCOTUS will hear these matters . . . I have had it mention that SCOTUS hears less than a hundred cases a year. Something which sounds incredibly low. A constitutional court profoundly limits the extent to which relief for violations of the constitution are judicially reviewable relative to the U.S. status quo. All courts from traffic court on up hear these matters and adjudicate constitutional issue in the status quo. It is also helpful to recognize that the U.S. Constitution regulates government conduct, not necessarily only though the device of determining that legislation is or is not constitutional. If a police officer stops you without having reasonable suspicion to do so, he has violated the U.S. Constitution, without regard to what the statutes of the state in question say. If evidence is seized without probable cause and this evidence is introduced in court over your objection in a criminal case, the government has violated the constitution and you are entitled (unless it was harmless error) to have your conviction vacated. If a tax collector seizes your property for unpaid taxes without first affording you due process to dispute their right to do so, the government has violated one of your constitutional rights. The Constitution imposes affirmative duties and obligations on the government, it does not merely invalidate laws enacted as unconstitutional. Most instances of constitutional adjudication involve government conduct and not the validity of government enacted statutes. | The District is not a state, and does not function as one. The District does not elect any Senators, nor any Representatives. It does elect one "Delegate" who sits in the House, and may speak in debate, but does not have the right to vote. The Constitution allows congress to exercise "Exclusive legislation 8in all cases whatsoever" over the District. However, since 1973 the Congress has allowed limited "home rule" in the district, although it could cancel this at any time by a new law. The district has a local government, but it more closely resembles the government of a major city than that of a state. It is led by a Mayor and a city council. It is specified in some Federal laws, and one Constutiuonal provision that for certain limited purposes the Districtm should be treated "as if it were", a state. There have been a number of proposals to make the District into a state. The most recent ones have proposed to do this by redefining the "Capital District" into the White House, the Capital building, the Mall between them, buildings adjacent to the mall, and a small adjacent area. The rest of the district would, under such proposals, be admitted as a new state. Congress has the power to admit new states, so this would not require a Constitutional Amendment. But no such proposal has yet passed Congress. There are some special provisions in the way the District is Governed. For one thing, to compensate for the many public building and facilities (which pay no taxes) and the special demands on the District of the Federal Government, Congress provides some of the funds needed to run the district, with the rest coming from local taxes. Congress must approve the District Budget, and can veto local laws. See the Wikipedia article for more detail. | In the United States, individual members (States) of the union are allowed to make their own constitutions and state laws & regulations. This includes laws that may contradict Federal law, although this is a grey area. It usually comes down to enforcement: Federal laws are usually enforced by Federal law enforcement as they can not force states to do so. Further more, State prosecutors will usually not attempt to prosecute you for a Federal law infraction. Only Federal prosecutors OR the department of justice will do this. To see a more detailed explanation on this, look at this "How Stuff Works" article. | The constitutional provision quoted in the question has been interpreted to require that a jury trial be available to a person accused of crime by the US Federal Government. Then accused is free to waive this right, and be tried by a judge only if s/he so chooses. The accuse is also free to waive the right to a trial altogether, and plead guilty (or "no contest" which waives a trail without an admission of guilt). The provision could reasonably be interpreted to require that if there is a trial, it be by jury. But I don't see how it could reasonably be read to require trials in all cases, and forbid guilty pleas. |
Is something located outside of territorial waters protected by an international law? When reading about the Republic of Rose Island (a micronation implanted in 1968, 500m outside Italian territorial waters), I learned that it was attacked, then destroyed by the Italian police forces. Isn't this an act of piracy? I was expecting that entities that are on international waters are protected by some international law, and that it is not expected that a country would freely attack them. Or is it just that Italy could not care less about possible retorsions? This question is at the edge of SE Law and SE Politics but I am interested in the legal aspects of such coercive actions, more that the political ones. | Whatever else it may be, it isn't piracy. Piracy is covered by the UN Convention on the Law of the Sea, Part VII, and Article 101 defines it: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). Note the clause I've bolded. The raid on Rose Island was carried out by Italian government forces, not by "the crew or the passengers of a private ship or a private aircraft", and for purposes of enforcing government policy, not "for private ends". | Maybe, but probably not The geographic location of the organisation is immaterial: under Article 3.2: This Regulation applies to the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to: ... (b) the monitoring of their behaviour as far as their behaviour takes place within the Union. Posts anyone (not just EU citizens) make to Reddit (or anywhere else) while they are physically located in the EU or UK engage the GDPR. Pushift.io is therefore captured by the GDPR and any denial of that is just plain wrong. Given the denial, it is likely right out of the gate that they are non-complient. For example, they are unlikely to provided the required information under Article 14. More importantly, it seems that they have not determined the lawful basis for processing the data under Article 6 - they can possibly rely on the public interest basis (preserving deleted publication is arguably a public interest) or a legitimate interest but that requires a balancing of their interest against the data subject's. That said, the right to be forgotten is not absolute, the reasons that might be applicable here are: The data is being used to exercise the right of freedom of expression and information. The data is being used to perform a task that is being carried out in the public interest or when exercising an organization’s official authority. The data represents important information that serves the public interest, scientific research, historical research, or statistical purposes and where erasure of the data would likely to impair or halt progress towards the achievement that was the goal of the processing. | EU Member State Data Protection Authorities ("DPAs") have fined foreign legal entities (pursuant to Articles 58(2)(i) and 83 GDPR and further national provisions), however it is not publicly documented whether the specific situation you described has occured. Even if such situation would arise, I would think that it is unlikely that DPAs imposing administrative fines could enforce their (fine imposing) decisions outside the EU, even if the decision in question was confirmed by a court. For instance, in the Netherlands there is not a strong legal basis for the (mutual) recognition and enforcement of foreign administrative decisions. I could imagine that the same applies to other EU Member States. However, please note (possible) civil liability Your question seems to refer to enforcement of the GDPR under instruments of administrative / public law. Please note however that the GDPR can also be enforced by private individuals and organizations, e.g. through tortious liability claims. See for example Amsterdam District Court 2 september 2019, ECLI:NL:RBAMS:2019:6490 for a situation (albeit purely national), in which the Court awarded damages for a GDPR breach to a data subject. Possibly, a similar case could be brought against an entity outside the EU that processes data of EU data subjects, contingent upon the outcome of certain questions of International Private Law. With regard to civil damages, there is an extensive international legal framework that covers the cross-border enforcement of rewards for civil damages. Likely, such rewards for damages could more easily be enforced outside the EU. However, I must note that such (private) cross-border enforcement of the GDPR has not happened in practice (yet) either (as far as I know). (Please note that this answer assumes (per the question) that the GDPR is applicable and only deals with the question of the territorial aspects of subsequent enforcement. See about the territorial scope of the GDPR: What is the legal mechanism by which the GDPR might apply to a business with no presence in the EU?). | 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. | Countries can, and do, extradite accused criminals even in the absence of an extradition treaty. There is always some political context to any extradition decision. In particular the sending country's judgement of the fairness of the requesting country's system of courts will be a factor. As to the practicalities, the requesting country will often supply hearing transcripts with its request. In some cases witness may travel to the potential sending country to testify at a hearing there. Some countries will prosecute a person found in their jurisdiction for crimes allegedly committed elsewhere. Others will not, or only in limited circumstnces. Some treaties, such as the treaty on air piracy, require a county to either extradite or prosecute an accused. There is no one answer to what happens in such circumstances. | The sea area in question is a Marine Protected Area, which is referred to in the united-kingdom as a Marine Conservation Zone (as per No17 on the 2016 linked list) and lies within the UK's territorial waters. What UK law prohibits this? I have discounted my initial thoughts about s.58(2) of the Merchant Shipping Act 1995 as I strongly suspect the Greenpeace vessel is neither UK registered nor proceeding to/from a UK port. I have also considered the Criminal Damage Act 1971 which, although potentially viable* and has off-shore jurisdiction, I have discounted in favour of the Marine and Coastal Access Act 2009 which creates the offence of depositing objects in the UK's territorial waters without a licence: s.65 Requirement for a Licence (1) No person may - (a) carry on a licensable marine activity ... except in accordance with a marine licence granted by the appropriate licensing authority. s.66(1) Licensable Marine Activity includes: 1.(a) To deposit any substance or object within the UK marine licensing area, either in the sea or on or under the sea bed, from ... any ... vessel ... s.66(4) states the "UK marine licensing area” consists of the UK Marine Area which is defined by s.42 to include: the area of sea within the seaward limits of the territorial sea adjacent to the United Kingdom What is the penalty? s.85(4) states anyone guilty of a s.65(1) offence is liable: (a) on summary conviction, to a fine not exceeding £50,000, (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years or to both. *relating to the seabed as well as the bottom trawlers. | Extradition treaties/agreements The general principle of international law is that all countries are sovereign and have jurisdiction over all people within their borders; in this regard they are not required to render any persons within their borders to another country, not even to be prosecuted for a crime. However, if the country the person is in has an extradition treaty or agreement with the country seeking to extradite them (in your case India) then the government may, in some circumstances, apprehend and render the person. Bars to extradition Commonly, the crime for which the person is to be extradited may be a bar to extradition, either because it is not illegal in the country that would surrender the person, or because it is of certain natures (usually political crimes), or because of the penalty the crime attracts (death penalty, for instance). As for this particular case, if I've read the news article correctly and that Mallya now resides in the UK, then there are extradition treaties between the UK and India and the subject could be extradited. | Yes. It is a crime almost everywhere to throw something at someone, even if it causes little or no injury. Usually it would be classified as "assault and battery" although if it damages clothing or other property, it could also be called, for example, "criminal mischief" which is intentional damage to property. It would also be a tort that could be enforced with civil damages in most places, although only nominal damages would be awarded and there would be no award for attorneys' fees. In practice, however, few people would press charges or turn to the police in such an incident, few police would take action based on the complaint because it is so trivial, and few people would sue in such a case. For what it is worth, the "living law" in Japan recognizes that someone has a duty to pay to clean your clothes or replace them if they can't be cleaned in such circumstances and most people appear to comply with that obligation without court involvement if the victim insists. Also, pie throwing as a political protest in Europe is also almost surely illegal under European law, although, again, this is rarely enforced by common political culture and tradition. |
