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Does civilians' defence of their cities absolve advancing soldiers of war crimes? What are the consequences of civilians picking up arms (such as Molotov cocktails) to defend their cities? By giving orders for the Russian military to fire on civilians in cities, those who issue the order and the soldiers would be culpable for war crimes. It would appear that Ukrainian civilians have every right to defend their cities by attacking advancing soldiers using all means at their disposal. Does civilians' defence of their cities absolve advancing soldiers of war crimes? Clarification The question is not about the fate of the civilians, but that of the soldiers. Let's look at a more distant example. Under command from the Nazi or the Soviet leadership, soldiers were given orders to enter residential neighborhoods, kill some civilians, and capture others—sending them to Nazi extermination camps or the Gulag. After the hostilities ended some soldiers and some civilians survived. The soldiers are prosecuted at Nuremberg or The Hague, and some civilians are ready to testify as eyewitnesses pinpointing the attacking soldiers. Is a defence of "but the civilians I was shooting/capturing were actively throwing Molotov cocktails on me, and hence they were legitimate targets" a viable defence against a war crimes charge? | Civilians taking active part in hostilities are legitimate targets This is enshrined in Rule 6 of customary International Humanitarian Law. Rule 6. Civilians are protected against attack, unless and for such time as they take a direct part in hostilities. | Everyone physically present in the US is protected by the US Federal constitution. (In some cases persons not physically in the US also have protection from the US constitution. When that applies is too complex for this answer.) Most of the rights protected by that constitution are available to anyone present, whether citizen, lawful immigrant, lawful visitor, or a person in the US without lawful authority. A few rights, such as the right to vote and to run for public office, are limited to citizens. If a person was arrested but not informed of his or her Miranda rights, then statements made to the arresting officers (or later interrogating officers) would not be admissible in court, unless an exception to the Miranda rules applies, which is unlikely. I can't say if this happened in the particular case mentioned in the question. In general, in the area of criminal procedure, there is no difference between citizens and others subject to US jurisdiction (accredited foreign diplomats normally have immunity). A few crimes can only be committed by citizens (or others owing allegiance to the US) such as treason. A few crimes, such as unlawful entry to the US, can't be committed by citizens, as citizens automatically have a right to enter. But criminal procedure and constitutional rights affecting criminal procedure, are the same for all in the US, citizen or not. (Oh, there are special laws for minors, but that isn't a matter of citizenship.) | 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. | Yes, such as this limitation on free speech. Initially, the limitation was "Clear and Present Danger" test (Schenk v. United States, 1919) which held that speech inciting lawless action was not protected speech and thus could be crimilized speech (i.e. Schenk publishing anti-draft fliers during World War I, which advocated draft dodging which at the time was a crime under the Espionage act of 1917). This was later over ruled to the "Bad Tendency" test which allowed for advocacy of criminal actions to be criminilized (Whitney v. United States, 1927. Whitney was accused of helping establish the American Communist Labor Party (ACLP), which held as a party platform the violent overthrow of the U.S. Government in favor of one advocated by the ACLP. This is standard to most Communist Parties at the time around the world. The difference between Schenk and Whitney was that Schenk actively called for a criminal action, where as Schenk was speaking of a future action following other party successes). This was overturned again by Brandenberg v. Ohio (1969) which introduced the "Imminent Lawless Action" test. This explicitly overturned Whitney in addition to other cases not mentioned such as Abrams v. United States (1915), Giltrow v. New York (1925), and Dennis v. United States (1951). It does not overrule Schenk, but it did cast doubt upon the decision made. In the case, KKK leader Brandenburg made a speech advocating for revenge against African Americans and Jews as well as expressing the belief that the United States government actively surpressed White Americans and needed to be opposed. He was charged as advocating the violent overthrow of the government. Imminent Lawless Action added the important componant that the violation must be advocacy of lawless action (revenge against racial minorities) must have a definite future date (like "tonight", "tomorrow", or specific time and date) and a vague future time will not count. And must show intent to break the law (Brandenburg did not specifically intend to break the law... he wanted it changed so it would not be legal before he took action). Additionaly, they found that the mere advocacy of resisting the government did not have any language componant that suggested violent resistance. Brandenburg, as discussed, overturned the reaffirmed B and put Schenk on some shaky ground as parts of Shenk were still relevant (Schenk first introduced that Free Speech was not without restrictions, but some of the case law was not relevent anymore, as Whitney used it as a basis in that decision, as did to a limited extent Dennis, which didn't work well with Whitney for other reasons. It should be pointed out that the Supreme Court does not typically take cases that wholly reaffirm past cases. Typically, their rulings are to clarify situations in a previous case that are not stated by the current extant rulings. For example, if the Supreme Court took a case that called Roe v. Wade into question, the case would more likely test whether Roe allows for a particular practice that isn't all that clear in Roe. It may affirm that Roe is still law, but the new case is not consistent with Roe, which will place a restriction on Roe, but not, figuratively, (pardon the pun) throw the baby out with the bath water. | Yes. The Russian owned party to the contract can be sued. The remedies would be those available under the contract, which may or may not be futile to pursue, which almost certainly specify the court to which disputes should be brought. I have no access to the contracts and can't read the relevant languages anyway, however, so I can't tell you what they say about this point. In all likelihood, a Russian court would not rule in favor of Poland or Bulgaria on this score, and would not order Russia to restart supplying natural gas to them (perhaps on the theory that national security and foreign affairs decisions are involved), and no other court would have the practicable ability to cause Russia to reopen its natural gas pipelines. So, if they prevailed, the Court would have to fashion some other remedy (e.g. seizing Russian assets sufficiently associated with the contractually bound party over which they can acquire jurisdiction). If there is a third-party guarantor of the contract, collection could be feasible. If not, it would be much more challenging. | Self-Defense is an active Defense for Homicide (note, this is the legal term for taking a life. Criminal Homicide and Justified Homicide are two subsets of Homicide and are denoted by illegal actions and legal actions. Homicide as a result of Self-Defense is a Justified Homicide, regardless of the weapon, so long as it was applied with the minimal amount of force required to stop the criminal harm to oneself). Suppose you use a taser and the current causes the attacker to go into cardiac arrest and die. Your intention in using the taser was to stop the criminal from injuring yourself, your property, or another person or their property (defense of others). Even though the Taser is non-leathal, it's more like less lethal. Death by Taser is uncommon, but not impossible or rare. It would be handled as a defensive use of a weapon (same as if the attacker was killed by a gun) and processed as such. Pennsylvania is a Stand Your Ground State, meaning that in a public place, you do not have a duty to flee if your attacker approaches you in a public place, you do not have to prove that you could not flee in order to claim self-defense. However, if you pull a weapon and your attacker decides to flee, you can not give chase and kill him upon capture. You also need to have a reasonable expectation that the attacker is about to use deadly force (this normally means having sight of the weapon or what would reasonably look like a weapon i.e. a realistic toy gun without the orange safety cap would be reasonable). You also cannot claim self-defense if you were engaged in another crime when the attacker approached you (i.e. If you rob the Krusty Krab and the Hash Slinging Slasher approaches you with a knife, sucks to be you cause you don't have a right to be in the Krusty Krab after closing.). | To provide an initial answer, without getting to the specific of the 51 statutory standards for self-defense in U.S. states and the exact Canadian standard, as applied to your examples, I'll make some general observations: Self-defense is a justification for doing something that would otherwise be illegal (intentionally using force against someone else). Self-defense justifications include a sense of proportionality. It isn't proper to use more force than is reasonably necessary to achieve the defensive objective. There are basically two levels of self-defensive force: Deadly Force and Non-Deadly Force. Preventing some crimes and harms is statutorily justified to do using deadly force (e.g. to prevent a murder). To prevent other crimes and harms statutes only justify the use of non-deadly force (e.g. to prevent shoplifting). The exact list of crimes in each category varies somewhat. Historically, for example, there have been some U.S. states that have authorized the use of deadly force to prevent a rape that does not put the life of the victim at risk, and others that have not authorized the use of deadly force for that purpose (I don't know if that is still the case). Typically, law enforcement officers are also authorized to use deadly force in some circumstances in which a non-deputized civilian could not. As a practical matter, a use of force that causes death is presumptively considered to be deadly force, even if the means used are not inherently deadly in all circumstances. Meanwhile, a use of force involving the use of a "deadly weapon" such as a firearm, is presumptively considered to be deadly force, even if it doesn't actually kill someone. But both of these "presumptions" (and I am using that term loosely in this answer, rather than with its precise legal meaning), can be overcome with relevant evidence. Mildly shoving someone with hemophilia (or tossing a dish full of peanuts in the face of someone with a severe peanut allergy), without knowing that this person suffers from this condition, is not a use of deadly force within the meaning of laws justifying self-defense, even if it actually ends up causing their death. Similarly, proving that you intended to and did, shoot out the tires of someone's car, or shot their foot, instead of shooting to kill, would not always constitute a use of deadly force for purposes of statutes justifying the use of force in self-defense. Getting to the specifics of the question, the majority rule would be that the use of deadly force is justified in most circumstances to prevent a home invasion burglar from harming you or other people in the residence, and to repel the home invasion burglar from the residence, although some jurisdictions would qualify this in one respect or another. The case that the use of deadly force is justified would be stronger if the home invasion burglar was armed than if he was not, and would be stronger if the homeowner was not physically competent enough to be confident of an ability to dispatch the invader in a non-deadly manner. If deadly force was justified in that circumstance, it wouldn't really matter how you killed him, nor would it matter that you intended to kill him to defense your home and the people in your home. If the law only authorized the use of non-deadly force in the circumstances, for example, because the burglar had seized an envelope full of cash and was fleeing the house, so you were really only using force to protect your property, rather than to protect your home or the safety of the people in it, at that point, then the analysis would get tougher. If you intended to kill the fleeing thief in circumstances when only non-deadly force was authorized, the weapon you used wouldn't matter. You intended to use deadly force, the force you used caused the intended death, and you did those things even though the law didn't authorize you to do so in those circumstances. If you didn't intend to kill the fleeing thief in circumstances when only non-deadly force was authorized, but you ended up killing him anyway (so that you didn't have a prohibited intent behind your actions), then the question would be whether your intent and belief that your actions would not kill him was reasonable under the circumstances. If you caused his death with your bare hands, or with a less lethal weapon (in truth, there is no such thing as a non-lethal weapon), your belief that the thief wouldn't die from your use of force would be more likely to be seen as reasonable. If you caused his death with a lethal weapon, your belief that the thief wouldn't die from your use of force would be less likely to be seen as reasonable. If the jury (or a judge in bench trial) didn't believe you were reasonable in your use of force which you didn't intend to be deadly, then the jury (or judge as the case might be) would not allow a self-defense argument to prevent them from convicting you of some kind of homicide crime. So you would probably be convicted of some form of homicide (perhaps heat of passion manslaughter), although you might still not have the requisite intent for first degree murder in circumstances like that (so that your self-defense argument might end up providing you with an incomplete defense). | Country A and country B must do whatever they agree in the settlement of the conflict between themselves - returning or ceding of territory being one of these. Or they can disagree about these laying the seeds for further conflict. The most recent example of this is Russia's seizure of the Crimea from Ukraine; which they legitimised by a plebiscite. AFAIK, Ukraine and the international community has not accepted this but neither are they doing anything about it - legally Crimea is still part of Ukraine, practically it is part of Russia. |
Consequences of introducing inadmissible evidence to the judge and jury Evidence may be inadmissible, but that doesn't necessarily mean it will be ineffectual in its influence of the jury, and the judge. For example, evidence proving a horrendous crime done by the accused, that has been rendered inadmissible via e.g. the exclusionary rule, would still of course have an emotional impact on the judge and jury. That would mean that inadmissible evidence wound up affecting the trial despite its inadmissibility. So, I have two questions: What are the consequences for the person that brought this inadmissible evidence to light? I expect this may vary depending on whether this person is a state official or not, and their involvement in the case. Will the case end as a mistrial, or will a new trial begin, due to the unlawful influences introduced? | united-states This answer is based upon general principles of criminal procedure in the United States which are quite similar in most states, although not necessarily exactly identical. The answer is likely to be different in other jurisdictions. If inadmissible evidence is offered by the prosecution and admitted at trial, this is a ground upon which the defense can move for a mistrial (which due to double jeopardy amounts to an acquittal), or upon which the defendant can appeal the conviction of the jury, if convicted. Acquittals of a defendant at trial cannot be appealed by the prosecution. But, to appeal, the error in admitting inadmissible evidence must be contemporaneously objected to by the defendant's lawyer (or the defendant if the defendant is not represented by counsel), or the admission of the evidence must be "plain error" (which is very rarely met on evidentiary issues). If the defendant's lawyer doesn't promptly say "I object" that ground for contesting a conviction is usually lost. Even then, the standard of review on appeal is whether the judge abused the judge's discretion in admitting the evidence, not whether the appellate court would have ruled the same way if presented with that evidentiary question. Also, even if there is an error, a conviction on a particular count will not be overruled if the error was "harmless", which is to say that there is a reasonable possibility that admitting the inadmissible evidence caused the defendant to be convicted of that count. Often, if the evidence is overwhelming, or the inadmissible evidence wasn't that prejudicial, a conviction will be affirmed notwithstanding the admission of inadmissible evidence. Sometimes harmless error is evaluated considering all of the errors at trial as a whole, rather than individually, in addition to all of the other evidence admitted at trial. If an evidence issue can be foreseen and is central to the case (e.g. suppression of evidence of possession of drugs in a drug possession case), the issue of the admissibility of the evidence will often be resolved in a pre-trial hearing and subject to appeal then, prior to trial, rather than being resolved in the trial itself where the prosecution has no right to appeal, and the defendant risks conviction if the ruling goes against the defendant. If the conviction is overturned on appeal, the usual remedy is to remand the case to the same judge to conduct a new trial with a new jury, in a manner consistent with the appellate court's rulings. | It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question. | If someone was charged with 15 counts of a crime but was only indicted on 2 counts, can the prosecutor introduce evidence at sentencing of charges that the person was not indicted on? In federal court, yes. This has been the case since Williams v. New York, 337 U.S. 241 (1949) which held that evidence such as counts and conduct upon which the defendant was not charged or indicted may still be considered in a sentencing hearing. Since U.S. v. Watts, 519 U.S. 148 (1997), the prosecutor can even introduce evidence at sentencing of charges upon which the person was acquitted by a jury. See generally here. This remains good law although it is controversial both in academic writing and in political discussions and among many sitting federal judges. Neither the Federal Rules of Evidence nor constitutional provisions related to evidentiary matters (e.g., the Confrontation Clause of the Sixth Amendment) apply at sentencing. Therefore, the court may consider hearsay and other types of information that would not be admissible during a trial. However, the [U.S. Sentencing] Commission has stated that information considered by a court at sentencing must have “sufficient indicia of reliability to support its probable accuracy.” Under Federal Rule of Criminal Procedure 32, the court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” In resolving factual disputes, the court ordinarily applies the preponderance of the evidence standard. From here. The quote above cites the following authority: FED. R. EVID. 1101(d)(3). Williams v. New York, 337 U.S. 241 (1949). 18 U.S.C. § 3661; see also Pepper v. United States, 562 U.S. 476, 480 (2011) (“This Court has long recognized that sentencing judges ‘exercise a wide discretion’ in the types of evidence they may consider when imposing sentence and that ‘[h]ighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.’ Williams v. New York, 337 U.S. 241, 246– 247 (1949). Congress codified this principle at 18 U.S.C. § 3661, which provides that ‘[n]o limitation shall be placed on the information’ a sentencing court may consider ‘concerning the [defendant's] background, character, and conduct,’ and at § 3553(a), which sets forth certain factors that sentencing courts must consider, including ‘the history and characteristics of the defendant,’ § 3553(a)(1).”). USSG §6A1.3(a). FED. R. CRIM. P. 32(i)(3)(B). USSG §6A1.3, comment.; see also McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986) (holding that due process does not require sentencing factors to be proved by more than a preponderance of the evidence). Federal Rule of Evidence 1101 states (emphasis added): Rule 1101. Applicability of the Rules (a) To Courts and Judges. These rules apply to proceedings before: · United States district courts; · United States bankruptcy and magistrate judges; · United States courts of appeals; · the United States Court of Federal Claims; and · the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands. (b) To Cases and Proceedings. These rules apply in: · civil cases and proceedings, including bankruptcy, admiralty, and maritime cases; · criminal cases and proceedings; and · contempt proceedings, except those in which the court may act summarily. (c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding. (d) Exceptions. These rules — except for those on privilege — do not apply to the following: (1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility; (2) grand-jury proceedings; and (3) miscellaneous proceedings such as: · extradition or rendition; · issuing an arrest warrant, criminal summons, or search warrant; · a preliminary examination in a criminal case; · sentencing; · granting or revoking probation or supervised release; and · considering whether to release on bail or otherwise. (e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules. Given the immense personal importance of a sentencing hearing which can exercise discretion over a range of many decades of possible prison time, and which is frequently the only meaningful opportunity for a person who is easily proven guilty to distinguish himself or herself from other defendants, it is really very stunning and counterintuitive that this is the case. And if so isn't that denying the defendant his or her due process because that person was not indicted on those charges? Under current U.S. Constitutional law, the maximum sentence that can be imposed must be based upon convictions by a jury or judge based upon charges upon which indictments were brought, which were proved beyond a reasonable doubt based upon admissible evidence. The leading case in support of this proposition is Apprendi v. New Jersey, 530 U.S. 466 (2000). But, at sentencing, the judge's exercise of discretion up to the maximum sentence established at trial may be made based upon a preponderance of the evidence and that evidence is not subject to the same procedural safeguards. | Special regimes For some kinds of questions there are special presumptions or forms of evidence that are specified by statute. For example, in Canada and the United States, registering a copyright creates presumptive proof that the copyright exists and is owned by the registrant. In Canada, breathalyzer results are conclusive proof of the blood alcohol concentration if certain conditions are met. Some of these regimes are not subject to challenge: they are legal facts even if they are not objectively true (e.g. the breathalyser results). Others create presumptions that can be overcome by contrary evidence (e.g. copyright ownership). The default: present relevant evidence, including testimonial evidence But outside of special regimes, you prove a fact by introducing evidence. The default is that all relevant evidence that bears on a material fact is admissible. Evidence is relevant when, if is were to be accepted, it would make the fact in issue more or less likely to be true. Evidence comes in many forms: testimony of the parties or witnesses, documentary evidence, physical evidence, expert opinion evidence. If you are wondering, "How do I prove X?" Ask yourself, why do you believe X? Or, how do you know X? Or, how has the event X left its mark on the world? Whatever has led you to believe X probably is the evidence that you would want to introduce to the court to help prove X. Perhaps you saw X: you can tell the court you saw X. Perhaps you took a photo of X: you can present that photo in court. Perhaps you have a receipt for X: you can show that receipt in court. Perhaps X is a proposition about your own actions: you can tell the court about those. Obtaining the evidence Evidence can be obtained from the other party during the discovery process, or from third-parties using subpoenas, subject to objections relating to relevance or privilege. Not all (potentially) relevant evidence is admissible However, some evidence will be inadmissible despite it being potentially relevant. I will only present a few categories, some very general and some more specific: hearsay (unless it falls within an exception to the hearsay exclusion), privileged material (unless it is a case-by-case privilege or a discretionary privilege and the person seeking to admit the evidence demonstrates to the judge that it should be admitted), sexual history evidence of a sexual assault complainant when it will be used to support an inference that the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge or is less worthy of belief (this is because it has been recognized as not relevant for this purpose), material that was obtained in contravention of the Charter and where the court has decided that the remedy for the Charter violation is exclusion of the evidence (in the United States, there is stricter, exclusionary rule), there are many more. There are also some meta-rules about the evidence that may be used to impugn a witness's credibility, themselves at trial to provide evidence, but for now I am leaving those out of this fairly summary answer. Weighing the evidence The trier of fact (the judge or a jury) then is to weigh all the admissible evidence, including by weighing the witness and party testimony according to its credibility and reliability after testing through cross-examination, to come to a conclusion on the ultimate question(s) at issue. | Usually, an attack on the validity or prudence of the underlying order is not a defense to court action to enforce it. Usually, the only exception would be when it was impossible, or practically impossible, to perform the court order for some reason. You could seek to modify the order, but that would be prospective in effect only and usually isn't granted unless there has been a change in circumstances since the original order was entered. You could also bring a motion to set aside judgment (usually this has to be done within six months of entry of an order) on the grounds that this provision was included only due to mistake or irregularities in the process or excusable neglect. But, that only would have only prospective effect. | This is actually a very complicated question, about (1) the scope of "knowingly", (2) what kind of "intent" is required for conviction, (3) how does the jury understand and evaluate concepts of intent and (4) how does an attorney persuade the jury that the situation does or does not satisfy the particular intent requirement. One thing we can dispose of quickly is the possibility that the law says that the accused has to actually know that the act is against the law. It is a standard legal fiction (2,400 years old) that the accused knows the law, or should have known. As for the 4th element, persuasion, on the strong side we have statements of intent by the accused – "And I pulled out my rifle and blew his head off, and I laughed the whole time". What the jury has to decide is whether the accused had in mind a conscious purpose of doing some act (that is, it wasn't just an accident like butt-dialing, or an instant stimulus-response reaction to some event). "Intent" generally falls in the realm of acting "purposely", which the Model Penal Code §2.02 defines as: A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. which more or less means what you think "with intent" means. That doesn't say what they intended to do, it just distinguishes intent from negligence and accident. The prosecutor would then present factual evidence that the accused had a bad intent, like showing that he actually made an attempt to access credit card account data (that such data had been accessed when he broke into the system), etc. We can sort of dispose of the other scope question about "knowingly", namely, what things would he have to know? The chunk accessing a protected computer without authorization can be interpreted in a number of ways, having to do with which elements of the clause are known to the accused. You might know that you were accessing but not know that you were unauthorized; you might know that you were accessing and unauthorized, but not know that the computer is protected. The only reliable way to know which is which is to study the case law on a statute and see if there is a controlling decision that say e.g. that you have to know that you are accessing and are unauthorized, but you don't have to know that the computer is protected. I haven't determined (yet) is there is decisive case law on this, but I'm betting that the outcome would be that not knowing of the protected status of a computer carries no weight. As for what kind of intent, there is a distinction between "specific intent" and "general intent". The distinction comes down to having some evil purpose like "make him suffer" (general intent) versus a specific evil purpose like "kill him". Finally, the people who actually decide, the jury, will be given instructions that say what they have to look for. Here is the tip of the tip of the iceberg, from California's criminal jury instructions. The judge will say... The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required. A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence. Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable. and then there will be some specific elaboration of whether they have to find that the accused just generally intended to do bad, versus intended to specifically defraud. | I'm curious as to how the US legal system determines who should present evidence and how much evidence is required by them to prove one side of an argument against a counterargument. In General In both criminal and civil cases in common law legal systems (legal systems derived from the English legal system, basically, the U.S., U.K., Ireland, Canada, Australia, New Zealand, India, Pakistan and Bangladesh), the burden of proof is on the party seeking to have a court do something. So, if the absence of evidence, the party seeking relief loses. Proof Of The Elements Of The Charge Or Cause Of Action Presentation of Evidence and the Prima Facie Case The party seeking court action presents their evidence first. If at the close of their opening case that party has not presented enough evidence to meet their burden of proof with respect to every "element" of the list of legal elements that they must prove to prevail in court, that party has not established a "prima facie case" and the case is dismissed without granting relief. If the prosecution or party bringing a civil case establishes a prima facie case, or if the defense does ask to have the case dismissed for failing to establish a prima facie case at the close of the evidence of the party asking the court to do something, then the defense presents their evidence if the defense wishes to do so (this is optional). (If the defense does present evidence, the prosecution or civil party seeking relief can then present a rebuttal case to disprove the new points of evidence in the defense case, and so on, back and forth until all evidence is taken.) Evaluating The Evidence In Light Of The Burden Of Proof Once both the party asking the court to do something and the defense have presented all of their evidence, the trier of fact (i.e. the jury in a jury trial, or a judge in a bench trial) decides if every element of the case of the party asking the court to do something has been established by the relevant burden of proof. In a civil case, the burden of proof is usually a "preponderance of the evidence" (i.e. that the evidence more strongly favors that the element was established than that it was not established); some elements on some claims in civil cases must be established by the higher standard of "clear and convincing evidence." In a criminal case, the burden of proof is "proof beyond a reasonable doubt". Affirmative Defenses In addition to elements of a case that must be established to make a prima facie case, there are also "affirmative defenses" to a request that a court do something. Examples of affirmative defenses include self-defense, statute of limitations, immunity from suit, a pardon in a criminal case, etc. A defendant can win ether by showing that the party asking the court to do something has failed to meet their burden of proof with respect to one or more elements of the case, or by showing that an affirmative defense bars the request. In both criminal cases and civil cases, the burden is on the defense to show that there is at least some evidence that justifies consideration of an affirmative defense. This is called a "burden of production." In a civil case (and in some criminal cases in some jurisdictions), the burden of proof is on the defendant to prove an affirmative defense by preponderance of the evidence. In some criminal cases in some jurisdictions, once the defense has met a burden of production with regard to an affirmative defense, the prosecution must rule out the affirmative defense beyond a reasonable doubt to prevail. Deciding Who Wins Once both the party asking the court to do something and the defense have presented all of their evidence, the trier of fact (i.e. the jury in a jury trial, or a judge in a bench trial) decides if an affirmative defenses prohibit the party asking the court to do something from prevailing. The party asking the court to do something wins unless the defense can show that this party did not meet the burden of proof as to any one element of a particular criminal charge or civil cause of action (for each charge or cause of action), or that an affirmative defense bars that particular charge or cause of action. Often cases have conflicting testimony regarding what happened. The jury (or judge in a bench trial) can choose to belief that one person is telling the truth and that the other statement is either a lie or is unintentionally inaccurate for some reason. If the jury (or judge in a bench trial) isn't at all sure whose statement is true and whose is not, this favors the defendant if one is not more credible than the other. Complex Cases In a simple case, there is just one charge or cause of action, and there is just one defendant. But, often, there are multiple charges or causes of action, and each one must be evaluated as to each defendant of the multiple defendants in a single trial. In a civil case, sometimes there are counterclaims that defendants are trying to prove against plaintiffs, or cross-claims that defendants or counterclaim defendants are trying to prove against each other that have to be evaluated. Also, in civil cases, sometimes one or more of the defendants is also prosecuting one or more separate causes of action against someone other than the original plaintiffs or co-defendants. In that case, that defendant is also a third-party plaintiff, and someone other than the original plaintiff and defendants is a third-party defendant (third-party defendants can also bring third-party counterclaims against the third-party plaintiff, third-party crossclaims against third-party codefendants, or their own claims against new parties or against the original plaintiffs). Other Rules Special Statutes Regarding Proof Of Facts Sometimes, there are particular kind of facts for which a statute says that a "prima facie case" is established automatically if a certain kind of evidence is presented. For example, it is common for the law to say that a prima facie case regarding ownership of real estate, or the status of a bus as a school bus, is established by presenting a copy of an official document that says so. Usually, when a statute says something like that, the prima facie case can still be overcome, for example, by presenting a subsequent document that shows that the real estate was then sold to someone else, or that the school bus status of the bus was later revoked. But, when a statute like that is present, the plaintiff or prosecutor doesn't have a duty to prove the negative that there was no subsequent sale of the real estate or that the school bus status certificate was still in force on the date of the incident. Rules of Evidence There are also "rules of evidence" that govern what kind of facts can be presented at a trial to prove a case. For example, in a U.S. criminal trial a fact cannot be established with evidence that is hearsay, such as an affidavit or a statement that a witness heard someone else say and is retelling to the court. A very important rule of evidence in U.S. criminal trials that flows from the United States Constitution, is the evidence obtained by law enforcement illegally may not be presented by the prosecution, even if it definitively shows that a defendant is guilty. This is called the "exclusionary rule." Application To Facts Is it up to the prosecution to present full and complete evidence that the system only takes pictures when the bus is stopped (presumably reviewing source code or conducting tests) or is there some kind of legal concept of "good enough at a glance" evidence where they've met some minimum burden of proof that the picture is taken when the system is turned on and it's only on when the bus is stopped, therefore it must be functioning as expected? The prosecution has to convince the jury (or the judge in a bench trial) that every element of the crime as define in the statute has been proved beyond a reasonable doubt and that any affirmative defense upon which the defense meets a burden of production has been overcome by the relevant burden of proof. Usually, this is a broad legal standard, and the jury (or judge in a bench trial) has to decide if the burden of proof has been met by the facts presented which were legally admissible as evidence. It wouldn't be uncommon for a defendant to present no new evidence in a defense case (other than having cross-examined the prosecution's witnesses) and merely argue at the completion of the prosecution's case that the evidence presented didn't establish a particular element of the prosecution's case beyond a reasonable doubt. For example, the defense might argue that the picture presented by the prosecution was not taken when the bus was at a complete stop, and if the prosecution didn't present some convincing evidence that the bus was at a complete stop when the picture was taken (e.g. the testimony of the bus driver and other witnesses), the defense should win. But, it is almost always up to the jury (or the judge in a bench trial) to decide if the prosecution's evidence is good enough to prove beyond a reasonable doubt that the prosecution proved the case. Often a defendant will not want to call any witnesses beyond the witnesses presented in the prosecution case, because a defendant's witness might cause the jury to overcome its doubt that a fact only weakly proved by the prosecution was actually true, for example, when only one not very credible prosecution witness had testified regarding the same fact. If the identical case were presented to two different juries, one jury could decide to believe the bus driver who said that the bus was at a stop when the picture was taken, and a different jury could decide not to belief the bus driver, and both decisions would be valid. Consequences Of A Verdict If the judge or jury acquits the defendant in a criminal case, the case is over and there is no appeal. If the jury is hung (there is no unanimous ruling to convict or acquit (but see endnote)), in a criminal case, there is a mistrial and the defendant can be tried again. If the jury convicts, one of the grounds for an appeal by the defendant is that the evidence was insufficient to prove some element of the charge beyond a reasonable doubt, and if the appellate court agrees than the conviction is overturned and there can be a retrial (or in some cases, the defendant is acquitted). Appellate Review Of The Sufficiency Of The Proof The law recognizes that different juries could interpret exactly the same facts in different ways and will reverse a conviction because the burden of proof was not met only if "no reasonable jury" could have interpreted the evidence in a manner consistent with a conviction. For example, on appeal, an appellate court will always assume that the jury thought that every pro-defendant witness, whose credibility was questioned in any way by the prosecution, was lying and that the jury believed that every pro-prosecution witness was telling the truth, even if the defense presented evidence that could have caused a reasonable juror to question the truthfulness of a prosecution witness. Appeals for failure to prove something beyond a reasonable doubt can be easier in a bench trial than in a jury trial because following a bench trial the judge will often publicly state the actual reasons in terms of findings of fact and law that the judge used to reach a conclusion. So, the defendant need only show that a key fact actually found by the judge was not supported by the requisite proof. END NOTE Oregon State, and prior to 2019, Louisiana, did not require juries in all criminal cases to be unanimous. | There actually is a practical effect to a "not proven" v. "not guilty" verdict in Scotland, but it is mostly sociological or social in nature rather than legal. If your question is, are there future legal concerns, than no. Not proven is, to be sure, an acquittal. However, it is an acquittal that the tells the public something important: that the trier(s) of fact thought the person likely guilty. That's a fairly substantial distinction. In Scotland, a criminal case may be decided either "in solemn procedure", which is simply the Scot term for a jury trial v. "in summary" or in "summary procedure" which is the U.S. equivalent of a bench trial. The difference between the two (and the divergence from the U.S. procedural vehicle) is that for lesser crimes the accused doesn't have an automatic right of a jury trial for any criminal matter. In some ways this lesser included makes up for the fact that the Scottish accused is without absolute right to choose jury or bench trial, which in the U.S. can be very meaningful from a tactical perspective. Think of how important the make-up and emotional proclivities of juries are to both convictions and acquittals. A bench trial can be beneficial to the truly unlikable defendant, or in especially brutal crimes, where juries may convict out of fear or sympathy for the victim, even if the case is weak. At the same time, they may nullify the conviction for the sympathetic defendant. Juries are notoriously emotional and bias driven. Being able to choose a bench trial where the judge will follow the evidence and avoid the emotional response of a jury can be invaluable. Just as a sympathetic defendant can appeal to the emotions of the jury for acquittal or jury nullification, on the opposite spectrum. In Scotland, lesser crimes are always (with limited exclusions) tried by a judge, while more serious allegations always (again w/ limited exclusions) get a jury trial, automatically. The defendant does not choose the type of trial he is afforded. Hence, a defense or a prosecution cannot fiddle with the balance of proof based on emotion or lack there of. They get what they get. There are various rules procedurally that differ in comparison, but since this isn't the question that is the general rule and should suffice for background. Also hugely important is the fact that in Scotland, jurors decide a case by majority vote (like a civil trial in the U.S.); hence, there are no hung juries and they don't need a consensus. So, one way or another the verdict will be given in a Scottish criminal action. Scots also get comparatively huge juries to any other country (15 jurors) and they only need 8 in agreement to reach a verdict. Tactically, the "not proven" is a lesser included verdict (like U.S. uses lesser included charges in cases that are weaker for the prosecution). This lesser included finding can be used by choice when the Prosecution has a sympathetic defendant or when the defendant is probably guilty or unlikable. If the jury thinks the defendant (called "accused") probably did the crime, but the prosecution has failed to prove the elements, they can/will issue a "not proven" verdict. This sends a big message. This, again, is typically only reserved for those cases when there is strong but not conclusive proof that someone committed a crime. They don't want to profess their innocence with a not guilty verdict, so they are still acquitted, but with he stigma of the "not proven" verdict attached. Some estimates have from 1/5 to a full 1/3 of all acquittal verdicts by Scottish juries as "not proven" as opposed to "not guilty". Not proven can also be used by judges in the bench trial (summary procedure), however it's much less common. The proportion of 'not proven" acquittals in general is higher in the more severe cases; but so then are the proportion of acquittals versus convictions. These would likely be hung juries in the U.S.. Both in the "solemn" and the "summary" acquittals, not proven is interpreted as indicating that the jury or judge, respectively, is not convinced of the innocence of the accused; in fact, they may be morally or even factually convinced that the accused is guilty, but do not find the proofs sufficient for a conviction under the elements of the crime on the jury instruction/verdict form. I look at this as similar to the adage oft used in the U.S., which is an acquittal, despite the fact that the verdict is termed "not guilty" does by no means indicate the person is in fact "not guilty", it just means the prosecution couldn't prove its case. Sociologists in the U.S., as well as legal scholars, have studied the phenomenon, and it appears that most not guilty verdicts in fact let go a guilty person. This can be intuited by the evidence the jury never saw, either by suppression from bad searches, by the exclusion of witness testimony due to procedural rules like hearsay, privilege, etc., and other forms of keeping relevant evidence from the jury to protect the rights of the accused. But in the U.S. the person can go forth and say, "Hey, I was proven not guilty!" Scotland also has another interesting rule of criminal procedure, whereby a criminal can't be convicted without corroborated evidence. What this means is that if all the prosecution has is the victim witness, by way of proof, testifying, and no physical or corroboration testimony, Scottish law requires acquittal, but often will be so by the verdict "not proven". This is huge, if you think about it. Use, for example, a rape trial. A woman testifies, saying that Joe Schmoe climbed through her window and raped her. She knows Joe - he's her neighbor. Nobody saw him climb in. But she knows it's him. He leaves no physical evidence, having shaved his entire body and used appropriate protection (gloves, condemn, etc.). She has a rape kit done. Rape is obvious, but the only proof is her testimony. Joe goes free. But in Scotland, he goes free with a stigma attached. He's found "not proven" rather than "not guilty". I think this corroboration rule has a lot to do with why this verdict system still exists. In the U.S. the trier of fact would weigh the testimony and decide if one person was substantially more believable than the other, and a verdict would issue. That is a substantial difference, procedurally. Since Scotland doesn't have the hung jury because there is no consensus required they use the "not proven" in the same way a U.S. jury uses the hung jury when one or more jurors thinks the prosecution didn't prove their case but it's fairly clear the defendant is, in fact guilty. Then, you will often get a "hold out" juror, and since the U.S. requires a unanimous verdict, the hold out hangs the jury. It's sort of the opposite of jury nullification. The person knows that the evidence fell short, but their conscience can't reconcile letting the person go free, so they will vote guilty to hang the jury, almost ensuring the prosecution gets another shot. There has been a lot of debate about this three verdict system in comparative law circles, with many legal scholars saying it's antiquated. But I think it serves an important purpose. It carries the stigma of likely guilt for those people who probably committed the crime but got off. Further, the hung jury cost tax payers millions of dollars in the U.S., and this is often the side effect of people not wanting there to be absolutely no recognition of the fact that the accused probably committed (especially serious) crime(s). The Scots, on the other hand, have found away to accomplish this without the cost and emotional toll multiple trials takes on all the players involved, from witnesses and victims, their families, the accused, and even the lawyers and the prosecutions, who have to put in all the work of a trial just to start anew. Here is a really good scholarly article that deals with this interesting phenomenon not seen in (I don't believe) any other country: https://journals.iupui.edu/index.php/iiclr/article/viewFile/17848/18019 |