What parts of cracking (tampering with the copyrighted software) are actually illegal? I would like to know whether software cracking is considered illegal broadly (in the way that drugs are, for example, broadly illegal in many western countries), or is it a more complex question. I am most interested in legal state in western countries. For example, suppose I'm cracking software (games) as a hobby. but I never actually "consume" these games - I never play them after they're successfully cracked. Furthermore, I never distribute the modified software (or the patch), and keep everything archived (suppose its also encrypted), just as a learning diary. Suppose then, that an officer gets access to my storage (for example, I cross the border and officers want to clone my storage space), and realizes its packed with projects in progress and a suspicious encrypted archive. Obviously, not wanting to be detained forever, I provide the secret key and it shows that the archive is full of successful cracks. Would I immediately be criminally charged just for posession - or would the prosecutors have to prove ill intent first? The reason for this question arises from my understanding, that software tampering is a part of the "copyright" law; therefore, I'd presume that as long as I do not make a copy - all changes of the software that executes locally on my hardware, should be perfectly legal? (Sorry on improper legal lingo - not my profession.) | It is not correct to say that drugs are, for example, broadly illegal in many western countries Some specific drugs, or specific categories of drugs, are illegal in certain circumstances, by specific statutes. Which ones vary by jurisdiction. So the analogy breaks down. As for the main question, if by "software cracking" is meant creating a modified version of the software that operates differently, for example by-passes authentication, or allows unlimited "lives", that would most probably be creatign a derivative work of the software. Creating a derivative work, even if it is never distributed, is copyright infringement under US law: 17 USC 106 (2) lists as one of the exclusive rights of the copyright holder the right to prepare derivative works based upon the copyrighted work; This also covers the right to authorize preparation such works. So merely creating a "cracked" version of the software is technically infringement. However, infringement (of this sort) is not a crime, and no border officer or other government official will care about it in the slightest. It is up to the copyright owner to take legal action, normally by filing suit. If the modified software is never distributed nor advertised, it seems unlikely that the owner will ever even learn of it, and less likely that the owner will sue if s/he does learn of it. Damages in such a case, if the owner brought one, would probably be small, indeed not enough to make it worth the owner's time and trouble. If the cracker starts with an instance of the unmodified original software,m and edits it in place, never making a new copy, s/he is still preparing a derivative work, and (unless permission was obtained, or the work constitutes a fair use) it is still, copyright infringement If the modified software were posted online, the owner could send a takedown notice to the hosting site. If it were being sold, then a suit would be more likely. If what the cracker creates is not a modified version of the software, but instructions for modifying it, it is less clear that that would even be infringement. If the instructions are for evading an access control mechanism, that might be unlawful under 17 USC 1201 the anti-circumvention provisions of the DMCA. But again it would be up to the owner to take legal action, the government will not care until and unless the owner takes action. (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. The above answer is specific to the united-states but on this point the laws of other North American and European countries are, i believe, similar, as is the Berne Copyright Convention, at least on the matter of derivative works. | The relevant law in England and Wales is the Protection of Children Act 1978. Under section 1 of the Act, it’s a defense to distributing, showing, or possessing indecent images of children if you had a “legitimate reason” to distribute, show, or possess them. It’s also a defense if you had not seen the images, didn’t know they were indecent, and didn’t have any cause to suspect they were indecent. However, the 1999 case of R v. Bowden held that downloading a digital copy of an image counts as “making” an image. This is not subject to the “legitimate reason” defense by statute (although I don’t know if it’d count as “making” if you have no reason to know the contents, like if a computer repair shop backs up a customer’s hard drive without looking at what’s on the drive). However, it is explicitly still subject to defenses in sections 1A and 1B of the Act. 1A covers spouses and partners. If you are the spouse or partner of a child between 16 and 18, then with their consent you can legally make indecent images of them (although this doesn’t apply if anyone but the two of you is in the image). You can also possess those images with their consent and give them a copy. Section 1B covers criminal proceedings, investigations, etc., and was added after R v. Bowden. Because copying a digital image counts as “making” an image, it would generally be illegal for people to work with digital copies of indecent images even if done for a good reason. To avoid that, Parliament made an exception for making an indecent image when necessary to prevent, detect, or investigate crimes, as well as for criminal proceedings anywhere in the world. Parliament also exempted the UK’s intelligence agencies (MI5, MI6, and GCHQ) when carrying out their duties. These are specific statutory exemptions, so they can’t really be generalized to “if you have a legitimate reason.” | To answer this based on contract law, one would have to know where the company is located, where you are located, and what the terms of use specify regarding jurisdiction and possible mandatory arbitration. Next, you write that you have "all the proof" that your account was "broken into." Proof in a legal sense? I think you would be writing things differently if you had as court judgement in this regard. And how did it happen? In my experience, there are several scenarios: You were tricked into revealing your credentials, or your own computer was compromised to gain your credentials, or you re-used the same credentials on different systems and one of those was compromised. The most likely scenario by far. There was a security breach on the site of the game company, either revealing your credentials or allowing direct access. There was an accidental software bug on the site of the game company which affected your inventory. There was a deliberate software change on the site of the game company which affected your inventory, e.g. to improve play balance. The latter three options are all possible, but the first option happens much more frequently. And from the viewpoint of the company, this is indistinguishable from you acting foolishly and losing it. The thief would have been acting with your credentials, after all. And that is where the term you quote comes in. The company is in a contractual relationship with their customers, so they cannot disclaim all responsibility for everything that happens through their terms of service. In some jurisdictions, sneaking an illegal clause into the boilerplate terms of service weakens the legal force of the whole document, so they make this sort of disclaimer. But if lost things could be restored too easily, the thrill would go out of ownership. | The website owner brings in an expert programmer who testifies that the user cannot have gotten to a certain part of the site (or download, etc.) without having clicked to accept the terms of service, and that this document they're holding is a true and correct copy of the terms of service as of that date. That's evidence in favor of the site, and an adverse party has to have stronger evidence in order to overcome it. If the person didn't save a copy of the terms themselves, they'll have a hard time on this. Then the other party's attorney tries to discredit the programmer by asking questions like "how do you know there are no bugs in the software which could have allowed somebody to reach this without agreeing to the terms of service" etc. Apparently, some sites don't require users to click indicating agreement. If the company has significantly changed the site, terms of service, etc. since the time the user registered, and doesn't keep any copies of old versions around, and admits this, they'll have a hard time enforcing an agreement (as they can't produce a copy of it). If the user kept a copy, the user might be able to present that. It's up to the finder of fact to decide what to believe and how much weight to give the various witnesses' testimony. | Patents are not that relevant in this case. Software patents are unenforceable in most parts of the world anyway. What matters here is copyright. Every work contract has a clause that everything an employee creates as part of their employment is copyrighted by the company. So using company-owned code to build an own project would be a copyright violation. There are also other legal tools in some jurisdiction which can be used against employees trying to misuse intellectual company property. But that's a topic for Law Stackexchange. Also, this isn't really related to a BYOD policy. Being able to bring your own device to work and then back home might make data theft more convenient, but isn't required. There are many other ways to steal sourcecode, like USB drives or uploading them to the internet. To prevent the first you would have to design your software development offices like a supermax prison facility with meter-high walls (so nobody can throw a device over it) and strip searches on everyone leaving the building. This is neither feasible nor reasonable for anything below matters of national security. To prevent the second, you would have to completely prevent internet access from developer workstations, which would greatly impede the productivity of any software developer. So most companies do not even try to physically prevent employees from stealing sourcecode. They rather rely on the legal safeguards and on maintaining a mutual trust relationship with their employees. It might seem counter-intuitive to some, but when you do not treat your employees like potential criminals they are in fact less likely to betray you. | Unauthorized use of a computer is illegal in most of the United States, and in many circumstances it is a federal crime. Here's a round-up of applicable laws from the National Conference of State Legislatures. | No, it is not. Just as it is illegal to steal from a thief, it is illegal to hack a hacker. Criminals are often considered a good target for crimes from a practical standpoint, but crimes against criminals are still prosecuted. As criminals are unlikely to report crimes against them to the authorities (particularly when doing so runs the risk of them being arrested for their crimes), targeting them does tend to result in a lower risk of being caught by the authorities, but if the crime is discovered, it will generally be prosecuted all the same. To that point, two Florida men have recently been arrested and are being prosecuted for stealing millions of dollars in Bitcoins from an illegal, darkweb drug marketplace in 2013, and there is always the more famous case of the two government agents who are in jail for stealing from the Silk Road. In your specific example, if all you did was hand over the information to the FBI, it's less likely that you'd be prosecuted than if you did so for personal gain, but you would be at risk of prosecution for engaging in vigilante computer hacking, yes. Also consider that if your actions happened to interfere with an ongoing investigation or result in the inability to prosecute (say, for the evidence you gathered being tainted and inadmissible by your involvement), you could be charged with crimes such as obstruction of justice or interfering with a police investigation as well. | No, it's still copyright infringement. When you modify a copyrighted work in any way, you generate a derivative work which you are not allowed to distribute without the permission of the original copyright holder. |
Is "digital dropshipping" legal? For example, there is a game on Steam for $15 and my site would sell it for $20, but I don't actually own the game, just buy it from Steam and take the $5 profit. Is this legal? Also, if it is, how can I check if it's permitted by the original store's EULA? I'm not sure what term to even look for. | 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. | I've found Commission Decision 2003/675/EC which sheds light on what exactly happened here (more digestable press release here). Basically, there was a dispute involving Nintendo and its various independent distributors who had exclusive distribution rights in their respective territories, Bergsala AB for Sweden. Note this wasn't simply a matter of Bergsala's rights being violated, but rather a scheme to reduce parallel imports/exports which the Commission found to be anti-competitive. For most parties, this was brought to an end in December 1997 (see section 2.2.11 on pgs. 54-55). So no, there was no change in the law, but the anti-competitive scheme stopped in late 1997. Weirdly this should have resulted in the possibility for more imports, but since those imports would no longer have artificially higher prices, perhaps the advertisements and/or imports were no longer worth economically worth it. Or perhaps Bergsala pivoted to greater enforcement the exclusive rights it did have, even if this didn't include the ability to block parallel imports according to EU competition law. In any case, trade of Nintendo products in Europe was greatly altered in late 1997. Please take my summary with a grain of salt, I'm not very well versed in the field of commerce and I've already misunderstood the decision at least once; check the cited decision for proper details. | Most games have a TOS to playing that include provisions such as sales of in game items through out of game currencies (i.e. real world money changes hands for digital product or account). I believe Pokemon does have this as part of the TOS which could get you and potential customers banned from competition and possibly the modern online trade features, but am unable to look at the current TOS to verify. It should not be hard to find such a document and read for yourself. | There is something called the exhaustion doctrine that says that once the holder of a patent sells a patented device, they have relinquished control over that particular instance of the patent implementation. Anyone who legally purchases this hardware has the right to run whatever software they want on it, as long the software is otherwise legal (software designed to defeat DRM would be an example of software that is is not legal). | With respect to the two-year guarantee for faulty products, The Consumer Sales Directive does not apply to non-tangible products like softwares delivered by internet. (b) consumer goods: shall mean any tangible movable item, with the exception of: Relevant rules on faulty digital services are contained in the Digital Content Directive, which provides In the case of a lack of conformity, the consumer shall be entitled to have the digital content or digital service brought into conformity, to receive a proportionate reduction in the price, or to terminate the contract, under the conditions set out in this Article. The consumer shall be entitled to have the digital content or digital service brought into conformity, unless this would be impossible or would impose costs on the trader that would be disproportionate, taking into account all the circumstances of the case including: (a) the value the digital content or digital service would have if there were no lack of conformity; and (b) the significance of the lack of conformity. However, this is essentially irrelevant for free apps where no reduction of price is possible and it is likely an obligation to fix the app is disproportional given the price is zero. Notably, the directive also puts most responsibilities regarding the "digital environment" (e.g. computers and network costs) on the consumer, as the environment is not particularly tied to the digital service. In your comment, you refer to a 14-day rule. You might be confusing the guarantee laws with the cooling-off period provided by the Consumer Rights Directive. In that case, you have a right of withdrawal but are only entitled to the costs you paid to the trader, and not any other third party, which is zero in the case of free apps. In an analogy to physical goods ordered online, you don't get a refund for your bus ticket if you need to go to the post office to collect it. By the way, Google terms cannot override public law and in fact if you look into Google refund policy you'll see that EU laws are specifically mentioned. | Yes, commercial use is allowed for the AGPLv3 license. You can charge for your use of the software so long as you provide a way for the public to download the source code in its entirety. | united-states The license won't let you sell the .stl file. Probably you have created a derivative work, which means you can't sell it without a copyright license (and the CC-A-NC won't do). If it were licensed under CC-A you could sell it without problems (you'd have to give attribution, of course). You could also sell it under the CC-A-SA, but once you do you have no control over the result -- anyone you sold it to could give it to someone else under the terms of the license. This could work, though, if it were (say) a commission and you only expected to sell one copy. I don't know what the situation would be with the physical objects printed under any of these licenses. | The board is more complicated than you describe. It is a somewhat stylized world map, broken up into regions that do not necessarily correspond to countries. They have names that don't necessarily express what the region is geographically (particularly Ukraine, which extends far to the north of real-world Ukraine). There are defined water routes between certain regions that do not touch. Someone else starting from a world map would be very unlikely to duplicate the Risk board. I believe your friend's board would count as a derivative work. Now, the copyright holder is highly unlikely to come after your friend. I've seen stories of people who made their own X boards, publicized them, and the game company did nothing about it. The company (Hasbro? they own most of those games) would likely consider it as an extra bit of publicity. |
How much stolen bitcoin must a wallet have to be legally recoverable? TLDR: Under what circumstances could one successfully sue to gain control of stolen bitcoin? If it depends on what proportion of an addresses unspent output consists of your stolen bitcoin then what may the limit be? I previously asked here about cryptocurrency and theft, and the answer was that bitcoin, unlike money, is not a negotiable instrument and therefore remains the property of the original owner when a thief sells it to a third party. I asked about managing this issue on bitcoin stackexchange, and the answer said: Regarding the question of ownership of stolen coins, that's really only applicable if your withdrawal is being funded from a UTXO that comes directly from a deposit of the stolen bitcoin. If the exchange previously combined that coin with other "clean" coins into one large UTXO (example transaction), then no one specifically can be pinpointed as having received the stolen bitcoin. For an example of what this looks like, we can see this answer, that talks about the not stolen but famous pizza bitcoins: There is no currently unredeemed output which contains 100% pure pizza coins. All the pizza coins have been diluted somewhat with other coins. The purest remaining are these 100 BTC which are 90.7276% pure pizza coin, and just 11 transactions separated from the pizza transaction. And as an aside, he mentions stolen bitcoin: Edit: I just found these 100% pure allinvain coins - undiluted after 24 hops from when 25k BTC was stolen from his computer. Edit 2: I don't mean to imply that the allinvain coins haven't been thoroughly looted. They have touched 755,796 different addresses since being stolen and are currently sitting in 109,235 different addresses, including 8 from my own personal wallet. The exact same 8 as have pizza coins in them, it turns out. Can we accurately legally say what is the situation regards claiming these "bitcoin"? An example situation would be if Alice had some bitcoin in a wallet, and her computer was hacked and the bitcoin transferred to Anonymous Bobs wallet. He then created a transaction that contained X% of Alice's stolen bitcoin and 100-X% of legally acquired bitcoin and transferred that to Honest Charlie who publishes their wallet address. Is there a value of X that would allow Alice to successfully claim the coins from Charlie? 100%, 99%, 90%, 50%, 1%? Or any other property that would determine if such a case could succeed? | There is no simple answer. Whether stolen bitcoin can be recovered with a court order will depend on the facts, the jurisdiction, and the legal basis for the claim. There is a significant difference between tracing by a civil litigant, and asset forfeiture to the state. I’ll talk about tracing, because it’s based on common law principles that apply in many countries, rather than statutes which are unique to each jurisdiction. The first hurdle in establishing a civil claim against the recipient of stolen bitcoin is the need to show that cryptocurrency is property. It has been suggested that cryptocurrencies might not be property because they are merely information, or because they are not classifiable either as things in possession or things in action. However, the LawTech Delivery Panel published a legal statement on cryptoassets and smart contracts (November 2019) which analysed these arguments and concluded that “cryptoassets are to be treated in principle as property.” This analysis was adopted by the High Court of Justice in England for the purpose of making disclosure and freezing orders against Bitfinex in respect of an account holding ransomware proceeds: AA v Persons Unknown [2019] EWHC 3556 (Comm). The next issue is the application of the nemo dat rule, which is the subject of your previous question. According to this honours thesis published by the University of Otago, until the courts recognise cryptocurrency as “money,” the nemo dat rule will have the effect that “the legal title to stolen cryptocurrency will likely always rest with the original owner” and “an innocent third party having received stolen cryptocurrency will always be liable to a claim from the original owner.” However, the LawTech Delivery Panel legal statement analysed the problem differently and concluded that an on-chain cryptocurrency transaction creates a new asset rather than transferring an existing asset: Although one can describe and conceptualise the process as a transfer … it is not really analogous to the delivery of a tangible object or the assignment of a legal right, where the same thing passes, unchanged, from one person to another. Instead, the transferor typically brings into existence a new cryptoasset, with a new pair of data parameters: a new or modified public parameter and a new private key. According to this analysis, the recovery of stolen bitcoin would involve applying the equitable principles used to trace assets wrongfully transferred into a mixed fund. Such a claim cannot be made against a bona fide purchaser for value without notice. On the other hand, stolen assets can be traced into the hands of a third party who knowingly receives them. Thus, whether the receiver of stolen bitcoin is liable to return them to the original owner is likely to turn more on the receiver’s state of mind than the percentage of stolen bitcoin received. | It isn't necessarily "illegal" (in the sense you are committing a crime) but you may be in violation of a verbal contract (which would fall under tort law). Let's take this a bit further. Perhaps Joe Schmoe gave you his debit card information so that you could make deposits for him and he said you could take $5 out for yourself for the trouble. This is a contract between you and Joe for a service. You can't extend Joe's offer to Jane Doe by saying "here is some debit card information, take $2.50 out for yourself". You have no right to extend your contract with Joe to somebody else. Now specifically for passwords it basically boils down to the same thing. Unless Joe gives you explicit permission to give that to somebody else, you can't just decide to unilaterally give what Joe gave you to somebody else. This may be different if Joe said "here, I'm buying you a subscription to service XYZ because you are a nice guy", this may be construed as a gift which transfers ownership. At that point you have control over what is or isn't done with the account. As another example let's say Joe let you borrow his car. You can't turn around and say to Jane, "here's a car you can use", Joe did not extend the offer to Jane, nor did Joe give you the right to extend the offer to another person. It's a moot point though, in the original context of this question, Netflix does restrict you from sharing your passwords "outside your household". Almost every paid service has some restriction against sharing with others. In the end Netflix may shut off Joe's account and Joe may sue you for damages, but you aren't going to be thrown in jail for this. This would be a civil case (tort) which you may be liable for monetary damages. | A possessor in good faith owns currency Currency is owned by the person who has it provided they came into possession legitimately. Currency is a small category of goods, known as negotiable instruments, where the person who has it, owns it. Unless, they came into possession in an illegitimate way, such as by stealing it or finding it (and not handing it in to the authorities). If they received it in the course of a legitimate transaction - wages, payment for goods or services, etc. - then they own it even if the currency was previously tainted. Contrast this with, say, a car, where the legitimate owner remains the legitimate owner no matter who is in possession. Now, there are usually laws that prohibit the destruction of currency even if you own it, but that doesn’t change the fact that you own it. For comparison, there are laws against dumping your car in the river but it’s still your car. | The short answer is that a few individual trades would be legal (e.g. if you sell some to a friend), but doing so on a regular basis for profit (e.g. offering a sale price and a bid price to all comers) would not unless you get the appropriate licenses and comply with relevant laws. Doing this is onerous. Any kind of "money services business" is subject to federal regulation. The federal definition is a business trading more than $1,000 per day, so in theory as long as you keep below that you wouldn't have to worry about federal law. In practice you might find yourself having to prove to the Feds that you have not exceeded the threshold on any day in the past. There is also a separate licence regime for Virginia which you must also comply with. Finally, if you sell Bitcoins to someone when you have a reason to suspect that they are planning to do something illegal with them then you are breaking the law. Edit: While its not strictly a legal issue, some people who have traded Bitcoins outside of recognised exchanges have had their bank accounts closed because the activity has triggered the bank's money-laundering detectors. Edit 2: All the above applies if you are trading directly with people who you found on something like localbitcoins.com. Trade via an exchange such as BitStamp is legal: all the AML and KYC regulations are their problem not yours. You merely have to provide the necessary identification to open an account. | Theft is universally a crime in virtually every jurisdiction. Insofar as a state has a criminal code and a functioning judiciary, theft will always be a crime. It is also a basic legal principle that theft is a tort as well (in other words, a civil wrong incurring damages to an individual that can be remedied in a court of law). A key part of the problem in failing to make theft a crime, is that in the absence of a substantive penalty in terms of a fine or imprisonment, theft becomes a low-risk, high-reward activity where the maximum penalty is simply the repayment of stolen goods (with relatively minimal loss). This fails to provide an effective deterrent to this socially frowned-upon activity, and rates of crime would skyrocket. It is appropriate, therefore, to make theft a crime (and all jurisdictions do so), as all pillars of criminal justice immediately apply. Edit: As @/JBentley correctly points out, penalties do in fact exist in civil law. That said, the power of incarceration, perhaps in this case the ultimate deterrent, is largely unavailable