Is it allowed to non-consensually submit someone's diary as evidence? In episode 12, season 4 of The Office, called "The Deposition", the diary of a witness (Michael Scott) is used as evidence, without the witness's consent. The diary was taken by the suer, Jan Levinson, who was Soctt's girlfriend at the time. This happened during a deposition. I can't remember whether the attorneys there were aware of Scott's lack of consent. So, here are my questions: Is a personal text (like a diary), submitted without the consent of the author, admissible evidence? If such evidence has been submitted and reviewed, and it later comes out the text was submitted without the consent of the author, what happens to the evidence and the case? If the answer to 1. is "no", is the evidence thrown out on the grounds of inadmissibility, or is the case ended on the grounds of malpractice or something? Perhaps it depends on who took the diary? If the lawyer did it, maybe that's cause of ending the case, whereas if another person did it, and simply handed it to the lawyer, it's not? The case in question is about Levinson suing her former employer (Dunder Mifflin Paper Company, Inc.) for wrongful termination, where her claim is that she was fired due to her breast augmentation surgery. The diary is being used for her case, and Scott is her witness. | united-states Is a personal text (like a diary), submitted without the consent of the author, admissible evidence? Usually, it is admissible evidence. There is no legal right to keep your diary private. Production of a diary may be compelled by subpoena and admitted into evidence subject only to general considerations regarding whether particular entries in the diary are inadmissible for some other reason (e.g. lack of relevance, they recite the contents of an otherwise privileged discussion, they contain hearsay, they recite the terms of a settlement offer, the recite inadmissible prior act evidence, etc.). If the diary revealed information that could place the diarist at risk of criminal prosecution, the 5th Amendment privilege against self-incrimination could arguably be claimed even in a civil case, but at the risk of an adverse inference to be drawn from that decision in civil matters. I haven't ever seen how that issue is resolved legally. | The defence in a criminal case has no obligation to inform the prosecution of anything. The onus is on the prosecution to provide the evidence to convict and the defence doesn't have to and indeed shouldn't help them do it. The defence can and probably would use conflicting statements by a prosecution witness to discredit that witness in the eyes of the jury. These do not have to be material to the case: just showing the witness is inconsistent in general is helpful. | If a police officer reviewed the footage and then went out and issued a citation in person to the offender, this could probably be used. Many states limit tickets issued by mail based upon camera evidence alone. But, while some state laws have specific requirements, but in general, authenticated video recordings are admissible evidence in court proceedings, and a citizen complaint can be a basis for initiating a traffic offense prosecution. To prove some offenses, like speeding, dashcam evidence of a third-party may not be very good evidence, but for running a red light or a stop sign, it could be powerful evidence. | In the united-states, attorneys are almost never placed under oath. Their statements -- whether they are assertions of fact or legal arguments -- are not evidence, and they are not subject to cross examination. There are limited circumstances in which an attorney would be competent to present actual evidence. In such cases, the attorney would be sworn in as a witness and subject to cross examination, but the attorney would likely also be disqualified from acting as an attorney in such a situation under Model Rule 3.7. | The warning notice is intended for viewers and participants, not for the court to make its own official record of the proceedings. Presumably, it was this court record that the judge released for educational purposes under his own Order via Twitter. In which case, there has been no contempt of court. | If you state, to a third person, that Joe has performed a criminal act then that is defamation and you can be sued. Unless it is true. However, if you are relying on the truth as a defence you will need to provide evidence that it is. At the moment you lack: a criminal conviction of Joe any physical evidence against Joe any personal knowledge that Joe has committed these acts. All you have, is second hand rumours that this has happened to 5 women, some of whom have reported it to you in person. This is called hearsay and it is not evidence. It may be true, it probably is true - you can't prove it's true and in court, that's all that matters. If you were sued your only possible defence is to call these women to give the evidence they are unwilling to give - are you willing to betray their confidence to that extent? | I'm not a lawyer, but I am an NHS employee, and can more concretely answer your questions. Has any crime been committed, and if so, is there any point in pursuing this with the police? If so, how do I go about it? Yes, in-fact, several crimes have been committed. Firstly, NHS employees are prohibited from viewing patient's personal information that they are not specifically treating. In opening your letter from the NHS, the nurse in question violated this practice. It's a breach of both privacy and trust. This is taught at the NHS and the nurse would be aware of this. Secondly, by cancelling your appointment, the nurse has committed workplace fraud. They have impersonated a patient, and in doing so, cost the NHS money and time it won't get back by cancelling your appointment. Again, this is also taught within the NHS, and the nurse would be aware of this too. Thirdly, by cancelling your appointment, the nurse may have put a life in danger in doing so, which is effectively gross negligence at a minimum. Although this can be reported to the police, it'll be more effective to report it to the appropriate NHS bodies. Even if a crime has not been committed, I would think that at the very least, opening someone's mail and then impersonating them and cancelling the surgery would at least be viewed as unprofessional, especially for someone employed in the NHS. Is there a procedure for making a complaint against an NHS worker? There are several different approaches, given the various breaches of trust. As BlueDogRanch mentioned, you can file a compliant to NHS England, which includes via email. Be sure to get appropriate information like the nurse's name, address, and if possible any details (like appointment reference numbers) to aid the investigation. Secondly, because of the cost incurred via the malicious cancellation of an appointment, costing time and money (and running the risk of opening the NHS to litigation), you can also report the fraudulent aspects to the NHS Counter Fraud Authority. | united-states Procedures differ on such things. The closest I know of to an outcome of "not enough evidence" is the classic "scotch verdict" of "Not Proven. In the US, the prosecutor can wait to proceed with a criminal case while s/he does (or has done) as much investigation as s/he thinks is advisable. But once the trial starts, it normally proceeds to a conclusion. If there is not enough evidence to convict, the result should be "not guilty" and that will bar any future trial of the same person for the same offense under the doctrine of Double Jeopardy. Circumstantial evidence, as described in the question, can be enough to convict, if the jury (or judge in a bench trial) is convinced beyond a reasonable doubt that the accused is guilty. Exactly how much evidence it takes to convince a Jury varies, and there is not a clear standard other than the phrase " beyond a reasonable doubt". The judge, or a later appeals court, can set aside a jury verdict for insufficient evidence, but only by finding that no reasonable jury could have convicted on the evidence pre3sented, taking it in the light most favorable to conviction. Judges are reluctant to set aside jury verdicts unless they appear badly wrong. If further evidence is found during the trial, which tends to show the accused is not guilty, the prosecutor can request that the trial be halted. This may or may not bar a future re-trial of the same defendant, depending on whether the dismissal is 'without prejudice", a decision the Judge makes. But once evidence has been started to be presented, dismissals are usually "with prejudice" meaning that double jeopardy applies. The defense can also request a dismissal, most often at the end of the prosecution case. In rare circumstances the Judge may dismiss without a request from either prosecution or defense. These will most often be "with prejudice" It is possible for the trial to be recessed while new evidence is evaluated or sought, but this is rare and usually only for a short time -- a day or two, perhaps. In general a prosecutor is not supposed to schedule a trial if there is any reasonable chance of additional evidence coming to light. It can and does happen, but the system tries to avoid it, and does not easily accept that it has happened. This answer is US-Specific, and different answers may apply in other places. |
Is this an example of first amendment being violated in a public university in the US? A while ago, a graduate school official in a public university in the US sent me this email message: Obtaining permissions and approvals - If you have co-authors or co-researchers you must ask their permission before publishing, and include their names. Please ask for Dr. X's approval before posting/publishing anything to the world-wide web. As a grad student at university you represent our institution, and it is important to have correct information that is error-free. We have to maintain the integrity and reputation of producing respected scholars. Therefore it is important to have your work reviewed and approved first. My focus is on the bolded part that basically says: I need to receive approval/permission before posting/publishing anything to the world-wide web. It doesn't say that approval or permission is just limited to publishing/posting academic materials and it seems it includes any material in the world-wide web. Why, I need to receive such a permission if I want to post something in the web from the university officials? I read the whole graduate manual in this particular public university, and it doesn't say anything about this situation. My question: Is this an infringement on first amendment rights in a public university in the US for a college student? | The matter is not clear-cut (and the university lawyers are presumably relying on that fact). The bold part and following overstates the situation, especially the unconstrained "publishing anything" edict. You can publish whatever you want that the university doesn't have a legal interest in. The clause that says "If you have co-authors or co-researchers you must ask their permission before publishing, and include their names" is true, and defines a limit on their control. If you don't have co-authors, it's none of their legal business. (There can be issues regarding publishing an affiliation, so let's put that on hold). They can, however, prohibit you from claiming an affiliation with Pod U, unless you submit your works to some internal vetting organization. This requirement should, however, be stated somewhere perhaps in the rules of the graduate school (not just the student handbook); or the other legally-enforceable rules. You should also pay attention to the exact words that they use. You must ask permission to publish work done with a co-author (that's a fact: it's a standard requirement in universities). It is important to be sure that the information you publish is correct (clearly that is not in dispute). They are allowed to ask you to get X's approval. The First Amendment does not prohibit them from urging you to follow a course of action. | Although the exact answer should depend on the country you are, in general private copies of copyrighted works are allowed. General rules are: You need to have got the work in a legitimate way. That is, that you have purchased a copy of the work with permission from copyright owners or you have got the work from an act of public distribution authorised by copyright owners - if you got it from a website that is not making a copyright infringement itself, you are in the second case. That you don't make a collective or commercial use of the work. (I took these rules from Spanish Intellectual Property law (article 31), but most countries have similar rules, specially in the European Union. Anyway, the exact limits of private copying exception may differ). Since private copying might have an economic effect, some countries collect private copying levies to compensate copyright owners - probably you have already paid for those when purchasing the printer. Therefore, you can print a book downloaded from a website (unless the site is hosting the work without authorization of the copyright owners, as pirate sites do) for your own use. You can't sell the copies or made a collective use of them. Although reach of collective use might be hard to assess, I would suggest that if you want all the people in your class have the book, send them the link so that any one could print their own copy. Update about the USA As the OP has now specified now their country I update the answer with a comment, although an additional answer by anybody more knowledgeable on US law would be great. I'm quite sure that for practical purposes the result is that you can print such a book anywhere in the world. However, I don't know which laws regulates that in the US. Google doesn't return meaningful results for "private copy usa", so I suppose it is know there by another name. Furthermore, statutes in common law countries tend to be less explicit and there might be no case law applicable. For example, I nobody printing a copy of a pdf for himself to read at home has ever been challenged in court in the USA, there might be no explicit rule about the subject. | I see lots of possible issues here, including: Will the Apprendi decision be given retroactive effect? Were the constitutional issues raised at the time of trial, and if not will a court permit them to be raised later? Will a court agree with the law review publication? Will the facts in your case be sufficiently similar to the cited case? Beyond those, in a section 1983 suit many public employees have qualified immunity unless the legal point was already "well established" when the violation occurred. To pursue this you will need to work with a lawyer skilled in this area. No one on this forum can possibly given you a reliable answer as to whether you have a reasonable case. | We cannot and will not try to answer "what should i do?" questions here. Nothing in the linked page makes me think that the views expressed in the previous question here are any less correct. They certainly have not changed the law on copyright. The linked page is an open forum. Many of the posts o9n that thread express ill-informed and incorrect views of how copyright works, and what it protects. Several google searchs find no trace of the suit described in the thread. Note that in US law no copyright claim may be heard in a small claims court, except for the federal copyright office's small claims tribunal. I am not sure if the same is true in Canada, but it might be that the suit was simply dismissed on such a basis. In any case small claims cases do not establish legal precedents in Canada or the US. Of course it is true that anyone can sue over almost anything, even when there is no valid legal basis for the suit. If the suit had been won by the claimant, or even settled that would be larger grounds for worry. A person seriously worried over publishing a book such as that described in the question might do well to consult a lawyer with relevant expertise. A single consultation plus an opinion letter might not cost very much. But 17 USC 102 (b) is very clear that copyright never protects facts, as are the copyright laws of other countries. Note that reports of the events of sports matches are not protected by copyright, although expressive language and analysis may be. 17 USC 102 (b) reads: (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. Article 2 paragraph (8) of the Berne Copyright Convention provides that: (8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. There seems little room for copyright protection of the moves of chess games. | There is some precedent for claiming a right to free scientific inquiry. For example, the primary holding of Miller v. California, 413 U.S. 15 is that "Speech that is obscene and thus lacking First Amendment protection must be without serious literary, artistic, political, or scientific value" (note the omission of commercial speech). In Meyer v. Nebraska, 262 U.S. 390, the court overturned a law banning teaching children foreign languages, finding that such a law "invades the liberty guaranteed by the Fourteenth Amendment", and observing While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men In Griswold v. Connecticut, 381 U.S. 479 the court finds that the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U. S. 141, 319 U. S. 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U. S. 183, 344 U. S. 195) -- indeed, the freedom of the entire university community. In Henley v. Wise, 303 F. Supp. 62, the court found unconstitutional an Indiana law that would have outlawed research done at the Kinsey Institute at IU (that would have been a later consequence of the law, not the instant matter), stating that "This chilling effect on the research, development and exchange of scholarly ideas is repugnant to the First Amendment", and the state has unconstitutionally intruded itself into two areas of protected activity. The first protected area is the right of scholars to do research and advance the state of man's knowledge. This is the freedom of inquiry referred to in Griswold v. Connecticut Then in Branzburg v. Hayes, 408 U.S. 665, the court glancingly groups academic research with other forms of First Amendment protected activities: Freedom of the press is a "fundamental personal right" which "is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Article 25 of the California constitution recognizes a specific research right There is hereby established a right to conduct stem cell research which includes research involving adult stem cells, cord blood stem cells, pluripotent stem cells, and/or progenitor cells. However, there have also been (failed) attempts at the federal level to prohibit such research. More generally, one might look into rulings on acts which are preludes to any form of expression, such as buying paper and ink, acquiring a printing press, hiring reporters, and investigations of events by reporters – it is unlikely that the courts would uphold a law that outlaws reporters investigating crimes or political situations because that is not yet "expression". Indeed, "freedom of the press" does not just refer to the act of disseminating ideas and information. But a definitive court ruling has not been made. | This topic came up as a sub-point to another question a few weeks ago, I ended up doing a fair bit of research with not much in terms of concrete results. I'll start with the USA since they're basically the only major copyright jurisdiction for which I could find a straightforward answer, then discuss internationally. USA In the USA, Bob would generally not hold copyright in modifications thus there is no copyright for Alice to violate, assuming no copyright exceptions like fair use apply. This is due to 17 U.S.C 103(a) (see also Anderson v. Stallone): 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. While I couldn't find any commentary on this point, the wording does seem to imply that portions of a derivative with additions far enough removed from the original work might qualify for copyright protection. International copyright law The main provisions governing derivative works in international copyright law come from Berne Convention Article 2(3): Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work. and Article 12 (with a similar provision specifically for translation in Article 8): Authors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works. There's the argument that since unauthorized derivatives aren't explicitly excluded from protection that they should be protected, however, there's also the argument that granting unauthorized derivatives their own copyright is in itself prejudicial to the original copyright holder. Note I don't think it's debated that non-infringing derivatives gain their own copyright, including unauthorized derivatives that nevertheless fall into a copyright exception such as fair use. Dr. Daniel Gervais points out in The Derivative Right, or Why Copyright Law Protects Foxes Better than Hedgehogs section III.B that there's a bit of history here. The original Berne Convention 1886 text stated that "Lawful translations shall be protected as original works." However, the word "lawful" was struck out in the 1908 Berlin Convention coming up with wording similar to today's Article 2(3). Gervais's article cites Étude sur la Convention de Berlin de 1908 pour la Protection des Œuvres Littéraires et artistiques by André Petit implying disagreement between the countries about whether or not to protect unlawful derivatives, thus leaving it unsaid. Unfortunately, I'm unable to locate any copies of this source. Additionally, thanks to a fortunate snippet Google Books displayed, I know that La conférence de Berlin (14 octobre-13 novembre 1908) by Georges-François-Joseph Martin also discusses this exact point on page 187, quoting someone who thought unlawful derivatives would be protected now, though I couldn't get enough context to really determine anything. While I could find available copies of this book, for now it's a little on the expensive side for me. Overview of various jurisdictions In the EU, the derivative right is not harmonized and so the question is punted to the Member States. There is no implementation of either Berne Convention Article 2(3) or Article 12 in the Information Society (Copyright) Directive, Article 12 being specifically acknowledged by the Court of Justice in the Allposters case. In the UK, infringing derivatives are probably protected, see Redwood Music Ltd. v. Chappell & Co. Ltd., [1982] R.P.C. 109 (Q.B. Div.) at 120. I can't find the judgement text outside a paywall, but an article by William J. Braithwaite (PDF) quotes the relevant part on page 209 (the square brackets are his): [T]he idea that [the owner of the underlying copyright] should be entitled to reap the benefit of another's original work, by exploiting it, however extensive such work might be, however innocently it might have been made, offends against justice and common sense. Additionally, the justice noted the argument that unlawful derivatives are not explicitly excluded from copyright protection and that parliament has declined to make this explicit. If I understand the English court system correctly, this decision was two appeals away from the Supreme Court (House of Lords back then), but there doesn't appear to have been any appeal. For what it's worth though, the justice who issued the decision ultimately became Senior Law Lord. In Italy, the Supreme Court has determined that derivative works can be simultaneously infringing and protected. | Here is an example: The Author agrees to hold harmless and indemnify the Journal and The University against any legal claim or action or expense of any nature arising from any claim of infringement of copyrights or proprietary rights resulting from publication of the manuscript or claims of libel, obscenity, unlawfulness or invasion of privacy arising out of anything contained in the manuscript as furnished by the Author. Suppose Author infringes the copyright of Jones, by copying large parts of it into Author's work. Author is now in legal trouble because he illegally copied stuff into his manuscript, but Journal is also in big (bigger) legal trouble, because it made many copies of Jones' word and sold them. Jones will now sue everybody, mostly the Journal (since Journal has money, and Author doesn't). Thanks to the indemnity clause, when Journal gets sued, all of the costs (of litigation and judgment) have to be born by Author. The primary purpose is to protect Journal from suits by third parties. Nothing can keep you from getting sued, but such a clause (theoretically) means that the person whom your contracting with has to cover the cost of his wrong-doing (assuming that he is not a turnip). The term "hold harmless" is there to guarantee that Author can't decide to sue Journal for publishing a libelous or infringing article. The functions are similar, but not totally the same: this and references therein could be interesting reading, by way of more details. He argues against using both terms, and instead you should use only "indemnify". In this case, the court said "When two words are used in a contract, the rule of construction is that the words have different meanings", which caused the court to assign distinct meanings to the words (which are typically used as though they mean the same thing), which doesn't seem to have been the original intent. | 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. |
How are EU member states, and entities under them, legally forced to apply EU imposed sanctions? Typically how is SWIFT the global payment network, which is under Belgian law, required legally to implement the EU sanctions? | 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. | This is a hard question, but a good question. The following relates to the issue from the perspective of the USA. You ask "...if the US wants to invade France, can they officially declare war by...", You have to make clear what you mean by "can". If you mean whether or not the US has the physical ability to do this, then of course they do. If you mean whether they are allowed, then this is another question. When you ask whether something is allowed, then you have to make reference to a moral code or a law that determines what is and what isn't allowed (legal). Normally each country will have laws that govern what is and what isn't legal for it's citizens to do. That hard part is how this applies to nations. There are two sides to the question. (1) What are the leaders allowed to do under their own laws, (the domestic laws) (2) what are countries as entities allowed to do? (the international laws) It sounds a bit like you are asking about the second thing. Here treaties govern what is and what isn't "legal". However, usually when someone breaks a law, other entities have the power to enforce that law and decide (judge) whether the person has broken the law. The question is: who decides whether a country has broken a treaty or an international law? And if a law is broken, what exactly can be done about it? This is hard to answer. Consider for example the conflict in Ukraine. Here many will argue that Russia has piratically invaded Ukraine. There should be war between the nations. But Russia denies this and other world powers have done little beyond imposing sanctions. This illustrates how hard it is to deal with this question. One question that comes up is what the purpose of international treaties are if a country can just violate them without much consequence. Pointing out two points about this. (1) If, for example, a president wants to convince his/her own congress that the country should engage in war, then it makes a stronger point if you can show how the country you want to engage has violated international trities. (2) After you have won a war, you might want to prosecute the leaders of the loosing power. Here you will stand stronger if you can make references to some international law that existed before the conflict started. This second point is illustrated in the Nuremberg principles. Here it was exactly stated that "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." According to the US constitution "Congress shall have power to ... declare War". That means that historically Congress has the power to decide where to wage war. The War Powers Resolution says, for example, that "The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities ...". Note that this doesn't mean that the US has do formally declare war before going to war. Example: The Iraq War was authorized by Congress, but there never was a formal declaration of war. It is interesting that you ask about the timing for when the declaration should be given. The Japanese wanted to deliver their declaration of war just before the attack on Pearl Harbor. But because of issues with decrypting the message from Japan to the Japanese Embassy, the declaration wasn't delivered until after the attack. Remember also in all of this that the winning party to a conflict, usually decides what was and wasn't legal! One good reference for more on all of this is the report by the Congressional Research Service called "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications". Here you can see more on what I have tried (and failed?) to say above. | The short answer is generally yes, but also.... it depends. The long answer is also... it depends. The first question is what (or who) is actually being sanctioned, second who is impacted by the sanction, third what is the specific sanction? There are a variety of different types of sanctions, sanctions against the state, businesses, people, etc. Most sanctions for example are against specific people, or conduct like investment or movement of capital, not necessarily the purchase of goods. I go into further discussion below, but for the quicker answer to your specific question, unless the person you are buying from is directly sanctioned or the subject of sanctions, or the entities specifically involved in the sale of goods (export company, vessel, etc) are directly sanctioned (or Russian companies operated in Crimea), yes it would be legal to purchase. So yes, unless the specific item you are buying/ entity you are buying it from is specifically sanctioned it would be legal, it is not particularly common for sanctions to prohibit the purchase of goods by consumers, unless there is a unique circumstance. Here is the 2-3 page overview of U.S. sanctions on Russia: https://sgp.fas.org/crs/row/IF10779.pdf As to the further discussion. For example see below, many current sanctions are against government officials; Or in the case of EO 13685 from 2014 concerning the occupation of Crimea many of the sanctions imposed aren't strictly against Russia, but instead prohibits U.S. business, trade, or investment in occupied Crimea. EO 13685 excerpt: Section 1. (a) The following are prohibited:(i) new investment in the Crimea region of Ukraine by a United States person, wherever located; (ii) the importation into the United States, directly or indirectly, of any goods, services, or technology from the Crimea region of Ukraine; (iii) the exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of any goods, services, or technology to the Crimea region of Ukraine; and (iv) any approval, financing, facilitation, or guarantee by a United States person, wherever located, of a transaction by a foreign person where the transaction by that foreign person would be prohibited by this section if performed by a United States person or within the United States. (b) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order. (And even then sanctions may apply, unless they don't...) CRS Report: The United States has imposed sanctions related to Russia’s invasion of Ukraine on at least 735 individuals, entities, vessels, and aircraft that OFAC has placed on its Specially Designated Nationals List (SDN) or Sectoral Sanctions Identification List (SSI) (see Table 1 and Table B-1). The basis for most of these sanctions is a series of four executive orders (E.O.s 13660, 13661, 13662, and 13685) that President Obama issued in 2014.15 In addition, the Department of Commerce’s BIS denies export licenses for military, dual-use, or energy-related goods to designated end users, most of which also are subject to Treasury-administered sanctions. Two of President Obama’s Ukraine-related E.O.s target specific objectionable behavior. E.O. 13660 provides for sanctions against those the President determines have undermined democratic processes or institutions in Ukraine; undermined Ukraine’s peace, security, stability, sovereignty, or territorial integrity; misappropriated Ukrainian state assets; or illegally asserted governmental authority over any part of Ukraine. E.O. 13685 prohibits U.S. business, trade, or investment in occupied Crimea and provides for sanctions against those the President determines have operated in, or been the leader of an entity operating in, occupied Crimea. The other two E.O.s provide for sanctions against a broader range of targets. E.O. 13661 provides for sanctions against Russian government officials, those who offer them support, and those operating in the Russian arms sector. E.O. 13662 provides for sanctions against individuals and entities that operate in key sectors of the Russian economy, as determined by the Secretary of the Treasury. https://sgp.fas.org/crs/row/R45415.pdf https://www.trade.gov/country-commercial-guides/russia-sanctions See further references below: https://www.federalregister.gov/documents/2014/12/24/2014-30323/blocking-property-of-certain-persons-and-prohibiting-certain-transactions-with-respect-to-the-crimea https://home.treasury.gov/policy-issues/financial-sanctions/faqs/topic/1576 https://home.treasury.gov/policy-issues/financial-sanctions/sanctions-programs-and-country-information/ukraine-russia-related-sanctions https://home.treasury.gov/system/files/126/ukraine_overview_of_sanctions.pdf | I know the OP is asking about America, but its also worth knowing about other countries. This is legal if both subscriber and subscription are within the EU. There was also a court case about this. In another case in 2014 the pub lost, but that seems to have been because the decoder was only licensed for domestic use. These cases were for satellite decoders rather than Internet streaming, but the legal issues would be the same. Both these cases involved British pubs, so obviously this law doesn't apply to them since Brexit. | I think you vastly exaggerate the difficulty. Basically: when a user registers, ask for their address, including country, as well as a phone number (including country code, which you may validate via SMS for instance). This should give you the 2 pieces of information that help you determine the country In the case of the UK, HMRC says: Support for MOSS registered micro-businesses UK micro-businesses, that are below the current UK VAT registration threshold and are registered for the VAT Mini One Stop Shop (VAT MOSS), may use best judgment and base their ‘customer location’ VAT taxation and accounting decisions on a single piece of information, such as the billing address provided by the customer or information provided to them by their payment service provider. based on the country, use the standard VAT rate for that country. The difficulty here is to track when those rates change, but your accountant should be able to keep up with that. There is very little chance any special reduced rate would apply to such services, and in any case, no tax authority will complain if you apply the standard rate instead of the reduced one! then declare everything online to your local MOSS (you don't need to register with each tax authority! You can, but you don't need to). In the case of a micro-business, this should be more than enough to comply with the rules. | IANAL, but a EULA is a Contract of Adhesion https://www.law.cornell.edu/wex/adhesion_contract_contract_of_adhesion and restrictions against publishing benchmarking data about products is fairly common https://www.eff.org/wp/dangerous-terms-users-guide-eulas A contract is a contract, even a click-through, and is legally binding; there is plenty supporting case law. You sign when you click: http://smallbusiness.findlaw.com/business-operations/contracts-and-electronic-signatures.html Basically, VMware has lots more money than you do. If they are annoyed at your posting of benchmarks that don't make their products look as good as they feel they should, they can at very least send a DMCA to the site that posts the benchmarks. Whether that works could depend on where the website is hosted. At most, they could take you to civil court, if you are in their jurisdiction. What happens, if you refuse to take your unapproved benchmark down? Can they sue you? Yes. (In civil, not criminal court). How much leg does a clause like this stand on the courts? In the United States? A contract is a contract. And VMware and you (I assume) are in the US, so the contract is enforceable. In the rest of the world? Outside of the US, enforceability is variable; that is searchable in law databases for each country and agreements between countries. Consider your motives for posting benchmarks against VMware's EULA. Do you have good points to make? Or are you simply complaining about the product? Who has more money to spend defending or fighting the EULA? You or them? If you're seriously concerned about this, talk to a lawyer and don't take legal advice from the general public. | The answer to this question would also heavily depend on which country the transaction is occurring. Supreme court of South Korea ruled in July 2009 that exchanging virtual currency for real world currency is legal, even though doing so was against the game's terms of service. Consequently, players cannot be held legally liable for trading their virtual currency into real money if the game is being serviced in South Korea. This however, does not mean the company cannot suspend your account for doing so. Likely, other countries have different laws about this type of transaction, which you should look into. Source: Official ruling of the case (in Korean) | You might be misreading the extradition criterion The UK–USA extradition treaty has an example of the clause you're asking about: An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty. Similar wording is used in all other treaties that I have reviewed: UK–Algeria ("offences which are punishable under the laws of both Parties by imprisonment or other deprivation of liberty for at least a period of one year") UK–Argentina (no extradition when "the maximum punishment for the offence is imprisonment for less than one year") UK–Bolivia (same as Argentina) UK–Chile (same as Argentina) ... UK–U.A.E. ("offence is based is punishable under the laws of both Parties by deprivation of liberty for a period of at least one year") If there is a treaty that requires there to be a mandatory minimum punishment of at least one year, I have not found it. While you say that "[u]sually, the minimum sentence for a crime has to be 12 months for an extradition to be allowed" and "[e]xtraditions are based on minimum sentence in the UK," my review of the treaties makes me doubt that. The rest of this answer explains how to interpret the clauses quoted above. It is enough that the offence gives rise to the "possibility of a term of imprisonment or other form of detention of more than one year." The inquiry is focused on the offence that the conduct is alleged to give rise to and the range of punishment available for that offence generally. E.g. an offence with a minimum punishment of a fine and a maximum punishment of 16 years in prison is an offence that is "punishable... by deprivation of liberty for a period of one year or more." Said another way: it is not necessary that the offence have a mandatory minimum of one year imprisonment. It is enough that the offence gives rise to the "possibility of a term of imprisonment or other form of detention of more than one year." See Canada v. Barrientos, 1995 ABCA 468 (CanLII) at para 103, Hetherington J., dissenting; but appeal allowed, for the reasons of Hetherington J. by the SCC in Canada v. Barrientos, [1997] 1 S.C.R. 531. In Barrientos, the courts were interpretating Article 2 of the Canada–U.S. extradition treaty, with wording substantially similar to the UK extradition treaties I reviewed above: "provided these offenses are punishable by the laws of both Contracting Parties by a term of imprisonment exceeding one year." One remaining question is whether the decision-maker needs to consider the specific facts of defendant's conduct and make a preliminary estimation as to whether in fact a term of imprisonment more than one year is likely. This position has not been adopted in Canada. At the stage where a judge or Minister of Justice is determining the authority to proceed, this is not to become a "sort of sentencing hearing." See USA v. English, 2002 BCSC 1902 at para 23. |
Why are Amazon and other vendors allowed to say "buy" an ebook or other digital asset when it is actually a license? Amazon offers you the opportunity to buy a Kindle book. But you are clearly not buying, rather licensing, as they make quite clear. This seems like false advertising; or alternately that a customer could demand to keep/own the item since that word was used. Why are Amazon and other vendors able to do this without being stopped by lawsuits or legal enforcement? | You can “buy” a licence Buy simply means exchanging money for goods or services. A licence is a service that can be bought. | Presumably by "is illegal" you mean "violates copyright law". Copyright infringement is simply "copying / distributing without authorization", which refers to the original work and not some other work. The act of originally writing a book is not "copying" (likewise "taking a picture", etc), so the act of writing a book using pirated software is also not copying and not infringement. Nevertheless, the scope of remedies for the original infringement is not limited to just the cost of the infringed work. Under 17 USC 504(b), The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. This is sufficiently open-ended that profits from the sale of an original work created using infringed software could be attributable to the infringement. | I think the law there is quite clear - you have 14 days to return the goods for a full refund, except for digital content, which you can't return once you started downloading it. That's what it says. The arguments that you try to give were quite obvious to the law makers. I think you can assume they were aware that "digital content does not have a physical form". Now if you purchased, but haven't downloaded or started downloading yet, then obviously you can get your money back. You came up with some theory that this is a "visual vanity item". You can't see it unless you download it. Once you download it, that's it. If you don't download it, you can return it. Let me repeat this: Your fancy analogies mean nothing. There are in the EU laws about being allowed to return goods for a refund. There's the general rule for buying in a store (no right other what the store offers voluntarily), online purchases (some days to return), and online purchases of digital goods (no return once you started downloading). That's the law. Your attempts at redefining the situation are totally pointless. The law says what it says. What you try to redefine doesn't mean one thing. The law clearly distinguishes several situations, and analogies don't count. What happens counts. You bought from a digital item from an online store that needs to be downloaded. And as soon as you start downloading, there is your right to return it gone. And your reasons for wanting to return the goods are completely irrelevant. You don't need any reasons, and having reasons doesn't help you. | Is that extortion? false advertising? or in any way illegal? Not at all. The owner of the site is simply exercising his right as outlined in the terms and conditions from when the user signed up. And giving users an option for continued use of the site (that is, for him not to exercise a right of which they were always aware) does not constitute extortion. | At least in the United States (and I'm pretty sure this is true around the world), facts and information cannot be copyrighted. Just because a work is copyrighted, doesn't mean every part of that work is copyrighted, and factual information conveyed by the work is a part which is not subject to copyright. Copyright on a collection of facts is limited to the selection and arrangement of those facts, and only if that selection and arrangement has some bare minimum amount of originality. See Feist v. Rural, 499 U.S. 340. In this case, it looks at first glance like the person who made that site made their own selection of which materials and which sources would be included; the one place where they really seem to have copied their selection is from glass catalogs with datasheets from specific manufacturers, who would have a hard time arguing that "everything we manufacture in this widely-recognized class of substances" is an original selection. What the author of the website has done is relinquish his rights in his selection and arrangement of the data. In some places, there are other rights besides copyright that do apply to databases; for instance, the EU recognizes database rights to protect significant investment in compiling a database of stuff. But the US does not have that concept. For citing stuff, that's not really a legal question, and has more to do with academic standards. Ask your adviser or teacher if you have one. | US copyright law does not distinguish "personal use" from "non-personal use", though it does distinguish commercial from non-commercial, where stronger sanctions can arise from commercial infringement – which can include "private financial gain". Copying a whole book which you own is copying which is what define infringement, and because of the extent of copying, it is unlikely to be found to be fair use. There is a special provision for software in 17 USC 117 that allows for making backup copies, which is not applicable to physical books. You are not a statutory archive, which is another escape hatch. | This is not prohibiting the resale. You can resell your old box, but you can not transfer your account, and since the box can't take a new account, it is not a useful item to anyone but the original account holder. It is not illegal to make a resale effectively impossible, but you can not ban it under the First Sale Doctrine and [Patent] Exhaustion Doctrine. Accounts are in this case not sold items but subscriptions and don't fall under First Sale but instead are running contracts - and can be regulated as the contracting parties put into the contract. This contract can ban the transfer (for money or free) of the contract. | Apparently Such Files May be Distributes or Sold Section 5.e of the Google APIs Terms of Service reads: e. Prohibitions on Content Unless expressly permitted by the content owner or by applicable law, you will not, and will not permit your end users or others acting on your behalf to, do the following with content returned from the APIs: Scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header; Copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense to any third party; Misrepresent the source or ownership; or Remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material It might seem that 5.e.2 prohibits the suggested use. But if the text is in fact in the public domain,"applicable law" (that is, copyright law) permits you, or anyone, to "Copy, translate, modify, create a derivative work of" or otherwise use the content. Thus 5.e.2 does not apply. Points 3 and 4 would seem to indicate that the source, including title and author information, must be included or preserved in the output files, but seems to be the only relevant restriction that applies. Response to Comment A comment by user Brian Drake questions the theory of this answer, stating: The most you can say is that copyright law does not prohibit certain conduct (and even that is not clear: just because the text is in the public domain does not necessarily mean that the audio is in the public domain); this does not mean that copyright law expressly permits that conduct. US Copyright law does not define what constitutes the public domain. Rather it defines what is protected by copyright, and specifies some cases in whch a work is not protected. (For nexample, 17 USC 105 provides tht works of the US Federal Government are not protected.) Anything not included in the protection of copyright is in the public domain. This has been confirmed by many cour cases and legal writings. Law generally follows the rule "Anything not forbidden is allowed." Audio as Derivitive Work An audio recording of a person reading a text aloud would be a derivative work of that text, and would normally have its own copyright, if created lawfully. (If the recording was of a text protected by copyright, made without permission and outside of fair use, it was not made lawfully and the infringer has no copyright in the recording at all.) But US courts have held that a work created by a mechanical or automatic process, including many computer programs, is not an "original work of authorship" and thus is not protected by copyright at all, and is thus in the Public Domain. The case of the "Monkey Selfie" is on point. ("Compendium of U.S. Copyright Office Practices, § 313.2" (PDF). United States Copyright Office. 22 December 2014. p. 22. "To qualify as a work of 'authorship' a work must be created by a human being.... Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants." Moreover, if the audio were protected by copyright, it would presumably be owned by the person who ran the program, and 17 USC 106 specifically grants the copyright owner permission to distribute copies. Sources The Wikipedia article "Public Domain" reads in relevant part (citations omitted): The public domain consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired,[1] been forfeited, expressly waived, or may be inapplicable. ... As rights vary by country and jurisdiction, a work may be subject to rights in one country and be in the public domain in another. Some rights depend on registrations on a country-by-country basis, and the absence of registration in a particular country, if required, gives rise to public-domain status for a work in that country. ... Definitions of the boundaries of the public domain in relation to copyright, or intellectual property more generally, regard the public domain as a negative space; that is, it consists of works that are no longer in copyright term or were never protected by copyright law. According to James Boyle this definition underlines common usage of the term public domain and equates the public domain to public property and works in copyright to private property. However, the usage of the term public domain can be more granular, including for example uses of works in copyright permitted by copyright exceptions. Such a definition regards work in copyright as private property subject to fair-use rights and limitation on ownership *"How Can I Use Copyright-Free Works (in the Public Domain)?" by Nolo Press reads: Copyright law gives creators certain exclusive rights. These rights include the exclusive ability to copy, distribute, and perform the copyrighted work. But copyright is not infinite. Rather, it provides copyright holders with protections for a limited duration. When a work becomes available for use without permission from a copyright owner, it is said to be "in the public domain." Most works enter the public domain because their copyrights have expired. The Legal Information Institute (LII) article "public domain" reads: The public domain includes every creative work that is no longer protected by a copyright, trademark, or patent. Creative works that are no longer protected are owned by the general public rather than the original creator. As such, the work is free to be copied, performed, or otherwise used by anyone. "Copyright and Scholarship: Public Domain" from Boston College Libraries reads in relevant part: "Public domain" works are not protected by copyright. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it. An important caveat regarding public domain material is that collections, new editions, and derivative works of public domain material may all be protected by copyright. With collections, an author could collect public domain works in a book or display them on a website, and the collection as a whole could be protected by copyright, even though individual works within it are not. *"Welcome to the Public Domain" (Stanford libraries) reads in relevant part: The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it. Wikipedia article "Monkey selfie copyright dispute" *"A macaque monkey who took now-famous selfie photographs cannot be declared the copyright owner of the photos" (AP) reads in relevant part: A macaque monkey who took now-famous selfie photographs cannot be declared the copyright owner of the photos, a federal judge said Wednesday. U.S. District Judge William Orrick said in federal court in San Francisco that "while Congress and the president can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act." *NARUTO, a Crested Macaque, by and through his Next Friends, People forthe Ethical Treatment of Animals, Inc., v. DAVID JOHN SLATER; BLURB, INC., ; WILDLIFE PERSONALITIES, LTD." (Ninth Circuit full opinion April 23, 2018 No. 16-15469, D.C. No. 3:15-cv-04324-WHO) reads in part: We must determine whether a monkey may sue humans, corporations, and companies for damages and injunctive relief arising from claims of copyright infringement. Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act. We therefore affirm the judgment of the district court |
Does contract law apply for shoplifting? I'm having an online discussion with someone who claims that there is no contract violated when someone steals something from a store or eats at a restaurant without paying. The person claims that there are no "contract law" cases in a Western country where one has been sued for breach of contract for shoplifting or not paying for food in the restaurant. Questions: How would that be looked at under US "contract law"? If no such cases exist, then is there no contractual obligation violated as a result of shoplifting or restaurant dashing? If such cases exist, then what are some cases? Is there an implicit contract underlying any retail store transaction? [Clarification] My assumption is that there is an implied contract here: Offer is that the door is open and you may browse inside my store; if you want to take some of the merchandise, you have to pay for it. Acceptance Entering into the property assumes you agree with these implied terms. Would failure to pay be a breach of the contract? | 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). | Probably not Once you and the store have entered into a contract the price in that contract is determinative. However, most online stores' terms are very clear there is no contract when you place your order or when you get their automated reply; the contract comes into existence later when they do something. For example: With respect to products sold by Amazon AU, your order is an offer to us for you to buy the product(s) in your order. ... The Order Confirmation is acknowledgement that we have received your order, and does not confirm our acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product(s) to you and send e-mail or post a message on the Message Centre of the website confirming that we've dispatched the product to you (the "Dispatch Confirmation"). ... Now, even without these terms, it's unlikely that your offer and the company's automated response created a binding contract because the company (as in, an actual person acting for the company) did not consent to the formation of the contract. Consent is fundamental: see What is a contract and what is required for them to be valid?. What you received was an "order confirmation" - a reiteration of your offer to the company, not an acceptance of your order. Consumer protection Most jurisdictions have consumer protection laws that make it illegal to display an incorrect price. However, in most, that does not oblige the retailer to honour the price, it just exposes them to fines from the regulator. | 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. | No If the price advertised is not honoured by the business and you are asked to pay a higher price, you do not have an automatic right to buy the item at the special offer or sale price. As long as the shop or business tells you before you pay that the higher price applies, you have the option to either buy it at the higher price or decide not to. However, the shop or business may be in breach of consumer law in relation to misleading advertising. The prosecution (or not) of the misleading advertising is the government’s task, not yours. This is a common formulation across Common Law jurisdictions as it a codification of the historic common law position. An advertised price is not an offer capable of acceptance, it is an invitation to treat. That is, it is an invitation for you to make them an offer and the price that is likely to be accepted. It is overlaid with later developments in consumer protection surrounding false advertising and misleading and deceptive conduct. | There is no "normal" or "standard situation". The parties are free to negotiate whatever terms they like within any limitations imposed by law. If you're unhappy with the proposed terms then you should either negotiate to include a liability limitation clause, refuse to agree the NDA, or consider whether the benefits of signing it outweigh your concerns. If you are entering into the NDA as a consumer and with a trader, then in england-and-wales, you might have some protection from Section 62 of the Consumer Rights Act 2015 which provides: (1) An unfair term of a consumer contract is not binding on the consumer. (4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. For example, a contract which imposes unlimited liability on a consumer, while capping the liability of the trader, could be unfair. This will very much depend on all the circumstances and what the contract as a whole says: (5) Whether a term is fair is to be determined — (a) taking into account the nature of the subject matter of the contract, and (b) by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends. A term also can't be assessed for fairness if it specifies the main subject matter of the contract (which arguably a liability clause in a NDA does) and the term is transparent and prominent (see Section 64). "I also don't understand the following wording: ...breach of this Agreement may cause irreparable harm to XXXXXX. Therefore, in addition to any other remedies available to XXXXXX, XXXXXX may obtain injunctive relief in the event of any breach or alleged breach of this Agreement without proving actual damages." What this is saying is that, in addition to all the usual actions that the other party could take against you for breaching the NDA (e.g. suing you for damages in the event that they suffer a loss from your breach), they can also apply to a court for an injunction without needing to prove that your breach caused them any loss. An injunction in this case would be a court order requiring you to stop breaching the NDA (e.g. to stop divulging information subject to the NDA). | Unless it is prohibited by law in some state (such as California), a server's employment contract can have a clause holding the server responsible for an unpaid tab. Even in lieu of such a clause, since in most states employment is at-will, the employee can be fired if they do not do as told. There is a limit to the effect that their wage cannot be reduced below minimum wage. The question of the political rationale of this practice is outside the scope of law, but there are some legal factors that can lead to getting compensation from a server, even if pay-docking is prohibited. If a server intentionally colludes with a dine-and-hash customer, the server is liable. The server might also be negligent, for example they may have failed to notify management of evidence of an impending dine-and-dash such as overhearing a conversation, or watching the customers trickle out; or, disappearing for an unreasonable time for a smoke break (leaving the table unattended). Liability requires a lawsuit where the court decides if the server should pay. | They are merely telling you what the law is There is a tort called interference with contractual relations: The question strikes at the heart of our economic and legal system both of which are based upon principles of freedom of contract and freedom of choice. However, parties that freely enter contracts cannot freely breach such contracts and Courts have shown that they are prepared in some cases to provide relief against unlawful interferences with contractual relations. If A (the vendor) has contracted with B (the realtor) it is unlawful for a third-party (you) to induce A to breach their contract. If you were to approach A and they then broke their contract with B, B could sue A for breach of contract and you for interference in contractual relations. Anti-competition law is directed at ensuring there is a free and fair market for goods and services but once two parties have willingly entered a contract, they are no longer participating in the market. Now, if A approaches you, that's on A and hence why the answer o both questions is c. | Can reading a something mean agree to to a contract? Just reading — no. Reading and acting as if you have agreed — yes. This is called "acceptance through conduct". I had an employer deduct a small fee to process my payment, they argued that they were allowed to because it stated they would on the website I had to use for the job. Does this even form a contract? Yes — because you read and continued to use the website. librarian came up to me and pointed out a sign saying I had to pay before using the computer (which is uncommon where I live). Is there a contract formed by just having a sign? Hypothetically could the library sue me for not paying? Provided that you read the sign and started using the computer — yes. However, because you did not see the sign, the library had failed to communicate the terms of the offer to you, which means there was no contract. However to however, if you continue using the computer even after the librarian tells you that you have to pay, you now accept the offer through conduct. In this case, the library could sue you for damages should you not pay. if there was a sign on the door to a private building saying you have to pay $20 to enter, if you didn't read the sign and entered, could the owner demand $20 from you? If the sign was so conspicuous that no reasonable person would have missed it — yes (because you should have read it and then you entered the building. But you could get away if you convinced the judge that you genuinely did not see/read the sign, for which you would have to have a plausible excuse (e.g. vision impairment). |
Does H.R. 4310 allow the US government to use propaganda against citizens? In an online conversation, a person said to me, Holy crap are you a bot? The media is the one deceiving. Look up HR 4310, it literally states the government can use propaganda against it's [sic] people. Damn you are so asleep you wont [sic] question anything. Maybe dont [sic] research and follow blindly what your masters tell you. | The intended reference is surely to Section 1078 of the National Defense Authorization Act for Fiscal Year 2013, which is about "Voice of America" and other media services produced by the Department of State for non-U.S. audiences. Under the United States Information and Educational Exchange Act of 1948, also known as the Smith-Mundt Act, the Secretary of State was authorized to provide for the preparation, and dissemination abroad, of information about the United States, its people, and its policies, through press, publications, radio, motion pictures, and other information media, and through information centers and instructors abroad. This law did not explicitly authorize distribution of that material domestically, other than saying it would be available on request to members of Congress and in certain other circumstances. The policy of not making it generally available in the U.S. was hardened into law in the Foreign Relations Authorization Act of 1972, saying Any such information (other than "Problems of Communism" which may continue to be sold by the Government Printing Office) shall not be disseminated within the United States, its territories, or possessions, but, on request, shall be available in the English language at the Department of State, at all reasonable times following its release as information abroad, for examination only by representatives of United States press associations, newspapers, magazines, radio systems, and stations, and by research students and scholars, and, on request, shall be made available for examination only to Members of Congress. Subsequent tweaks carved out many exceptions for other specific content, and arranged for deposition of material in the National Archives. In 1985, a new provision was inserted to say that apart from certain enumerated exceptions, no funds authorized to be appropriated to the United States Information Agency shall be used to influence public opinion in the United States, and no program material prepared by the United States Information Agency shall be distributed within the United States. The developing statute law reflects a balance of concerns; it was felt that Americans should know what their government is saying to foreign audiences, but should not be the target of that official messaging. These additional provisions are not a departure from the position of 1948, so much as they are trying to set out the boundaries more clearly in the light of experience. The 2013 law, codified within 22 U.S.C. §1461-1464b, made some changes to the domestic regime. It authorizes post-2013 material to be made generally available to the U.S. public on request, potentially subject to a fee: there is no longer a requirement that the requestor has to be a scholar/journalist/etc. It also amends the "no domestic distribution" section to account for that change. The bar on influencing domestic political opinion remains, as can be seen from the current codification. The present situation is that much post-2013 material is available online (which is "on request", in that you have to go to the appropriate website). There is a system for requesting permission to reuse this material, including within the U.S.; for example, you might do this if you were making a documentary and wanted to show some VoA footage. Per policy, there is a possibility for providing program materials, prepared for dissemination abroad, to domestic broadcasters aimed at foreign diaspora communities as part of the Agency's foreign policy mission. Subject to various criteria, this allows broadcasting material within the U.S., not by the federal government itself but by some commercial organization - if that is still compliant with the prohibition on influencing domestic political opinion, based on the way the material is used. The broadcaster is also obliged to credit the producing agency, so it should be reasonably clear when a video segment (for example) has this origin. In answer to the question "Does H.R. 4310 allow the US government to use propaganda against citizens?", the situation is something like: it makes it possible for a third party to rebroadcast existing foreign-targeted propaganda for a domestic audience, in certain circumstances. It does not allow the government to broadcast or promote it domestically, and does not allow the government to produce it with a domestic audience in mind. An important note is that all of this legislation only applies to the foreign-audience material produced under the auspices of the State Department (under various agency names at different times). It does not cover broadcasting or communication by other parts of the federal government. A less important note is that the journal "Problems of Communism" mentioned in the 1972 Act is now called "Problems of Post-Communism", and published by Taylor & Francis rather than by the U.S. government. | 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. | This is one of the things Martha Stewart was convicted of. 18 USC 1001 is the US federal law requiring truthfulness. That statute forbids you to falsify, conceal, or cover up a material fact. One limitation on how broad this law is, is that it has to be a matter "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States". If your neighbor is an FBI agent and he asks if you're the one who broke his window, and you lie, that's not a federal matter. Another limitation is that the lying has to be material. The essential part of the law is subsection (a). Subsection (b) then states an exception: (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding. Then you also owe a lesser duty of truthfulness to the legislature. Taking note of US. v. Yermian, it is not required that the person you lie to be a federal officer. Yermian lied to his employer, who was a defense contractor, and the fact that the relevant form was submitted to the government for scrutiny is what made it a matter in federal jurisdiction. Comparing the wording of 1001 to the perjury statute, the operative expression for perjury involves statements "which he does not believe to be true", we can see that the perjury statute requires telling the literal truth (see Bronston v. US), which allows so-called lies of omission (of a particular subtype: much more could be said about that). In contrast the lying statute forbids both literally false statements and concealing of the truth. I don't have cases at my fingertips that indicate how broad your truthful answers have to be, for example if you think the FBI is trying to put away a friend and ask you about what he did on June 14, and you know that he did a bad thing on June 13, would it be lying in the relevant sense to conceal that fact which they didn't ask about. [ADDENDUM] A session of perusing cases has led to a tiny bit of further information. A literal reading of the statute says that you are in violation of the law if you falsify a fact (sloppy epistemology, unless it refers just to altering records and evidence), or conceal a fact, and the courts recognise this as a fundamental division. As for falsifying, the way that has been applied is to refer to cases where the accused makes a statement which asserts something that he knows to be untrue. Thus, saying "No" to a question when the truth is "Yes" is a violation. A propos concealment, in US v. Diogo 320 F.2d 898 the court states that False representations, like common law perjury, require proof of actual falsity; concealment requires proof of wilful nondisclosure by means of a 'trick, scheme or device.' This case is pre-Bronston so there is mixing of concepts from perjury law and lying law, which would not happen now, but we can steering clear of their perjury citations. The crucial fact is that accused(s) were technically married in New York, for immigration purposes, and they were accused of a 1001 violation for having indicated that they were married. Part of the government's case was that such a marriage is not valid, and the court rejected that conclusion. The government's second prong was to maintain that the court "should affirm appellant's convictions on a theory of concealment", and this too the court rejected, saying "proof of their ulterior motives in marriage would not be tantamount to proof of willful and knowing concealment of these material facts". What they said on the forms was literally true, and they did not have a duty to volunteer information that they probably knew the government was interested in. Contrarily in a later case, US v. Zalman 870 F.2d 1047 we are told that the underlying purpose of a marriage is a material fact which bears upon the validity of the marriage, and that any false or fraudulent misrepresentation regarding the actual purpose of a marriage in order to gain status as a resident of the United States can be punished under 18 U.S.C.A. § 1001 so you have to be more truthful than the literal truth standard. There are also circumstances where there is an independent duty to give information, such as reporting income to the IRS. In US v. Hernando Ospina 798 F.2d 1570 the court maintained It is clear that in order to support a section 1001 concealment conviction there must be a legal duty to disclose the facts the defendant was convicted of concealing citing US v. Tobon-Builes 706 F.2d 1092, where again there was a legal duty to report "existence, origin, and transfer of approximately $185,200 in cash". In other words, it is not clear what information you are allowed to not volunteer when asked a question in a federal matter. | There is no law governing the 'number' of the president. Common sense suggests that a person can't be 45th and 46th; there must be someone in between having the presidency and they will become the 46th president. In the extremely unlikely scenario that a foreign power occupies the United States this year, eliminates the office of President, and a few years later the US is liberated and Donald Trump is re-elected, I guess people could name him the 45th and 46th President, but it makes no sense to speculate about this. | However, in the last 233 years, only a handful of people have been prosecuted for violating this law. The census bureau has noticed that a more effective way to get everyone counted is to follow up in person if someone neglects to respond to the questionnaire. Once they follow up and the person has responded, there's no longer a basis for prosecuting. What is the point of one of the oldest laws, in which some people have cared enough to amend, but not enough to actually enforce? The possibility of prosecution is presumably thought to increase the response rate even if virtually nobody is ever prosecuted. The law also serves as a formal statement by congress that responding to the census is important, even if the executive doesn't prosecute people for failing to do so. Another thing to consider is that an element of the offense specified in 13 USC 221 is refusal or willful neglect. Without evidence of an affirmative refusal to respond, the prosecutor would need evidence of willfulness, which goes to state of mind, and that is notoriously difficult to prove. Any defendant who claims to have intended to respond but for chronic forgetfulness would introduce reasonable doubt unless the prosecutor had something to show that the defendant intentionally refrained from responding. | Probably not There's a difference between knowing DeJoy is guilty, and proving he is guilty. The first is a matter of your personal views on epistemology; the second is a matter of law. The statute says an official cannot use "his official authority for the purpose of interfering with..." In other words, in order to charge DeJoy, the government needs evidence that he is making these changes for the purpose of interfering with the election. According to news reports, DeJoy claims his purpose is legitimate: To balance the USPS budgets. He claims the PO is losing so much money that drastic cuts are required unless Congress increases funding. Given that the USPS is running a deficit, it will very hard to prove that DeJoy's explanation is just a smokescreen, that his real purpose is to screw up the election. So, unless there is a smoking gun, it seems likely he would not be charged, let alone found guilty. Note: Edited for clarity in light of comments | This article is a useful introduction to restrictions on political advertising in the EU, where §3.4 (p 33) covers Italy. Silenzio elettorale is covered by art 9. of Norme per la disciplina della propaganda elettorale. The statutory situation is not entirely clear to me, but the main controlling fact relevant to the internet question is that AGCOM issues rules. An English legal analysis (from an Italian law firm) is here. Their undernourished analysis of the silence period is Finally, Italian legislation prohibits political propaganda on election day and on the day before. Although AGCOM is not competent for ascertaining infringements of said prohibition, it considers important to call everyone to turn the attention on these provisions. Indeed, they are important to guarantee effective protections of the constituents. As such, in the Authority’s opinion, the prohibition applies to all media. Clearly, the law applies to internet platforms. What is not clear is whether the prohibition as applied to web pages is against "adding content", or does it require the elimination of previously-distributed content and scrubbing of links to such content. Perhaps the matter will be clarified in court one day. | It may help to start by clearing up some false premises in the question/comments: The Fourteenth Amendment does not "expressly list protecting citizens as a core responsibility of Government." The IRS does not define "U.S. person" as "someone that is born." The Internal Revenue Code has no bearing on whether corporations are considered people for purposes of political contributions. Then we need to clear up the main logical fallacy on which the question is built: Even if we accept that the Fourteenth Amendment requires government to protect citizens, and even if we accept that fetuses are not citizens, that doesn't mean states can't protect fetuses. That argument -- "States may protect citizens, therefore states may not protect noncitizens" -- is a straightforward example of denying the antecedent and pretty obviously untenable once you stop to think about it. Houses aren't citizens. Elections aren't citizens. Can state laws protect them? Foreign exchange students aren't citizens; can state laws protect them? How about the Canadian ambassador? The answer is quite well settled. The Tenth Amendment ensures state governments' right to enact virtually any laws to promote health, safety, and welfare, so long as those laws do not run afoul of some constitutional limit. Existing Supreme Court precedent makes clear that that authority -- known as the "police power" -- is virtually boundless. See, e.g., Bos. Beer Co. v. State of Massachusetts, 97 U.S. 25, 27 (1877); Lake Shore & M. S. R. Co. v. State of Ohio, 173 U.S. 285, 297 (1899); Sweet v. Rechel, 159 U.S. 380, 398–99 (1895). While Roe v. Wade has long provided just such a constitutional limit against the exercise of that power to regulate abortion, it appears clear that protection is about to vanish. Without Roe, states looking to protect "potential life" will be free to enact virtually any law that would advance that goal. |
I am being threatened by a company to pay a disputed liability NOW or face additional Solicitor costs I am from Australia. In Australia, any civil claim below $10,000 is considered a small claim and one cannot use a solicitor to represent himself in the small claims court. One may also not claim the amount incurred in legal fees for small claim proceedings. I am currently being threatened by a car insurance company to pay a disputed liable amount of $1500. They are threatening to engage a solicitor if I don't pay NOW or risk adding solicitor charges on top of it. This is somewhat confusing to me due to my first premise above, i.e. small claims cannot have any representation and charge legal costs. Is there somewhat a way for them to go around this? Or are their threats merely empty threats? FYI, I really don't think I am liable for the amount. | Issues in the question In Australia, any civil claim below $10,000 is considered a small claim This depends on the State or Territory involved. In three the limit is $25,000, not $10,000. In only one is it exactly 19,000. In several the plaintiff has an option not to have such a case treated as a small claim. one cannot use a solicitor to represent himself in the small claims court. This also varies by state/Territory. In some a lawyer may represent a person or company, in some legal representation is allowed only if both parties agree or if the court permits, in some no lawyers are allowed except in very special circumstances. One may also not claim the amount incurred in legal fees for small claim proceedings. This seems to be true in most states Sources "Small claims tribunals" from the Australian Competition and Consumer Commission (ACCC) "Debt Recovery – Small Claims" from the The Arts Law Centre of Australia Details Australian Capital Territory (ACT) Small Claims Limit: $25,000 Name of court: ACT Civil and Administrative Tribunal (ACAT) Option to use a higher court: No Lawyers (solicitors) allowed: Yes Can a solicitor's costs be recovered by the winner: no New South Wales (NSW) Small Claims Limit: $20,000 (higher for some kinds of cases) Name of court: Local Court, Small Claims Division or NSW Civil and Administrative Tribunal Option to use a higher court: Unclear from my sources Lawyers (solicitors) allowed: Yes Can a solicitor's costs be recovered by the winner: No Northern Territory (NT) Small Claims Limit: $25,000 (higher for some kinds of cases) Name of court: Northern Territory Civil and Administrative Tribunal (NTCAT). Option to use a higher court: No Lawyers (solicitors) allowed: Only with the leave of NTCAT Can a solicitor's costs be recovered by the winner: Only in exceptional circumstances Queensland Small Claims Limit: $25,000 (higher for some kinds of cases) Name of court: Queensland Civil and Administrative Tribunal ('QCAT'). Option to use a higher court: No Lawyers (solicitors) allowed: No, unless one party is a child or both parties and the tribunal member agree, or in certain other limited circumstances see https://www.qcat.qld.gov.au/resources/legal-advice-and-representation Can a solicitor's costs be recovered by the winner: No South Australia Small Claims Limit: $12,000 Name of court: Magistrates Court, Civil (Minor Claims) Division Option to use a higher court: No Lawyers (solicitors) allowed: No, unless both parties agree or one party is a lawyer. Can a solicitor's costs be recovered by the winner: No Tasmania Small Claims Limit: $5,000 Name of court: Minor Civil Claims Division of the Magistrates Court Option to use a higher court: No Lawyers (solicitors) allowed: Only if both parties agree and permission is granted by the Magistrate, or in other special circumstances. See https://www.magistratescourt.tas.gov.au/about_us/civil/minor_civil_claims Can a solicitor's costs be recovered by the winner: Yes, when one has been used. Victoria Small Claims Limit: $15,000 Name of court: Victorian Civil and Administrative Tribunal (VCAT) Option to use a higher court: Yes, Magistrates' Court. Lawyers (solicitors) allowed: Only if the Tribunal is satisfied that the other party will not be unfairly disadvantaged or in certain specific circumstances, see https://www.vcat.vic.gov.au/what-vcat-does/legal-and-professional-representation#when-you-don%E2%80%99t-need-to-ask-for-permission Can a solicitor's costs be recovered by the winner: Not normally, but possibly if the losing party has acted improperly or made a claim with no legal basis. Western Australia Small Claims Limit: $10,000 Name of court: Magistrates Court (Minor Claim) Option to use a higher court: No Lawyers (solicitors) allowed: Only if all parties agree, or the court grants special permission Can a solicitor's costs be recovered by the winner: No, unless exceptional circumstances exist. | 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. | england-and-wales Litigants in Person - i.e. litigants not represented by solicitors (= attorneys in US) can recover the cost of their time at a set rate under the Litigants in Person (Costs and Expenses) Act 1975 | Liability The concept of liability for damages is to place the wronged party in the same position that they would have been in but for the wrongful act. If restoring their car costs $300,000 then you are liable for $300,000. If the car is a total write off then you are liable for the cost of them getting an equivalent replacement, usually assessed at market value of the asset. Insurance Insurance is a different concept. An insurance company agrees to indemnify you for liability for your negligence within the limits of your policy: these usually include a deductable and a limit and sometimes a co-payment. You are liable to the wronged party - your insurer indemnifies you. If your insurance doen't cover all of your liability, you are responsible for the balance. | 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. | The important question is: was the £200 a fine (which is paid to the state) or compensation (which is paid to you)? Assuming it was a fine He doesn't (at the moment) owe you anything. However you can sue him for damages. Usually a claim for damages is time-barred after six years (and it is now seven years). However you weren't able to sue him yourself until you were 18, so you may have a couple of years left. However the clock may have started ticking immediately after the attack, on the grounds your parents or guardians could have sued. Talk to a solictor about this possibility; they should give you a free 30 minute consultation, and would probably take a case on a contigency fee (no-win no-fee) basis if it has any chance. In principle, you could have applied to the Criminal Injuries Compensation Board for compensation - but you are too late for that; you have to apply within two years (there are some exceptions, but none seem to apply to you). Assuming it was compensation He owes you £200. Now you need to enforce that payment - and again, the problem may be the six year clock. You will definitely need to talk to a lawyer about that. My gut feeling is that the £200 was probably a fine rather than compensation. | 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 part of an indemnification clause. Basically, the idea is that the service provider guarantees that if your business gets harmed because they let in an intruder, then they will absorb the losses if somebody sues you, as long as they have control of the court case and you cooperate with them in defending the court case. So, for example, imagine you are using a web hosting service. Suppose there is a vulnerability in the hosting service computers, and a hacker is therefore able to break into your web site and steal your customer information. Your customer sues you for allowing their credit card to fall into the hands of a hacker. The web hosting service's insurance will pay the damages if the lawsuit succeeds, as long as you let their lawyers (ie the insurance company's lawyers) run the defense of the lawsuit and you cooperate with them. The reason this language is there is because the "service provider" has an insurer that is guaranteeing them if they get hacked or something, then the insurer will cover any damages. The insurer requires them to make all their clients (like you) sign an indemnification agreement which includes the control clause. |
Roommate want to take me to small claims court (Maryland) Long backstory: So one of my roommates is the account holder of the utilities since she lived there since the last lease, and NOT ONCE have my other roommate and I seen a PDF or copy of the owed bills. She would literally just make decisions on the account and tell us to pay. We also signed a roommate agreement stating that we would pay 1/3rd of the bills and our respective amounts for rent. My issue is that the agreement also spoke about how to behave/interact with one another respectfully and my actual lease talks about enjoyment rights of the home. Long story short, the account holder started harassing me and my fiancé once COVID-19 interrupted my work status, and she kept bugging me to pay her back for the bills. I was unaware that me and the other roommate were reimbursing her this whole time for bills, and had assumed that our payments went directly to the companies and not her pockets. So I asked why she did not allow the bills to rollover (like I was doing with the rent) given the crisis as I did not have the means to pay back everything at once. I would have understood paying back the utility companies themselves if they had sent an actual statement of overdue charges. She then proceeded to demand that my fiancé pay towards the bills for visiting me despite how frequent/long her own guests have stayed at our residence with no such financial demands being made to them. We all agreed that guests could contribute if they so wished to their host, but I never said guests had to pay for the dang house (we are not a hotel...come on now.) She even tried to get my landlord to force my fiancé to pay, in which my landlord said I was not in violation of the lease so she couldn’t ask him to. And then she contacted her father who used his military contacts to find and message my fiancé’s former sergeant in the navy to pressure him into paying! All of this prior to her sending me a claim of money I “owe her.” I have since repeated that I will not be paying anything without seeing a full statement of charges Provided by the utility companies themselves and I honestly don’t even want to pay her anything given how brazen she was during this whole ordeal. Would It be possible for me to argue this in court and agree to pay a lesser amount? I never had an issue with paying my bills prior to this but COVID-19 put me out of a job For awhile and instead of speaking with me appropriately she literally starting harassing both me and my fiancé. What can I do? | You sound like a lot of my dispute resolution clients on their first visit You seem upset, maybe even angry and you feel that you are being victimised and harassed and that the person you are in dispute with is an amoral scumbag with no integrity. I sympathise with your feelings and understand that this sort of thing is stressful and causes emotional turmoil. However, how you feel has very little to do with what the objective facts are. This is what I read: You agreed to pay 1/3 of the bills, You have been happy to let your roommate handle this, You have trusted your roommate to do this honestly, You have been paying what she asked when she asked for it, Your circumstances changed, You did not advise your roommate that this would make it difficult for the existing arrangement to continue, She continued doing what she had always done, You stopped doing what you had always done, Your roommate has been left out of pocket and probably is under financial pressure herself, She kept asking for the money, You saw this as unnecessary harassment, You showed that you no longer trusted her integrity and judgement, She reacted the way most people do to being indirectly called a liar and a thief, Things spiralled out of control. Put your outrage on the shelf and feel sorry for yourself when it's not happening on my time (unless you are paying me, in which case I'm more than happy to listen to all your troubles at $420/hour + GST). Yes, she can take you to court. She will almost certainly prove that you owe her whatever you owe her for the utilities. I think it's extremely unlikely that she has been dishonest about this (although anything is possible). You may be able to make an arrangement to pay through the court which means that she will get a pittance per week from now until forever. This won't make things better. You have to deal with the fact that, right now, you share a home with someone where your relationship has broken down and you will have to continue to live with that person. At least until one of you can move out. Take a deep breath. Work out how you are going to make the relationship at least tolerable. I suggest you start by apologising. | This likely comes down to contract law (note: I'm not a lawyer; this isn't legal advice). If his rental contract is not with you, you'll need to refer this to the property owner's representative. I don't see why just sharing the house would give tenants any eviction rights over other tenants. Even if you are the owner (cf “my house”), it would be unusual for independent tenants to be party to each other’s rental contracts. The other tenants are irrelevant to any eviction attempt, except perhaps as witnesses in court. | If you introduced the bedbugs, liability could flow to you by way of the landlord keeping your security deposit (if there is one) and explaining when sending you notice that a portion/all of your deposit was withheld due to you causing the infestation for the purposes of remediation. The inverse is also true, in that if you do not have a deposit, you could be sued in housing/small claims court for the infestation if you were negligent in some way (grabbed the mattress curbside and didn't put a bedbug proof sealed cover on the mattress. Since you said you rent a room, my curiosity is piqued as to whether it came with the bed (mattress). If the bed came with the room, it is almost certainly not your fault. Even when there are statutes/codes/regs delineating a lessor's/lessee's obligations and rights re pest control (from jurisdiction to jurisdiction) they rarely exclude the right to general civil remedies. I used to represent my municipality and remember reading that bed bugs are difficult to treat unless the bed is disposed of and all bedding is washed in hot water with a disinfectant and even that can not ensure their removal because if you brought them in because of access to them on a regular basis (e.g., if you are a maid at a motel), then you may continue to introduce them. If the room had no bedbugs and you brought the bed in and now it does, it may be easier to prove who created the unsafe/unsettling condition, as opposed to ants, roaches, spiders, which can be introduced in myriad ways. | What §670 BGB basically says is that the default is that companies have to reimburse you for expenses that you incurred for interviewing with them. If they don't want to reimburse you, they have to tell you so in writing before you incur any costs. That way it's your decision if you still want to go if you have to pay for expenses yourself. It does not mean your expenses have to be paid, it means you should know beforehand whether they will be paid. So what I take from your story is that you never actually asked the company for reimbursement, expecting the Agentur für Arbeit to pay that for you. Well, no company is going to pay your expenses if you don't ask for it. And that's not a crime. You also never told the Agentur für Arbeit that you were not informed beforehand that your expenses would not be paid. They asked for proof, you delivered proof. It's not their job to find out how or when you got handed this written statement and if that constitutes a violation of §670. And as a little reality check: paying your expenses (probably something along the lines of a cab fare or bus ticket?) is way more cost effective for the AA than suing a small company for the same amount. Just the time of the lawyer filing the suit will probably cost more than your public transportation ticket for the next year. | Agreement You say: my landlord added a clause stating: "All moving must be done in rear of driveway or pay $250 (near basement door)" Was this addition made at the time you signed the lease or subsequently? This matters because the terms of a contract cannot be changed unilaterally, they must be agreed. If the change happened after the lease was signed then , unless you agreed to it, it has no effect whatsoever. Since that resolution is boring; I will assume that it was always there. Enforcability Is this actually enforceable, since I did park in a public space and not necessarily on his property? Yes, it is enforceable. People can agree in a contract to do (or not do) anything so long as that thing is not illegal - that is what a contract is; a legally enforceable agreement for two people to do certain things. You agreed "All moving must be done in rear of driveway ... (near basement door)" and you didn't do what you agreed to do. Therefore you broke a term of the contract. It doesn't matter that you don't know why he wanted you to do this or if it was reasonable or if it meant that you couldn't use your parent's truck - if these were issues for you they should have been raised before you agreed to do it. If the clause said "When moving out you will wear a blue double breasted suit with a yellow and purple bow tie" then that is what you must do. Consequences There are a number of options open to the wronged party when the other party breaches a term of a contract. The most relevant in these circumstances is to sue for damages. So how much are damages? Well, they are an amount to restore the wronged party to the position they would have been in if you hadn't broken the agreement. In situations where damages can be hard to calculate, contracts can make a provision for liquidated damages; a pre-agreed amount of what the damage will be: in this case "$250". However: In the United States, Section 2-718(1) of the Uniform Commercial Code provides that, in contracts for the sale of goods: Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty. This largely mirrors the common law rule, which applies to other types of contracts under the law of most US states. On the face of it, it would appear that $250 may be "unreasonably large" given the nature of the breach where it appears that the landlord has actually suffered no damage. | If you want to be argumentative about it, the burden of proof is on the person making the accusation. This also means the burden of production is, too. Underlying the whole matter is a claim that you've engaged in "breach of contract," namely failing to pay rent. Your legal obligation is to not engage in contract fraud nor breach of contract. You are to exercise due diligence in resolving any breach of contract. You may ask the lessor to provide evidence in support of the claim while admitting that you have difficulty looking that far back into the issue. The idea here is to "work with" the lessor rather than immediately taking an adversarial stance. Normal people become very disgruntled by those taking an immediate adversarial approach rather than seeking to work with the other person to resolve the dispute. | No they can't. The lease says the premises need to be cleaned without going into details how. You cleaned them yourself before moving out. If the landlord was not happy with that, they should have raised their concerns and discussed options. The security deposit that the landlord holds is only supposed to be used when something goes wrong. When something goes wrong, the landlord is supposed to talk, not to silently chop off a slice of the deposit as they please (unless the lease allows it, which it does not here). If the landlord refuses to refund, read the manual and go to small claims court to tell them where to get off. | 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. |