in civil cases. The ultimate point - that theft is rendered a more sound and legitimate enterprise based largely on gambling - remains the same. Additionally, not all individuals have the time or effort to file small claims and follow cases to the end. Making theft a tort-only offense would cause extraordinary difficulties in enforcement as many would consider the loss of perhaps a small article relatively insignificant compared to filing in small claims court. | Your question assumes that there is a method to find a block of bitcoins with a faster computation than the brute force method used so far. If such a faster calculation method exists, it is proprietary to the mathematics and our superhero has not invented it, he just discovered it and used it. It is not an insider trading case since everybody has the possibility to acquire the same math knowledge for free and use the same super algorithm (and maybe is using it already). Insider trading covers only situations when an insider has an information earlier than the market due his proximity to the information, being e.g. employee of the relevant company whose shares are traded, etc. Insider trading presumes that the insider is an "insider", i.e. has the information earlier only due to his position. On the other hand, having an information earlier due to his math skills which are available to everybody does not constitute insider trading. Using the new discovered super algorithm for shorting the bitcoin price is not illegal since the super algorithm is not illegal either, but proprietary to the mathematics. The assumption that the price will drop may be not true, it is only a valid speculation. | This (as always) depends on jurisdiction, but usually - No, just taking the money is not legal.. In most jurisdictions, if you have a claim (the rent, in your case) against a debtor , and the debtor does not pay, you are not allowed to take any enforcement action (taking property, coercing the debtor) yourself. Instead, you must obtain a court or administrative judgement confirming your claim. Even then, often only a court officer or the police may actually enforce payment of the debt. This is mostly to protect the debtor from unwarranted enforcement action (such as taking more than you are owed, or collecting a disputed debt). For example, in Germany, to enforce a debt the creditor must first obtain what is called a Vollstreckungstitel or just Titel (title) - an official document confirming that there is an outstanding claim. This is on top of any contracts already existing. A Titel is obtained either through a regular court judgment, or through an abbreviated, administrative process called Mahnverfahren (essentially, you ask the court to send the debtor a letter about your claim, and if the debtor does not file an objection, you get the Titel). Once you have a Titel, the creditor can enforce it any time they choose (with a Titel, the statute of limiation is extended from the usual three years to 30 years). However, actual enforcement must be performed by an officer of the court (Gerichtsvollzieher). Only they may do things such as collecting the debtors property, force open doors and even imprison uncooperative debtors. I don't know the exact situation in the USA, but I believe it is roughly similar. For example, the equivalent of a Vollstreckungstitel is a Writ of execution. | It depends on whether one honestly believes that the supermarket would consent to them eating a snack before paying for it. If there is no consent, either explicit or implied, then it is theft as no contract has been performed or fulfilled so ownership hasn't transferred, as follows: Theft is defined by section 1Theft Act 1968 as: (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; and “thief” and “steal” shall be construed accordingly. The two elements relevant here are "dishonestly" and "intention of permanently depriving". Section 2 offers three defences to being dishonest, with this being the only one applicable here: (1) A person’s appropriation of property belonging to another is not to be regarded as dishonest— ... (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... The definition of intention to permanently deprive may be found at section 6: (1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights... See this article by News Shopper that explains it in a much better way than I could without me commiting plagiarism: Buying a product at the till is what transfers the ownership from the product belonging to the shopkeeper, to it belonging to you. And only when that sale is complete do you have the legal right to consume or use it. If you eat the chocolate before you legally own it, you are permanently depriving the owner of his right to the product – he can no longer refuse you the sale or take the item off the shelves. |
Do you have to evict someone who was staying with you without contract or lease, but left without warning? Hypothetical Scenario: A 19 year old "friend of a friend of a friend" type situation that someone was trying to help out. He was living in a rundown trailer a few towns away so a nice family said he could stay with them for a bit and they'd help him get established in the nice family's town. After a few weeks he got a job at Walmart. Two days before he was supposed to start he just left the nice family. He moved in with someone else about a hundred miles away. He left all his stuff at the nice family's house, which just consists of a few boxes and some motorcycle parts. It would all fit in a truck. The Nice Family offered to bring the stuff to him but he said he wouldn't help unload it. The nice family is being told that they must go through the eviction process. I know questions like this confirm, possibly, but is the nice family's situation different? Can the nice family tell the 19 year-old that all his stuff is in their barn and he has 30 days to come get it? If he doesn't, they will sell it and keep the money? (While the 19 year-old was with the nice family, they paid hundreds of dollars for things like getting his car out of impound, not to mention food and other stuff.) Thoughts? Other info needed? I tagged this landlord even though I feel like they did not have a "tenant-landlord relationship", legally or otherwise. | Your question seems to be about abandoned property and whether Missouri’s statute on disposing of property after a tenant abandons his/her property applies. See Mo. Rev. State. Ann. § 441.065 (“Abandonment of premises, disposition of remaining property.”) Assuming there was no agreement (in writing or orally) for the 19 year-old to pay rent, he was most likely a guest and not a tenant. As a guest, landlord-tenant laws, would not apply to the property that that was left at the nice family’s house. The definitions section of Missouri’s landlord-tenant statutes (and common sense) support this analysis. See Mo. Rev. Stat. Ann. § 441.005. Therefore, the issue them becomes did the 19 year abandon his property? To that question, I think the answer is yes. Missouri Courts have defined the test for “abandoned property” in Herron v. Whiteside, 782 S.W.2d 414, 416 (Mo. App. W. Dist. 1989), stating: Abandonment is the voluntary relinquishment of ownership so that the property ceases to be the property of any person and becomes the subject of appropriation by the first taker. Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.App.1974). Abandonment of property requires intent plus an act. Id. A sufficient act is one that manifests a conscious purpose and intention of the owner of personal property neither to use nor to retake the property into his possession. Id. Intention to abandon may be inferred from strong and convincing evidence and may be shown by conduct clearly inconsistent with any intention to retain and continue the use or ownership of the property. Herron, 782 S.W.2d at 416. So to synthesize that passage from Herron, the court is saying that there is a 2 part test for determining if property is abandoned. Did the person intend to abandon the property? Did they commit some act to show this intention? If the answer is yes, to both, they the “first taker” or person that gets possession after the property is abandoned is the new owner. Here, it seems that the 19 year-old intended to abandon the property. He left without explaining why and stated that he would not unload the property if the nice family tried to return it (implying he would not accept the property back). Looking at the second part, him moving without giving notice, and telling the nice family that he won’t accept delivery of the property are both acts showing his intent to abandon the property. | This is a very difficult situation. Discrimination is not the right frame within which to view this as your roommate doesn't have authority over you the way that an employer or landlord would. The basic legal issue would be whether your roommate is constructively evicting you from you residence without valid justification for doing so. And, the answer might very well be yes. But, even if that is the case, since the roommate is not an agent of the landlord, your roommate's actions probably don't relieve you from your duties under the lease. So, your relief might be to vacate the premises and then to sue the roommate for the rent you have to pay without receiving anything in return. This is expensive relative to the likely returns, and there is no certainty that you would win or that you would get your attorneys' fees if you prevailed. This would also be a slow solution taking several months at a minimum. Or, in the alternative, you could leave and cease paying the rent, forcing the roommates who remain to pay it if they don't want to be evicted as they are probably jointly and severally liable for the rent. (If they sued you for your share of the rent, constructive eviction by one of them would probably be a good defense.) The landlord could sue all of the roommates if they don't pay, causing them to be evicted and you to be on the hook for any rent or other amounts that they owe, including the landlord's attorneys' fees (and hurting your credit). You could probably cross-claim for indemnification of any amounts you were required to pay in that lawsuit against your roommate. But, this too would be an expensive, complex and slow solution if the remaining roommates don't decide to simply keep paying the rent. It would be very hard for you to evict your problem roommate for breaching the lease by denying you your equal rights to the premises, since you are not the landlord, although it isn't impossible that a court would allow this relief and it would be relatively quick. It would also leave open the question of who was responsible for the evicted roommate's rent. The remaining roommates would be liable vis-a-vis the landlord, and would face eviction if they don't pay, and probably couldn't get a new roommate without the landlord's permission. And, the evicted tenant would probably remain on the hook vis-a-vis the landlord, but might not have a duty to indemnify the roommates who stayed. Also, in any lawsuit where you sue the roommate, the roommate would likely counterclaim against you for non-disclosure of HSV2, and while that would probably not prevail in the end, it would make the legal process hellish for you. The trouble is that there are really no good solutions that you could easily impose on them. A mutual agreement between the landlord and the other tenants to release you from the lease so you could find somewhere else, or to release the problem tenant from the lease so that you and your other roommate could replace that person, is probably the best solution, but that takes mutual agreement of multiple parties. | Financially, the landlord can take you to court and get a judgment against you where you have to pay that rent, so you won't save any money. If you hire an attorney to defend you in the lawsuit, that will cost you extra money, so you could be worse off than just paying rent and staying there. The lease might have late payment fees, and if you that would be additional money that you would owe. In addition, there could be some reputational damage to you that could affect your ability to secure a lease in the future (a black mark on your credit history). Also note that in Georgia, a landlord has no obligation to seek an alternative tenant, so he can let the unit sit empty for 4 months (though he cannot collect twice on the same unite). | The landlord is obligated to let the existing tenant stay in that they cannot legally physically remove them or change the locks without a court order. The business between the landlord and holdover tenant doesn't involve you. All that matters is that the landlord told you that the unit would not be ready for you. Your lease should have a section describing what happens should the unit not be ready in time. | Legal answer A blanket "no pets" clause is unenforceable, and would remove even the requirement for you to ask before keeping pets (ref:landlordlawblog). This is why the clause contract has the phrase "the Landlord’s consent [...] will not be unreasonably withheld". You shouldn't take this phrasing to mean that the landlord is happy for pets given certain conditions; rather the landlord doesn't want pets, but has used the letting agent's standard contract which has been written with advice from lawyers. Withholding consent with no explanation is unreasonable (see landlordlawblog ref above). The landlord simply wanting no pets, in and of itself, is almost certainly unreasonable. Given that you proposed damage repairs and cleaning, I am personally convinced that the rejection is unreasonable. That said, the landlord might be able to reasonably withhold consent on noise grounds (parrots can annoy neighbours!), but can only do so by stating that to you (which he hasn't done). (Im)practical answer 1 You can try fighting it out in the courts if you like. You could well win, but this will cost you money (and probably a lot of stress) and antagonise your landlord. The landlord will then want to get rid of you (both because you're doing something he doesn't want to the property, and because you took him to court). He'll want to get rid of you with the minimum notice possible; if you're in a fixed term, that's the end of the fixed term; if you're in a periodic tenancy it's probably 2 months. In theory landlords can't carry out retaliatory evictions. But your only chance of fighting a retaliatory eviction