Roommates aren't paying utilities, can I take them to small claims court? There were 4 of us living in a condo, all 4 of us were on the lease and we paid rent separately to the landlord. The landlord covers the water bill and nothing else for utilities per our lease. The electricity bill and internet bills are under my name and I pay them in full each month with the expectation that everyone will pay their share of utilities (1/4th) to me. All 3 roommates owe me for at least a few months of utilities each, with the total amount coming to about $1500 for everyone. This is a considerable amount of money for me, and while I do make enough and have enough in savings to continue to pay my bills I would much rather get the money back if possible. So I'm considering taking my roommates to small claims court as most/all have made it clear they won't give me anything (besides excuses and empty promises). The problem is that there is no written agreement between us that we would split the bills evenly. When it comes to proof of payment; roommates 1 and 2 never paid me anything for the few months they lived here, and roommate 3 only ever paid me in cash and I have no proof of their payment as I never wrote a receipt. The only documents I have are the physical bills sent to me and my bank account statements showing I paid utilities in full every month. With no written agreement and no proof of their payment (or lack thereof), do I have a case against them in small claims court? Even if I don't have a case, how do I prevent this from happening again with future roommates? This is in Wisconsin, USA. And if it matters; 2 roommates have been evicted for missing rent, and roommate #3 is close to eviction too. My landlord is taking legal action against at least 2 of them for the money they owe him. I don't know if that could help my case or not. | do I have a case against them in small claims court? Yes. Your description altogether indicates that there is --at least-- an implicit contract between you and the roommates. That implicit contract is palpable from the roommates' subsequent conduct, which includes --but is not necessarily limited to-- their excuses and promises. Although there is no written contract between you and the roommates, evidence that you have paid utilities in full places on your roommates the burden of disproving the default (and common sense) presumption that bills would be split among all four roommates. Your landlord can testify via an affidavit what he knows about that arrangement and/or what he informs each new roommate on the issue of how utilities are paid. You might want to email your roommates a reminder [to pay you] in such a way that prompts them to reflect their excuses/promises/admissions in writing. The terms of their written response might evidence an oral agreement. In the alternative, the roommates would have the burden to prove that they paid you, or that you promised to cover their utilities for free. The former scenario is precisely why a reasonable payer typically requires --or should require-- a receipt when making payments (as opposed to the payee when receiving them). Regardless, your description suggests that your roommates would be unable to prove either scenario. Also the landlord could include in his affidavit that the roommates have defaulted on their rent payments as well. If the landlord refuses to produce an affidavit, you can always visit the court where eviction proceedings are taking place and obtain copy of the relevant records. With those records you would evidence the roommates' pattern of lack of payment. Although obtaining copies from the court makes your landlord's affidavit somewhat unnecessary, it is in the landlord's best interest to cooperate with you because (1) it would be unreasonable for him to alienate himself from the only tenant who honors his lease, and (2) he might need your cooperation as witness at some point. Even if the roommates were successful in proving that there was neither a verbal agreement nor an implicit contract but only "unfounded expectations" on your part, you could ask for a ruling in equity in case your claim of breach of contract fails. In terms of mere "expectations", it is much more reasonable for you to expect them to pay their share than for three three individuals to presume an unrelated roommate will cover their utilities for free. The latter just departs from common sense and common practices. how do I prevent this from happening again with future roommates? Strictly speaking, it is impossible to absolutely prevent that situation from occurring again. However, you may take the following precautions to reduce your exposure. Have your roommates sign an agreement that reflects each party's obligations and deadlines. Your agreement should also state that it is each roommate's responsibility to keep his/her receipts --or akin evidence-- in case a dispute for non-payment arises. This would streamline the production of evidence if the matter ends up in court. Consider whether or not asking each party for an aval or endorser is practicable. This provides some sort of "insurance" of roommates' default risk. Lastly, do not wait for a party's debt to accumulate that much before taking legal action. The longer you wait, the unlikelier you are to recover that money because the party may go broke or simply disappear. Moreover, keep in mind that if a party's debt exceeds the maximum amount handled in Small Claims Court, your litigation will become more involved because it would have to be in a court of general jurisdiction (meaning a circuit or district court). | Your title doesn't quite match your question. "Reneging" would mean saying that a lease would be offered at the reduced rent, and then not offering the lease. Here, they offered the lease, and you accepted. So now the question is not whether they can refuse to offer you the reduced-fee lease, but whether they are owed the back rent. Verbal agreements are indeed binding, but they are rather sticky from an evidential point of view. Also, there are other possible complications. If your original lease stated that verbal agreements are not binding, or that only specific people are authorized to modify the terms and the person you talked to is not such a person, then this is not binding. If after they said you could keep the rent reduction, you signed a lease for the full amount or otherwise indicated acceptance of the full amount, then it may be considered not binding. Even if the agreement is not binding, you have further arguments. If you believed that it was binding, and did so out of good faith, then there was not a meeting of the minds, and they can't go after you for breach of contract. They may have other claims, such as damages if they can show that they could have gotten more money from another prospective client, but them accepting the rent makes that difficult to pursue. Now, again, verbal agreements do have evidentiary problems. If your case were nothing than your word claiming that they agreed, you would not have much of a case. But here, you have: -They were willing to take the lower rent for the initial period -You stated that you would leave unless given a continued discount, and you stayed -They didn't make any attempt to collect the full rent for three months -They are willing to give you the discount if you pay the back rent All of this points rather strongly towards your claim being true. You also say "this situation is not unique to me." It's not clear what they means, but if other tenants also got verbal assurances that the discount would continue, and they testify to that effect, then your case is even stronger. | The landlord might be able to sue the tenant for actual damages arising from the double occupancy, if utilities are paid by the landlord. Two people tend to use more water than one person. Establishing that there has been any loss would be tricky, but let's assume that there is evidence pointing to some dollar figure. Then the landlord might sue the tenant for causing this damage. | Your rights and responsibilities in this realm are a matter of local law, sometimes down to the level of the city, plus whatever is stipulated in the lease. In San Francisco, for example, No Person shall have upon any premises or real property owned, occupied or controlled by him, or her, or it any public nuisance [which includes] Any visible or otherwise demonstrable mold or mildew in the interiors of any buildings or facilities This does not say whether the owner or the occupant is liable for remediating the situation. Shower mold is gross but not a health hazard (the SF ordinance just lumps all mold into one category). Since you have no written lease, there is no automatic clean-up requirement. There might be a law requiring a tenant to clean the premise to its original condition, for instance in Washington, tenant must Upon termination and vacation, restore the premises to their initial condition except for reasonable wear and tear or conditions caused by failure of the landlord to comply with his or her obligations under this chapter. Landlord duties are here: there is no duty to provide ventilation. However, the bathtub appears to be in a common area and not your particular unit. The landlord duties also require the landlord to Keep any shared or common areas reasonably clean, sanitary, and safe from defects increasing the hazards of fire or accident so in Washington, it's his problem and not yours. In general, even if a tenant is responsible for some form of cleanup, that does not constitute legal license for a facility upgrade. It might cost a couple hundred dollars to hire a person to wash ordinary mold accumulation, and does not justify getting a $5,000 new tub. Since this is in a common area, you would not be solely liable for whatever the damage was. The part where you say "crack in a common bath tub" is a large red flag: it suggests to me that somebody negligently broke the bathtub, and then caused behind-the-wall damage by letting water infiltrate without notifying the landlord. If you broke the tub and let it rot, you could be liable. If the tub was broken already and the landlord didn't bother to do anything about it, that is his negligence. The three questions that you should try to answer are: (1) what are the duties of landlord and tenant in my jurisdiction, (2) what was the actual harm done, and who did it, (3) what is the ordinary cost of whatever repair was done. | You have acknowledged that the house was in "new" condition, which establishes a baseline for determining if the present state is normal wear and tear. The lease and California law agree that normal wear and tear is not the responsibility of the tenant. You may then need to sue the landlord in small claims court to get the remainder of the deposit (the above guide will be useful). The thing that is not clear is exactly what constitutes "normal wear and tear". The state guide tends to emphasize extreme forms of damage such as dogs chewing the woodwork, or cigarette burns. If you do ordinary cleaning on the walls, windows, carpets etc. then it is more likely that the judge will find in your favor. | 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. | You said it yourself - "The only way for me to remove him is through an eviction process". From this link - give the tenant a non-payment termination notice, signed by yourself and including the address of the premises, the date the tenant needs to vacate (at least 14 days out) and the grounds for notice being non-payment of rent. The notice also needs to say that they can pay the rent owing (including 2 weeks in advance) or enter into, and fully comply with a repayment plan you agree to. The notice needs toproperly delivered - in person, b post, fax or hand delivered in an addressed envelope to a mailbox as the home address. (If posted, you need to allow an extra 4 days for delivery) Once you have done that, you apply to NSW Civil and Administrative Tribunal for a termination order. (You can make this application at the same time, but it can't be heard until the time to remedy has passed). | In general, a properly signed lease is binding. But there are exceptions, and they vary depending on the jurisdiction: country, state/province, and even city or county in many places. You mention a claim that the property should not be leased "because the owner needs it". In some jurisdictions, there is a special exception if the owner personally, or a member of the owner's immediate family, intended to live in the property. It is not clear form the question if such an exception would apply. it might well be that a person in the position described in the question has a valid and enforceable lease, and could simply remain in the property, paying rent, and the owner would have no valid grounds for eviction. But this kind of case will depend on the exact wording of the rental agreement, and on the exact provisions of the applicable laws, which vary widely depending on the location of the property. A person in this kind of situation would b wise to consult a local lawyer who will know local property law, and how the provisions of the agreement and other claims will be treated by local courts. There may also be local tenant assistance organizations, run by the government or by non-profit groups, who will know local law and can assist in such cases. A general answer cannot be gotten from a forum such as this which an individual should rely upon in such a case, particularly when the question does not even state what country, let alone what specific locality, is involved. |
Can evidence a person gives to aid an investigation then be used to prosecute that person for an unrelated crime? Consider the following scenario: a person consents to giving some evidence to aid the investigation or prosecution of a criminal,with the reasonable, good-faith assumption that the use of that evidence will be limited in scope to the particular investigation/trial. That evidence is later used by prosecution against the person who provided the evidence in a separate, unrelated case. One can easily imagine instances where this occurs: This question is inspired by the recent revelation of some police precincts of archiving DNA evidence collected in one investigation for use in later investigations. The policy in question allowed police to use DNA samples obtained during investigation of rape victims to archive the victim's DNA evidence in databases which were later searched and used to implicate the victims in unrelated crimes. This particular issue has been explored on this site here. A person surrenders dashcam footage to a police officer because it contains evidence of a hit and run accident. The footage is later used as evidence against the person because it shows that he or she was speeding earlier that day. Police solicit tips/evidence in the search for a suspect in a violent crime. A person gives an eyewitness account of the crime in a good-faith attempt to aid in the investigation. The eyewitness account implies that the person was in a location and time in violation of their parole, which is later used against them in a separate trial. (edit: I understand that the Exclusionary Rule doesn't generally apply to parole revocation hearings, but the sentiment is the same and one could easily modify the scenario to be about a different secondary crime). What policies or statutes govern the use of evidence past its original intended use? Does consent to surrender evidence in once case amount to surrendering that evidence for all uses, forever? My prima facie assumption would be that the Exclusionary Rule would apply here because the evidence was obtained in a somewhat disingenuous / coercive manner (good-faith assumption that the evidence was only being provided to aid in investigation of a particular crime) and that such a bait-and-switch collection of evidence amounts to a violation of the 5th Amendment. | There are essentially no such limits on the use of such evidence. The police are free to use evidence from one case in whatever other cases it may be helpful, and criminals have no right to turn over evidence to the police on the condition that it not be used against them. The Exclusionary Rule has no application here, because it only governs evidence that was obtained in violation of the Fourth Amendment. Because the defendant here consented to producing the evidence, the Fourth Amendment does not apply. Nor does the Fifth Amendment prohibit the use of this evidence. The right against self-incrimination only applies to compelled self-incrimination; if a defendant wants to voluntarily confess or turn over inculpatory evidence, he is free to do so. | If someone was charged with 15 counts of a crime but was only indicted on 2 counts, can the prosecutor introduce evidence at sentencing of charges that the person was not indicted on? In federal court, yes. This has been the case since Williams v. New York, 337 U.S. 241 (1949) which held that evidence such as counts and conduct upon which the defendant was not charged or indicted may still be considered in a sentencing hearing. Since U.S. v. Watts, 519 U.S. 148 (1997), the prosecutor can even introduce evidence at sentencing of charges upon which the person was acquitted by a jury. See generally here. This remains good law although it is controversial both in academic writing and in political discussions and among many sitting federal judges. Neither the Federal Rules of Evidence nor constitutional provisions related to evidentiary matters (e.g., the Confrontation Clause of the Sixth Amendment) apply at sentencing. Therefore, the court may consider hearsay and other types of information that would not be admissible during a trial. However, the [U.S. Sentencing] Commission has stated that information considered by a court at sentencing must have “sufficient indicia of reliability to support its probable accuracy.” Under Federal Rule of Criminal Procedure 32, the court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” In resolving factual disputes, the court ordinarily applies the preponderance of the evidence standard. From here. The quote above cites the following authority: FED. R. EVID. 1101(d)(3). Williams v. New York, 337 U.S. 241 (1949). 18 U.S.C. § 3661; see also Pepper v. United States, 562 U.S. 476, 480 (2011) (“This Court has long recognized that sentencing judges ‘exercise a wide discretion’ in the types of evidence they may consider when imposing sentence and that ‘[h]ighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.’ Williams v. New York, 337 U.S. 241, 246– 247 (1949). Congress codified this principle at 18 U.S.C. § 3661, which provides that ‘[n]o limitation shall be placed on the information’ a sentencing court may consider ‘concerning the [defendant's] background, character, and conduct,’ and at § 3553(a), which sets forth certain factors that sentencing courts must consider, including ‘the history and characteristics of the defendant,’ § 3553(a)(1).”). USSG §6A1.3(a). FED. R. CRIM. P. 32(i)(3)(B). USSG §6A1.3, comment.; see also McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986) (holding that due process does not require sentencing factors to be proved by more than a preponderance of the evidence). Federal Rule of Evidence 1101 states (emphasis added): Rule 1101. Applicability of the Rules (a) To Courts and Judges. These rules apply to proceedings before: · United States district courts; · United States bankruptcy and magistrate judges; · United States courts of appeals; · the United States Court of Federal Claims; and · the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands. (b) To Cases and Proceedings. These rules apply in: · civil cases and proceedings, including bankruptcy, admiralty, and maritime cases; · criminal cases and proceedings; and · contempt proceedings, except those in which the court may act summarily. (c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding. (d) Exceptions. These rules — except for those on privilege — do not apply to the following: (1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility; (2) grand-jury proceedings; and (3) miscellaneous proceedings such as: · extradition or rendition; · issuing an arrest warrant, criminal summons, or search warrant; · a preliminary examination in a criminal case; · sentencing; · granting or revoking probation or supervised release; and · considering whether to release on bail or otherwise. (e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules. Given the immense personal importance of a sentencing hearing which can exercise discretion over a range of many decades of possible prison time, and which is frequently the only meaningful opportunity for a person who is easily proven guilty to distinguish himself or herself from other defendants, it is really very stunning and counterintuitive that this is the case. And if so isn't that denying the defendant his or her due process because that person was not indicted on those charges? Under current U.S. Constitutional law, the maximum sentence that can be imposed must be based upon convictions by a jury or judge based upon charges upon which indictments were brought, which were proved beyond a reasonable doubt based upon admissible evidence. The leading case in support of this proposition is Apprendi v. New Jersey, 530 U.S. 466 (2000). But, at sentencing, the judge's exercise of discretion up to the maximum sentence established at trial may be made based upon a preponderance of the evidence and that evidence is not subject to the same procedural safeguards. | Yes, One Can In the United States, one may assert the Fifth Amendment privilege not to testify or otherwise give information that might tend to implicate the speaker in a crime. This is true in any court proceeding, civil or criminal, whether the person asserting the privilege is an accused, a witness, or a party to a civil case. It may be asserted in a Grand Jury or trial proceeding. One may also assert the privilege under police interrogation, or in an administrative proceeding. One may also assert it when testifying before Congress, a state legislature, or any local legislative body. One may also assert it when testifying before a government agency, such as the Interstate Commerce Commission. Asserting the privilege is often informally called "pleading the Fifth", although strictly speaking "pleading" is something that only an accused does (as in "I plead not guilty"). The availability of the privilege in civil cases has been true at least since the Saline Bank case of 1828 (see below). The privilege is not available when no criminal prosecution is legally possible, such as when the statute of limitations has expired, or when the law invoked has been held unconstitutional or otherwise invalid, and no other valid law applies. Thus, if an authorized government official (usually a prosecutor) offers a grant of immunity, the privilege is no longer available on matters covered by the grant, and the person asserting it must then testify on such matters. The privilege may be asserted when the person doing so is actually guilty, or when the person is not guilty, but has a reasonable belief that the statements asked for might be used against the speaker in some current or future criminal proceeding. A person who has been tried for a crime nut had the case end in a mistrial, or a dismissal without prejudice, could still be re-tried for that accusation, and so may assert the privilege. Any assertion must be clear, but need not use a specific form of worfs. The standard form advised by many lawyers is I decline to answer on the grounds that the answer might tend to incriminate me. but less formal wording such as 'I take the Fifth" will also serve to assert the privilege. When the privilege is asserted in a court case, the Judge may question the person asserting it in private, off the record, to determine whether the fear of incrimination is reasonable. Case Law Saline Bank (1828) In the case of United States v. Saline Bank of Virginia, 26 U.S. 100 (1828) Chief Justice Marshall wrote: It is apparent that, in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule clearly is that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it. [This case was cited in Murphy, below] Saline Bank was a civil suit by the US treasury in Federal curt against an apparently unincorporated bank, but a Virginia state law of the time made it a crime to operate or participate in a bank without a proper charter. Thus the Marshall Court held that a witness in a civil suit could assert the privilege against the future possibility of a state criminal proceeding. Kastigar (1972) In Kastigar v. United States, 406 U.S. 441 (1972) the US Supreme Court wrote (footnotes omitted): It [the privilege against self-incrimination] can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values that underlie the privilege [Citing the Miranda case in a footnote]. (Kastigar was a case in which people subpoenaed before a Grand Jury asserted the privilege, were granted immunity, and still refused to testify, alleging that the grant of immunity was not enough to revoke the privialge. They were held in contempt, appealed, and the Court held that the immunity was sufficient to allow the witnesses to be compelled to testify. In the court of its opinion, the Kastigar Court reviewed the history of the privilege and of immunity statutes in some detail.) Murphy (1964) In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) the US Supreme Court wrote: We have held today that the Fifth Amendment privilege against self-incrimination must be deemed fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1. ... Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminated them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York. [Footnote 2] Notwithstanding this grant of immunity, they still refused to respond to the questions on the ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend. [This case was cited in Kastigar above.] McCarthy v. Arndstein (1924) In McCarthy v. Arndstein, 266 U.S. 34 (1924) (footnotes omitted, boldface added) The US Supreme Court wrote: The case is now before us on rehearing, granted in order to permit argument of the proposition, not presented by counsel before, that the privilege against self-incrimination does not extend to an examination of the bankrupt made for the purpose of obtaining possession of property belonging to his estate. ... The contention now is that the privilege against self-incrimination ought to have been disallowed because, under the Constitution, it does not extend to the examination of a bankrupt in a bankruptcy proceeding. The government insists broadly that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. It protects likewise the owner of goods which may be forfeited in a penal proceeding. See Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 563-564. The government urges more strongly a narrower contention. It claims that the constitutional privilege does not relieve a bankrupt from the duty to give information which is sought for the purpose of discovering his estate. It asserts that, in England, such an exception to the common law privilege prevails, and that the exception had been established there prior to the Declaration of Independence. Whatever may be the rule in England, it is clear that, in America, the constitutional prohibition of compulsory self-incrimination has not been so limited. | england-and-wales Scenario 1: If a person is acquitted of an offence, and evidence later shows that someone else committed it instead then there's nothing in law preventing that second person being prosecuted - assuming all the relevant conditions are met. Scenario 2: If a person has been convicted of an offence, but evidence later shows that someone else may have committed it (independently and in isolation rather than as a co-conspiritor), then in all likelihood the former defendant may have grounds for an appeal on the basis that they have suffered a miscarriage of justice. One option is for their case to be reviewed by the Criminal Cases Review Commission who may refer the case back to the court to determine whether the conviction should be quashed in light of new and compelling evidence. Scenario 3: "Infinite" indictments are theoretically possible (in as much as infinity is possible) but only if there is enough evidence against each and every person to justify them being indicted. If prior indictments resulted in convictions, then loop back to Scenario 2. | 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. | Is mere accusation without evidence other than testimony of the accuser, grounds for arrest in the UK? It depends on the circumstances, especially when dealing with non-recent allegations where independent and corroborative evidence may be difficult to locate and/or recover, but in my experience it is very rarely an option to arrest soley on the say-so of one complainant unless there is a compelling reason to do so. It's also fraught with potential risks - Operation Midland being a prime example of when it can go horribly wrong. Also, no-one can "call the police and have someone arrested" in the united-kingdom - the police are under a duty to carry out a "proportionate investigation" in to allegations of crime and then make their own minds up on how to proceed based on the available intelligence and evidence. Focussing on england-and-wales, the most commonly used power of arrest* is at s.24 of the Police and Criminal Evidence Act 1984 which, along with PACE Code G, requires an officer to: Reasonably suspect that an offence is being, has been or will be committed. On a scale of 0 to 10 - with 10 being total knowledge and 0 being no opinion at all - suspicion may be as low as 2 or 3 whereas belief starts at 7 or 8. And reasonably believe an arrest is necessary. One commonly used mnemonic for the Necessity Test under s.24 is: ID COP PLAN: Investigation - prompt and effective investigation of offence or conduct Disappearance - prevent prosecution being hindered by disappearance of a person Child / Vulnerable person - protection of Obstruction of highway Physical injury to themselves or someone else Public (in)decency Loss or damage to property Address not know Name not known I cannot say why the officer did not make an arrest in the OP's case. I surmise that he did not deem it necessary based on the above mandatory criteria but rather considered that a voluntary attendance interview would be the most appropriate course of action given the circumstances and information available to him at the time. *There are other statutory and common-law powers of arrest, but they all follow the same procedures as above | In a trial by judge (bench trial) that could certainly happen. Most substantial parts of the judicial process can be sealed, under numerous laws and theories. The U.S. FISA "Court" is notorious for operating virtually entirely in secret. Various laws allow for secret subpoenas or warrants, with the subjects on which they are served held criminally liable for violating the court's order for secrecy. In a trial by jury it would probably be impossible for an exonerating fact to be presented to the judge only, since the proper role of the jury is to decide all questions of fact in a case. Furthermore, a court can compel a witness to testify, with no requirement to mitigate the damages of such testimony. However, if the accused knew that an exculpatory fact could be provided by a witness, and that the witness might decline to give (honest) testimony to a jury, he would presumably waive his right to a jury trial, at which point the testimony could (in theory) be given only to the judge. | Short Answer No. Double jeopardy of the Fifth Amendment to the United States Constitution prohibits someone from being prosecuted more than once for the same factually specific crime (i.e. "the same offense"). The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The original acquittal was correct, because it was for a crime that did not happen. The later trial is for a different crime that actually did happen at a different time. In the same way, an acquittal for a DUI committed on Tuesday does not bar prosecution of the same defendant for a different DUI committed on Thursday. So, double jeopardy does not apply in the scenario presented. A Similar But Harder Case The analysis would be trickier if: A shoots B. A is tried and acquitted for the murder of B. B was only presumed dead but was actually alive. After being acquitted for Bs murder, B dies of the gunshot wound from A in (1). A is later arrested and tried for Bs murder (a second time). This is a much trickier question, because A was actually tried and acquitted of a crime that hadn't been completed at the time of trial, but in which A's involvement had terminated at the time. (To make it even more complex if you are inclined, in a first degree kidnapping case, the death penalty applies unless the defendant can prove the affirmative defense that the victim didn't die, and a first degree kidnapping acquittal would probably not bar a later murder conviction because the offenses have elements sufficiently different from each other, even though the death penalty or life in prison without parole sentence for that offense is based on the conclusive presumption that the victim died in law, rather than in fact.) Issue Preclusion This might depend upon the nature of the evidence at trial - if A did not raise the failure of the prosecution to provide corpus delecti (i.e. a dead body) or the misidentification of an alleged victim's body as a defense and instead, for example, argued an alibi defense (e.g. he was in jail at the time of the alleged shooting). This narrow fact pattern would be a particularly close question and I wouldn't be surprised to see a court deviate from the usual precedents and general rules under these circumstances. There is a substantial body of case law on whether prosecution for a crime with elements A, B, and C bars prosecution for a crime with different elements arising from the same facts and circumstances (e.g. if acquittal of a lesser included offense whose elements must all be proved to convict on the more severe offense provides double jeopardy protection), that wouldn't be directly applicable in my alternative scenario because the offense tried the first time and the second would have exactly the same elements. This depends upon when a concept analogous to the principle of collateral estoppel (also known as "issue preclusion") in civil cases, in which facts previously litigated can bind a party in a later lawsuit, with or without constitutional double jeopardy dimensions, applies in criminal cases. As a general rule, there was historically no doctrine of collateral estoppel in criminal cases as noted in a 1967 law review article. But, the U.S. Supreme Court has also adopted a limited version of the principle of collateral estoppel under the guise of the double jeopardy clause in criminal cases as it noted in Yeager (discused below) a few years after that article was written. [I]n Ashe v. Swenson, 397 U. S. 436 (1970). . . we squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. The hard question is determining what a jury's acquittal "necessarily decided" in particular facts and circumstances, given that a jury verdict in a criminal case typically only determines if the jury convicted, acquitted, or hung on each of the charges presented to it in the indictment and not dismissed before tiral. This analysis requires the court to assume that the jury acted rationally, even if extraneous facts allow us to know that it did not act rationally, and to determine that a prior acquittal was logically inconsistent with a new conviction. In Yeager v. U.S. (2009), however, the U.S. Supreme Court interpreted Ash v. Swenson narrowly. It held that hung juries on counts should be ignored for constitutional purposes as if that the trial of that count never happened. When Is A Murder Committted? There would also be a question of when the crime of murder is committed (i.e. when the acts are taken or only once someone dies). Generally, murder is not a complete crime until someone dies. For example, if you were prosecuted for murder before someone died and acquitted because they were alive, you could be prosecuted again for murder later if they died of their injuries. (The more usual case is that someone is tried and convicted of assault, then the victim dies, and they are retried for murder, which is allowed since a conviction for assault is not logically inconsistent with a conviction for murder.) Similarly, if you were convicted of murder after a fair trial and presented the live body of the victim as newly discovered evidence, there is a good chance that you could have the original conviction vacated. If, however, you were convicted, and the Court found that you knew that the victim hadn't died at the time of trial, but you did not raise the fact that the victim wasn't dead, it isn't clear if you could have the original conviction vacated because it was a fair trial and you knew evidence sufficient to get yourself acquitted (which you may have refrained from presenting to avoid conviction on a lesser charge like kidnapping or aggravated assault), and the status of an "actual innocence" grounds for vacating a conviction after trial is hotly disputed, conservatives like the late Justice Scalia generally say "no", liberals generally say "yes", moderates like to say "yes" but make it almost impossible to establish except in rare cases like one where a live person walks in when there was a murder conviction for killing that actually living person. Obviously this doesn't come up all that often because usually prosecutors don't bring murder cases until they find a body and identify it and aren't in a rush to do so because there is usually no statute of limitations for murder. Conclusion In The Harder Case My overall conclusion is that double jeopardy would not apply even in the much closer case. This is because a belief that the victim was not dead could have been a basis for the original verdict notwithstanding a presumption to the contrary. The jury knows that a death is a element of murder and might have acquitted not based upon the reasons presented to it at trial but based upon their own personal view that the failure to present a body left them with reasonable doubt for some reason or another, which is a perfectly plausible scenario. If this happened, an acquittal the first time and conviction the second time wouldn't be inconsistent, even if no one argued about a lack of a body in their trial presentation. Ironically, if A was acquitted of aggravated assault of B in the first trial, that would be far more likely to bar a conviction when B later dies, than an acquittal from a charge of murdering B, because murder is logically inconsistent with an acquittal of aggravated assault in most circumstances, but a previous murder acquittal based upon lack of proof of a dead body is not inconsistent with proof of a later death. But, this would still be a close case that could come out either way on the double jeopardy issue. A court could conceivably argue that if the death of B was not contested at trial, that the first murder acquittal would be inconsistent with a murder conviction upon the death of B later on from the events that formed the basis of the first prosecution. Tactical Considerations Of course, even if prosecution of A for B's murder the second time was not be barred by double jeopardy, it is still likely that the prosecution would agree to lesser charges or not prosecute because the first acquittal showed it was a weak case, and the fact that A would now also be able to argue that the gunshot was not the proximate cause of B's death (and that it was instead, for example, due to medical malpractice or was a de facto suicide due to refusal of adequate treatment). Scope Of Analysis This reasoning would apply anywhere in the U.S. and is not specific to a particular state or territory as double jeopardy is a principle of U.S. Constitutional law that applies directly in federal courts (including the courts of territories and commonwealths) and indirectly through selective incorporation against the states via the 14th Amendment. |
Why is there a "X-second buffer" on bodycams? I've seen numerous bodycam videos. They frequently mention that "there is no audio for the first 30 seconds" (sometimes different number of seconds), so the video is muted initially. What is the purpose of this "feature"? Why record "half-assedly" like that? Why is it not either on or off, where on means "audio + video" and off means "all off"? Why is such a "buffer" needed? It certainly cannot be for any technical reason. | Retaining video from the buffer period advances law-enforcement and accountability purposes by making it more likely that the camera will retain footage of whatever caused the officer to turn the camera on in the first place. If a police officer says you ran a red light, the dash camera will show what actually happened if the officer turned it on within 30 seconds of you passing through the intersection. If a corrections officer says he had to use force because an inmate jumped him, the buffer period allows the camera to capture not just the officer hitting the inmate, but also whatever happened immediately prior. According to Axon, which seems to have largest market share in the BWC space, the lack of audio is meant to protect the officers' privacy: Cops feared they might tell a joke or discuss a personal situation like a divorce before they double-pressed the large button on the device to activate it. They didn’t want their private conversations to become public along with the buffer that preserves 30 seconds of video before the device is activated | In California, all parties to a conversation (people being recorded) have to agree to a recording. There are no special rules pertaining to husbands and wives. It is sufficient that the parties are aware that the recording is being made and they continue to talk, knowing that fact. There are exceptions, under Cal. Penal 633.5, in that surreptitious recordings are allowed in order to gather evidence of "extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m". To be used as evidence, there are also "predicate rules" to the effect that you have to prove who the voices are from, that the recording hasn't been altered, and that the recording is reliable (e.g., there isn't a mysterious 18 minute gap). | How does John protect himself from false claims (e.g. if the woman decides to roll down the stairs and blame him)? It would be very helpful if John has evidence of Oxana making false statements about him or others, and/or of Oxana threatening to make them. False accusations are common --and hardly ever prosecuted-- in a context of divorce. Examples of that are police reports (here and here) and excerpts of court proceedings that ensued during my father's (desisted) proceedings to divorce his 2nd wife (for additional excerpts, see also at 22:49-24:29). According to one of those police reports, my father's 2nd wife allegedly extorted him with "You'll have to pay me even until my ring!" (see page 15 of the pdf file) at the time they were going through the divorce proceedings he filed. Based on your description, it is not far-fetched that John could end up experiencing a similar mess as reflected in these police reports. Note: I don't know whether the poorly written quote from page 15 of the pdf was my father's translation of their interactions or whether he merely transcribed them to the police. Is there any downside to basically putting a camera in every room of the house except hers? John is strongly suggested to check Ohio law to avoid criminal charges. For instance, Michigan statute MCL 750.539d(1)(a) prohibits to "Install, place, or use in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.". As a wife, Oxana would be reasonably entitled to that privacy in rooms other than --and including-- her room. Moreover, placing cameras in every room will not preempt false accusations. For instance, Oxana could still calumniate John by falsely alleging that he and the daughter went to a hotel to have intercourse. How do you find a good divorce lawyer? Before you even decide to retain a lawyer, see this report about New Jersey Family Court, where judges and attorneys allegedly are in the habit of dragging divorce cases for as long as it is profitable to the lawyers (obviously, at the expense of the parties pursuing the divorce). I don't really follow --and have never litigated-- divorce matters, but the multi-year divorce & custody case of Tsimhoni --formerly presided by Michigan infamous judge Lisa Gorcyca-- illustrates that NJ is not the only state where parties fall prey of legal malpractice. John should search for Ohio court opinions related to divorce matters and get acquainted with the applicable concepts, laws, and doctrines. For that purpose, one free, very useful resource is http://www.leagle.com/leaglesearch . Court opinions usually cite relevant statutes, whence John can get an idea of what laws are decisive on divorce matters. Is it reasonable to ask for some sort of record of past outcomes (are there standards to provide full and complete records like for financial companies)? It is reasonable, but no, there are no such standards at all. An attorney will most likely allege grounds of attorney-client privilege, the extensive time that would be needed to redact court documents, and possibly other excuses to deny John's request. Instead, John should go to the court in his county and study as many files of divorce cases as he can. A number of courts display some information of cases in their website. For example, some Michigan trial courts have deployed Odyssey (see here and here), whence a party could search from home whether an attorney has litigated cases in that court and how long they've taken. To see the contents of complaints/motions/etc., John can read them only in the courthouse, unless the county court has configured Odyssey (or its equivalent) to allow the public to read the contents from elsewhere. I don't know what progress Ohio courts have made on this. Regardless of the attorney's transparency to share with John any redacted records about his performance, another important variable is the judge. In this regard, see the next item. Is it reasonable to ask to pay way less if the lawyer fails to get certain terms? Unfortunately, that is neither reaonsable nor realistic. Just from meeting with John, it is impossible for the attorney to know aspects such as: whether John is truthful and the meritorious party; how much trouble Oxana will cause during the divorce proceedings (see the aforementioned police reports); how vexatious the opposing counsel will be; whether John will weaken or sabotage his case during an unforeseen situation or lose control as a result of exasperation; whether the case will be presided by a judge who follows the law (instead of incurring personal bias or influence trafficking); if the judge engages in influence trafficking instead of following the law, whether the attorney is in cozy terms with that judge; whether the opposing counsel is in even cozier terms with that judge; in the event that the matter is appealed, any of the three previous items may apply; whether the parties settle (or John desists for whatever reason). Given the multitude of unknown/uncertain variables and possible outcomes, no person (attorney or otherwise) could establish beforehand the semi-contingent pricing that you have in mind. Do the lawyers even do anything other than fill out paperwork? Yes, they do, but that doesn't necessarily mean that what their work is any effective. Even if the lawyer is diligent, the court might negligently fail to enforce its own orders. | Copyright almost certainly exists in the images, since presumably someone took those pictures and so they would own the copyright of those images. However, that doesn't mean you don't own the film, you just that don't own the copyright. You can have it developed to see what's there without copying the images. Just tell the developer you only want the film developed and for no prints to be made. If there's child pornography you could end up in a lot of hot water. While you'd be innocent of any crime, if the developer reports the images to the police you'll have to convince them that you had no idea what was on the film. It's extremely unlikely that there's anything untoward on the film however. I'd note however that unless the film is only a couple years old then it's likely the pictures have faded significantly. If it's ten or more years old, there might not be anything recognizable. | These are some thoughts about the state of affairs in the US, I do not know how it works in the UK. In the US it seems to be a legal gray area. Gray enough that I do not think any lawyer could say for certain that the use of the data is legal. The data is stolen. If possessing stolen property is illegal then possessing this data is also likely illegal. Of course experts disagree, Stuart Karle, an adjunct media professor at Columbia University and former general counsel for the Wall Street Journal says: ...the documents have been published by the hackers, they are now public by virtue of being put on the Internet. But Barrett Brown was charged with trafficking in stolen authentication when he forwarded a link to some stolen emails. He signed a plea for acting as an accessory after the fact. He spent more than a year in jail while they sorted it out. In the US there is no law banning the download of hacked documents. In fact Bartnicki v. Vopper 532 US 514 (2001) stands for the rule that journalists can report on illegally obtained information. But contrast that with the Barret Brown prosecution! And decide where a data scientist fits. Also there is the question of whether an illegally recorded conversation is of the same "illegal" nature as hacked personal information. | 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. | "Personal use only" does not excuse copyright infringement under US law. The uploader does not hold copyright, and neither gives nor denies permission to copy his creation. The law does not require a copyright holder to deny permission, it requires the user to actually obtain permission. So no matter how you slice it (even as fair use) it is infringement for you to copy that video. | The opera may be in the public domain, but unless the performance is from several decades ago, which I assume is not the case, the performance is not in the public domain. The video therefore has copyright protection of its own. The use to which you want to put the video does not sound like fair use to me, although as the other answer notes that's impossible to determine without knowing more than you've told us, but the fact that the composition being performed is in the public domain is not a particularly important consideration in the analysis. |
Is a will provision naming "my wife" as a beneficiary before marriage valid? In the novel A Colorful Death by Carola Dunn, a man, Dr Fenwick, becomes engaged to a woman, Stella Warren.He makes a new will leaving all his property (except for a few small specified bequests) to "my wife, Sella Fenwick". But he dies before the marriage takes place, and his solicitor informs Stella that since she is not Dr Fenwick's wife she inherits nothing. She is significantly younger than he is, and apparently he did not specify any contingent or residuary legatee other than Stella. (The novel is not explicit on that, but assume it for this question.) The novel is set in Cornwall sometime in the period 1965-73, so the legal system would have been England and Wales. Would the words in the will "my wife, Sella Fenwick" have acted as a bequest to Stella before the marriage: In E&W circa 1970? In E&W circa 2022? In the US, say New York, circa 1970? In New York circa 2022? Later it turns out that Stella killed Dr Fenwick (intending the death to occur after the honeymoon) so of course she wouldn't inherit anyway, but for this question assume that someone else killed him, or that her action was not discovered. | united-states Under U.S. law, the primary consideration then and now, in the interpretation of Wills is the intent of the testator (i.e. the person who drafted the Will who is now the decedent). I very much doubt that Sella Fenwick nee Warren would lose her inheritance because her betrothed died shortly before the wedding. (In Colorado, which has common law marriage, such a statement would probably suffice to cause them to be married on the day the will was written, if not sooner.) Usually, a characterization of a relationship is viewed as a non-functional identifier offered for convenience (to distinguish any other Sella Fenwick from the one he was marrying, such as a distant cousin), rather than a condition precedent to inheritance in the absence of very explicit language to the contrary. Similarly, it is clear that a name change of a devisee between the time that the will is executed and the time of the death does not impair the devisee's right to inherit. You don't have to rewrite your will just because one of your kids gets married and changes his or her name. (I personally changed my name in New York State when I married, and yet I still received devises made to me under my premarital name from my parents.) The cases most closely on point would probably be cases where a stepchild is identified in a will as a "child", without qualification (a much more common fact pattern than the one in the question). But, I doubt that anyone has lost an inheritance in that fashion in New York. The case would be much closer if the will simply said "my wife" without inserting the name of a particular individual. New York law has not formally changed on the books, so to speak, in any really material way between 1970 and 2022 with respect to this issue. But there has been a general attitude towards interpreting written instruments in that time period that is less formalistic and more concerned about the merits of the testator's intent in how wills are interpreted in 2022 than it was in 1970. In part, the flexibility involved in Will interpretation is a function of the fact that probate (apart from a proceeding to determine if a will was validly executed) involves a court acting in its equity court role rather than as a court of law, and partially it reflects the fact that judges know that there is no possibility of having the testator correct the document once it is before a judge. | NY Est Pow & Trusts L § 3-2.1(a)(1)(C)(4) requires that There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will. That means that the witnesses attest to having seen you sign the will, and you must know that it is a will being signed. There is no requirement that they see the will itself, and they do not "attest" anything regarding sound mind, memory or testamentary capacity. It is not required that witnesses receive a copy of the will (for any reason), and it is probably extremely rare for them to do so. However, a witness could be called, during a subsequent court procedure, to testify as to relevant facts such as that a beneficiary held a gun to the testator's head. | Note: The answer to the question is not the same in every U.S. state and territory. I have provided definitive answers only when there is unanimity or near unanimity. Did the deceased's family obligate themselves by not returning the the first service, that of the Notice of Appeal? No. Unless they expressly agree to do so in writing to be responsible for a decedent's debts (which almost never happens in the U.S.) next of kin of have liability regarding the debts of a decedent (at least by virtue of being next of kin, obviously, if they were, example co-defendant in a case who participated in the wrongful conduct, that could be another matter), except that it may result in a claim against the probate estate which reduces the size of their inheritances (potentially to zero), if timely asserted in the probate estate. As the next of kin are they obligated to receive the mail addressed to the deceased? No. Also, counsel for a decedent are terminated as counsel as a matter of law upon the death of a client. It is customary for a lawyer in the case (often, although not necessarily, the lawyer for the decedent if the decedent was represented by counsel at the time of death) to file a document usually entitled "suggestion of death" in the pending case when someone dies. But, no one is obligated to do so, and if the party is self-represented in the case (a.k.a. pro se), or that party's lawyers have withdrawn from the case, neither the decedent's former lawyers, nor anyone else in the case, may even be aware of that fact that the party to the case has died. What would be a possible remedy to keeping the claim active against this defendant albeit deceased defendant? File a claim in the estate of the decedent if the deadline for filing claims has not lapsed (which two years later, it may very well have). Normally, either a claims deadline that functions by operation of law (e.g. a state law non-claim deadline one year after the date of death), or a claim deadline arising from publication of a notice to creditors in the legal section of a newspaper in the area where the decedent died in a manner prescribed by state statute, would bar the claims, especially if the status quo was that they had been dismissed at the time of the decedent's death, even if there were still undistributed assets left in the probate estate after the deadline for filing claims has expired. It may also be possible to do a substitution of parties of the decedent's probate estate for the decedent in the pending case, if a probate estate has been opened and the deadline for filing claims has not yet lapsed. If a probate estate has not been opened, usually, after a certain amount of time, a creditor may open up the estate without the consent of the next of kin, or a public administrator will be appointed if there are no next of kin who have done so, and there are assets left to be managed in the probate estate. The law governing exactly when a probate estate has liability for the debts of a decedent incurred during life is a matter of state law that varies in significant detail between different states within the United States and is quite technical. I've written a couple of Colorado Bar Association journal articles on that subject applying Colorado law (Andrew Oh-Willeke, "Creditor's Rights In Probate - Part I and II", The Colorado Lawyer, May 2015 and June 2015). Note that the general rules may not apply in all cases to lawsuit brought "in rem" (i.e. adjudicating rights in a particular piece of property) although those kinds of cases aren't very common in federal court and would rarely involve the fact pattern set forth in the original post. Footnote Re Federal Civil Procedure For many years there was a lack of clarity, and/or a split of authority between U.S. Court of Appeals Circuits, over the proper time to appeal a ruling dismissing a party entirely from a case as a matter of federal civil procedure in various circumstances. It was resolved a few years ago, but I don't recall the outcome of that case. The general rule, expressed in Federal Rule of Civil Procedure 54(b) is that the dismissal of a party in a case cannot be appealed unless the trial court certifies that decision as final for purposes of appeal which is a discretionary decision for the trial court judge. | What happens to someone who’s committed a murder in the UK? Considering the person will be caught. This is a basic and somewhat vague question so I will provide a basic and very general answer. The name of the court with proper jurisdiction, the relevant criminal procedural rules, and the substantive law that applies varies within the U.K. In particular in Scotland and the various dependencies of the U.K. differ significantly from England-Wales. There are some minor differences in Northern Ireland. England-and-Wales are treated as one for most purposes, but there are some slight differences at the very lowest levels but none materially impact a murder case. If they are caught in England and Wales they are arrested, interviewed, charged then brought before the next available Magistrates' Court who send the defendant to the Crown Court for trial. As a Magistrate has no power to grant bail for murder the defendant must be remanded in custody until he can make an application for bail before the Crown Court, but the default position is that bail should not be granted for murder unless in very exceptional circumstances. In other U.K. jurisdictions, the names of the courts will differ and there may be some other fine details that aren't the same in the pre-trial process but the same general outline applies. If they are outside of the U.K. they will be subject to either an International or European Arrest Warrant and extradited to the UK at the request of the U.K. Government under the terms of the relevant extradition treaties. On arrival in the UK they are arrested for murder and the process proceeds in the same manner. (If they are someplace that does not have an extradition treaty with the U.K., the trial may be deferred until U.K. officials have an opportunity to arrest him and are often dogged in attempting to accomplish, perhaps, for example, while the suspect is on holiday somewhere that there is an extradition treaty.) Prior to the trial, the Crown Prosecution Service (CPS) and the defence will prepare their cases and return to court at various times to settle any issues etc before going to the expense of a full trial. Also, at any time the CPS determine the case to be too weak for a realistic prospect of conviction or the suspect is innocent, they are supposed to dismiss or amend the indictment. The defendant is then tried for murder before a jury (almost always, but not in every single case, e.g., if the defendant admits guilt and the plea is accepted in appropriate proceedings before a judge). The CPS instruct a barrister to present their case with another barrister acting on behalf of the defendant. The process is for juvenile defendants is pretty much the same as for adults, apart from added safeguards to ensure the juvenile understands the proceedings and is not put at any disadvantage due to their age. All of the jurisdictions within the U.K., however, will have a trial that involves presentation of sworn evidence and exhibits and opening and closing arguments from both prosecution and defence counsels to a jury, procedural objections, cross-examination, and sometimes offering of additional evidence under the supervision of a single judge; normally with the defendant present. There will be some means of court reporting, and unless the judge orders otherwise (which is only done in relatively exceptional circumstances), the trial will be open to the public and the press to observe. If the defendant dies before the legal process to secure a conviction is not completed, the case is dismissed as moot. If the defendant is convicted of a homicide offense the trial/sentencing judge will impose a prison sentences, which is "fixed by law", with a life sentence in the case of the most serious homicide offense, murder (there are multiple homicide offenses that hinge largely on the intent of the defendant, often a murder prosecution will include less included homicide offenses as options for convictions). Only in exceptional cases this will be a whole-life term, in all others the judge will prescribe a minimum sentence according to the judicial sentencing guidelines after which the defendant may be released on licence, which is what an American would call parole. Any offences committed on licence will normally result in a recall to prison. The U.K. does not have a death penalty and does not authorise corporal punishment. The vast majority of people who are arrested and tried for murder are convicted, although there are sometimes acquittals or hung juries. This conviction may be appealed by the defendant to the Court of Appeal (and again up to the Supreme Court) (the intermediate appellate court may not be the same in all U.K. jurisdictions) which reviews the proceedings to determine if the law was applied correctly and if there was sufficient evidence to support the verdict. If the court finds that this was not the case, it can vacate the conviction and orders an appropriate revised disposition of the case depending upon the circumstances justifying the reversal of the trial court. If the appeal court affirm the trial verdict then the sentence continues to be carried out. Usually, but not always, the defendant will be in prison pursuant to the sentence imposed pending an outcome of any appeal. Eventually, if the sentence imposed upon a conviction is affirmed (and not a whole life term) the prisoner may be released on licence (which includes some post-release supervision) and is free and to about living their life again, subject to some collateral consequences based upon their criminal record (e.g. inability to work in certain occupations). If the defendant is acquitted, then they go free and cannot be tried again for the same offence, unless the exceptions under the double jeopardy provisions that apply in that jurisdiction apply. The main exception of double jeopardy is for newly discovered evidence of guilt in a case where there was an acquittal. If the person convicted is not a British citizen, they will usually be deported at the conclusion of their sentence if international law allows for it. There are a few exceptions to these rules that come up in a tiny percentage of all U.K. murders that apply (1) in the case of people subject to courts-martial such as active duty military service members, (2) in the case of foreign diplomats with diplomatic immunity, (3) when the murder is classified as an act of terrorism, and (4) in the case that the defendant has a title of nobility that calls for special treatment such as, e.g., Prince Charles (the current heir to the throne) or the Queen. These special cases are really too esoteric for the plain vanilla facts stated in the question and involve unique processes that are very different from the usual one described above. The fourth case is one that does not exist in my country (the U.S.) and in other countries that are republics rather than constitutional monarchies like the U.K., although most countries have some special rules for criminal trials of their very highest officials (like Presidents and Prime Ministers). | The general answer is, no, it is not valid in the US, see this article. Exceptions to laws recognizing e-signatures abound which exclude wills from general laws recognizing electronic signatures. Nevada is the one current exception (conveniently located between Oregon and Arizona). There have been attempts to legalize electronic wills, including in Arizona (SB 1298). Although Tennessee does not recognize e-wills, a gentleman in Tennessee went ahead and did it, and in Taylor v. Holt, 134 S.W.3d 830 the court decided that the will was properly executed and witnessed. Electronic notarization is recognized in Arizona, though apparently for things you file with the government (not things that your heirs will eventually file), whereas in Oregon it is a general-purpose way of getting a document notarized. Since the courts are loathe to completely disregard a person's last will and testament because they didn't narrowly follow requirements, you might be able to "get away with it", but it would not make things easier for the executor. | Whether or not the estate has an obligation to pay the mortgage is really dependent on the terms of the estate plan and the solvency of the estate. The fact that someone is on the deed to a property (whether a deed of gift or a transfer on death instrument) that automatically passes upon death of the original owner to a relative has little or nothing, really, to do with the estate plan. While it may have been part of the person's ultimate plan for the disposal of their assets in life and at death, that is different than being part of the actual estate plan, which deals with the disposition of assets upon death, setting out the wishes of the deceased as it pertains to all property. There are lots of people who end up in this position, even though the original person on the deed did not intend to purchase or leave the other any property. It happens a lot when say a child does not have adequate credit to secure a mortgage to buy a home, but has the money to pay a mortgage. So, in that scenario usually a parent or grandparent will put the mortgage in their name (the other will live there and pay the mortgage) and then in the event the "helper" dies, they have it pass to the other at death, either thru a "TOD" or a "joint tenancy", so that in the event they die intestate, or if the will is challenged, there will be no question who owns the house...the equity in it, anyway. It (the instrument) is its own separate entity, not subject to the will except to the extent the deceased makes it subject (I'm getting to that part). Like a life insurance policy, that pays on death but is not subject to any terms of the will, it can stand alone since deed is its own instrument, separate from any wills or trusts. Under federal law, the mortgage must be allowed to remain in effect without changes when it passes from one person to another because of a death. This negates any due-on-sale clause in the mortgage. Who pays for the remainder of what is owed, however, generally depends on the deceased's will. The will might stipulate, for example, that the heir receive the home, free and clear, with the estate to pay all monies due. In this case, the executor will either use liquid assets, or sell other non-liquid assets in the estate to pay off the mortgage. Other times, it will say that the heir get the equity, plus X amount of dollars, which the heir can put toward the home's mortgage or not. If the will is silent on the issue, it is the responsibility of the heir/person to whom the property transfers (they needn't even be an heir) to pay the mortgage upon its normal term due, or sell the property to satisfy the debt. In the event the property is worth less than the remaining mortgage, the bank will usually take the house in "deed in lieu of foreclosure" rather than seek overage from the estate. | Has it ever been formally established that giving any group, X, a priority of credulity in court over any other group, Y, would amount to granting the group X a title of nobility? No. This has never been formally established. In the 100 years between the ratification of the US Constitution and "Coffins v US", were there any laws or court decisions which would give any groups de facto nobility over other groups by demanding that their accusations against some other groups must be assumed (if formally stated) true until proven false? Effectively so. For example, the doctrine of res ipsa loquitor works that way and that have been classes of people who have been historically not eligible to serve as witnesses. There are also many procedural circumstances historically (e.g. confessions of judgment) that operate in this manner. Did the argument that this amounted to granting of titles of nobility (which was prohibited) ever come up in any court cases? No.* The core litmus test under the title of nobility prohibition has been that a privilege granted by the government is hereditary and is not simply ordinary property. Without a hereditary component, the title of nobility prohibition does not apply. A lengthy analysis of this jurisprudence can be found in the answer to the Law.SE question "What exactly is a title of nobility?" While this question isn't a true duplicate of that one, the pertinent legal authorities are all discussed in the answers to that question. Obviously, it isn't possible to know every legal argument that was made orally in a trial court or legal brief for all of the United States for all time by everyone and anyone, often leaving no historical record whatsoever. There are no recorded appellate court opinions of which I am aware, however, that engage with this legal argument and rule upon it (which is usually what someone really means when they say "did this argument ever come up in a court case"). Post-Script This post also confounds a "presumption of guilt" with a per se rule regarding credibility determinations, but while both go to the issue of how evidence is evaluated by a tribunal, the two concepts otherwise have nothing in common, and sometimes it isn't clear which is which. For example, in many U.S. jurisdictions, a marriage certificate in existence at the time someone is born, accompanied by the passage of time under a short (often five year) statute of limitations, conclusively prevails on issues of paternity, over a DNA test that is 99.999% certain to be correct as a matter of genetics. You could interpret that as meaning that marriage clerks are always more credible than genetic scientists. But, of course, that isn't really the intent. Instead, this is effectively a substantive rule of law couched as an evidence rule. Similarly, the requirement that real property can only be conveyed in writing could be interpreted as an evidence rule, but it is more realistically viewed as a rule concerning the definition of what a transfer of real property really is that is useful to make a bright line rule. Thus, an oral statement can be a promise to transfer real property, but it doesn't really happen until there is a signed deed or other conveyance. A traffic ticket basically has a presumption of guilt in some jurisdictions, because if you fail to appear you are found guilty in absentia even without evidence, something that is not permitted as a matter of criminal procedure in the U.S. for more serious offenses for which you can be incarcerated. But, on the other hand, if you do appear, the prosecution has the burden of proving that you committed the offense alleged in the ticket. Perhaps the closest example there is to a presumption of guilt (either rebuttable or conclusive, depending upon the statute and facts) is a statutory rape law, which in theory, presumes that someone under a certain age does not have the capacity to consent to intercourse, rendering the offense rape. But, a more straightforward way of understanding those laws is that sex with a minor in the circumstances described is itself illegal without regard to any conclusive presumption of lack of consent. There are also many laws prohibiting certain people from testifying about certain matters in certain circumstances. For example, spouses may not testify against each other in court over a spouse's objection in many kinds of cases. These rights are called "privileges" and are not considered to be titles of nobility. The U.S. Code of Military Justice, intentionally allocates legal rights in these quasi-criminal proceedings in a manner that treats people with different military ranks unequally. Officers have different legal rights than enlisted soldiers, for example. But, since military offices are not hereditary, these rights are not titles of nobility. | I assume that the loan was legal, in light of rule changes pertaining to non-borrowing spouses. If so, there is really no recourse other than to repay the loan. This article explains the current options / restrictions in an understandable manner, but of course it is too late to do anything about it. If there was actually fraud or coercion in the loan, or if the elder party was mentally incompetent, there might be some legal recourse, but we don't have any evidence of fraud, coercion or incompetence here. |
Is it legal for a landlord to refuse a lease because an Occupant on the application is an undocumented immigrant? (For clarity: Applicant - the adult financially responsible for the lease. Occupant - anyone over the age of 18 that will be residing with the Applicant but is not financially responsible for the lease.) Is it legal for a landlord to refuse a lease application for the sole reason that an Occupant included in the application is an undocumented immigrant despite the Applicant being a US Citizen? Examples would include a US Citizen who is seeking housing to live with his/her legal spouse or adult child who is an undocumented immigrant. In this case, the Citizen would be the Applicant and the spouse or child would only be included in the rental application as an Occupant. One justification some landlords give is that they are unable to process a background or credit check without an SSN, however some resources such as this one seem to make that defense untenable. I'm not an attorney but it seems to me that refusing to lease housing to an undocumented immigrant, who meets all other requirements and is only an Occupant, based solely on their immigration status is nearly equivalent to refusing to sell other necessities such as food, water or clothing to a person simply because of their immigration status. Or perhaps even worse, refusing to sell those necessities to a Citizen who is buying those necessities with or for an undocumented immigrant. (Potentially relevant is the case of Lozano vs City of Hazleton where the Supreme Court denied to City of Hazleton their appeal to an earlier decision that ruled as unconstitutional a city ordinance that prohibited landlords to rent to undocumented immigrants. The basis for the decision was mostly due to local government being deemed to have overreached into the arena of immigration enforcement - an area explicitly reserved for the Federal government.) | The default rule is that a landlord can refuse to rent to anyone for any reason, in which case the landlord can refuse to rent in this case. There are civil rights laws that limit this discretion in the case, for example, of discrimination based on race, or family status. But, those laws often have exemptions for owners of small amounts of property (e.g. a unit in their own home), which can't easily be determined from the question. If a civil rights law applies, the landlord must choose among potential renters on a non-discriminatory basis - the landlord doesn't have to rent to anyone in particular, but can't use the prohibited reasons to make the choice. If the default rule does not apply because a civil rights law unrelated to immigration bars discrimination against a tenant, someone's undocumented immigrant status probably doesn't provide an absolute defense to the civil rights law, but might be one factor among many that a landlord could consider in choosing among available tenants in much the same way that credit ratings, income, and a prospective tenant's criminal record, and other factors might be considered. | You could first look for a force majeure clause in the lease which says something about natural disasters and the like. If there is a clause which says e.g. "Landlord will not be held responsible for problems arising from ice storms", that doesn't help you, but maybe it specifies e.g. rent reduction of $2/day for lack of electricity. That doesn't mean he can ignore the law. However, in this situation, a particular reading of the law ("there must be an infallible supply of electricity") imposes an impossible requirement on the landlord, and the courts probably won't require a landlord to do the impossible. It is not clear that your situation violates either the letter or the spirit of the law. Take clause (d): your "heating facilities" presumably conformed to applicable law at the time of installation and have since been maintained, and they are adequate, but they don't work if the grid doesn't supply power (and that is not a matter under the landlord's control). In other words, he provided the "infrastructure", and the problem is on the power company's end. Likewise "electrical lighting with wiring and electrical equipment" -- an ordinary interpretation of that clause is "wires and fixtures", and doesn't include "flow of electrons", which is supplied by your local power company. | This law sounds likely to be unconstitutional and/or invalid because it is pre-empted by state or federal laws. Among other things it probably violates the First Amendment right to petition the government, and the Fourteenth Amendment right to equal protection of the laws (by depriving people who have had previous police calls of the right to call the police without penalty) and due process (by imposing a penalty based upon a call, without a presumption of innocence, rather than a finding of wrongdoing that overcomes a presumption of innocence). It could also implicate a tenant's right as a Fourth Amendment seizure without probable cause, or a Fifth Amendment taking of property without just compensation. It is probably also pre-empted by state law which establishes the grounds for which someone may be lawfully evicted, which almost certainly do not include this condition. Likewise, the conditions under which liability for police injuries is imposed are also probably pre-empted by state law. California has an express statutory prohibition on this kind of rule at Cal.Civ.Code § 1946.8(c) which provides that: A landlord cannot punish, or threaten to punish, you or another resident for exercising your right to request law enforcement or emergency assistance on behalf of a: victim of abuse; victim of crime; or person in an emergency. Your landlord also cannot put any penalties in place if a person who is not a resident or tenant calls law enforcement or emergency assistance to your residence. To be protected under this law, the person who calls the police must believe that law enforcement or emergency assistance is needed to prevent or deal with an act of abuse, or the heightening or worsening of an act of abuse, a crime, or an emergency. The American Civil Liberties Union is currently actively attempting to identify cases where these laws (often called nuisance laws) are being used in this manner for the purposes of bringing litigation to invalidate the laws or restrain their use. Litigation is in process in Seattle, Washington and East Rochester, New York. The ACLU also notes that: In situations where an alleged "nuisance" offense is related to an incident of domestic violence, landlords may choose to evict all the residents to avoid future incidents or police calls that could result in a fine. Yet, these evictions violate federal law. The U.S. Department of Housing and Urban Development (HUD) has made it clear that tenants who are denied or evicted from housing because they have suffered domestic violence can file sex discrimination complaints with HUD under the federal Fair Housing Act. Thus, there would often be pre-emption of the local law by federal law as well. An op-ed piece in the New York Times reviews similar issues in Lakewood, Ohio and Milwaukee, Wisconsin, pointing out that the U.S. Constitution and federal housing laws are likely to be violated by these statutes. In at least two instances, one included in an edited question in Norristown, Pennsylvania, and one mentioned in another answer, the case of Somai v. City of Bedford in Bedford, Ohio, the ACLU has concluded favorable settlements after litigation to have these ordinances repealed and to win compensation for aggrieved parties, although, because they are settlements, neither case establishes a binding appellate precedent. We don't intend to challenge the laws at this time - they make it easier for us to evict problem tenants whose visitors damage our property - but were wondering if there are examples of similar laws that have either gone unchallenged for a long period of time or that have been challenged and judged to be legal. As landlords, you are in a difficult position. These laws have not gone unchallenged for a long period of time nor have they been challenged and judged to be legal. Instead, in all likelihood, a legal challenge to these newly enacted laws is likely to be imminent. And, while you face violations of local laws in these cases by not taking action, you may face federal housing law liability if you do utilize these laws and these laws are found to be invalid. | tl;dr According to the ACLU, who are experts on this… yes, it is perfectly legal for you to refuse to provide documentation or ID to border patrol, and your refusal cannot be used as a basis for reasonable suspicion of an immigration violation. The ACLU has a very helpful guide to your rights when questioned at Border Patrol checkpoints, whether fixed or random. Emphasis in these excerpts is mine: Refusing to answer CBP’s questions may result in the agent persisting with questioning. If this occurs, you should ask if you are being detained. Another way to ask this is to say, “am I free to leave?” If the agent wishes to actually detain you — in other words, you are not free to leave — the agent needs at least reasonable suspicion that you committed an immigration violation to do so. As I understand it from other legal sources, this means that the agent must have a reasonable suspicion that you are: not a US citizen and that you have violated immigration law And furthermore: You do not have to answer questions about your immigration status. You may simply say that you do not wish to answer those questions. If you choose to remain silent, the agent will likely ask you questions for longer, but your silence alone is not enough to support probable cause or reasonable suspicion to arrest, detain, or search you or your belongings. … As before, when you are at a checkpoint, you can remain silent, inform the agent that you decline to answer their questions or tell the agent you will only answer questions in the presence of an attorney. In the YouTube videos of checkpoint refusals, you'll see lots of folks declining to answer questions or stating that they will only answer questions from law enforcement in the presence of an attorney. If you are held at the checkpoint for more than brief questioning, you can ask the agent if you are free to leave. If they say no, they need reasonable suspicion to continue holding you. Lots of this in the checkpoint refusals too. The drivers ask if they're being detained and/or if they're free to leave. If you watch closely you'll probably see that many of the Border Patrol agents avoid answering these questions — because they know that they don't have sufficient suspicion to detain the drivers. You can ask the agent to tell you their basis for probable cause, and they should be able to articulate their suspicion. This is also seen in some of the videos. There's a very important caveat about when you are required to provide documentation (other than at the border): A limited exception does exist: for people who do have permission to be in the U.S. for a specific reason and for, usually, a limited amount of time (a “nonimmigrant” on a visa, for example), the law does require you to provide information about your immigration status if asked. While you can still choose to remain silent or decline a request to produce your documents, people in this category should be aware that they could face arrest consequences. If you want to know whether you fall into this category, you should consult an attorney. … If an agent asks you for documents, what you need to provide differs depending on your immigration status. U.S. citizens do not have to carry proof of citizenship on their person if they are in the United States. If you have valid immigration documents and are over the age of 18, the law does require you to carry those documents on you. If you are asked by an immigration agent to produce them, it is advisable to show the documents to the agent or you risk being arrested. If you are an immigrant without documents, you can decline the officer’s request. An agent may likely ask you more questions if you decline a request. No matter what category you fall into, never provide false documents to immigration officials. If you are a citizen you have no obligation to provide documents to establish this; it is not illegal for you to refuse. If you are undocumented, you do not have any obligation to provide documents; it is not illegal for you to refuse. If you are a non-citizen and do have valid documents, you are required to provide them — apparently, it is illegal for you not to do so. So if you're a non-citizen who's legally present in the USA for a temporary term (e.g. tourist, student, business trip, etc.) then you are required to show documents proving this. But if you're undocumented you can — and should!! — do what you see in the videos, and refuse to provide documentation. The Arizona ACLU has a helpful printable sheet with additional pithy points: You may be asked where you were born, how you entered the U.S. or how long you’ve been here. You don’t ever have to answer those questions. Your responses may be used to detain and deport you. … NEVER FLEE A CHECKPOINT! | Close family members can stay as long as the tenant wants The tenant is entitled to "quiet enjoyment" of the property which includes living with their close relatives - spouse, de facto and children would all qualify; parents and siblings might as well. It doesn't matter if these people are children or adults. You cannot contract out of this as you are not allowed to discriminate in housing based on family situation. The tenant is also entitled to have non-relative house guests stay for as long as is reasonable. A month or so would be reasonable; longer than that and it starts to look like a sub-lease for which they would need your permission. There is generally a limit under texas law of 3 adults per bedroom but that doesn't seem to be an issue here. I also can't see where having a non-resident's mail delivered to the property is something you have a say about. I'd be very careful if I were you because it seems like you are on the wrong side of the law here. | I know of no specific provision of the Constitution that would forbid it. I know of no court case in which it has been found unconstitutional. There's no "irony" clause in the Constitution. Taxation without representation may have been a grievance, but there's no inherent reason why the framers would have had to forbid it. US citizens do still have the "freedom to expatriate" (and avoid taxation) if they renounce their citizenship. There are already other examples of "taxation without representation" in US law (e.g. District of Columbia), which also have not been found unconstitutional in court, as far as I know. In many cases, expatriates can still vote for federal offices, including Congress (e.g. in a state where they used to live, or where a parent used to live). See https://www.fvap.gov/citizen-voter/registration-ballots. The Sixteenth Amendment gives Congress the power to "lay and collect taxes" with few limitations. There is certainly no explicit exception for expatriates. As far as I can tell, it would be constitutional if Congress were to impose an income tax on everybody in the world, regardless of residency or citizenship; it would just be hard to enforce. | Joint tenancy means that you both have equal (full) rights to the entire property, so just as you don't his permission to live there or to invite guests, he doesn't either. Unless they threaten you in some way (and you get a court order barring them from entering), there is no legal means to deprive an owner of their property rights, while they are still an owner. | Is there a law requiring a landlord to respond to rental agencies request for information in regards to previous tenants? No. There is no such law. |
Can I viably sue for damages caused by bugs in freeware? Freeware is software released free of charge. Often times freeware is written by a hobbyist or academic who is looking to create a tool for their field, but is either not interested in profit or thinks that profit is not viable. I know that in some states, such as in Virginia, freeware comes with "no implied warranty" as per § 59.1–504. But does that include no warranty against damages caused by buggy code? And is this issue still a state by state issue or is there a general guiding principle which would govern the issue here? Since it is required to help answer the question, we'll assume the following. License: MIT License Jurisdictions of Interest: New York & US Federal Statues/Practice. Note: I am excluding the obvious cases of gross negligence or maliciousness, such as including a virus in the code. Likewise I am excluding third party injury where the actions of the software cause damages to individuals who are not using it. | 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. | A voicemail greeting, like any original sequence of words, will be protected by copyright. Making and publishing a copy without permission would be an infringement of that copyright, and could subject the person who does it to a civil lawsuit. However, such a greeting normally has no commercial value, and it is hard to see how any actual damages could be assessed. In the US, statutory damages could apply, but since the greeting is unlikely to carry a copyright notice, the person sued might claim to be an "innocent infringer", which could significantly reduce the damages assessed. (However if such a person had read this answer, and that were brought out in court, s/he would be on notice of the copyright protection, and could not claim to be "innocent".) Moreover, the defendant could still raise the defense of fair-use (In the US). The would be no harm to the market for the work, since there is no market, which would favor fair use. The whole of the work would probably be used, which would tend against fair use. A greeting is somewhat creative, more so than a work of non-fiction, although usually less so than actual fiction or verse, which leans slightly against fair use. It is hard to say if this kind of reuse would be considered transformative, it would probably depend on what sort of commentary, if any, was provided. In all, a fair use defense seems pretty close to a coin flip, but not as predictable. In any case, judges often do not favor suits over technical infringements of works with no commercial value where no meaningful damage has occurred, and often award minimal damages within the statutory range, which is wide. Given all that, the risk of suit seems low. The question mentions "school district administrators" If the person doing this is a student, this might be looked on negatively by the school district, which might be able to frame it as against some district policy or other. Consider possible repercussions carefully. As always on Law.SE, this is not legal advice. Before acting you may wish to consult an actual lawyer. | Take a look at https://en.m.wikipedia.org/wiki/Clean_room_design From that it appears that you are just following the specifications of the algorithm made by a third party. You're not copying the algorithm, you are re-implementing it based on certain specifications you saw online. I would say unless you agree to some contract like you will not implement this, it should be legal. Furthermore, there is distinction between legality and breaching contracts. It is not illegal to breach a contract. You could just be sued for damages and injunctive relief. Failure to abide by a judicial order, such as an injunction is illegal. DISCLAIMER: I AM NOT A LAWYER. THIS IS NOT LEGAL ADVICE. | The lack of a copyright notice is irrelevant, what matters is whether permission is granted. The material cannot be copied, except if the copyright holder grants you permission to copy. However, you might be able to create something legal and satisfactory on your own, because the underlying ideas are not protected. By way of analogy, you cannot copy the Turbo Pascal Numeric Methods library without permission, but you can study the logic of a module and write your own FFT routine. The status of something as "declaring code" is entirely irrelevant to the court's decision in Google v. Oracle. What is relevant to the court's finding of fair use is that the content constituted 0.4 percent of the entire API, and the fact that the copied lines of code are inextricably bound to other lines of code that are accessed by programmers, allowing programmers to bring their skills to a new environment. The court found that he amount of copying was tethered to a valid, and transformative, purpose. | Hacking into a computer owned by someone else and accessing the data stored on it without permission is a misdemeanor according to StGB 202a (de|en). But only if it's successful. So a failed attempt isn't a misdemeanor yet. When you notice that someone might have committed a criminal offence (regardless of whether you are a victim or just a witness), then the usual procedure is to report it to the police. If they consider the crime serious enough to investigate, then they will request the identity from the ISP. But the copyright lawsuits which are filed in bulk by law firms working with media companies are not crime reports. They are civil lawsuits. A civil lawsuit is when someone had a tangible damage because of something someone else did, and now they want money in compensation. When there is no damage, then there is nothing to sue for. So when you want a judge to file an injunction to force an ISP to give them the identity of one of their users, then you would first have to explain to them how much financial damage you had because of that person and that this is enough damage to make it worth everyone's time. That might be quite challenging for nothing but a failed SSH login attempt. But it might be possible if a single person made so many login attempts that it incurred you non-negligible bandwidth cost or even caused a denial-of-service. | Company B has created a derived work from company A's copyright-protected work, so yes, B has infringed on A's copyright. It might be difficult for A to prove it, however, so B might get away with it, but it's still infringement. On the other hand, if B creates software that behaves like A's through reverse engineering, that is, by examining the program's function without examining its code, then they will not have infringed the copyright in the code. | Addressing the question of programmer liability, generally speaking, a person who creates something that others use to infringe on copyright is not liable is liable if there are non-infringing uses for the thing (Sony). They can be liable if they intentionally contribute to infringement, viz Grokster one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. End-user liability is different. In order to legally download (watch) anything, you have to have permission from the rights-holder, and from the site operator. The site operator will have terms of service according to which you can access material: if you violate those terms, you are infringing on copyright (you didn't do what the permission to copy required of you). If the site-owner knowingly distributes material without permission, he is an infringer and you have no legal license to copy (watch) that content, so you too are an infringer. If the site-owner unknowingly distributed material without permission and generally complies with the DMCA safe harbor requirements, he is not an infringer but you the user are. Congress has not created an innocent-infringement defense where you can defend yourself against an accusation of infringement by proving that you didn't know that the material was distributed without permission (there is an option to reduce liability for statutory damages to $200 in case of unknowing infringement, but not make all liability go away). | If an AI chatbot such as Bing Chat or ChatGPT said factually untrue things that did measurable harm to a real person's reputation, would that person have a case against the company that owns the chatbot for defamation? There can be liability for defamation, although the circumstances would determine who the liable party is. For instance, an owner's warning to the user about a risk of inaccuracies may have the effect of shifting to the user the issue of requisite degree of fault. See In re Lipsky, 460 S.W.3d 579, 593 (2015). The user ought to be judicious as to whether to publish the chatbot's output. Ordinarily, negligence suffices for liability in a scenario that involves special damages, i.e., concrete, ascertainable harm. My understanding is that a key part of defamation is malicious intent, which does not really apply to a non-sentient piece of software. Under defamation law, malice is not about feelings or emotional state. The term refers to reckless disregard for the truth or falsity or the statement or to publication despite publisher's awareness of the falsity of the satement. Id at 593. Regardless, malice needs to be proved only if the plaintiff is a public figure or in claims of defamaton per se, where damage to a person's reputation is presumed (and hence the damage does not need to be proved). What if the company was aware of the harm being done but chose not to take action? The terms of use might protect the company against liability. Absent any such protections, the company might be liable because its awareness and inaction are tantamount to the aforementioned reckless disregard for the truth of its product's publications. |