is... the courts! Cue more cost and stress. And it's very possible that the landlord might successfully come up with another reason to justify the eviction, e.g. "I want to sell the property", "I want to provide my nephew with a home", or if he tries putting the rent up and you refuse "I can get more rental income by re-letting the property". (Im)practical answer 2 You could just get the parrot anyway. The landlord won't find out until his next inspection, and even then will find it difficult to evict you in the middle of a fixed term for such a minor breach of contract... but that doesn't stop him evicting you at the earliest possible "no reason" eviction date. This would again be either the end of the fixed term or 2 months if you're on a periodic tenancy. And you wouldn't be able to fight this as a "retaliatory eviction", as there will be no registered disagreement between you. Practical answer Your legal rights and your practical options aren't the same thing, unfortunately. Your best option is probably to give up on the idea of getting a parrot. | 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. | If your friend thinks he can live there for free due to his unique interpretation of contract law, he is mistaken. He'll get evicted if he doesn't pay rent, and likely end up with a judgement against him for unpaid rent. At its core, a rental agreement ensures that in exchange for paying rent, he may occupy the property. You can argue up and down about payment methods, but the fact remains he must pay rent in order to live there. Your friend MAY have an argument that he could move out and not be subject to penalty for breaking the lease because the payment terms changed. He'd have to give notice and would still owe for the time he occupied the property. There's just no way he can live there for free. He may find this out the hard way. | Landlord-tenant laws are state-specific, and given the number of states it's impractical to scan all of the laws, but based on a reading of a handful of such laws I doubt that there is any law requiring landlords to pay the oil for a rented house. (The matter would be different if there was a multi-unit building with no individual control over temperature, thus pooled fuel usage). It's not clear to me what you assumed the agreement means, where it says "N/A". Perhaps you believed at the time that the place had a different heating system, and you relied on that assumption. In that case, you might be able to go to court and have the contract voided, and you could pick another place to live. If the "options" are specified so that some things are assigned to tenant, some to landlord, and some are N/A, that would especially lead to the reasonable belief that there was no oil heat in the house. But if the only indications were "landlord" versus "n/a", then you could interpret "n/a" as meaning "not the responsibility of the landlord". Analogously, if the agreement only lists "tenant" and "n/a" then a reasonable interpretation would be that this means "the tenant pays" versus "the tenant does not pay". This reasoning would also have to survive the alternative interpretation that the tenant pays for everything, except that n/a means "there isn't one of these". In other words, the meaning of the term might be determinable from the overall context of what's in the agreement. Since the house does not come with a full tank (as with car rentals), the question of what to do with the residual oil at the end of the lease should also be specified. Unlike gas or electric, you're not just paying for actual consumption, you're paying for potential consumption, and you would have an interest in the remaining half-tank at the end of the lease. You could just walk away from that investment (pumping it out and taking it with you could be illegal, since the stuff is kind of a contaminant), or you could have an agreement where the landlord buys the oil back from you, but that should be specified in the agreement (and I assume it isn't). This kind of consideration could support a claim that you reasonably believed that there was no oil system (if there were, there would be some term relating to your interest in the residual oil), or even a belief that the landlord would pay the cost of the oil (since he ultimately gets the remaining oil at the end of the lease). You attorney (hint) should advise you how to approach this. |
Is it permitted to use electric amplification in political demonstrations outside of the parliament Square estate area as of 2022? There was a lot of talk from critics of the new policing bill saying that it would prohibit megaphones in protests, but it seems like the relevant provisions may actually just be extremely narrowly confined to just affecting the parliament Square area around Westminster? | It seems to me that some commentators/articles have inadvertently conflated different legislation and a recent event involving the seizure of equipment from protester Steve Bray in Parliament Square. Some articles about Steve Bray have named or otherwise referred to the Police, Crime, Sentencing and Courts Act 2022 without an explanation of any link between that person and this law - to me there is no link in the context of Bray's equipment seizure (the police may have mentioned other newer powers to Bray). Among other things, section 143 of the Police Reform and Social Responsibility Act 2011 (as amended) explicitly prohibits the unauthorised use of "amplified noise equipment" (including but not limited to loudspeakers and loudhailers) within Parliament Square and (the amendment) "the Palace of Westminster controlled area". Westminster Council provides a map in pdf format of the respective areas: Appendix to Protocol for enforcement of provisions in relation to noise nuisance in the vicinity of Parliament. Before the PRSRA 2011, sections 137 and 138 of the Serious Organised Crime and Police Act 2005 gave the Home Secretary the power to prohibit the unauthorised use of "loudspeakers" in "designated areas" no more than one kilometre around Parliament Square. Part 3 of the Police, Crime, Sentencing and Courts Act 2022 amends the Public Order Act 1986 in relation to "public processions and public assemblies", including clauses related to "noise". Section 78 of the Police, Crime, Sentencing and Courts Act 2022 abolished the common law offence of public nuisance and created the statutory offence of "intentionally or recklessly causing public nuisance". This more recent legislation has been criticised in relation to protests generally (not solely those that involve megaphones), e.g. by the Joint Committee on Human Rights its witnesses in their scrutiny of the-then Bill. Quote: The Bill introduces a new statutory offence of “intentionally or recklessly causing public nuisance” which was previously an offence at common law. There is a wide range of non-violent conduct that may be caught by the statutory offence, which potentially criminalises some forms of peaceful protest. The offence carries a maximum sentence of 12 months if tried summarily and 10 years if tried on indictment. A person can also be issued with a fine.77 A number of our witnesses raised concerns about the impact of these changes and its compatibility with Articles 10 and 11 of the ECHR. We share some of those concerns. In summary the explicit prohibition of "amplified noise equipment" is limited to Parliament Square and "the Palace of Westminster controlled area" but one can easily imagine the police claiming that a protester's use of a megaphone is a public nuisance. | If they have no legal grounds then it would be trespass to chattels However, they do have legal grounds. Following the procedure laid out in the relevant Act makes the car refuse under the Act notwithstanding your opinion. Move it or lose it. Or seek an injunction preventing the council removing the vehicle- this will likely fail. | Has friend A got any chance of disputing the cost of the seizure as the police didn't issue the notification? I don't think so (see below for why), but you should pay a lawyer if you need legal advice. The met say A FORM 3708 seizure notice will have been given to the driver where practicable, giving full instructions on the reverse. A notice letter will also be sent to the registered keeper, if they were not the driver. In the meantime, this information will assist you. (my emphasis). Section 165A of the Road Traffic Act 1988 does not, so far as I can see, mention any legal requirement for the Police to issue a paper document at the time of seizure. Here's 165A in full 165A Power to seize vehicles driven without licence or insurance Subsection (5) applies if any of the following conditions is satisfied. The first condition is that— a. a constable in uniform requires, under section 164, a person to produce his licence and its counterpart for examination, b. the person fails to produce them, and c. the constable has reasonable grounds for believing that a motor vehicle is or was being driven by the person in contravention of section 87(1). The second condition is that— a. a constable in uniform requires, under section 165, a person to produce evidence that a motor vehicle is not or was not being driven in contravention of section 143, b. the person fails to produce such evidence, and c. the constable has reasonable grounds for believing that the vehicle is or was being so driven. The third condition is that— a. a constable in uniform requires, under section 163, a person driving a motor vehicle to stop the vehicle, b. the person fails to stop the vehicle, or to stop the vehicle long enough, for the constable to make such lawful enquiries as he considers appropriate, and c. the constable has reasonable grounds for believing that the vehicle is or was being driven in contravention of section 87(1) or 143. Where this subsection applies, the constable may— a. seize the vehicle in accordance with subsections (6) and (7) and remove it; b. enter, for the purpose of exercising a power falling within paragraph (a), any premises (other than a private dwelling house) on which he has reasonable grounds for believing the vehicle to be; c. use reasonable force, if necessary, in the exercise of any power conferred by paragraph (a) or (b). Before seizing the motor vehicle, the constable must warn the person by whom it appears that the vehicle is or was being driven in contravention of section 87(1) or 143 that he will seize it— a. in a section 87(1) case, if the person does not produce his licence and its counterpart immediately; b. in a section 143 case, if the person does not provide him immediately with evidence that the vehicle is not or was not being driven in contravention of that section. But the constable is not required to give such a warning if the circumstances make it impracticable for him to do so. If the constable is unable to seize the vehicle immediately because the person driving the vehicle has failed to stop as requested or has driven off, he may seize it at any time within the period of 24 hours beginning with the time at which the condition in question is first satisfied. The powers conferred on a constable by this section are exercisable only at a time when regulations under section 165B are in force. In this section— a. a reference to a motor vehicle does not include an invalid carriage; b. a reference to evidence that a motor vehicle is not or was not being driven in contravention of section 143 is a reference to a document or other evidence within section 165(2)(a); c. “counterpart” and “licence” have the same meanings as in section 164; d. “private dwelling house” does not include any garage or other structure occupied with the dwelling house, or any land appurtenant to the dwelling house. Also what consequences could Friend A face for knowingly allowing friend B to drive his (Friend A's) car whilst he was drunk and didn't hold a valid license or insurance? A few random thoughts: B is clearly committing several criminal acts and A appears to have possibly aided and abetted them. I imagine A's insurance company might consider this invalidates A's insurance. I'm just some random bloke in the intertubes, not a lawyer. | "Does the needlessly obnoxious and antisocial manner in which they're behaving and clearly drugged intoxication create any kind of charge like disturbing the peace or something like that?" Probably. But you don't want to take the law into your own hands. Call the police and have them make the judgement. There is a lot of discretion involved; some police officers may simply tell the preacher to move on; others may detain him on public intoxication or being a nuisance, according to local and UK laws, as well as check for permits and licenses for street/public performances. Many people gathered around the busker to express support and appreciation for him as well as disgust toward the preachers unnecessary disrespect. That's well within rights, as long as the behavior doesn't degrade into the same type(s) that the preacher is exhibiting and possibly be a nuisance or worse (i.s., assault) as per the law. | Providing the antenna was installed in accordance with the law it's hard to see what basis they could either void their lease or seek damages. The antenna poses no risk to health (non-ionising RF radiation is harmless) and you have no rights in any view it may be blocking there is no damage. The only thing that I can see is if there was misrepresentation at the time the lease was formed. That is, the developer knew that there was going to be an antenna and specifically said there wouldn't be. This falls flat if a) they never mentioned antennas or b) the decision to install it was made after the lease was formed. | A private venue normally has discretion over who may attend their premises, as long as it is not because of membership in a protected class under anti-discrimination law. Note that the communication, as quoted, did not say that the banned person was a threat, but only that one of the performers felt uncomfortable. I do not think that the banned person has any legal recourse, unless they can plausibly assert that this is a case of unlawful discrimination, which the question does not suggest. | In the US, does a person photographing private property (houses, farms etc.) while standing on public ground (road, park etc.) commit any offence? No. In general, while standing on public land, it is legal for your eyes to glance onto everything around you. You cannot be arrested and imprisoned