Can errors in a Judge's decree allow the appealing party to appeal after the appeal time has elapsed? In Iowa, can errors in a decree by a district Judge allow the appealing party to appeal past the normal appeal period? Without revealing the specific codes referenced in the Iowa Code library, the Judge made several crime code errors in the decree. I'm not an attorney, but even I'm able to tell which codes he was referring to in his ruling (even after the errors). Can the other party appeal the decision after the appeal period has elapsed due to an error like this by the Judge? | No. Generally speaking, the deadline to appeal a decision is jurisdictional. The exact details of the rules differ depending upon the jurisdiction in which the case was conducted. Colorado's rules are not precisely the same as California's, the federal rules are different again, and the rules are slightly different in civil, criminal, and other kinds of cases (mostly administrative law cases). Sometimes, failure to meet a deadline to appeal can be excused for "excusable neglect", which is a very high standard. Generally, excusable neglect must involve circumstances that made an appeal (or a timely request for an extension of time to appeal) impossible and were beyond any reasonable ability of the party seeking to appeal the decision to control. For example, if a natural disaster shut down the courts in the week leading up to the deadline, or if the attorney for the party seeking to appeal died shortly before the deadline, this could constitute excusable neglect. There is often a limit on the duration of the extension that is available even then (e.g. 30 days). In the case of a judgment that is not appealed, it is still possible to bring a post-judgment motion to set aside the final judgment in the case in the trial court that entered the judgment (in the federal rules of civil procedure this is codified at Federal Rule of Civil Procedure 60 in civil cases and in a parallel provision of the rules of criminal procedure that was historically denominated as a habeas corpus petition) for grounds such as correction of a clerical error or newly discovered evidence. There is a time limit on most grounds for this relief set forth in these rules, although some grounds, such as a claim that the court lacked of jurisdiction over the case, can be raised at any time. Errors regarding legal conclusions made by a judge that are manifestly apparent on the face of the decree issued by the judge almost never fall within the exceptions for which a motion to set aside a judgment after it is final and the appeal deadline has lapsed (or an independent legal action to do so) is available. Exceptions might apply if the judge in a criminal case in Iowa failed to advise the defendant of the defendant's right to appeal. See Iowa Rule of Criminal Procedure § 2.23(3)(e). Also, illegal criminal sentences and clerical errors in a judgment in a criminal case may be corrected at any time. See Iowa Rule of Criminal Procedure §§ 2.23(3)(g) and 2.24(5)(a). | You file an appeal. In federal courts, the procedure is governed by the Federal Rules of Appellate Procedure, and the process begins with filing a notice of appeal under Rule 4. The process is fairly similar in all the state courts, as far as I know. If you've identified a problem with a ruling other than the final decision of your case, you could also file a motion for reconsideration under Rule 60 of the Rules of Civil Procedure. You would typically not use this procedure to contest the court's final judgment, as it would likely take so long to decide that your opportunity to appeal would be expired. | While there are certainly statutory and procedural vehicles for sanctions, they are almost never requested or allowed when moved for, and are almost never imposed by judges. Something very severe needs to occur and not just your typical discovery violation ("speaking objections" during depositions, being late with responses, failure to cite to affidavits, affidavits citing conjecture rather than fact, et). It would have to be something quite serious....like misleading the court or directly failing to comply with a direct order or ruling on a motion. It is exceedingly rare. It is most seen in Federal Court. | 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. | No. A federal court may not vacate the conviction which the state court declined to vacate under these circumstances. On March 22, 2009, a jury found Luis Villavicencio‐Serna guilty of first‐degree murder of Armando Huerta Jr. Scant physical evidence linked him to the charge. The conviction instead was largely based on testimony from three of his friends, all of whom later recanted. Villavicencio‐Serna exhausted his state‐court appeals and then sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). Throughout these proceedings, he consistently has challenged the sufficiency of the evidence to support his conviction. He emphasizes the lack of physical evidence connecting him to the murder, and he suggests that several factors - inconsistencies between the testimonies of his three friends, their subsequent recantations, and the interrogation tactics used by the police—reveal that the police pressured his friends to implicate him. Finally, he offers an alternative theory that links another group to the murder. In the face of these arguments, the Illinois Appellate Court upheld his conviction. The [federal] district court, applying the double‐layered deference required by section 2254(d), concluded that the state court’s decision was not unreasonable, and so it refused to issue the writ. See Villavicencio‐Serna v. Melvin, No. 17 C 5442, 2019 WL 2548688 (N.D. Ill. June 19, 2019). Although we sympathize with the district court’s observation that “the lack of any physical evidence in this case is troubling,” we too conclude that Villavicencio‐Serna has not shown enough to entitle him to issuance of the writ. We therefore affirm. | united-states This answer is based upon general principles of criminal procedure in the United States which are quite similar in most states, although not necessarily exactly identical. The answer is likely to be different in other jurisdictions. If inadmissible evidence is offered by the prosecution and admitted at trial, this is a ground upon which the defense can move for a mistrial (which due to double jeopardy amounts to an acquittal), or upon which the defendant can appeal the conviction of the jury, if convicted. Acquittals of a defendant at trial cannot be appealed by the prosecution. But, to appeal, the error in admitting inadmissible evidence must be contemporaneously objected to by the defendant's lawyer (or the defendant if the defendant is not represented by counsel), or the admission of the evidence must be "plain error" (which is very rarely met on evidentiary issues). If the defendant's lawyer doesn't promptly say "I object" that ground for contesting a conviction is usually lost. Even then, the standard of review on appeal is whether the judge abused the judge's discretion in admitting the evidence, not whether the appellate court would have ruled the same way if presented with that evidentiary question. Also, even if there is an error, a conviction on a particular count will not be overruled if the error was "harmless", which is to say that there is a reasonable possibility that admitting the inadmissible evidence caused the defendant to be convicted of that count. Often, if the evidence is overwhelming, or the inadmissible evidence wasn't that prejudicial, a conviction will be affirmed notwithstanding the admission of inadmissible evidence. Sometimes harmless error is evaluated considering all of the errors at trial as a whole, rather than individually, in addition to all of the other evidence admitted at trial. If an evidence issue can be foreseen and is central to the case (e.g. suppression of evidence of possession of drugs in a drug possession case), the issue of the admissibility of the evidence will often be resolved in a pre-trial hearing and subject to appeal then, prior to trial, rather than being resolved in the trial itself where the prosecution has no right to appeal, and the defendant risks conviction if the ruling goes against the defendant. If the conviction is overturned on appeal, the usual remedy is to remand the case to the same judge to conduct a new trial with a new jury, in a manner consistent with the appellate court's rulings. | I don't wish to gainsay or contradict a "professional adviser", especially as I have no idea on what information they based their suggestion. All I can do is direct the OP to the relevant extracts from the section headed "II ACCELERATED POSSESSION CLAIMS OF PROPERTY LET ON AN ASSURED SHORTHOLD TENANCY" in the Civil Procedure Rules, especially my emboldened text at the end of Rule 55.15. Rule 55.14 (1) A defendant who wishes to – (a) oppose the claim; or (b) seek a postponement of possession in accordance with rule 55.18, must file his defence within 14 days after service of the claim form. (2) The defence should be in the form set out in Practice Direction 55A. Rule 55.15 (1) On receipt of the defence the court will – (a) send a copy to the claimant; and (b) refer the claim and defence to a judge. (2) Where the period set out in rule 55.14 has expired without the defendant filing a defence – (a) the claimant may file a written request for an order for possession; and (b) the court will refer that request to a judge. (3) Where the defence is received after the period set out in rule 55.14 has expired but before a request is filed in accordance with paragraph (2), paragraph (1) will still apply. (4) Where – (a) the period set out in rule 55.14 has expired without the defendant filing a defence; and (b) the claimant has not made a request for an order for possession under paragraph (2) within 3 months after the expiry of the period set out in rule 55.14, the claim will be stayed. | Conditions stated in a will should be objectively verifiable, to avoid later ligation of the "yes he is / no he isn't" type. In this case, it would appear that your concern is over the beneficiary not actually being competent to take care of themselves. The courts often have to make that judgment, when a party seeks conservatorship over an adult. So it seems that the situation you are addressing can be summarized by saying "has not been found legally incompetent". You should discuss with your attorney what the exact wording ought to be, and also whether that describes your actual intents. For example, the description of disqualification probably should not include execution of a temporary power of attorney for a specific purpose, nor would it include a DNR order. Hiring an attorney who knows the terminology would steer clear of vague or mistaken terms. |
Why does double jeopardy apply even when the acquittal was due to insufficiency of evidence? In the United States, the Double Jeopardy Clause of the U.S. constitution has been held to prohibit retrying a person for a crime they were previously acquitted of, even if the acquittal was merely due to an insufficiency of evidence. To quote Wikipedia on the subject: "Retrial is not possible if the verdict is overturned on the grounds of evidentiary insufficiency, rather than on the grounds of procedural faults." The problem with this is, it is very easy to think of circumstances in which some, or even much, incriminating evidence might not come to light until after the trial (and possible acquittal). One big category would be evidence only made useable by scientific and\or technological advances that hadn't yet happened at the time of the trial; for instance, DNA profiling, which could easily provide damning evidence against a suspect, was not available until the mid-1980s, meaning that there could potentially be any number of criminals running around from before then who couldn't be convicted at the time because evidence that would have been damning, had it been useable at the time, wasn't useable yet, because the techniques for using it simply didn't exist yet. So why does double jeopardy prevent someone from being tried again, even if new incriminating evidence is found after the fact? It would seem to me that the discovery of new evidence at a later date would serve as proof that the defendant wasn't fully in jeopardy in the earlier trial, since it would show that the prosecution was handicapped by not being able to use evidence that existed, but which had not yet come to light... | Double Jeopardy This is an ancient right that dates back to the jurisprudence of the Roman Republic when it was called non bis in idem (approximately - an issue once raised must not be raised again). In its common law manifestation it applies to both civil and criminal trials and is an example that one of the functions of a judicial system is to bring finality to a dispute. This is often in conflict with the other aims of a judicial system which include justice and efficiency. A speech to the NSW Bar Association in 2013 by the then Chief Justice of Australia, AM Gleeson AC QC focused on finality and the following quotations illustrate why it is important: An acquittal by a jury is generally conclusive. This is explained in terms of double jeopardy. Autrefois acquit is a plea which, if made out, defeats a prosecution. For a number of reasons an acquittal may be regarded as erroneous. Later evidence, such as a confession, or information based on developments in technology, may suggest that an acquittal was unsound. Double jeopardy is entrenched in the US Constitution and the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The exact meaning varies: in many countries an acquittal at trial brings finality but others allow the prosecution to appeal an acquittal - this is not considered double jeopardy but rather a continuation of the same case. That said, some countries (notably Australia and the UK) allow retrials after acquittal for serious crimes (murder, violent gang rape etc.) where there is "fresh and compelling" [NSW] evidence of guilt. These are 21st century changes and are a direct result of cases where advances in technology would impact the verdict. As a constitutional protection, legislative change like this is not available in the United States. Geoffrey Robertson AO, QC in his 1998 book The Justice Game says "these rules are ordained by the State: whether they are just depends on whether they provide for the possibility of beating the State at its own game." His thesis is that, compared to any individual, the state wields unfettered power and has unlimited resources. If the state were allowed to repeatedly bring charges against an individual then they would eventually gain a conviction. The state gets one shot - they need to bring their A game. | The short answer is that propensity evidence can only be circumstantial evidence and that it is generally inadmissible. But we should start by clarifying what "circumstantial evidence" means. It is not the opposite of legal evidence, but more like the opposite of direct evidence. Direct evidence is evidence that independently establishes a fact in question, while circumstantial evidence is evidence that gives rise to an inference that a fact in question is true. There is a misconception that circumstantial evidence is somehow inadmissible or inferior to direct evidence, but the truth is that the vast majority of evidence is circumstantial. So if you are on trial for murder, direct evidence would include your confession, an eyewitness account of the murder, and surveillance video of you killing the victim. Circumstantial evidence would include things like the victim's blood on your clothes, a taxi driver's testimony that he dropped you off at the victim's apartment just before the murder happened, or surveillance video of you exiting the cab and entering the apartment. Propensity evidence is evidence that a person is likely to have acted one way in this case because they have acted that same way in the past. It is therefore never going to be direct evidence and always going to be circumstantial evidence, because it never explicitly says "the defendant did it," but rather says "the defendant did it before, so maybe he did it again." The general rule is that propensity evidence is inadmissible. Fed.R.Evid. 404(b). It sometimes comes in anyway, though, for various reasons. If a defendant is facing trespass charges, for instance, a prosecutor would want to introduce evidence that the defendant has previously been convicted of trespassing. The defense will object that it's propensity evidence, but the prosecutor will respond that it's admissible if he's using it to establish something other than the likelihood that the defendant did the same thing again. If the prosecutor needs to prove that the defendant knew he was not allowed on the property, the trespass conviction is very strong evidence on that point. Another common exception is in sexual-assault cases, where some jurisdictions allow this type of evidence. Indeed, Wisconsin is among the states that explicitly permit evidence of the defendant's previous convictions for certain sex crimes to demonstrate that he committed a sex crime again in the current case. WI Stat § 904.04(2)(b). Louisiana likewise allows propensity evidence to establish that the defendant has a history of "sexually assaultive behavior" or a "lustful disposition toward children." C.E. 412.2. Likewise, the defendant may be able to introduce evidence that the victim previously consented to sex and is therefore likely to have consented to sex in the current case. C.E. 412. EDIT: To address your examples, then, I would say that that the first would probably not survive a Rule 404(b) objection, and the second one would stand a better chance. On the second one, the defense should argue that the court should allow evidence of the defendant's interest in Egyptology, but not evidence of the convictions, as that would allow the jury to consider his motive without being diverted into propensity territory. The prosecution should probably counter that the defendant's convictions show more than just the existence of a motive, but also the strength of that motive, as well as perhaps that the defendant had the prior knowledge and skill that would be necessary to pull off a museum heist. The judge could go probably rule either way without being reversed. I would clarify one point on how to analyze and characterize this evidence: Rule 404 deals with propensity evidence, i.e., evidence that is meant to demonstrate that a person acted in conformity with his character. Subsection (a) deals with establishing propensity through "character evidence," which is evidence that the defendant's character or character traits are consistent with the conduct in question at trial; while subsection (b) deals with establishing propensity through "other acts" evidence, which is evidence that the defendant previously engaged in conduct that is consistent with the conduct at question of trial. Both types of evidence -- character evidence and other-acts evidence -- are inadmissible to establish propensity, but they may be admissible to establish motive, plan, preparation, etc. So when your defendant's previous convictions are offered to prove motive to expand his Egyptology collection and not to establish propensity, the court could allow them into evidence not because they are admissible propensity evidence, but rather because they are not propensity evidence at all. | In the US, a person is "within their rights" to invoke the Fifth Amendment, i.e. refuse to self-incriminate. However, the government can give a person immunity from prosecution for offenses having to do with the testimony, in which case he can be compelled to testify. A person is not required to guess about whether they could actually be convicted based on their testimony. It is the privilege of the court (judge) to determine whether a witness has "a reasonable cause to apprehend danger from a direct answer" (Ohio v. Reiner, 532 U.S. 17). | Short answer: Maybe. Long answer: The answer here varies from jurisdiction to jurisdiction. Normally, the process goes like this: The application for the warrant is usually made under seal or otherwise in secret to prevent the target from trying to hide evidence. So before it's been executed, you can pretty much forget about accessing it. After the warrant is executed, though, there are differing answers to this question. The Supreme Court gave us a test for this kind of question in Press-Enterprise II, which held that the First Amendment gives us a qualified right to access court proceedings and records. The right applies when public access makes sense using the "experience and logic" test: Has the Anglo-Saxon experience typically been to provide access, and does logic tell us that access has beneficial effects for the judicial process? But lower courts have disagreed about how to apply the test. The Eighth Circuit allowed access to warrants in a defense-industry corruption investigation in In re Search Warrant for Secretarial Area-Gunn, but the Ninth Circuit denied access in to warrants in the same investigation in Times Mirror Co. v. U.S. I think, though, that the Ninth Circuit decision would have come out differently if the investigation had already ended. Just to mix things up further, the Fourth Circuit has also allowed access, but based on common law principles of access, rather than the First Amendment. That was Baltimore Sun Co. v. Goetz. Same in the Second Circuit: In re Application of Newsday, Inc. Individual states also have their own rules, but those are of course subject to limits under the First Amendment. When I wanted a copy of a warrant, I would go first to the clerk of the court whose judge signed the warrant. I would tell them what I was looking for, and I pretty much always got it. I would rarely submit a FOIA request, especially if the warrant was issued by a federal agency. Those requests sit in a queue for months or years without being reviewed, and the agency virtually always denies the request anyway. When law enforcement agencies and courts have copies of the same record, you're almost always going to have better luck getting access from the courts, which are set to open by default. If the court denies the request, try again after there's an indictment, and again after the trial. | Part XVIII of the Criminal Code addresses the power and procedure for appeals. Appeals of indictable offences are appealed to the provincial Court of Appeal. The Crown can generally appeal where there is an error in law. The Crown has a limited appeal on the basis of questions of fact. This includes appeals for unreasonable verdict.1 However, the Crown cannot appeal on issues of credibility unless it amount to an error in law. The Defence can appeal both issues of fact and law.(ss. 675 and 676) R. v. Kendall, [2005] O.J. No. 2457 (Ont. C.A.), at para. 46 from a Canadian Criminal Procedure Wiki. Unlike in U.S. law, the government can directly appeal an acquittal on certain grounds in Canada (without regard to whether it was a jury trial or a bench trial), although those grounds aren't quite as broad as those of the defense. This would also be true in modern English law. In practice, it is somewhat easier to appeal a verdict in a bench trial than in a jury trial, because in a bench trial you know why the judge says he or she came to the verdict and can determine if those reasons were incorrect, while in a jury trial, the appellate court presumes that the jury followed the law and use any even implausible basis for their opinion even if that isn't what really happened. The complete bar on appeals of acquittals of criminal charges in U.S. law due to the double jeopardy clause of the U.S. Constitution's Bill of Rights, is a rare exception to the global norm. | Yes, there is a good chance. Ordinarily, the law as written is what is enforced. On occasion, the wording of the law is actually ambiguous, or vague, which means that the jury will need an instruction as to how to interpret the law. In fact, juries are not literally read the statute, they are given a set of decision-making instructions so that they can decide "If we find X, we must acquit; if we find Y we may convict". Your attorney will, if he is diligent, note the problem and strive for an instruction that favors the client. (The prosecution will of course object). Eventually, on appeal, a court will decide what the law "really means", and that decision might be strictly based on the letter of the law, or it might be based on a supposed spirit of the law, i.e. what the legislature "originally intended". That outcome is determined in part by the jurisprudential ideology of the prevailing justices of the appeals court. Usually, letter of the law prevails until a higher court rules that a particular "spirit" is what was originally intended. | The question of double jeopardy is not for a jury to consider. It is a question of law that is decided by the judge. In this case, Rittenhouse is charged, among other counts, with first-degree reckless homicide. If he is found guilty on a lesser charge, he will have been acquitted of first-degree reckless homicide, and he will not be able to be retried on that charge by the state of Wisconsin. (If the trial is invalidated to the extent that jeopardy never "attached," for example if it is found that the judge had been bribed to prevent conviction, then a new trial could be brought.) Once jeopardy attaches, there can be no additional trials for the same crime, and any subsequent attempts at prosecution should be dismissed by the court long before a jury is selected. By contrast, if a court determines that a trial does not constitute double jeopardy and a jury is seated, the jury will not consider the possible existence of double jeopardy; the only way to challenge a trial judge's decision on that question would be through the appeals process. If the trial jury in the original trial cannot decide unanimously to acquit on a particular charge then it is a hung jury,and indeed that may result in a mistrial on only those counts on which the jury has deadlocked. From Wikipedia, quoting the Federal Rules of Criminal Procedure: If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. A hung jury does not imply either the defendant's guilt or innocence. The government may retry any defendant on any count on which the jury could not agree. States, however, may approach this slightly differently. | Generally speaking, witnesses are not legally represented at trial, unless they are also parties. While a witness may choose to seek legal advice about a request or order they have received to give evidence, they would generally be expected to take this opportunity before they actually show up at trial. A witness examination would not normally be adjourned because a witness said something damaging to their own credibility or to one party’s case, and would like to pause and obtain legal advice. One goal of cross-examination is to expose unreliable evidence by obtaining this kind of tactical advantage over a witness. It is up to the party whose case was damaged to try to fix the problem in re-examination or reply evidence. That party may not be particularly interested in protecting the witness’s personal interests. There may be exceptions in specific factual situations, when it becomes clear that a witness does not understand their right to object to giving evidence on the grounds of self-incrimination or some other privilege. A judge may choose to halt further questioning of the witness if there is a real risk of a mistrial or some other procedural unfairness, which can be addressed without unfairly depriving the cross-examiner of their opportunity to challenge the evidence. |
Taxes question and fake address Suppose that a non US woman W is married to a US Citizen husband H. W has a green card. W and H live together in Pennsylvania. Suppose that W's parents in law (L) moved to a nearby state. Suppose that their office is still in Pennsylvania, and they currently work remotely until April. L uses W&H's address, without W&H's permission, as if it's their permanent home, for everything, including Work, taxes, etc.Their jobs don't know they don't live anymore in the state. But they don't live with W&H. If this becomes known, could W&H have legal problems? Would it hurt W's path to US citizenship? Is L's action unlawful, and can W&H avoid legal problems? | W&H can avoid legal problems by reporting the suspected crime to the relevant tax authorities (IRS, Pennsylvania and the other state, let us say Ohio). This can even be done anonymously, although doing this non-anonomously provides strong evidence that W&H are not parties to the crime. Filing with a false address could constitute a violation of 26 USC 7206, when one Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter "Could" comes from two issues. First, L has to not believe that this is their true address, and second, the address has to be a material matter. The tax form and instructions require you to supply an address, but do not define any rules for what can be "an address". The IRS does define a concept of "tax home" which is the city where you work, bit that is relevant only for deductions related to travel. At least w.r.t. federal taxes, it is not obvious that this is a material matter, unless one is relying on state-specific standard sales tax deductions as part of deduction itemization. The government would also have to prove that they did not believe that the PA address is their "home address", a position that is facilitated by the lack of indication of what qualifies as a "home address". Para 2 of the tax fraud statute might apply to W&H, which target one who Willfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document As described, you have not taken an illegal action, e.g. you have not encouraged, condoned, written in false information, etc. What you have done is not reported a possible tax crime that you are aware of. There are various federal laws whereby a person in a "special" position is obligated to report a suspicion of a crime (law enforcement w.r.t. child sexual exploitation, etc), but there is no general legal obligation with criminal penalties whereby you must report a suspected federal crime. This is a good thing, because a criminal conviction can be a conditional bar to citizenship, under the category of Crimes Against the Authority of the Government. Actually lying about L's residence moves this into the area of a well-defined felony offense, 18 USC 1001 (lying in a federal matter), which would clearly cause citizenship problems. The same set of questions and answers would arise w.r.t. PA and (presumptively) OH tax laws. In this case, though, there is most likely a crime – tax evasion in OH. I say most likely because I don't know if they filed a fully truthful Ohio tax form, or a fully truthful PA tax form. But if they lived in Ohio and yet did not report their Ohio income (and instead filed a PA income tax form), they did not comply with ORC Ch. 5747, esp §08 and §15, which incurs penalties (but is not a crime). As with the matter of federal income taxes, W&H do not have a legal obligation to report suspected crimes, but they must not actively aid in the commission of a crime. | 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. | Your tax advisor was legally correct, but perhaps not very savvy. Unfortunately, the best way to resolve this sort of situation is to avoid it: You should have insisted your employer stop withholding for PA as soon as you moved out of state. Once someone else has possession of your money the burden is on you to get it back, and the burden can be (practically) quite high before it runs afoul of any serious laws. The fact is that your filings are correct, and the PA Department of Revenue is being ridiculous. If they can't be satisfied with reasonable and adequate evidence backing your return you can file administrative appeals at little cost in hopes of reaching a more reasonable agent. However, if I were in this situation, since NC's tax rate is higher, I would just amend my NC return to claim a credit for taxes paid (even though erroneously) to another state. (This takes advantage of our federalist system and your state citizenship and puts the burden on NC to collect the "correct" difference from PA if they care enough. You also don't have to fight for the actual return of money with your new state because presumably you will owe them taxes again this year, and if they haven't returned what you claim you're owed then you just deduct it from what you owe this year.) | There is no law in the US that says you must tell the truth on the internet. Some places where one must tell the truth are: When speaking to police, the FBI, and most government agencies When filing your taxes with the IRS In certain business contracts When testifying before Congress But on the internet, you can claim to be the first man on the moon with impunity. If someone is gullible enough to believe you and send you money, that is their fault and responsibility. As far as eating a Pangolin, why should she "admit" it, when it was documented on Instagram? There is no duty to officially apologize for it. You can try to report her to the US Fish and Wildlife Service, which enforces the Endangered Species Act, but as it occurred outside the USA, they will be powerless. Her claims are dubious, and possibly incorrect. Her treatment of an endangered animal is reprehensible. However, you posted this to a law site, asking about "reporting it" (to some sort of authority), and tagged it "criminal law". Her behavior is troubling, but I don't see anything that is remotely illegal or criminal. | The location of your residence entrance is irrelevant for the law, what matters most is your "street address", i.e. mailing address. That is the address (therefore city) that you use for voter registration, and basically how you identify "where I live". If you lives 5 miles out in the country in an unincorporated area, you'd still use Needles (e.g.) as you mailing address: but you would not be able to vote for a mayor of Needles, just based on your mailing address. Both municipalities might claim jurisdiction based on the physical location of the property, especially for matters of building code. It should not be possible for both municipalities to tax the full value of your property, but they could split the assessment proportionally. The cities themselves are not collecting the tax, the county is (though property straddling a county line raises an interesting question). | This is controlled by 8 U.S.C. § 1401 which details who qualifies for "birthright citizenship". Including of course the condition mandated by the 14th ammendment, Congress is otherwise free to bestow such citizenship essentially as it pleases by duly enacted legislation. One of the cases that receives birthright citizenship is a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States. So the presumption for young children found in the US is that they are citizens by birth. The law in particular requires positive proof that the individual in question was definitely not born in the United States. Lacking this, or it failing to be found prior to reaching the age of 21 years, they are citizens. For other cases, this will likely end up falling to the courts, who will decide the matter on the preponderance of the evidence. In this case it becomes the burden of the individual claiming citizenship to establish that they are a citizen*. Birth certificates can be filed after birth, and can be submitted as evidence. The laws controlling the validity of birth certificates is locally determined. If there are other birth certificates from other countries, or conflicting witness testimony, then it will fall to the court to decide which case is more likely based on the evidence available. *More accurately the burden generally falls on the entity making the claim about someone's citizenship (their own or someone else's). In a deportation hearing, for example, it falls to the government to establish the individual is not a US citizen. Deporation only applies to aliens, so the defendant must be established as such. | Here is everything that I learnt throughout this process: I was not born a U.S. citizen, and I did not naturalise. Instead, I inherited U.S. citizenship at the moment I became an LPR (Legal Permanent Resident), because I both had a parent with citizenship and I was under the age of 18. There is no paperwork to file to inherit citizenship this way, it is completely automatic and as a result there are people in the U.S. that do not know they are citizens. In order to assert that I was now a U.S. citizen, I just had to apply for either a U.S. passport, or a Certificate of Citizenship. There is no deadline to do this, because I was a fully-fledged citizen from the day of approval of my Permanent Residence application. When I applied for my U.S. passport, I simply had to prove that I was a child at the time of receiving my Green Card, and that one parent was a U.S. citizen. This is exactly what I had to provide the German consulate. I provided my own birth certificate, my I-485 form (with approval date) and my father's naturalisation certificate. Those were accepted without question. To obtain a copy of my Form I-485, I had to file a FOIA request--I used a Form G-639 to make it easier--and I emailed it to [email protected]. I did attempt to get a copy of my passport application, as I filed that while under 18, but I was told by the State Department that they did not have a copy of it (curiously, several months later a full copy of my original passport application arrived by post from the State Department...). The response was not a surprise as when I applied for a passport at the age of 17, I was told by the official that they do not keep a record of my application, so I should also have a Passport Card in case my passport goes missing and I must prove citizenship. Under German citizenship law, one loses citizenship when "voluntarily" obtaining another citizenship. The reason that I did not lose my citizenship when I became a U.S. citizen was because: I was a child, and it happened automatically. Therefore, it is not considered voluntary. Luckily, I did not have to explain this, since it was a consulate in the U.S. (Houston, TX) that I visited, they were well aware of the way in which I inherited U.S. citizenship. However, I had some trouble when dealing with the London embassy as they did not understand all of the U.S. citizenship qualifiers. I hope this helps anyone else that finds themselves in a similar situation! I was completely lost when I started this process, but three months later I have my German passport in my hand. | It's not regulated by international law. Depending on the laws of the intended destination country, it may be the case that none of the members of the family are permitted to enter, or that they can enter, but only two can enter as a "couple", while the others are legally completely separate (or even excluded from the country). According to one blog, at present in the United States, a foreign national must actually intend to practice polygamy in the United States to be ineligible for an immigrant visa. The current law does not prevent a polygamist or someone who practiced polygamy in the past or expresses a belief in polygamy from being eligible for an immigrant visa. But aliens coming to the United States to practice polygamy are barred. Before 1990, there was a law on the books by which someone who merely "advocated the practice of polygamy" could have been barred. This question has been answered on Quora for the U.S., again for the U.S. (where the question asked about "US and EU"), and for Canada. Basically, the whole family can't legally immigrate as a unit. However, determining who is the "real" wife, if any of them, would depend on the facts of the case, the specific laws of the target jurisdiction, and the purpose of the determination. It could very well be that every one of the other marriages would void a new marriage in the destination country and entitle the children to child support, but none of them would entitle the wife to a spouse's visa or the father to visitation rights after a purported divorce. See also this answer about whether it's possible for a married immigrant to commit bigamy by entering the United States pretending to be unmarried. Sure there are people who try, and it's more likely to succeed with the cooperation of the foreign spouse(s), but it's against the law and can be grounds for deportation, imprisonment, annulment of the second marriage, or exclusion of any polyspouse who is outside the country. |
When is a trial considered to have happened vis-a-vis double jeopardy? When is a trial considered to have happened vis-a-vis double jeopardy? In other words, at one point is a person considered to be tried for an offense and cannot be tried again? At the arraignment or at the judgement? To be more specific, if a person has been arraigned, can the prosecutor abandon the case and then indict the person again later for the same offense, or are they considered to be tried after the arraignment occurs. If the double jeopardy only becomes effective when a judgement is rendered, then a prosecutor can theoretically start a trial, abandon it, then try the person again, abandon it again, and so on indefinitely. Is that how it is? | Jeopardy can attach at one of two different points: In a trial to a jury, jeopardy attaches when a jury is empaneled and sworn in. Martinez v. Illinois, 134 S. Ct. 2070, 2074 (2014) ("There are few if any rules of criminal procedure clearer than the rule that 'jeopardy attaches when the jury is empaneled and sworn.'”) In a bench trial, jeopardy attaches when the prosecution begins questioning its first witness. Serfass v. United States, 420 U.S. 377, 388 (1975) ("In a nonjury trial, jeopardy attaches when the court begins to hear evidence.") But the Double Jeopardy clause is not absolute. It bars a retrial after a conviction or an acquittal, but it does not bar a retrial after most mistrials. United States v. Wilson, 420 U.S. 332, 344 (1975) ("[T]he Court has granted the Government the right to retry a defendant after a mistrial only where ‘there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.’") The clearest exception to the mistrial exception, though, is that a new trial is not allowed where the prosecution acts in bad faith to provoke a mistrial. United States v. Dinitz, 424 U.S. 600, 611 (1976) ("The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions.") This would prevent the perpetual retrial situation you discussed. I don't think the Speedy Trial clause would have that effect, as the time for a Speedy Trial typically resets after a mistrial is declared. | A case can be "dismissed" at (most) any time (however, the further along in the process a case is, the less likely a judge will allow a case to be dismissed without very good reason). A case can be dismissed with or without "prejudice", which in this legal context means essentially "finality". A case dismissed with prejudice cannot be brought again, while a case dismissed without prejudice can be refiled. (Compare the criminal law concept of "double jeopardy", though as phoog correctly notes, "double jeopardy" only applies in criminal trials, while prejudice can be applied in both civil and criminal courts). Many cases are dismissed without looking at the evidence (or even having the evidence admitted to the record); this is called "summary judgement" or "judgement as a matter of law". There are generally three cases when this happens: First, if the prosecution or plaintiff (i.e. the party bringing accusations) has "failed to state a claim upon which relief may be granted", i.e. asked for something the court cannot grant. Second, is if the defendant can show, that even if everything alledged by the plaintiff is true, that the necessarily elements of the crime or offense have not been proven. Third, is if there are no facts in dispute, and only a disagreement on interpreting the law. | You're wrong in the first sentence So I agree, that a hung jury is in fact reasonable doubt by lack of concurrence, the defendant should be acquitted. No. A hung jury just means they can't decide on any item they should decide about, for whatever reason. Maybe they all want to see the defendant guilty but can't decide if it is murder 1st or 2nd degree, or one of them is just trying to stay out of work and just is contrarian to whatever the jury deliberates, wether guilty or not guilty. In either case they can not tell the judge what they can't agree about. They can only tell the judge that they can't agree on a verdict. Since the judge can't assume anything about the deliberations, he can only reset trial and swap the jury for one that actually might be able to decide. The whole Jury is tossed out, their deliberations don't matter anymore - their hung state does not influence the re-trial. | Short Answer No. Double jeopardy of the Fifth Amendment to the United States Constitution prohibits someone from being prosecuted more than once for the same factually specific crime (i.e. "the same offense"). The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” The original acquittal was correct, because it was for a crime that did not happen. The later trial is for a different crime that actually did happen at a different time. In the same way, an acquittal for a DUI committed on Tuesday does not bar prosecution of the same defendant for a different DUI committed on Thursday. So, double jeopardy does not apply in the scenario presented. A Similar But Harder Case The analysis would be trickier if: A shoots B. A is tried and acquitted for the murder of B. B was only presumed dead but was actually alive. After being acquitted for Bs murder, B dies of the gunshot wound from A in (1). A is later arrested and tried for Bs murder (a second time). This is a much trickier question, because A was actually tried and acquitted of a crime that hadn't been completed at the time of trial, but in which A's involvement had terminated at the time. (To make it even more complex if you are inclined, in a first degree kidnapping case, the death penalty applies unless the defendant can prove the affirmative defense that the victim didn't die, and a first degree kidnapping acquittal would probably not bar a later murder conviction because the offenses have elements sufficiently different from each other, even though the death penalty or life in prison without parole sentence for that offense is based on the conclusive presumption that the victim died in law, rather than in fact.) Issue Preclusion This might depend upon the nature of the evidence at trial - if A did not raise the failure of the prosecution to provide corpus delecti (i.e. a dead body) or the misidentification of an alleged victim's body as a defense and instead, for example, argued an alibi defense (e.g. he was in jail at the time of the alleged shooting). This narrow fact pattern would be a particularly close question and I wouldn't be surprised to see a court deviate from the usual precedents and general rules under these circumstances. There is a substantial body of case law on whether prosecution for a crime with elements A, B, and C bars prosecution for a crime with different elements arising from the same facts and circumstances (e.g. if acquittal of a lesser included offense whose elements must all be proved to convict on the more severe offense provides double jeopardy protection), that wouldn't be directly applicable in my alternative scenario because the offense tried the first time and the second would have exactly the same elements. This depends upon when a concept analogous to the principle of collateral estoppel (also known as "issue preclusion") in civil cases, in which facts previously litigated can bind a party in a later lawsuit, with or without constitutional double jeopardy dimensions, applies in criminal cases. As a general rule, there was historically no doctrine of collateral estoppel in criminal cases as noted in a 1967 law review article. But, the U.S. Supreme Court has also adopted a limited version of the principle of collateral estoppel under the guise of the double jeopardy clause in criminal cases as it noted in Yeager (discused below) a few years after that article was written. [I]n Ashe v. Swenson, 397 U. S. 436 (1970). . . we squarely held that the Double Jeopardy Clause precludes the Government from relitigating any issue that was necessarily decided by a jury’s acquittal in a prior trial. The hard question is determining what a jury's acquittal "necessarily decided" in particular facts and circumstances, given that a jury verdict in a criminal case typically only determines if the jury convicted, acquitted, or hung on each of the charges presented to it in the indictment and not dismissed before tiral. This analysis requires the court to assume that the jury acted rationally, even if extraneous facts allow us to know that it did not act rationally, and to determine that a prior acquittal was logically inconsistent with a new conviction. In Yeager v. U.S. (2009), however, the U.S. Supreme Court interpreted Ash v. Swenson narrowly. It held that hung juries on counts should be ignored for constitutional purposes as if that the trial of that count never happened. When Is A Murder Committted? There would also be a question of when the crime of murder is committed (i.e. when the acts are taken or only once someone dies). Generally, murder is not a complete crime until someone dies. For example, if you were prosecuted for murder before someone died and acquitted because they were alive, you could be prosecuted again for murder later if they died of their injuries. (The more usual case is that someone is tried and convicted of assault, then the victim dies, and they are retried for murder, which is allowed since a conviction for assault is not logically inconsistent with a conviction for murder.) Similarly, if you were convicted of murder after a fair trial and presented the live body of the victim as newly discovered evidence, there is a good chance that you could have the original conviction vacated. If, however, you were convicted, and the Court found that you knew that the victim hadn't died at the time of trial, but you did not raise the fact that the victim wasn't dead, it isn't clear if you could have the original conviction vacated because it was a fair trial and you knew evidence sufficient to get yourself acquitted (which you may have refrained from presenting to avoid conviction on a lesser charge like kidnapping or aggravated assault), and the status of an "actual innocence" grounds for vacating a conviction after trial is hotly disputed, conservatives like the late Justice Scalia generally say "no", liberals generally say "yes", moderates like to say "yes" but make it almost impossible to establish except in rare cases like one where a live person walks in when there was a murder conviction for killing that actually living person. Obviously this doesn't come up all that often because usually prosecutors don't bring murder cases until they find a body and identify it and aren't in a rush to do so because there is usually no statute of limitations for murder. Conclusion In The Harder Case My overall conclusion is that double jeopardy would not apply even in the much closer case. This is because a belief that the victim was not dead could have been a basis for the original verdict notwithstanding a presumption to the contrary. The jury knows that a death is a element of murder and might have acquitted not based upon the reasons presented to it at trial but based upon their own personal view that the failure to present a body left them with reasonable doubt for some reason or another, which is a perfectly plausible scenario. If this happened, an acquittal the first time and conviction the second time wouldn't be inconsistent, even if no one argued about a lack of a body in their trial presentation. Ironically, if A was acquitted of aggravated assault of B in the first trial, that would be far more likely to bar a conviction when B later dies, than an acquittal from a charge of murdering B, because murder is logically inconsistent with an acquittal of aggravated assault in most circumstances, but a previous murder acquittal based upon lack of proof of a dead body is not inconsistent with proof of a later death. But, this would still be a close case that could come out either way on the double jeopardy issue. A court could conceivably argue that if the death of B was not contested at trial, that the first murder acquittal would be inconsistent with a murder conviction upon the death of B later on from the events that formed the basis of the first prosecution. Tactical Considerations Of course, even if prosecution of A for B's murder the second time was not be barred by double jeopardy, it is still likely that the prosecution would agree to lesser charges or not prosecute because the first acquittal showed it was a weak case, and the fact that A would now also be able to argue that the gunshot was not the proximate cause of B's death (and that it was instead, for example, due to medical malpractice or was a de facto suicide due to refusal of adequate treatment). Scope Of Analysis This reasoning would apply anywhere in the U.S. and is not specific to a particular state or territory as double jeopardy is a principle of U.S. Constitutional law that applies directly in federal courts (including the courts of territories and commonwealths) and indirectly through selective incorporation against the states via the 14th Amendment. | There is a general defence to any crime called self defense. If you commit a crime, but the reason you commit it is because you are acting in self defense, or the defense of another, then you will not be found guilty of that crime. For example, if you kill someone, but the court believes you are acting in self defense, then you will not be found guilty of murder (or manslaughter). This defense extends to other crimes too, and trespassing would be included in this. Acting in the defense of another person has the same effect as acting in self defense. Just note that you would have to prove that it was reasonable for you to be acting in the way you did. Usually this means that the crime you committed was proportional or necessary to prevent the crime that would have occurred, and if self defense is involved, that it was necessary to do what you had to do to prevent harm to you or another. | He cannot be given a higher sentence because he appealed. If the appeal is unsuccessful, he will be in exactly the same legal position as if he had not appealed, aside from any legal fees an costs he may incur for the appeal. The worst that could happen to Chauvin at the end of the appeals process, is that all three convictions are upheld, which leaves him no worse off than if there had been no appeal. However, if an appeal is successful, it will probably lead to a new trial. In general, when an accused person is retried after a successful appeal, there is the possibility of a worse outcome. In this case, however, Chauvin was convicted on all counts charged, so the outcome could not get worse. If Chauvin were to appeal and get a new trial, but be convicted in a new trial, he could in theory receive a larger sentence after the second trial. But since the charges would be the same, the range of possible sentences and the sentencing guidelines would be the same. Of course, no one yet knows what sentence the judge will impose after the current conviction. | You misunderstand the significance of the phrase "innocent until proven guilty." This is in part because you are not considering the entire phrase. The full phrase is that an accused party is "presumed innocent until proven guilty." This does not mean that the accused is innocent, only that criminal procedure must take as its starting point that the accused did not commit the crime. The major implication of the presumption, and indeed its original purpose, is that it places the burden of proof on the prosecution. This means that if a prosecutor asserts that you stole something, you do not have to prove that you did not. Rather, the prosecutor must prove that you did. The only reason to present evidence of your own is to rebut the prosecutor's evidence. Another practical implication is that a decision to detain someone awaiting a criminal trial may not be based on the assumption that the accused committed the crime. On the other hand, that decision is not based on the assumption that the accused did not commit the crime. There is a presumption of innocence, but no assumption of innocence, and the government is not obliged before the person is convicted to treat the person as if there is no accusation or charge. Wikipedia has a decent discussion. If we modify your question accordingly, it becomes How can two people be presumed innocent until proven guilty if their stories conflict? Now the answer should be clear. The prosecutor must develop evidence that shows which one of the people has committed the crime. If the prosecutor cannot do that, neither person may be punished. | In closing arguments, an attorney should only refer to evidence that was admitted at trial. In opening arguments, an attorney may refer to evidence that the attorney reasonably believes will be admitted at trial, and if the attorney has grounds to admit the transcript as an exhibit, could do so. If not, the attorney could still reasonable state: the evidence will show that an arresting officer described Mr. Jones as "crazy" without showing a transcript or explaining where it comes from (on the theory that the officer will either testify to that effect at trial or will be impeached at trial with the transcript for testifying in a contrary manner). Usually the transcript can usually be admitted only for impeachment, so usually it wouldn't be admissible absent contrary testimony at trial. But there are exceptions that apply to that rule which could make it admissible and hence proper to reference or show in opening arguments. |
Storing IP's and GDPR Compliance Suppose a web designer plans to store hashed IP's in a database for analytical purposes of tracking unique clicks, and for security purposes to prevent botting unique clicks. Suppose the site only stores one-way hashes of the IP addresses, and only for as long as the data is needed. The plan is to allow Users can also contact the site to remove their data entirely. Would such a design be GDPR compliant? I've read a lot of mixed commentary on whether this type of use case would be allowed, and any sources to support your reasoning would be appreciated. | GDPR Article 4 paragraph 1 says: ‘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; Recital 26 says Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. ... The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. Recital 30 says: Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. This may leave traces which, in particular when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them. An IP address hashed through a cryptographically secure one-way hash cannot reasonably be used to establish the original IP address, nor to geolocate, nor to directly identify the data subject. However if such addresses are stored in a database with a link to the subject's individual record, or to other data which identify the data subject, then they would clearly be personal information. The ICO's page on "What is personal data" says: ‘Online identifiers’ includes IP addresses and cookie identifiers which may be personal data. The page from GDPR.EU on "Personal Data" says: Any information that can lead to either the direct or indirect identification of an individual will likely be considered personal data under the GDPR. ... Any data that relate to an identifiable individual is personal data. The page on "Personal Data" from gdpr-info.eu says: Personal data are any information which are related to an identified or identifiable natural person. The data subjects are identifiable if they can be directly or indirectly identified, especially by reference to an identifier such as a name, an identification number, location data, an online identifier or one of several special characteristics, which expresses the physical, physiological, genetic, mental, commercial, cultural or social identity of these natural persons. In practice, these also include all data which are or can be assigned to a person in any kind of way. For example, the telephone, credit card or personnel number of a person, account data, number plate, appearance, customer number or address are all personal data. Since the definition includes “any information,” one must assume that the term “personal data” should be as broadly interpreted as possible. This is also suggested in case law of the European Court of Justice ... See also "Can a dynamic IP address constitute personal data?" If a hashed IP address is stored so that it can be related to a specific individual, it is personal data. as such, it would be subject to the GDPR. To store it one would need to identify a lawful basis under GDPR Article 6 This could be the Data subject's consent, or the Controller's legitimate interest. In either case the information should be included in the list of personal information collected (often in a privacy policy document), disclosed to the subject on request, adn deleted on request if possible. If that is done, such a use of a hashed IP, although personal information, would seem to be compliant. If a hashed IP is stored in such a way that it cannot be related to any particular user, then it would not constitute personal information, and no compliance issue would seem to exist. Limiting the retention time of a hashed IP is a good practice which would reduce any possible impact it might have. | IANAL. (1) GDPR is certainly relevant. (2) This is certainly "personal data" under the definition in GDPR article 4. (3) Maintaining this data is probably lawful under article 6 sections 1(a) (consent) - provided that the Terms and Conditions of the site make clear that the user by signing up is consenting to this information being held (3) There is certainly an obligation under article 14 to disclose that the information exists, and to say how it used. (4) Article 15 says that data subjects are entitled to see the information and know what recipients or categories of recipient have access to the information (I don't know whether it's enough to just say "moderators", or whether the moderators need to be identified). (5) I can't see any reasons why the obligations under articles 16, 17, and 18 regarding rectification, erasure, and restriction of processing aren't relevant. This is exactly the kind of situation that GDPR is designed to address. If you're restricting the service available to particular users based on a record of their behaviour or on judgements made by moderators, then they absolutely have a right to know, and a right of redress. | IP addresses are personal data. That means you need a legal basis to process them, but not necessarily consent from the user. That IP addresses should be treated as personal data in most contexts is clear, regardless of whether you can associate the IP address with a user ID. That you make such an association affirms that both the IP address and user ID are personal data in your context though. As the answers in the questions you linked indicate, there are alternative legal bases to consent. The GDPR offers a choice of six legal bases (Art 6(1) lit a–f). In most cases, you would instead rely on a “legitimate interest” for logging. But it's not enough to claim that you have a legitimate interest. You must have a clear purpose for which such logs would be necessary, and you would then have to weigh this legitimate interest against the interests, rights, and freedoms of the affected data subjects. If such logs are necessary for security and anti-abuse purposes, your legitimate interest test is likely to prevail. However, you must limit retention of the logged data and the included information to what is actually necessary. For example, keeping user IDs in there might not be necessary. If the association of IP addresses and user IDs is not necessary for a legitimate interest, then you would indeed need consent. Discussion on why IP addresses are personal data. You see many answers and opinions that IP addresses might not be personal data. Some of these are technically correct, but most are misinformed or outdated. I know only a single well-informed person that still disagrees. For everyone else such as the EU Commission, IP addresses are clearly personal data. Under the GDPR, personal data is any information that relates to an (indirectly) identifiable natural person. In the context of log files we can assume that the entries usually “relate” to a person, namely the person making the request. The exception would be requests triggered by automated systems. The more interesting question is whether the person to which the log entry relates is identifiable. While the GDPR does provide further guidance on the concept of identification in Recital 26, it does not provide clear unambiguous criteria. Thus, there is lots of debate about what that precisely means. One approach is to sidestep that debate and and notice that the GDPR's definition of personal data explicitly notes that a person might be identified “in particular by reference to an identifier such as a name, an identification number, location data, an online identifier” (Art 4(1)). Another but otherwise unrelated part of the GDPR mentions “internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags” as examples of online identifiers (Recital 30). We can also look more deeply into Recital 26 and see that “singling out” already counts as identification. We can use the IP address to single out one person's log entries from the set of log entries, so this could be interpreted as meaning that any stable user ID renders the data personal data – and an IP address is sufficiently stable in this context. Another part of Recital 26 says that we must consider “all the means reasonably likely to be used” for identification, even if this involves additional information from third parties. This phrasing is virtually identical to the GDPR's predecessor, the EU Data Protection Directive. On the basis of that DPD, the EU's top court (ECJ/CJEU) was asked to rule on the question whether dynamic IP addresses are personal data (the Breyer case, C‑582/14, judgement from 2016-10-19). It said yes. “It did not say yes”, some people will object. And they are technically correct. When someone rents an internet connection from an ISP, the ISP will have logs that connect the user's real-world identity to the IP address they were assigned at a time. You don't have access to the ISP's logs. But, if that user violated your rights (e.g. a cyberattack or copyright infringement), then you could (depending on civil vs criminal matters) report this to the appropriate authorities or to petition the court and they would have the right to order the ISP to disclose this information. The CJEU said that if this chain (you → authorities → ISP → user identity) is grounded in law, then the IP address would be identifiable. But whether there are suitable laws to compel the ISP to disclose this data would be up to national laws, and the CJEU doesn't concern itself with that. Spoiler: such laws are pretty common. To summarize typical objections: The IP address doesn't relate to a person: Can be a valid objection, but is not typically the case for user-facing web services. The Recital 30 argument is not valid because it's about profiling, not identification, and it only says that IP addresses may be used for profiling, not that they are always identifying: Technically correct, but I think that Recital 30 merely expresses the implied understanding that of course an IP address is an online identifier and permits identification by itself. “Singling out” does not apply because SOME_REASON: Indeed, this is an ill-defined term with no case law to guide us. However, regulators such as the EDPB and their predecessor WP29 routinely use “singling out” to mean being able to distinguish one person's data from other people's data. An IP address lets us do that. The Breyer judgement is not applicable because the defendant in that case was the German state, and the state has other legal means than ordinary website operators: Nothing in that case was specific to the website operator being a state or other authority. If the website operator can contact the appropriate authority and if they have the right to order the ISP to disclose the relevant data, then the IP address is identifiable. The CJEU didn't say “yes” in Breyer, it said “if”. So I'll take that as a “no”: The CJEU concerns itself with the interpretation of EU law, not with national laws. Specifically in the Breyer case, lower courts confirmed that German law has the necessary means. In other EU member states, further checks would be necessary but it would surprise me if there wouldn't be equivalent subpoena powers. If the ISP doesn't have the data, then the IP addresses are anonymous: Indeed, the CJEU scenario collapses if there is no additional data to be linked with the IP address. However: The CJEU used this scenario as an example to show that IP addresses can be identifiable. If that particular scenario fails, there could be other scenarios that still allow identification. The question of whether IP addresses are identifiable had of course been the subject of wider debate at the time. That the GDPR explicitly mentions IP addresses can be seen as a reaction to this debate. Thus, in a sense, the Breyer case is moot. It is still useful as an explanation of how broad “reasonably likely means” must be interpreted. | 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. | 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. | I spent a few years working in and around the Energy industry - including a stint working at a supplier, I'm no longer there so unfortunately I no longer have access to the email chains I had discussing this with legal. The consensus at the time was that a "traditional" i.e. non-half-hourly (NHH), non-smart meter reading itself was not considered personal data - they are conceptually tied to a metering point (which may or may not be a physical meter), not to an individual and don't represent an individual's energy consumption (the granularity of the reading is insufficient to tell anything about the usage profile) But this information, while all around the implementation of GDPR it was a couple of years back and to be honest it was bugging me that I might be out-of-date on the current practices so I reached out to a former colleague who was the Data Protection Officer at the supplier I worked at to try and get a more up-to-date take. He's since moved on but was there until recently so has more experience with the topic since GDPR actually went into effect. I asked him whether a) estimated opening reads were considered "personal data" and b) what would happen with a request to change one under article 16 and he had this to say, I've translated industry-speak in square brackets: a) for NHH ["Non Half Hourly" - meters that are read ad-hoc, essentially all non-smart domestic meters will be this] an estimated reading wasn't personal data automatically until the billing flag was set in CRM and those would be the only ones we'd include on an SAR [Subject Access Request], any others are internal data not personal. HH ["Half Hourly" - meters for higher consumption users, typically larger business premises are billed on increments for each half hour so have readings for each] and remote [smart meter] readings are always personal for domestic and microb [micro-businesses are a certain class of non-domestic energy customer see condition 7A] b) erm no! we'd only change it if the value in CRM didn't match the value in the D10 [industry Data Flow used to transmit meter reads] for some reason. if they match it's an accurate representation of what we estimate the reading to be so it's just a vanilla billing dispute not a data protection issue so i'd have punted it to [name of person who was head of metering] From that it would sound as though the estimated read would count as personal data - so long as it's being used for billing purposes, but that doesn't mean they have to accept your read in it's stead. It all comes down to accuracy - GDPR requires that personal data be "accurate" but provides no definition as to what "accurate" means (which makes sense since you can't give a one-size-fits-all answer that isn't an encyclopedia) and while The Electricity Directive 2019 confirms the need for accuracy in billing again it doesn't tell us what that means. The implementation is left to member state regulators. In the UK this is OFGEM and all opening meter readings are validated through third parties (so you don't end up with the foxes guarding the hen house!) and are calculated using the following formula: Last validated reading for the meter point <= supplied reading <= (expected daily usage x number of days since last validated reading x 2.5) where "expected daily usage" is obtained from a database maintained by the regulator - it's calculated off meter type, property type, property use, previous validated reads etc. So if the customer provides a reading that falls outside the above the supplier can (and in practice invariably will) reject it as being inaccurate. Now this is why the when a meter reading is provided matters - reads you provide are always assumed to be the read on the day you give them. With opening reads there's some leeway, I can't remember the official rule on how much but usually they give you up to the next estimated read is generated but more on that later. Now if the reading you're trying to submit is a "now" reading and it's failed the validation criteria and you aren't happy with the rejection you can force the issue by demanding the supplier come read the meter. You don't say how long has passed since the opening read - more than the week from what you've said so presumably at least a month (guessing you've had at least your first bill). Now if they are saying the opening read was X (based on the estimated usage) and you're it should have been X + Y and the current reading is X + Y + Z you want to pay your actual usage Z not Y + Z. What you need to do is dispute the opening read, which you're entitled to do, arguably GDPR of Article 16 gives you this right, but on it's own it's a weak argument. There's established means by which an estimated read's "accuracy" is determined and assuming they followed that they're going to just tell you that as far as they are concerned it is accurate. Any challenge to that accuracy is going to have to be done within the legal/regulatory frameworks for assessing accuracy, that's what they're there for, if they won't accept your reading escalate that to the regulator - and as soon as you can. OFGEM for example allow disputing of opening reads for 12 months - it doesn't have to be resolved within that 12 months it just has to be lodged with them within that time. If you try and use the GDPR angle to pursue this IMHO it's going to muddy the waters and not help you get what you need - pursue this on billing accuracy. | Can a city request deletion of all personal data that uses a certain domain for logins? Well, they can, but they have no legal backing to make it happen. Their chances of succeeding are about as good as me requesting a Ferrari, a Yacht and a Mansion. I can make that request. People will laugh. I will not get it. I'm a little worried that I shouldn't allow certain domains to be used as logins in the first place, especially ones that might be school related You have no way to know who owns what email address. And it's none of your business. Your only interest should be in whether the address is owned by the person that is creating the account. You probably already do that by sending a confirmation link to the email address when people sign up. I'd like to have some idea for future reference if there's any case where the GDPR would require me to comply with such a request The only way you have to comply with such a request is if the owner can prove their identity. As far as I understood, the "Finnish city" was three degrees away from that. They could not provide any proof they are who they said they are, they could not provide a finite list of accounts they claimed to own and they could not even provide proof they own those accounts. They literally just wrote an email with zero legal meaning. I want to figure out the right way to reply to emails like this one The correct way to handle this is have a feature on your website where the account owner can delete their own account. GDPR compliant. Then you make a text template explaining how to use that feature and reply with that template to every request, no matter how stupid (like this case) they are. If they cannot identify themselves to you by proving they have access to their "own" email, they have no business wasting your time. Legally, they could provide you with a different method of identification. In case of a Finnish school, that would probably need to be power of attorney from all children's legal guardians and a specific way to identify the accounts that is consistent with the data given (for example if they entered their full name and address on your website). You would probably in your rights to demand a certified translation if it's all in Finnish. Apart from the fact that you as a private US citizen have no real means to check the validity of all that paperwork, personally, if I saw hundreds of pages of certified translated paperwork, I would probably just comply. Not sure it it were actually enough, but it certainly gets an A+ for effort to delete data from a private website. But a real lawyer might give better advice with a real case on their hands. Is deleting the data actually more of a legal liability than not deleting it in some cases? (People shouldn't be able to delete other people's accounts.) Indeed. You should not delete people's data because a random punk on the internet sent you an email. You need to identify who the request is from and if they are allowed to make such a request. Whether you have a legal duty to actually keep data, is up to you or your lawyer to find out. It depends on your data and laws. It is perfectly legal to make a website with a textfield that deletes any data you enter after a second. Destruction of data you own is only a problem if you break other laws with it. For example the IRS might not be amused if you destroyed invoices and other proof of taxable income. "Some dude claimed I must in an email" is not going to fly with them. That said, again, please, identify who you deal with, find out if their claim is valid. Don't do stuff because random internet punks write you an email. Because the next mail you get, will be from a Nigerian Prince. Please wisen up before opening that one. People on the internet, through stupidity or malice, might not have your best interests at heart. Don't believe random emails. | If GDPR applies, then no one can opt out. If it doesn't apply, then an IP block is superfluous. Whether GDPR applies is determined by Art 3 GDPR. For this, we must distinguish where the data controller is operating from. It is irrelevant where the site is hosted, but primarily relevant where the data controller (your colleague) has an “establishment”, e.g. where he resides or typically works from. Per Art 3(1), GDPR applies to all processing activities in the context of an European establishment, regardless of where the users are. So if your colleague were running this site from Europe, they wouldn't be able to circumvent GDPR by blocking European users. However, if your colleague is running this site from outside of Europe, then Art 3(1) doesn't trigger. Per Art 3(2), GDPR can apply to processing activities where there is no European establishment. There is the Art 3(2)(a) “targeting criterion”: if your colleague “offers” goods or services to people who are in Europe, regardless whether paid or gratis, then GDPR applies to all processing activities related to this offer. I'll discuss this more below. There is also the Art 3(2)(b) criterion: if your colleague monitors the behaviour of people that occurs in Europe, then GDPR applies. For example, an app collecting geolocation information or a website creating interest profiles for ad targeting might trigger this criterion. An IP block can help to establish that no offering/monitoring related to people who are in Europe is happening, but it might not be necessary. It may be worth talking a bit more about the targeting criterion. The GDPR explicitly says that mere availability of a website in Europe doesn't imply that GDPR would apply. Instead, it is necessary to establish the data controller's intention – are they soliciting users from Europe, or otherwise expecting that people from Europe might use those services? Recital 23 gives a couple of non-exhaustive factors that can be considered here, for example: the site uses a language or currency used in the EU but not used in the controller's own country the site mentions users or customers from Europe, e.g. in testimonials This means that a lot of US websites, written in English or Spanish, only mentioning payment in USD (if any), not mentioning any European countries, will not be subject to GDPR. Then, occasional European visitors are irrelevant. It wouldn't be necessary to IP-block potential European users. However, such an IP-based block would help establish that the data controller really doesn't intend for those services to be offered to people who are in Europe. My personal opinion is that it's wasted effort to block users from foreign countries in case their foreign laws claim to apply, but if such a block brings peace of mind that might be worth it. While geoblocking might not be necessary, is it sufficient? There is no clear guidance on this subject, but it seems to be generally accepted that IP-based geoblocking is fine, even though it is trivially circumvented using VPN services. Of course, if a website were to block European IP addresses but were to also advertise that people in Europe can use their services via VPNs, that would probably still be an “offer” and might defeat the point of doing any geoblocking. The Art 3(1)(a) targeting criterion is most easily applied to things like ecommerce where physical goods are shipped to the customer in return for payment – so essentially whenever the data controller participates in the EU Single Market. This is roughly similar to the concept of a Nexus in US tax law. But in principle the targeting criterion can also apply to other kinds of websites or apps such as blogs, even if they are gratis. GDPR does not just apply to for-profit commercial activity, and doesn't distinguish between controllers that are entities/LLCs and controllers who are natural persons. Things are slightly more complicated due to the Art 3(2)(b) monitoring criterion and the pervasive use of online trackers on websites, but this aspect of the GDPR is difficult to enforce and frequently ignored. In this answer, “Europe” means the European Union (EU), the European Economic Area (EEA), and the United Kingdom (UK). Note that countries like Norway are covered by GDPR, whereas Switzerland is not. Of course, the GDPR is not the only privacy law relevant internationally. |
Why doesn't the 4th Amendment apply to traffic stops? Police have to search and seize your documentation in order to successfully execute a traffic stop. Isn't this a violation of the 4th Amendment? | The fourth amendment does apply to traffic stops. In general, they are a violation of the fourth amendment in the absence of reasonable suspicion or probable cause. Even then, there are some circumstances in which suspicionless stops are acceptable to the Supreme Court, most notably in roadblock-style checkpoints for enforcing sobriety or immigration. See, for example: Michigan Department of State Police v. Sitz (on Wikipedia) United States v. Martinez-Fuerte (on Wikipedia) Most traffic stops, however, occur after an officer observes a traffic violation. This gives the officer the necessary justification to detain the motorist. Wikipedia says: A brief, non-custodial traffic stop is considered a "seizure" for the purposes of the 4th Amendment and must therefore be supported by reasonable suspicion or probable cause. (Source: https://en.wikipedia.org/wiki/Reasonable_suspicion#Traffic_stops) Also: In constitutional law in the United States, a traffic stop is considered to be a subset of the Terry stop; the standard set by the United States Supreme Court in Terry v. Ohio regarding temporary detentions requires only reasonable suspicion that a crime has occurred or is about to occur. (Source: https://en.wikipedia.org/wiki/Traffic_stop#United_States) You can also read more about Terry v. Ohio on Wikipedia. You may disagree with the Supreme Court on the question of whether suspicionless sobriety or immigration checkpoints should be allowed under the fourth amendment, but the way the system works, such stops are allowed under the fourth amendment simply because the Supreme Court has said so. | The police are never permitted to break the law. However, the law that gives them their powers may make other laws not applicable to them in the course of their duties. If a law is not applicable to them; how can they break it? | I have beaten all but one of my traffic tickets just by going to court. In one case, the judge threw out the charge because he couldn't read the officer's handwriting on the ticket. In another, the officer charged that I was parked in a "no parking" zone on a particular street (at night), but gave a cross street where parking was, in fact, allowed. | On the contrary there are hundreds of federal statutes that sanction civil forfeiture, as well as 18 U.S.C. § 983 (and other subsections inter alia) that governs civil forfeiture. What you seem to be more concerned with is the judicial oversight and regulations around civil forfeiture. The burden of proof varies between, and within, states - in some, prima facie/probable cause is all that is required, in others, a preponderance of evidence, or clear and convincing evidence is required. Just three states require proof beyond a reasonable doubt and civil forfeiture is only illegal in New Mexico. Civil forfeiture is subject to judicial review: a list of notable cases in civil forfeiture is available on Wikipedia. Here's some of the more interestingly-named ones: Marcus v. Search Warrant One 1958 Plymouth Sedan v. Pennsylvania Marcus v. Search Warrant held that the search and seizure procedures in that case lacked safeguards for due process, freedom of speech, and freedom of press. One 1958 Plymouth Sedan v. Pennsylvania held because the vehicle was searched without a warrant, and the untaxed liquor found thereby was used to invoke the forfeiture, the forfeiture was illegal (the Fourth Amendment protects against unreasonable searches and seizures). So, what is the legal framework? Broadly speaking, 18 U.S.C 983, as well as state legislation. What recourse is there? Judicial review. However, the procedures vary between jurisdictions. | You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right. | How far can one go to defend him/herself from an unreasonable search and seizures, in the same sense of one defending him/herself from an unlawful arrest? Not very far. Basically all you can do is try to talk the officer out of it. He thinks he sees evidence in sight... If the police officer reasonably believes that there is evidence of a crime in plain view, then the officer can proceed to seize the evidence. If the property owner tries to use force to prevent the seizure, then the officer can arrest the property owner. ... the property owner ... highly believes there is no possible way he could have seen the evidence from outside his property. It doesn't matter what the owner believes (unless the owner can somehow convince the officer before the search). What matters is what the court believes. But the owner cannot bring the matter to court before the officer enters the shed. If the officer insists on entering the shed and the owner can establish in court that the officer couldn't see the evidence and that there was no other lawful basis for a warrantless search or seizure, then the evidence will be inadmissible. The owner might also be able to prevail in a civil suit for the violation of civil rights, but the bar for such a suit is very high, so the likelihood is very small. | I live in MD near DC, and have been ticketed by the cameras in both DC and MD. At least for speeding and red-light violations (and I think for all camera detected violations) these are just fines, not true moving violations in that no license points are assessed, and there is no impact on insurance, provided the ticket is paid, unlike what would have happened had an officer written the ticket in person. One can contest the ticket, but it is not likely to be worth the time and trouble. This policy of not assessing points is precisely because there is no assured way of determining who the driver is with current technology, although cameras that can see the driver through the windshield and match him or her against a database by facial recognition may be coming. Currently a human reviews the images in an effort to rule out false positives and certify that an actual violation is shown. The name and title of this person is shown on the notice I get, at least from MD. What one can do "proactively": do not speed or go through red lights pay all camera tickets promptly (or file the paperwork to contest them). If unpaid beyond the deadline they turn into more serious violations that do carry points, just like failing to attend a court date. | D should be subpoenaing anything and everything they need from anyone and everyone, including E. No matter how good terms you are on, if you are involved in a lawsuit you should not be relying on anyone's good faith to supply you what you need. Suppose you ask nicely and they say yes but, for whatever reason, they don't supply them by your court date. Without a subpoena, if you ask for a continuance the judge will say "tough t*^%^$s"; with a subpoena they will say " Yes certainly, oh, and Mr Sheriff, here is a warrant for the documents, go and get them for me please. Oh and a warrant for the arrest of the person who ignored my subpoena." Where do you want to be? |
Do you need to do something when your movie's title has the same name as the title of another movie? Let's say your film's title is Black Pirate, which coincide with the name of a DC Comics superhero. Is this copyright infringement? What if Black Pirate also referred to the name of a character. Is this a problem? I am trying to understand how to navigate this copyright issue and see if I have to change the name of the character in my film. Thanks. | In the US at least, copyright does not normally protect titles and other short phrases, they are considered not original enough. (See the US Copyright office Circular #33). However, titles, brand names, and slogans may be protected as trademarks, as may logos. A trademark is a word, phrase or symbol used to identify goods or services to customers and others. They key issue in a trademark case is: "might reasonable people be confused into falsely attributing the infringing item with the trademarked item, or into thinking that is is associate, endorsed, or sponsored by the makers of the trademarked item, or comes from the same source". When the name is the same and the general area and genre is similar, trademark protection seems plausible. Marvel is known to be quite protective of its IP, and might well have trademarked such a title. A successful suit by a trademark owner could lead to an injunction (a court order) against future use of the infringing m,ark, and significant money damages, depending on the detailed facts. A name such as "Black Pirate" is fairly generic, and might not receive much protection. On the other hand, if that name has become associated with a detailed and specific character or content, it might have acquired a "secondary meaning" and be more strongly protected. Consulting an experienced trademark lawyer or other expert might well be a very good idea. | A CC0 license granted by party A only waives their rights, and not those of unrelated party B (i.e. Marvel). And while Marvel might have granted the cosplayer a limited right to depict their persona's, that almost certainly does not constitute a sublicensable right. This is especially the case if the rights are implicitly granted (by Marvel not acting). | Not having immediate access to the source doesn't preclude a finding of copyright infringement. If you have seen the source material, subconscious infringement can happen. However, in this example, both the short phrases doctrine and the merger doctrine would likely prevent the is_prime function from having copyright. Words and short phrases are not individually copyrightable, so the name would be free to take. Regarding the implementing code, if it isn't an exact copy (i.e. copy and paste), courts will apply the abstraction-filtration-comparision test. They may find that you took the selection and arrangement of instructions from the original source, albiet using different names. That selection and arrangement would probably be considered a substantial similarity and, if not for the merger doctrine, infringement. However, given the limited number of ways to express the prime-detection algorithm means that the expression of that idea has merged with the idea, and thus is not protected by copyright. (Or in some jurisdictions, merger is a defence to infringement rather than a bar to copyrightability). | 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. | Under U.S. law (17 U.S. Code § 101 ) A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.” But probably, focusing on this definition doesn't get to the heart of the question you seem to be asking. A more important matter becomes what protections does a copyright exclude? This is covered in § 102 (b), which says: 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. The similarities you describe seem to be more ideas and concepts rather than Heinlein's expression of those ideas. I have looked no closer than the description used in the question, but the movie seems unlikely to have violated a protected right. Others might disagree. | No These are derivative works and making them is copyright breach. Doing this as a hobby or even for the entertainment of friends in private is likely fair use. Distribution or performance in public (monitored or not) is likely not fair use and you would need a licence. Here is a summary of the relevant law in australia. | Generally, no, this will not violate copyright. Your end user might violate copyright, but that is their problem not yours. Your program is a tool, just like a word processor is. If I copy a Harry Potter book into a word processor that does not make the word processor maker liable. There is a concept of "contributory infringement", which I think is what you are concerned about. I don't know about Danish law in particular, but most countries would require evidence that you had reasonable knowledge that actual copyright violation was occuring, rather than just being aware that it might happen in theory. This is normally applied to file sharing services who have to have "notice and takedown" measures, file filters and the like. This isn't your concern as you never have any access to the files created by your users. You can also be found liable if you induce anyone to commit copyright violations. Don't draw your customers attention to the custom monster feature as a workaround for those copyrighted monsters, as that could be considered to be inducement. Also don't provide any "wizards" or similar tools which make it noticeably easier to duplicate the custom monsters (e.g. if you notice that the copyrighted custom dragon stats are all on a linear scale with dragon size, don't create a "dragon creation wizard" embodying that fact.) This assumes that your program runs entirely on the end user computer. Its different if you provide any kind of cloud storage for generated characters. | There will be single frames from let's say "The Exorcist" that are highly recognisable. You say it's not the heart of the work, but it may be representative for a substantial part. If I wrote a book about the movie, then say 25 frames out of the movie would illustrate the book very nicely, so this is substantial. And there is a market for selling pictures, t-shirts, posters etc. all using a single frame, or selling single frames to book authors wanting to use it for illustrative purposes. You deprive them of income for this activity. So what you said is something similar to what I would expect your lawyer to say in court, but I would expect the opposing lawyer to come up with some very different wording. All in all, I find the argument for "fair use" not convincing. |