for allowing your gaze to pass over your neighbours lawn. It is legal for you to take out a tripod, canvas and paintbrushes and paint the general scene, even if it includes, for example, a tree standing on private land. Instead of a paintbrush, you may use a camera to create a picture of the scene. There are a few exceptions Some military installations Some installations operated by the department of energy (e.g. some nuclear power stations) You cannot photograph people where they have a "reasonable expectation of privacy" - Note that this is not dependant on how the people feel about it. You can photograph a couple kissing at a bus stop, you probably can't legally point a telephoto lens at their bedroom window through a broken privacy-fence. will they commit any offence by publishing the photos They may need copyright permission from the owners of any identifiable works of art included and may need model releases from identifiable people included. There are specific exceptions allowing the publishing of photographs of sculptures and buildings that are visible from public spaces. See The Photographer's Right | You can take action against the shop directly under the tort of nuisance. The available remedies are damages to compensate for interference with your property rights, and injunction to require the defendant to cease the activity which is causing the nuisance. You could also bring a judicial review action against the council if they refuse to investigate the noise. In England, Wales, and Scotland this would be based on Section 79(1)(g) of the Environmental Protection Act 1990 which defines "noise emitted from premises so as to be prejudicial to health or a nuisance" to be a "statutory nuisance". Section 79 places an obligation on a local authority to "take such steps as are reasonably practicable to investigate" a complaint made by a person living within its area. Section 80(1) requires that "where a local authority is satisfied that a statutory nuisance exists [it] shall service [an abatement notice]". Section section 80(4) provides that it is an offence to contravene an abatement notice. Torts and judicial review are complex areas of law and you should seek legal advice if you intend to pursue either of these routes. The limitation period for judicial review is relatively short (3 months per CPR 54.5(1)), so if you are seeking legal advice, you should do so quickly if you have already approached the council. |
Can a U.S. state bring action before the Supreme Court against another state for equal rights of its own citizens when they visit the other state? Let’s make this hypothetical. Two U.S. states, East Lumbago and West Lumbago, which share a common border. It’s a First Amendment issue, specifically: “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” We’ll presume that it is settled law that state and local governments are held to these standards. In East Lumbago, any organizer who wants to stage a group demonstration must apply for an assembly permit. The organizer must show a certificate that they have taken an East Lumbago-approved course in Safe Public Assembly and pass a background check that confirms that they have never been convicted of riot or other serious crimes related to demonstrations. All common-sense restrictions to protect the public. Any person who organizes a demonstration without a valid assembly permit is subject to arrest and imprisonment. But here’s the kicker: under state law, East Lumbago assembly permits are only issued to residents of East Lumbago. If you live in West Lumbago or any other state, you can’t get an East Lumbago assembly permit, so if you go ahead and organize a demonstration, you’ll be arrested and prosecuted. There have been grumbles about East Lumbago’s assembly permits, but the state makes a convincing argument that in the interest of public safety, the government must know about a demonstration in advance and take steps to prepare for it, and known, convicted troublemakers must lose the right to organize demonstrations for life. And the residency requirement? East Lumbago’s legislature, in the preamble to their public assembly law, spoke of the need to end the scourge on society of outside agitators and rabble rousers coming to their fair state and causing trouble, and for this reason, only East Lumbago residents are eligible to organize a demonstration. West Lumbago activists and organizers feel that due solely to their residence in a state other than East Lumbago, they suffer unequal protection of their First Amendment right of assembly / petition by being denied assembly permits in East Lumbago. They ask their Attorney General to take the case directly to the Supreme Court on their behalf, since the Supreme Court has original jurisdiction in all disputes between the states. Does West Lumbago have standing? Is the abridgement of the civil rights of its residents when they travel to East Lumbago a sufficient cause of action for the Supreme Court to take up the case directly rather than going through the usual district court / circuit court / Supreme Court routine? I'm aware that a state may act as parens patriae for its citizens by suing another state on environmental grounds or on economic grounds when the state has a demonstrable interest distinguishable from the interests of individual citizens for whom it is suing. But for a civil rights case? I'm just not sure and I'd like to know. | No. The original jurisdiction of the U.S. Supreme Court for disputes between states applies only to disputes between the state entities themselves, not suits on behalf of their citizens. Something like this was attempted, and failed, in the litigation following the 2020 election producing a ruling in December 2020: [In] Texas v. Pennsylvania, Georgia, Wisconsin and Michigan? Texas sought to overturn the presidential voting results in those four states. It urged the justices to prevent their presidential electors from meeting and to require state legislators to appoint a new slate of electors. Texas ran into two huge problems in seeking the Supreme Court’s review: standing and the Electors Clause. Standing is the key to the courthouse door under the court’s appellate or original jurisdiction. The Constitution mandates that federal courts exercise judicial power only over cases and controversies. Texas had to show it had suffered a concrete and particularized injury to a legally protected interest “that is fairly traceable to the challenged action (causation)” and that injury can be remedied by a favorable ruling. Texas argued that the four states it was suing had used the Covid-19 pandemic as an excuse to “usurp” their legislatures’ authority and unconstitutionally revised their state election laws through executive action or friendly lawsuits. Texas claimed that the four states’ actions threatened Texas’s voting rights. Texas, it said, had standing to protect its citizens. But here was where Texas also ran into the Constitution’s Electors Clause. As Pennsylvania chief deputy attorney general told the justices, the text of the Electors Clause itself “makes clear, the injury caused by the alleged usurpation of the (Pennsylvania) General Assembly’s constitutional authority belongs to that institution.” The Electors Clause is found in Article II, Section 1, clauses 2 and 3: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an Office of Trust or Profit under the United States shall be appointed an Elector.” The justices also consider with the issue of standing a related question of whether the state suit involves a justiciable controversy, that is a controversy that can or needs to be addressed by the court. As Georgia argued in its response to the Texas complaint, Texas wanted to alter how the four states appoint their electors. But there is a “textually demonstrable constitutional commitment” to each state’s political branches for how the state appoints electors—once again the Electors Clause. Georgia added: “This Court has never allowed one state to co-opt the legislative authority of another state, and there are no limiting or manageable principles to cabin that kind of overreach.” Thus, there was no justiciable controversy, much like the Supreme Court found with excessive partisan gerrymandering. The Supreme Court, in an unsigned order, denied Texas’s motion for leave to file a bill of complaint. The court’s order said the motion was denied “for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” Justice Samuel Alito Jr., joined by Justice Clarence Thomas, included in the order a statement that said: “In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.” Justices Alito and Thomas believe the text of Article III, Section 2 establishes the court’s original jurisdiction in mandatory terms. They emphasize the word “shall” in that section and see no justification for their colleagues’ reading that word to mean “may.” They are presently the only justices who read the section as requiring the court to take original jurisdiction of all cases between two or more states. It’s important to remember that those two justices said they would allow Texas to file its bill of complaint, they also said they would not give Texas the remedy it was seeking—to invalidate the four states’ electors chosen by the votes of their citizens. | States have a general police power, meaning that they can pass laws about whatever they want unless there's a specific reason they can't. A state does not have to give special justification for why something is in the realm of stuff they can regulate; someone challenging it has to say what specific section of the Constitution it violates. For a time, the Due Process clause of the US Constitution was considered to imply freedom of contract. This time ended in the 1930s. The doctrine of a constitutionally protected freedom of contract is pretty much completely dead. A state can't abridge the freedom of contract for no reason, but that's because just about any law needs some reason to be allowed. The level of review is that the law is rationally related to a legitimate state interest; this is not a very demanding level of review. Source State bar associations are given power by laws making it illegal to practice law without being a member of the bar and requiring licensed lawyers to comply with bar rules. State bars that control admission to practice are generally government agencies (specifically, agencies of the court system). When the state bar is not a government agency, attorney discipline and licensing is handled by a government agency (lawyers might have to join the bar, but the bar has to accept licensed lawyers as members; the bar's power in these cases is limited to recommendations to the courts). | From Roberts' dissenting opinion: Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. (The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.) In my opinion, this quote speaks as much to the second question as the first. Assume (hypothetically) for a moment that question one was not at issue. If a state defined marriage as only between opposite sexes, and the right to make a state change its definition of marriage is not in the Supreme Court's purview (in our hypo), then the state is as free to reject the validity of marriages abhorrent to its laws, performed elsewhere, as it is to deny the right to marry under its theory of marriage. | The true answer is this is fundamentally unclear and ratification would definitely set up for a Supreme Court showdown. The Supreme Court would in my opinion need to resolve 3 issues: Are Congressionally imposed deadlines in resolutions proposing an amendment to the States for ratification binding? Does a state withdrawal of its ratification of an amendment annul its ratification of the amendment? Who decides when an amendment is ratified? For the first question this is perhaps the most unresolved question. Clearly if the deadline is imposed in the text of the amendment it is binding. For example, see the text of the 18th amendment, Section 3. What is not clear is what if any binding effect a deadline in the text of the resolution proposing an amendment has as to the validity of the proposed amendment. Article V makes no provision on such deadlines. In fact the most recent amendment ratified was submitted for ratification on September 25, 1789, but ratified May 5, 1992. In this instance the Archivist of the United States declared the amendment ratified, but Congress also acted to do so and several members scolded the Archivist for doing so before Congress acted. However, there was no resolution of who had to actually approve the ratification. For the second question there is absolutely no answer to this question except Coleman v. Miller which suggests this is a political question. This essentially means that the question should be resolved by Congress, not the courts. Lastly, for the third question see also my response to the first question. If Congress is indeed the ratifier, what happens if one Congress decides the amendment was not ratified, but a future one decides it was? Honestly, ratification of the ERA would open a whole can of worms and make it difficult to really resolve this issue. Probably the most direct method to force the Supreme Court to rule on this issue would be someone challenging their requirements to register with the Selective Service System. | Yes, certainly. A prominent example was Lawrence v. Texas. The defendants were charged in state court with "deviate sexual intercourse". They moved to dismiss on the grounds that the statute was unconstitutional. Their motion was denied and they were convicted and fined; the denial was upheld by the state's court of appeals. They then appealed to the US Supreme Court, which eventually ruled that the statute was indeed unconstitutional. A defendant likely wouldn't have standing to sue the state for enforcing the law in general, only for enforcing it on the defendant himself. | Actually, the concept "right" means that it can be waived: you may exercise the right, but do not have to. If it is an obligation, you can't "waive" the obligation; but the right to free speech does not mean that you must speak, and the right to bear arms does not mean that you must bear arms. You may decline to exercise, or waive, a right. Sternlight 16 Ohio St. J. On Disp. Resol. 669 (2001) in "Mandatory Binding Arbitration and the Demise of the Seventh Amendment Right to a Jury Trial" partially addresses this (the focus though is on binding arbitration). One thing to note is that the Seventh Amendment does not appear to apply to issues in state court (it is a separate and fascinating question to wonder what parts of The Constitution are incorporated against states, and why). All is not lost for the constitutional question, we just need a different constitution. By the agreement terms, "This Agreement is governed by the laws of the State of New York". Therefore, New York's Constitution (Article 1 Sect 2) is also applicable: Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. Thus, the right may be waived. Waiver of a right to jury trial is not the same as waiver of the right to trial: what the agreement says is that litigants would have a civil bench trial, where the judge determines whether there was a breach. In New York, NY CPLR § 4102 allows parties to waive civil trial by jury (and unlike California), such waiver terms have been upheld, but the courts have recognized that there is a problem, so it's not always obvious whether such waivers in contracts are legal. | Education in India falls under the concurrent list -- i.e. both state and union laws apply. However, there do not appear to be any codified "student rights". The relevant national body for "technical education" is the AICTE, which does have a mechanism for grievance redressal, this is often used as the primary source of complaints against ragging. You can submit a grievance here. The 2004 Guidelines for Grievance Processes require a sub-30-day resolution of complaints. In fact, all accredited technical institutions in India are required to have a local Grievance Redressal Cell and Ombudsman as per this 2012 notification. Finally, you could contact AICTE directly Students may also file grievances at the UGC (University Grants Commission). The UGC is a statutory body in charge of "coordination, determination and maintenance of standards of higher education". In 1987, they released "Guidelines for Student Entitlement". See sections 2.5, 2.6 regarding fairness in evaluation and section 5 which deals with discriminatory treatment. At a state-level, you could try Rajasthan Sampark, which only applies to government institutions. As others have stated, you need to ensure that you have documented and clear proof to support your accusation, and that you should not back down in fear of reprisal. The process of collecting evidence may help you determine if you truly have a valid complaint, or are perceiving bias that does not exist. To the best of my knowledge, in answer to your second question, no, Indian jurisprudence does not have a similar concept of student rights as the United States and some of Europe. While reading the links for the other answers and searching for policies for this post, the one thing that becomes clear is a worrying lack of depth in policies and transparently available policies and data. If you choose to take this forward, I hope that you will document and publish your efforts. | There is no higher court which can overturn a SCOTUS decision, so in theory (or, imaginarily) they can rule any way they please. The ruling could then be overturned by a later court, as happened in these cases. However, justices of the Supreme Court can be impeached (impeachment is not subject to judicial review), so the individuals responsible for such a ruling could be impeached. Or, if the sitting president is favorable and the enabling legislation has been passed, additional members of the Supreme could be added, as was unsuccessfully attempted during the Roosevelt administration. The court could not write specific enforceable statutes defining the crime and imposing a penalty. They could rule that there is such-and-such right which is protected by the Cconstitution, and that that right must be protected by the states (for instance, a state may not pass a law that prohibits practicing the Pastafarian religion). It would be unprecedented, though, for SCOTUS to order a legislature to pass particular legislation. That would not mean that a ruling could not be written which mandated that, but it would be a huge break from tradition and a clear breach of the separation of powers. Legislatures could respond "they have made their decision; now let them enforce it". Decades ago, existing state death penalty laws were declared unconstitutional as defective with respect to the 8th Amendment, meaning that there was no death penalty in many states for some time. Homicide statutes could likewise be struck down en masse, perhaps as an Equal Rights violation, which would means that either homicide is now legal, or the Equal Rights violation in those statutes must be eliminated. All that SCOTUS would have to do is rule that a fetus is a person. Recall Roe v. Wade: If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. A model for how this might take place is McCleary v.Washington, where the Washington Supreme Court ordered the legislature to act to fund public education, on constitutional grounds that the legislature has an obligation to do certain things. The leverage imposed by the court was a large daily contempt fine that went up to over $100 million. However this was symbolic (lifted when the legislation was passed), and it took 3 years to implement the order. |
Banned from the only store around I was involved in a self-defense shooting where I was in the right it did not happen on the store property for some reason I'm not allowed in the store anymore and it's the only one around I didn't do nothing wrong | If you are in Florida, the notion that this is "the only store around" is simply not accurate. I doubt that there is any place in Florida that is not within 15-20 miles of at least two stores. In any case, the store is within its rights to ban you from the store even if you acted lawfully. | None, if the intention is merely trespassing, unlike burglary which requires intent to steal, commit criminal damage, or inflict grevious bodily harm or if the building is a protected site - neither of which isn't evident from the question. Note, for both offences, the actus reus is entry - there is no requirement for any form of "breaking" Further to ohwilleke's comment, unless the lock is damaged or destroyed etc, then there is no offence of criminal damage | So, in short, the bank did what you asked them to do (close your account). What do you think they did that might be unlawful? | We have made a complaint about this decision to the local administrative and highest courts of Finland. Both of these courts rejected our complaint (the highest court rejected our right to even file a complaint!) without even looking into the details of the matter at hand. Did you hire a lawyer? If the court rejected your complaint without even considering it, it may have been procedurally improper. Generally speaking, once your complaint is rejected by a court with proper jurisdiction, the matter is resolved and you lost. End of story, too bad. You have no recourse but to accept the action of the local government as lawful even though you believe that your case was wrongfully decided. In any case, I doubt that the local government's action in your context is illegal. This is an issue of "condemnation" and not zoning. Generally speaking, the government has a power of eminent domain to seize property for a public use so long as a process is in place for the owner to obtain compensation for the seizure. A government owned recreation center would generally be considered a public use. Certainly, nothing you have described would violate the Charter of Fundamental Rights of the European Union, 2010/C 83/02, Article 17. As you note: No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. This is a case where the deprivation is in the public interest, in which the Finnish courts have decided that the conditions provided by law for doing so have been met, and in which you acknowledge that you have a right to compensation. Since it appears that the compensation has not yet been determined, it is premature to say that the compensation you receive will not be fair or paid in good time, and you need to participate actively and vigorously in the compensation process to make sure that you do make the best case you can for fair compensation. Also, as you note, this has happened many times in Finland. This strongly support the conclusion that this action is legal under Finnish law, even if you would prefer to interpret its laws in another manner. Of course the compulsory purchase will not be paid with a fair market price but with a much lower price, which is technically a legalized robbery as it has many times occurred in similar cases in Finland. My next step is to file a complaint to the European Union Fundamental Rights commission in hopes that they can help me. An appeal to the European Union sounds futile to me, as everything you have said suggests that your rights under the E.U. Charter have not been violated. Call it robbery if you will from a moral perspective, but as you note, it is legalized robbery in much the same way that taxes are "legalized theft." Your efforts would be better sent hiring a lawyer to help you negotiate with the local government over the price. If you make a strong evidentiary case that the land is worth more than you have been offered, you have a decent chance of getting more than you have been offered, even if it is less than what you believe it is worth. You also have a better case of winning on appeal on the issue of an unfair price in a second instance court in Finland, than you would on the issue of whether the condemnation was legal, on which the settled law in Finland and under international law is that it generally is legal in your circumstances. | PIPA has a dispute resolution process. See page 39 of the guidance document. The judge in your current case may have the power to award you damages under PIPA, but most likely not. You are probably best served by using the information as evidence that the guy is a bad person, has little regard for the laws, openly defied PIPA, etc. However, if he's smart he will say that you consented. Look at pages 5 and 6 of that document that you linked to. Unless you protested when you handed him your license and watched him photograph it, it's hard for you to say that you did not provide implied or verbal consent. This is especially true when coupled with the PIPA dispute resolution which start with you attempting to resolve this issue before filing a complaint. In summary, it might help you demonstrate a pattern of bad behavior but your current legal dispute is not the place to resolve your privacy issue. | 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 pawn shop has the "use of property" of their own premises. The pawn shop has obviously the right to examine the gun to determine its value, for example, or to clean it if it needs cleaning to avoid damage, or to show it to a potential customer. And the pawn shop is allowed to let the police onto their own premises, even without a search warrant. | This article surveys the law, as of 2014. The answer is "yes or no, depending on which circuit". In US v. Chafin 423 F. App’x 342, the court decided that although the Second Amendment protects an individual's right to bear arms, it does not necessarily give rise to a corresponding right to sell a firearm drawing an analogy to US v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123 "the protected right to possess obscene material in the privacy of one's home does not give rise to a correlative right to have someone sell or give it to others". Likewise the 9th weighs in, in Montana Shooting Sports Association v. Holder, 727 F.3d 975: Heller said nothing about extending Second Amendment protection to firearm manufacturers or dealers. If anything, Heller recognized that firearms manufacturers and dealers are properly subject to regulation Contrarily, in the Northern Illinois district in Illinois Association of Firearms Retailers v. City of Chicago, the court finds in response to a ban on the sale of firearms in the city that. the right to keep and bear arms for self-defense under the Second Amendment. This right must also include the right to acquire a firearm...the ordinances are declared unconstitutional The same court in Kole v. Village of Norridge determined that the would-be operator of a gun store, thus has derivative standing to assert the subsidiary right to acquire arms on behalf of his customers both decisions relying on Ezell v. City of Chicago, 651 F.3d 684, where the city sought indirect means to encumber the exercise 2nd of Amendment rights (banning shooting ranges). The final answer will have to be made by SCOTUS, and so far there is nothing on the docket that could decide the matter. Instead, the question will be answered based on level of scrutiny for firearms regulations and whether " the government can establish that the challenged law regulates activity falling outside the scope of the right as originally understood"; and if it is not outside the scope of the 2nd Amendment, "then there must be a second inquiry into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights". |
How do I warn people about a scammer/swindler who has not yet been indicted wihout being defamatory? I live in Australia. There is this person who cheats people all the time through devious schemes and convincing talks. I myself lost a few thousands of dollars from him. Two of my friends lost $50,000 and $30,000 respectively. He has yet to be indicted as I am in the process of suing him. In the meanwhile, I am compelled to warn people about him as he is targeting people of my community and making us all look bad. An article about him was published in top local news papers. I want to spread this article with a caption to warn people about him. What is the best way to do so for it not to be defamatory and invite lawsuits? This guy has been known to find legal loop holes and drag people to court. | For a start: don't use the words "scammer" or "swindler" Stick to what you can 100% prove is true. State facts: don't draw conclusions. This happened, then that happened, then I did this, then he did that etc. Let the person you are communicating with draw their own conclusions. However, don't say anything! You say "I am in the process of suing him". Therefore, everything about or connected with the case is sub judice. Anything you say could prejudice your case and may be contempt of court. | If I understand your question, you're asking the difference between something like this: "You shouldn't do business with Bob; he's a child molester. Raped a whole bunch of kids. Everyone knows about it." and this: "You're thinking of doing business with Bob? Huh. That's your call, of course. I won't say anything against Bob. But Bill is in the same business, and I happen to know that Bill has never molested any kids." or this: "There are three people you could do business with. There's me. I've never molested any kids. There's Bill; he's a little expensive, but he's never molested any kids either. Then there's Bob. I don't have anything to say about Bob." I don't know the answer under German law, but under U.S. law, it's surprisingly complicated, and varies by jurisdiction. Here is a thorough but somewhat dated article on the subject. New York has recently established an explicit test for defamation by implication: To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference. Stepanov v Dow Jones & Co., 2014 NY Slip Op 03940 (App. Div. May 29, 2014). That opinion also discusses the other approaches used in other U.S. states. Under that standard, it seems clear that my example statements would be defamatory; any juror would immediately understand both the factual implication and that it was 100% intentional. In practical terms, I doubt any court in the United States would not consider them defamatory. In general, defamation is harder to prove in the United States than in other jurisdictions, because of the strong protections afforded to speech under the First Amendment--but I don't know enough about German law to speak to that issue. | Yes it is kind of possible what country would the legal action need to originate from? Would one file in the US and note the foreign defendant or would one file, as a foreigner, in the home country of the defendant? You can go either way. It is not obtaining the judgment that is the biggest trouble here, but enforcing it. You will need: A UK mailing address. Services like ScanMyPost will suffice. Some money to pay the court fees. Time, tenacity and patience to follow through the procedure and fill all necessary forms. Be lucky in that the defendant actually has something to pay the debt with. There are two stages: Obtain a court judgment in your favour. Unless the defendant pays you, enforce the judgment. Obtaining court judgment in the UK In the UK, the "small claims court" functions are executed by HM Courts & Tribunals Service. The specific service is called "Claim for money" which can be filed online via their old or new system. So, basically, you file the online form, pay the fee by credit card and wait for defendant's response. If they do not respond, you ask the court to make a judgment (in my case it took 10 weeks from filing claim to getting judgment). If the defendant responds and defends themselves, expect much longer wait and uncertain outcome. Enforcement So, you and the defendant have both received court judgment saying that they must pay you. But they are not paying. There is a range of options you can choose from: County Court Warrant of Control (claims from £50 to £5,000). Court bailiff will go to the defendant's address and try to seize goods that can be easily sold. High Court Writ of Control (claims from £600). Attachment of earnings order (you ask the court to order the defendant's employer to deduct his earnings in your favour). Third-party debt order (a.k.a. "Garnishee Order") — if you know the defendant's bank account details. Read about potential pitfalls here. Charging order: you will only get paid if the defendant sells their land. Bankrupt the defendant (big court fees!). Alternatively, you could always hire a UK lawyer but then you would probably not need this answer. | 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. | There are professionals who are doing penetration testing in an attempt to find security vulnerabilities with the target company. They will have a clear, written contract with the target company to permit the attack. Professional conduct means making sure that the permission is genuine before starting the attack. Their aim is to map weak points in the security, not to extract personal data. There will be non-disclosure agreements to make sure. Reports go to the target of the attack, not to any third party. As you describe it, it looks as if scammers are setting you up as the fall guy for their schemes. They and the money will be gone, you go to prison. | Surely such a well meaning albeit naive driver wouldn't stand a chance in court if they said that it's because they've a section 230-like protection. Because Section 230 of the Communications Decency Act explicitly protects computer service providers from such charges. A driver is not a computer service provider, and the US legislature has never voted to offer similar protection to drivers picking up hitchhikers. You say that an email can easily be classified as fraudulent, but that's not true. Spam detection has gotten pretty sophisticated, but they still get plenty of false positives. They were a lot less sophisticated back in 1996 when the Communications Decency Act was passed. | The official judgements do not reveal the funding for these lawyers; so where can I find this information? Nowhere. The commercial arrangements between lawyers and their clients are private and confidential like any other business transactions. You have no more right to know this then you do to know how your neighbour pays their mortgage. how could she have funded litigation in the EWHC and then EWCA before the UKSC? She may have rich parents or another benefactor who has in interest in her or the outcome of the case. She may have won the lottery. She may be the heiress of a dead rich uncle. By the way, "having" student loans does not mean you "need" student loans. Interest rates on student loans are cheap - if I need to pay $10,000 for a course and have $10,000 earning 5%, I would be nuts to use that if I could take out a loan at 3%. | I looked for a link to the CJIB pages on paying fines in monthly bits. It is here: https://www.cjib.nl/betalen-delen-aanvragen-voor-een-verkeersboete. He will have to make a request for such an arrangement at the CJIB himself. It will depend on what type of communication he has received from the authorities, and how quickly he responds to it. |
Why did Steve Bray have his sound system seized? What was the legal basis for this? And what is the legal status is amplification systems used for political demonstration in England now? https://www.theguardian.com/uk-news/2022/jun/28/police-swoop-on-stop-brexit-man-under-new-anti-protest-law Stop Brexit Man: police swoop on Steve Bray and seize sound system Met officers move against activist on same day that controversial new protest laws come into force The activist known as Stop Brexit Man faces prosecution after police officers attempting to shut down his regular protest near parliament seized his equipment as controversial new protest laws came into force. Steve Bray, a former coin dealer and unsuccessful Liberal Democrat parliamentary candidate, posted videos on Twitter showing officers approaching him near Parliament Square on Tuesday. His sound system was seized. | It says in the article The Metropolitan police said Bray’s equipment had been seized under section 145 of the 2011 Police Reform Social Responsibility Act, which gives the force power to seize items being used for prohibited activities in Parliament Square. That includes operating amplified sound equipment in the controlled area. It even gives the correct section truly outstanding journalism. | Prompted by this recent similar question, I've revisited this question and deleted my original answer as it was completely off the mark. This is its replacement. It is illegal, and it turns out to be an international standard in the Berne Convention. Article 16 in full: (1) Infringing copies of a work shall be liable to seizure in any country of the Union where the work enjoys legal protection. (2) The provisions of the preceding paragraph shall also apply to reproductions coming from a country where the work is not protected, or has ceased to be protected. (3) The seizure shall take place in accordance with the legislation of each country. Your scenario falls squarely within point (2) and the imported George Orwell book is to be treated as an infringing copy within the UK. The implementing UK legislation for (2) can be found in Section 27(3) of the Copyright, Designs and Patents Act 1988. | Maybe, but we'll probably never know for sure. Officially, of course, he was not punished for his speech. He was punished for selling explosives without a license, which he admitted to. (He was also charged with illegally storing explosives and illegally mailing 'injurious material," but those charges were dropped in exchange for his guilty plea on the first count.) Whether those charges were a pretext to retaliate is probably unknowable. While it's a well-known fact that law enforcement frequently retaliates against people for exercising their right to free speech, this guy's story doesn't sound very credible. There is precedent for a prosecution for distributing Pest Control Report 2000, including the prosecution of white supremacist Leo Felton, a sad-sack loser who used the same material to build a bomb around to incite a "racial holy war" the same time. And just about a month after Ver's conviction, the man who owned the company that manufactured the product was convicted of violating federal explosives and transportation laws. Several months after that, he and his company entered into a consent decree with the Consumer Product Safety Commission ordering them to stop manufacturing Pest Control Report 2000. | In the U.S. this is a notoriously perilous area of the law, particularly because the laws regarding recording vary so much between the states. A good source for this question is the RCFP. To give you an example: In Pennsylvania it is a felony to record "oral communication" in any circumstance in which the speaker would be justified in expecting it to not be recorded. Legally, as soon as you turn on an audio recorder in PA, you had better make sure nobody unaware that you're recording wanders within range of your microphone! | A fundamental requirement of criminal culpability is intent. Based on the description this whole process is happening after a user has already had their phone seized. If a person was not aware of Signal's hidden files to damage the police's data forensics software, they will not have met the criminal intent requirement, either maliciously or under a criminal negligence theory. None of the prongs of CFAA are strict liability statutes (18 U.S. Code § 1030 "Whoever having knowingly accessed a computer..."), so that would not apply here. If we imagine a person that is aware of all the information from Signal about their app intentionally abusing Cellebrite's package and with intention to cause damage downloads Signal's malicious files to their phone, I think it's an open question whether or not they would be liable under the CFAA. Specifically, 18 U.S. Code § 1030(a)(5)(A) (emphasis mine) Whoever knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; An argument on this could go both ways. On the one hand, the owner of the phone could be found to not have substantially caused the information to be transmitted to a protected computer, as the police were the integral cause for that in executing their warrant. On the other hand, this sort of file could be considered a digital "booby trap," and booby traps are illegal for essentially this reason, that they have a foreseeable effect of causing harm to people who are lawfully inside a building without the owner's permission. In this case, the owner's trap was sprung by law enforcement but still placed by the owner in order to damage them. | In general, you do not have civil recourse against the government for (lawful) legal process that you are the victim of. "Counterclaim" would only be applicable when A sues B, and B makes a counterclaim against A – the police don't sue you, they arrest you, and the prosecutor prosecutes you (or decides not to). If the police beat you up, you could sue them for violating your rights, under what is known as Section 1983. Given the scenario you describe, this comes closest to involving false arrest, meaning that there was no probable cause for arrest. Otherwise, the police have immunity for their actions. But if there is a legal arrest warrant, there is probable cause (existence of probable cause is the standard for issuing an arrest warrant), so no claim against the police will succeed. I am leaving out the anomalous concept of an unlawful arrest warrant, where a judge issued an arrest warrant but there is in fact no probable cause. Such a case would be covered by Section 1983, where either the judge or the swearing officer (or both) violated your rights. | The media purports that he was let through security, thus he had permission to be present. There is no evidence that he made a false statement to the effect that he was Trump, or in any way gained unlawful access. It is not at all clear what person in authority told him to leave, but there is no evidence that, permission to be present having been rescinded he remained at the venue. There is no evidence that he did anything that constituted "interrupting" or "disrupting" the event, and it is plainly evident that the disruption comes from the audience who decided to start chanting. Since he did not interrupt the speech and did not trespass, all they could do was remove him from the venue. Courts in the US do not hold that the peaceful presence of an opponent at a political event constitutes "instigation" or "disruption". | “Anything you say can be used against you in court.” Is what the police say in the USA. “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?” is what they say in New South Wales. “You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.” is what they say in England and Wales. And so on. Whether Mark wants to mention that he was robbing a bank on the far side of town at the time is entirely up to him. If he does, and that can be verified it’s likely the murder charges will be dropped and armed robbery charges will be brought instead. Note that in many jurisdictions, if the defence intends to use an alibi defence, the prosecution must be told about it at a very early stage or it can’t be used at all. |
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