Is there a geographic legal limit on copyright infringement? Does anyone know if there's a geographic legal limit on copyright infringement? There's a Spanish company "S" using as a corporate image, a downloadable logo from a global provider of graphic resources, "P", which is situated in the United States. On P's sales page, this logo is listed as having no sales, while the Spanish company hired a branding company "B" (also in Spain) to get the same logo as a result, perhaps assuming no one would discover it. What steps must be followed as a complaint? | The question mentions copyright, but corporate logos are more often protected by trademark law. There are significant differences in the protections afforded, and in where actions can be brought. Copyright Simple logos may not be subject to copyright protection at all. Individual words and short phrases, such as business names and slogans, are generally not protected. But let us assume that the logo in question is a graphic design of sufficient complexity and originality to be protected by copyright. Copyright offers essentially international protection, and the Berne Convention and the TRIPS agreement ensure that the rules are in many ways similar in almost all countries. One can sue in the copyright owner's jurisdiction, or in any jurisdiction where infringement occurred. If the defendant has a presence in the selected jurisdiction, collection of any damages will be significantly easier. Scenario from the Question If I have understood the question, the logo was originally created by P (or more likely by a designer hired or contracted by P) and P holds the copyright on the logo. But S has obtained the logo via B, presumably at a lower price than P would charge. Neither B nor S, I assume, has permission from P to use the logo. B's action in selling the logo to S would be copyright infringement (unless B independently created an identical or similar logo). S's action in using the logo without permission from P is also copyright infringement. P could sue S, or B, or both in Spain, or in its home jurisdiction (perhaps the US), or in other jurisdictions where the pirated logo had appeared. Actual damages, however, will be limited to the value of the logo (say what P would have charged) plus profits made from the use of the logo. But since S is not selling the logo, it will be hard to determine what part, if any, of its profits derived from the use of that particular logo. That is, how much smaller would its profits have been if it had used a different, non-infringing logo. In the US statutory damages are available, which can be as high as $150,000 per work infringed, if the infringement is proved to be "wilful". But that is the upper limit of statutory damages, and the judge has wide discretion to set the amount of the award between the upper and lower limits. (The lower limit is $750.) Modified Scenario Suppose that P had sold an exclusive license to U. U is a US-based firm that is actually using the logo to identify its goods, which are distributed world-wide. The actions of B and S have infringed U's licensed rights in the logo, and U could bring suit for copyright infringement, either in the US or in Spain, or perhaps in other countries. But U would have much the same problem as P, it will be hard to prove sizable damages. Which brings us to trademark issues. Trademark Claims Trademark law is usually used to protect words, symbols, and images used to identify products and services being sold or advertised for sale or rental. Unlike copyright, trademark protection does not expire if the mark remains in use. Also, unlike copyright, single words or simple images can be protected. For example, the "red dot in a circle" logo of the Target stores is too simple for copyright protection. But it has strong protection as a trademark. Trademark protection applies in any case where a reasonable person might be confused as to what the source of the goods (or services) really is. It also applies when the mark's use falsely gives an impression of approval or sponsorship by the trademark holder. Unauthorized use of a mark to benefit from the goodwill or reputation associated with the original product or its makers is infringement. Trademark protection, however, is national. A mark protected in one country may be totally free for use in another country. It is also usually limited to a particular category of use If, say "Scarlet O'Hara's" is used as a trademark for a restaurant chain, the use of "Scarlet O'Hara's" for an anti-virus program is not likely to constitute infringement. Copyright has no such limitations. In some countries there is no protection for a trademark unless it is registered. In other countries, use alone can establish a trademark. The US allows protection without registration, although registration brings stronger protection. Also, trademarks can only be protected when they are actually being used "in trade", that is, to identify or advertise goods or services, or for a limited time while a product is being developed and there is a declared intent to use the mark in the near future. Lack of use or cessation of previous use can cause a mark to lose protection. Scenario from the Question P is selling logos, not using them to identify or market products. Thus it is not using the logo in trade, and has no trademark claim. It cannot sue anyone for trademark infringement, because it has no trademark rights. Modified Scenario (see above) U is using the logo as a trademark world-wide. If it has registered the logo in Spain, or taken such other steps as Spanish law requires, it can perhaps sue S for trademark infringement. It has no trademark claim against B, because B did not use the trademark to identify any goods or services. For a successful suit agaisnt S, U would need to show that confusion between U's products and those of S had actually occurred, or was likely. It would need to show that the products where the logo was used were of a sufficiently similar nature. But if it prevailed, damages could be based on the value of the trade identified by the logo. If S did not sell or market its products outside of Spain, it could only be sued for trademark infringement in Spain. If U did not sell in the Spanish market (or perhaps the wider EU market) it would have no trademark claim. If S started importing its products using the logo into the US, U would have a claim under US trademark law. Thus the details of what logo is used, where and how, and on what products would matter to any trademark claim. | I'd like to sell t-shirts with the direwolve emblem of the "House Stark" in Game of Thrones, and of course, I've been immediately asking myself if HBO which produces the serie actually had some copyright on that emblem. This is not a close case. Your proposal, or anything remotely similar, would almost certainly constitute a copyright violation and result in a lawsuit by the producers of the show if not done with a license from the company. They would easily win this lawsuit. The damages that they were awarded would greatly exceed the amount of profits you made from your sales (realistically, more than a $1,000 per T-Shirt plus many tens of thousands of dollars of legal fees and costs would be typical). You would probably have to go bankrupt and some or all of the damages award against you might survive bankruptcy because your copyright violation was an intentional act. Every episode of the TV show is a copyrighted work and what you are proposing would be a "derivative work" since it is derived from the copyrighted TV show. Derivative works made without a license from a a copyright holder are a violation of copyright laws. There are also probably myriad specifically trademarked symbols and phrases that are registered with the appropriate government official (the Patent and Trademark Office for U.S. trademarks). So, it is highly likely that there would be a trademark violation as well if a license was not obtained. Your basic business model is at its very heart and essence fundamentally illegal. There is nothing you can do to fix it without getting written permission from the publishers who have probably long ago sold the rights to do this to somebody else for an immense amount of money. You should abandon this idea and try to come up with another business venture instead. | They have copyright in their additional text, and possibly in things like their visual design choices (fonts, layout etc). They may also have introduced a few deliberate typos to detect any literal copies from their version (rather as mapmakers add a few imaginary features to their maps). None of this creates any rights to the original text. You are still free to produce your own copies of the original text. Just get it from some other source so you can be sure not to include anything of theirs. | I'm not sure about USA law, it's probably similar to UK law. In the UK a trademark is registered for a particular business activity, and you can't just blanket register for "all" activities as that would be anti-competitive. I have a trademark "Dreamcraft" for dream interpretation and related activities. However, the name "Dreamcraft" is also a registered trademark for a company selling luxury yachts, and again for a company selling up-market craft materials. A website or organisation that is a gripe-site using the same name would not be in breach of any of these trademarks because it wouldn't be in direct competition with any of these companies. | All your work is yours. They've made it very clear it wasn't a work for hire, so it's yours. They can't copyright any of their ideas. You can't copyright an idea. Only specific creative elements authored by them and present in your work could be covered by copyright. You didn't use their block diagrams. I don't see how references to other sites to look at would constitute a creative element they authored. That said, you probably want to talk to a lawyer and get a written legal opinion that you can rely on. | 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. | There is no such thing as "alter it by X amount and it's legal". If the original can be determined at all, it would fall under derivative work and be an infringement. https://www.copyrightservice.co.uk/copyright/copyright_myths -- See #6 and #7 And Stanford: http://fairuse.stanford.edu/2014/12/22/much-photo-need-alter-avoid-copyright-infringement-hint-cheshire-cat/ Kienitz v Sconnie Nation And the well known Shepard Fairy/Hope poster case: http://artsbeat.blogs.nytimes.com/2012/09/07/shephard-fairey-is-fined-and-sentenced-to-probation-in-hope-poster-case/?_r=0 | Bringing fair use into this sounds iffy if you are partnering -- that is a commercial relationship which should be defined. If they did send you a file with their logo for a specific purpose, you can assume that you are allowed to use it for that specific purpose. If they did not send you the file, you can assume that they did not give you permission, or they would have included the file ... |
Are books in pdfdrive.com legal or illegal? Is it legal to download books in PDF-format from https://www.pdfdrive.com/ ? How one can verify if the book given in the site is a legal copy or not? | 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. | Everything you see there is copyright and trademark the Tolkien estate or a derivative work thereof. It's all illegal. | It is legal to rewrite a book that is out of copyright, although ethical considerations demand that the original author and source be credited. You need to derive your rewrite from a version that is out of copyright, however, rather than a translation whose incremental innovations due to the transformation arising from the translation is still under copyright. Certainly, the 16th century original would be out of copyright, and in all likelihood, so would many of the later editions, but probably not the one from 1971. | Why would the method by which you transfer a item that has a copyright impact the copyright? You buy a new book at a new bookstore, a used book at a used bookstore, a used book at a garage sale, someone gives you a book, you find a book on the sidewalk, you steal a book from a store, you buy and download an ebook, you give an ebook to someone on a USB stick, you download an ebook via Bittorrent. The author's copyright - as well as the design copyright, and any book company trademarks - does not change in any of those scenarios. Copyright around most of the world - read Berne Convention (Wikipedia) - says that copyright exists at the moment of creation of a work, i.e. a work that you say is "100% yours". This has nothing to do with the way the work may be transmitted or stolen or downloaded. A work in the public domain can still be copyrighted in terms of cover artwork and design, annotations, etc. Read Welcome to the Public Domain - Stanford Copyright and Fair Use Center You can say someone "owns" a book in the sense that they might have paid for it or it is personal property and one could justifiably call it theft if someone took it from them, but "owning" the physical or electronic copy in any sense doesn't mean you own the copyright. Read the copyright notice on a book or ebook; you get a license to read it, not ownership of it. Read What's the difference between Copyright and Licensing? - Open Source Stack Exchange. Sure, the TOS of a network can specify the ownership/licensing status of the files shared on such network. They will almost all explicitly say not to upload or share anything that will violate the copyright of that work. The TOS of a network could possibly say that anything that is uploaded is automatically licensed to them. A network could demand the reassignment of copyright upon upload, but that would have to be outlined in the TOS and is not simple. See Copyright Ownership and Transfers FAQs - Stanford Copyright and Fair Use Center. | If the blog author holds the copyright on the ebook, they can distribute the ebook anyway they choose, either via download from Github or elsewhere, or sell it in an online store. They hold the copyright, they alone can decide how to distribute it. If they also sell the ebook in the Microsoft press Store, they may have an agreement with the store to also allow their own free downloads; it's hard to say without knowing the agreement. If there are ebooks on Githb available for viewing or download, the owner of the Github page should hold copyright of the ebook, both 1) for their own protection against copyright infringement, and 2) to not break GitHub's TOS against copright infringement: https://help.github.com/articles/github-terms-of-service/#f-copyright-infringement-and-dmca-policy | Yes. You can sell it for whatever you can get for it. The license allows you to watch the DVD. If you sell the DVD, you won't be able to watch it - but the buyer will. This is same principle that books are subject to copyright, but there is nothing stopping you selling your books second-hand to a dealer. | First of all derivative works are not exactly "illegal". They are fully legal if the owner of the copyright in the original work has given permission. If no permission has been given, they may be copyright infringements. But they may fall under an exception to copyright. Under US law, the most common exception is "fair use". See this question and answer for more on fair use. But particularly relevant in this case is that a parody is usually a fair use, although as in every fair-use decision, there is pretty much no clear-cut, hard&fast rule on what is and is not fair use. In the UK and much of the EU (or maybe all of it, I am not sure) there is a somewhat similar concept known as "fair dealing". It is also an exception to copyright. So it is possible that such works fall under fair use, fair dealing, or another exception to copyright, or that the rights-holder has given permission. Secondly, copyright infringement is a tort, not a crime, under most circumstances. It is enforced when, and only when, a copyright-holder chooses to take action, sending a take-down notice or copyright complaint, of filing suit for infringement. Some rights-holders choose as a matter of policy not to take such actions, thinking that such derivative works actually benefit them. That is their choice to make. Some rights-holders don't have the time or money to track down and take action against most infringements, and will only act if they think the derivative work will in some way cost them a lot of money or harm their reputation. Some rights-holders may just not have heard, yet, of specific possible infringing derivative works. As for Acta2, it has not yet been approved, the Wikipedia article linked in the questions says: In order for the text of the directive to become law in the EU, it must be approved by the European Council on 9 April 2019 The article also mentions significant continuing opposition. If it is approved, it is not clear, to me at least, how it will affect sites hosting such content, nor how it will interact with the copyright law of individual EU nations. If approved, it will no doubt take some time before enforcement is widespread. And of course it will only apply when EU law applies. If both site and author are outside the EU -- say if both are from the US -- it seems that it could not apply. | A TOS is not intrinsically illegal, but an interpretation of a TOS may or may not be supported by a court, that remains to be seen. It probably does not constitute a "deceptive practice" under FTC standards. The TOS is your permission to use the software, and there can be no question that they have the right to impose conditions on customer use of the software. E.g. Amazon cannot freely use software that is only licensed for free educational use. They speak of "ownership" of IP so created and explicitly disclaim any claims about Current Law in Your Jurisdiction. At the crucial point in the agreement, they switch to talking about the license (BY-NC) that they grant when you are not a paid member. The exact details of this ownership are not part of the free tier TOS, but they do seem to add certain protections to "owned" content created under the Pro plan – they are under no legal obligation to make all content universally visible and usable. |
commision typo on an executed lease I have this property in the Multi Listing Service (MLS). It state the cooperating commission is 5%. On the actual Lease we made a typo and placed 10% commission instead of 5% commission. The broker is not accepting this error and the Miami Association of Realtors is not accepting it either. The Board of Real-estate says the commission on the MLS must serve as proof of commission split to cooperating broker if, the broker does not agree to pay the cooperating broker 5% additional. My questions are... does having the property listed in the MLS protect the typo that was made? Does using the Residential Lease for Single Family Home or Duplex, have typo corrections allowed? | In the event of a dispute, the person resolving the matter, probably an arbitrator in the case of a commission dispute between two realtors and either an arbitrator or a judge and jury depending upon what your listing agreement says about that issue, would hear the testimony from both parties and decide. The intent of the parties is supposed to govern in cases of clerical errors, but a signed document has a lot of weight, especially in such a prominent term. It is a little hard from the way the question is posed to determine who is willing to correct the typo and who insists on enforcing the contract containing the typo. | To put it as nicely as possible, you're not being very smart by threatening to make the house guest's predicament the worst mistake they ever made. Drawing up a notarized contract with a financial penalty is ludicrous and likely simply illegal in terms of contracting for something that is against the law. Beyond that, any threats you make to against house guest could be grounds for them to file a civil suit against you, either for eviction or physical harm, and you'll end up in court rather than simply getting the house guest to leave. An Unlawful Detainer applies if there is verbal or written lease, and as such you would have to go through the formal eviction process. But if this is a simple house guest issue, with no lease or rental agreement in the past, and they are not a family member with some legal right to be in the house, law enforcement is the way to deal with it. It's very simple: set a move out date and say you will call the police or county sheriff if they don't move out on that date. If they don't leave and you do call the police or sheriff, simply say you have a house guest who won't leave, i.e. a trespasser. Law enforcement will come out and you will explain the story; they will likely make the determination that you are the property owner and the guest is indeed not welcome. Law enforcement will tell the guest to leave or be arrested, as per Florida Law - Chapter 810. You can call the police or county sheriff ahead of the move out date and determine the appropriate laws; and get advice on what you might need to do on the actual move out day. If the house guest has property, law enforcement will stand by at that time while they retrieve their property, or make arrangements for them get it at a later date, with or without law enforcement. | You understand the business of landlording before you get started. You don't landlord for the purpose of evicting someone. You landlord for the purpose of exchanging keys for a duration for money, specifically by creating a leasehold estate that you sell to your tenant. Your tenant has the leasehold, you don't have the money, in part because it sounds like you didn't collect any before you handed over the keys or confirm your tenants' ability and history of paying. You now want to nullify the leasehold. In general this is the eviction you ask about. You are now reliant on a court in your jurisdiction to enforce the contract law with respect to the lease language and prevailing local ordinances. I cannot speak specifically to NY courts but they have a reputation as tenant friendly so you need to demonstrate your professional approach and locally required paperwork such as a certificate of occupancy, business license, etc. All lined up to make it easy for a judge to agree with you. You have an uphill battle. Turning off utilities (as mentioned in another post of yours) is not a professional move and will bias many judges against you. No certificate of occupancy may mean your original lease contract created a leasehold contrary to a public policy of NY which could put a judge in a bind if they found your case compelling. If a competent lawyer would cost $15k then it sounds like it might be cheapest to offer the tenant a couple thousand for the keys and a signed release to walk away–spend a couple hundred on the lawyer for this. Do not give them the money until they are out and give you the keys. This is called cash for keys. | If two parties agree to the terms of an exchange, then there exists an enforceable contract. A signature is not needed to create a contract. However, an intent to negotiate a contract is not, per se, a contract. Absent some specific and explicit measures (which for major deals may be codified in an MOU or LOI that itself contains contractual terms), if you can't reach an agreement on terms then there is no contract. It's up to the particulars of "the verbal agreement to start the hiring process" whether an agreement on exchange has been reached, or merely proposed. E.g., "You and I agree that I will pay you $X in exchange for Y due Z" is a contract. "You and I agree that we'd like to work together, and we'll hammer out the terms X, Y, and Z by the end of the week" is merely a proposal to contract, not an actual contract. Of course, this doesn't mean you're immune to liability for failing to reach a contract in this hypothetical: you can always be sued! | One could replace: The following agreement constitutes the relationship and commitments between Our Company LLC (Agency) and (Client). With The following agreement constitutes the relationship and commitments between Our Company LLC, referred to in this agreement as "the Agency", and the other party, specifically identified in the signature section, and refereed to in this agreement as "the Client" or "You". | IMHO, your questions reflect several misunderstandings of how the process works. So, with your permission, I will avoid directly answering your questions and instead focus on suggestions how to best help you plot a path forward. Your counterparty has the burden of proof. If your counterparty forged your signature on a contract, then they must prove you signed it or they can not enforce it. In order to enforce the contract, they will need to sue you civilly. Then you can introduce evidence of their forgery at that time. Inform your counterparty you did not sign the contract. Then act accordingly. If your counterparty forged your signature on an extension contract then you should inform them immediately after it has come to your attention. Advise them you have no intention of complying with a contract you never signed. And that if they try to enforce the forged agreement, you will defend yourself "vigorously." Never threaten criminal charges to advance your position in a civil case. This behavior is a crime in itself. It's called extortion. If you want to pursue criminal charges at some point then do it without relating it to the civil case. The police are not your only means of pursuing criminal charges. You can also schedule a meeting with your District Attorney, State's Attorney (whatever that position is called in your state) or your state's Attorney General. In other words, you might want to approach the government's attorney responsible for prosecuting crimes in your jurisdiction. Forget about involving the police. They have given you their position on the matter. Approach the DA or AG office instead. If the DA/AG decides to use the police, she we will make that decision then inform the police how she needs to use their services. Police are wary of being used as leverage in civil disputes. That's probably the reason for their policy decision regardless of whether it's technically justified by the law or not. Your counterparty can't "fix" anything. If they claim you signed a document you did not, they will have to produce that document with your signature on it. This will presumably be your Exhibit A evidence they forged it. Disclaimer: I am a lay person and not an attorney. This writing is no substitute for proper legal advice. If you need help with a specific legal situation please hire an attorney and do not rely on anything I have written here. | "...the listing ad of property is not a property of website." Why do you think that? Just because a website exists does not mean you can legally scrape it. Read the Terms of Service of the site; there is a good chance the TOS forbids scraping or copying of any part of the website in any manner, including scraping. If the property listings are from a third party service that provides real estate listings to websites, then those property listings are licensed to that website, and by scraping them you will likely be violating the TOSs of those two services. By illegally scraping the content of a website, you are opening yourself up to being involved in copyright infringement and/or being liable to be the subject of a civil lawsuit. | Typically the landlord will have a preexisting clause in the lease that says the landlord may choose to amend the lease at a later date. While that may be in contracts, I don't see that holding up in court. You can't unilaterally amend contracts to add new terms without acceptance on part of the lessee. Any clause in the contract like that will require notification of the lessee of the change and a chance for the lessee to terminate the contract without recourse on part of the lessor. Generally this must be done in the same format as the original lease (written). Most jurisdictions don't allow for a verbal amendment to a written lease. So in a way, yes, it is legal for a landlord to require payment via a certain method (like a direct debit from a bank account). They cannot however change the payment terms unilaterally without notification and acceptance. They can use language such as sending the notification (via registered mail) and then saying that a failure to respond is acceptance (because you are, by actions, accepting the terms by continuing to live there). |
Do Legal Documents Require Signing In Standard Pen Colors? I have a question as to whether or not legal documents signed in non standard pen colors (Anything other than blue or black) are valid. I carry a purple pen around that use for everyday writing tasks, and when I was going to sign a document, someone told me that writing in purple is not valid on legal documents. If the document does not specify that a certain pen color be used, is this true? | No, Specific Ink Colors are not Required That is not correct. If the purple will not photocopy well, the other party might reasonably ask for a color that will. But a signature is normally only evidence of agreement to the provisions, and it is the agreement that is legally important. The color of the ink used does not change the agreement. It is normal to expect a signature to be in a permanent ink. A signature in pencil or erasable ink might be legal, but the other party will not want to accept it, and it would be reasonable to comply. | This is allowed in Colorado. Colorado's version of the Uniform Probate Code authorizes such a document for tangible personal property which is usually called a "Personal Property Memorandum." This is authorized by Colorado Revised Statutes § 15-11-513. The section of Colorado's probate code states: Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing shall be either in the handwriting of the testator or be signed by the testator and shall describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will. New York State Law NYS has a requirement that the Will is signed by 2 Witnesses and (I believe -- keep me honest) notarized. So I'm hoping this is a way for me to add items to the Appendix without needing to re-sign, re-witness and re-notarize every time I think of something else. Is this strategy valid & enforceable? This is generally not permitted in New York State The legal formalities for the execution of wills and trusts in New York States are among the most strict in the United States (Florida and Maine have been more strict from time to time). This cannot be done in a way that is valid and enforceable in New York State. One can determine this from a review of the relevant New York State Statute which is called the Estate, Powers, and Trusts Law (EPTL), that does not contain a parallel provision to the Colorado statutory section. Therefore, in New York States, all dispositive provisions of a Will related to tangible personal property must be executed with the same formalities as any other Will or Codicil (i.e. it must be signed by the testator and two witnesses, a notarization is not required). Oral and unwitnessed handwritten wills are rarely allowed in New York State New York State does recognize oral wills (called nuncupative wills) and wills in the handwriting of the person making them (called holographic wills) as well, but only in very limited circumstances. The pertinent provision of the EPTL state: (a) For the purposes of this section, and as used elsewhere in this chapter: (1) A will is nuncupative when it is unwritten, and the making thereof by the testator and its provisions are clearly established by at least two witnesses. (2) A will is holographic when it is written entirely in the handwriting of the testator, and is not executed and attested in accordance with the formalities prescribed by 3-2.1. (b) A nuncupative or holographic will is valid only if made by: (1) A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged. (2) A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict. (3) A mariner while at sea. (c) A will authorized by this section becomes invalid: (1) If made by a member of the armed forces, upon the expiration of one year following his discharge from the armed forces. (2) If made by a person who serves with or accompanies an armed force engaged in actual military or naval service, upon the expiration of one year from the time he has ceased serving with or accompanying such armed force. (3) If made by a mariner while at sea, upon the expiration of three years from the time such will was made. Wills valid where executed will generally be honored If a Will accompanied by a Personal Property Memorandum were drafted and executed in Colorado while someone was domiciled there, and then was presented to a Surrogate's Court in New York State for probate, because the person who wrote it was domiciled in New York State when they died, however, the New York courts might honor the Personal Property Memorandum on the theory that the validity of the execution of a Will is usually governed by the law of the place where it is signed and not by the law of the place where it is probated. The alternative of a revocable trust in New York State A workaround somewhat similar to a personal property memorandum could be done with a revocable trust, but this has its own limitations. In New York State a trust or amendment to a trust not created by a last will and testament must be either (1) signed and notarized by the creator of the trust and also by the trustee if there is one separate from the creator of the trust, or (2) signed by the creator of the trust and witnessed by two witnesses in essentially the same way that a will would be witnessed. Unlike most U.S. states, New York State does not recognize trusts that are signed but are not notarized or witnessed, and unlike most U.S. States, New York State does not recognize orally created trusts. Trusts validly formed and amended outside of New York will generally be honored This is, of course, assuming in both cases that New York State law governs the formation of the trust. New York State choice of law rules, however, will generally recognize the validity of a trust formed with formalities that were valid in the place where it was executed if the person executing it was domiciled there. | 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. | Contracts do not have to be written and signed on pieces of paper, except in a few cases specified by law. Writing style (ordinary style of talking vs. high-register formulaic language) does not affect the validity or a writing in contract law. You do have something in writing. What matters most is what he actually said (exact words, not your belief of what it must have meant), and how it relates to any existing contractual obligation. For example if the message says "You're fired, turn your badge in at the desk. I'll think about giving you two weeks pay", that's not an enforceable promise. But your existing contract might say "You get 2 weeks severance pay when we fire you", and that can't be walked by by saying "I'll thinking about it". And it also depends on whether there are any laws mandating severance pay (but California does not have any mandatory severance pay law). | Possibly. Under UCC 3-402, a representative can sign for a party. There are some conditions though. One is that the signature should show unambiguously that the signature is made on behalf of the person identified in the instrument. If the signature is not clear that the signature is made in a representative capacity, the representative is liable. The only thing that a digital signature adds is the possibility that it is impossible to unambiguously show this because of the software. It seems from the internet that Docusign allows this. | As a comment by @DavidSchwartz notes, this is not wrong. Questions of law but not fact are allowed. It is worth noting that the line drawn is arbitrary. In Colorado, where I practice, jurors issue written questions (pre-reviewed by the judge and counsel for all parties before being presented) to witnesses at the close of the testimony of each witness called by a party to testify. This is very helpful to counsel, as it provides indirect evidence of whether the jury understands what they are being told, and often juries will directly ask questions that for tactical reasons, both parties have refrained from asking that go to the heart of the matter. It also frequently clarifies misunderstandings that trained legal professionals assumed were not made about terminology. This is more problematic in criminal trials, where jury questions could provide evidence pushing a case over the threshold of proof needed to prove beyond a reasonable doubt that the prosecution failed to provide, than in civil cases with a preponderance of the evidence standard. Also, as a matter of reality, when jurors ask questions, counsel often loathe to object even when they have valid grounds to do so, for fear of offending the decision-maker, unless it is really critical to keep certain information away from the jury. | A company had me sign two conflicting documents about two years apart. Which one would apply? Possibly both because actually there is no conflict. What you describe does not reflect that these documents are incompatible or inconsistent. There is no indication that the second document impliedly or explicitly replaces the first one. The second document seems just redundant so far. Employees could likewise be required to sign a third document that only says "no drugs or alcohol on the job site on Wednesdays", and that does not mean that any previous documents they signed expire. | "Acknowledged" is fine. There is no "preferable" substitute with which to prefix your signature. As a precaution, never leave too much space between the end of clauses and your signature, lest another clause later on gets slid in without your consent (a public institution is unlikely to incur such misconduct, though). Also, always be sure to ask for a copy of the contract/agreement you sign. |
Is it legal to buy something online from Russia when they're currently under sanctions? Currently (i.e., for the past most-of-a-decade), Russia is under heavy sanctions for invading Ukraine, supporting al-Assad, associating with North Korea, ignoring human rights, using chemical weapons both in Syria and in an attempt to assassinate a Russian expat in the U.K., launching cyberattacks against the U.S. and other NATO countries, throwing the 2016 U.S. presidential election, selling weapons to various countries the U.S. doesn't like, and being a total dick in general. (Edit: And now invading the rest of Ukraine, prompting Poland, Romania, and the Baltics to invoke the North Atlantic Treaty against Russia.) I've come across someone selling some things online that I might want to buy when I can scrape the money together to do so, and they have stellar reviews (giving me confidence that they're selling quality product and this isn't a scam), but they're selling from Vladivostok, which is in Russia; is it legal to buy online from a Russian-based seller, given that the country is heavily sanctioned (and especially now that Russia's openly at war with both Ukraine and NATO)? | The short answer is generally yes, but also.... it depends. The long answer is also... it depends. The first question is what (or who) is actually being sanctioned, second who is impacted by the sanction, third what is the specific sanction? There are a variety of different types of sanctions, sanctions against the state, businesses, people, etc. Most sanctions for example are against specific people, or conduct like investment or movement of capital, not necessarily the purchase of goods. I go into further discussion below, but for the quicker answer to your specific question, unless the person you are buying from is directly sanctioned or the subject of sanctions, or the entities specifically involved in the sale of goods (export company, vessel, etc) are directly sanctioned (or Russian companies operated in Crimea), yes it would be legal to purchase. So yes, unless the specific item you are buying/ entity you are buying it from is specifically sanctioned it would be legal, it is not particularly common for sanctions to prohibit the purchase of goods by consumers, unless there is a unique circumstance. Here is the 2-3 page overview of U.S. sanctions on Russia: https://sgp.fas.org/crs/row/IF10779.pdf As to the further discussion. For example see below, many current sanctions are against government officials; Or in the case of EO 13685 from 2014 concerning the occupation of Crimea many of the sanctions imposed aren't strictly against Russia, but instead prohibits U.S. business, trade, or investment in occupied Crimea. EO 13685 excerpt: Section 1. (a) The following are prohibited:(i) new investment in the Crimea region of Ukraine by a United States person, wherever located; (ii) the importation into the United States, directly or indirectly, of any goods, services, or technology from the Crimea region of Ukraine; (iii) the exportation, reexportation, sale, or supply, directly or indirectly, from the United States, or by a United States person, wherever located, of any goods, services, or technology to the Crimea region of Ukraine; and (iv) any approval, financing, facilitation, or guarantee by a United States person, wherever located, of a transaction by a foreign person where the transaction by that foreign person would be prohibited by this section if performed by a United States person or within the United States. (b) The prohibitions in subsection (a) of this section apply except to the extent provided by statutes, or in regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order. (And even then sanctions may apply, unless they don't...) CRS Report: The United States has imposed sanctions related to Russia’s invasion of Ukraine on at least 735 individuals, entities, vessels, and aircraft that OFAC has placed on its Specially Designated Nationals List (SDN) or Sectoral Sanctions Identification List (SSI) (see Table 1 and Table B-1). The basis for most of these sanctions is a series of four executive orders (E.O.s 13660, 13661, 13662, and 13685) that President Obama issued in 2014.15 In addition, the Department of Commerce’s BIS denies export licenses for military, dual-use, or energy-related goods to designated end users, most of which also are subject to Treasury-administered sanctions. Two of President Obama’s Ukraine-related E.O.s target specific objectionable behavior. E.O. 13660 provides for sanctions against those the President determines have undermined democratic processes or institutions in Ukraine; undermined Ukraine’s peace, security, stability, sovereignty, or territorial integrity; misappropriated Ukrainian state assets; or illegally asserted governmental authority over any part of Ukraine. E.O. 13685 prohibits U.S. business, trade, or investment in occupied Crimea and provides for sanctions against those the President determines have operated in, or been the leader of an entity operating in, occupied Crimea. The other two E.O.s provide for sanctions against a broader range of targets. E.O. 13661 provides for sanctions against Russian government officials, those who offer them support, and those operating in the Russian arms sector. E.O. 13662 provides for sanctions against individuals and entities that operate in key sectors of the Russian economy, as determined by the Secretary of the Treasury. https://sgp.fas.org/crs/row/R45415.pdf https://www.trade.gov/country-commercial-guides/russia-sanctions See further references below: https://www.federalregister.gov/documents/2014/12/24/2014-30323/blocking-property-of-certain-persons-and-prohibiting-certain-transactions-with-respect-to-the-crimea https://home.treasury.gov/policy-issues/financial-sanctions/faqs/topic/1576 https://home.treasury.gov/policy-issues/financial-sanctions/sanctions-programs-and-country-information/ukraine-russia-related-sanctions https://home.treasury.gov/system/files/126/ukraine_overview_of_sanctions.pdf | The section you quote as clearly saying a thing is not clearly saying the thing. However: you cannot pass on or resell any license keys seems to say a thing clearly. However, one could argue that it's the sharer of the account who is in the wrong, and not the person receiving and passing on the account. I'd say that that piece of the agreement, combined with this: must not... let other people get access to anything we've made in a way that is unfair or unreasonable says that, yes, they are out of bounds. | Generally, such sanctions prevent certain sorts of transactions in goods and services with nationals or entities of the nation under sanction. The exact list of transactions prohibited or restricted varies. If Open source software were being provided as a service, so that the recipient paid directly for a license, or for customization or configuration work, or for some sort of consulting or assistance, such transactions could be banned or restricted by a sanctions regime, but might not be. (If the sanctions included that particular class of transactions.) However, if it is merely a matter of an open source product being published, for anyone to download, install, and use, I don't see how that would be barred or restricted by any sanctions of the sort recently in use. | It can (and has) been argued that some of the post-bellum trials of Germans and Japanese (but no Italians because they were Allies now) proceeded on shaky legal grounds. However, the arguments of your friend are wrong. In addition, many of the cases proceeded on solid legal foundations based on war crimes (e.g. the Commando Order) and treatment of prisoners-of-war (e.g. the Stalag-Luft III murders). Citizens and non-citizens are protected by the law and were even in Nazi Germany, albeit not equally. The Nuremberg Laws did not classify Jews as non-humans, merely as non-citizens (which is not to trivialise their awfulness). Superior orders has never been a recognised defence for criminal acts under civil or common law. The first recorded rejection of this defence was in the trial of Peter von Hagenbach in 1474. The roots of modern International Law can be traced to the 16th century and were definitely well advanced by the 19th, let alone the mid-20th. Nations accepted that international treaties and diplomacy were supported by international law and these included the Geneva Conventions of 1864, 1906 and 1929, since updated in 1949 (of which Germany was a signatory) among many others. In addition, since the Enabling Act (which instituted Hitler's dictatorship) was quite probably illegal, it can be reasonably argued that all actions that flowed from it (i.e. basically everything that the Nazi's were tried for) was illegal under German law. | The person getting the item by fraud didn't get any ownership. Therefore when you bought it, you didn't get ownership either. It's still the company's property, and they can do with it what they like (within reason, they wouldn't be allowed to make it blow up in your face). If you sent back the item, good on you, because the item is now with its rightful owner. If you don't like it, you can sue the person who sold the item to you. | For your example of items with Marvel characters on them for sale by people and companies not licensed by Marvel, Redbubble clearly states that We ask, rather we beg, that you remember this when you are posting work on Redbubble. If you make sure that all the works you upload consist of your very own, original ideas and are not infringing on the intellectual property or publicity rights of another... (from https://help.redbubble.com/hc/en-us/articles/201579195 ) and further, Redbubble has full contact information for the submission of Notice and Takedown Reports by each real trademark owner. There are many individuals who upload products which use unlicensed artwork in violation of trademarks, and Redbubble acknowledges this and gives recourse to the license holder to inform them so they can remove the items. It's not a perfect system, but Redbubble it seems makes every effort to help police their market. ( Teepublic has a very clear policy statement, too: https://www.teepublic.com/copyright-policy ) Many companies - such as Marvel - employ agents to regularly check such websites and issue takedown demands to the sites; the sites in turn remove the products, and in some instances, ban the individual from using the site again. In the case of Amazon, there can be two types of products sold that use trademarked artwork and characters: items sold by legitimate businesses that have license agreements with the trademark owners and who have the products sold by Amazon itself; and items sold on the Amazon marketplace by individuals who open Amazon Marketplace accounts themselves and don't have licenses. Amazon will be sure to check the products they sell; they will have a takedown notices system for their marketplace vendors. eBay is somewhat the same way; there is a mix of individuals and businesses on eBay, but eBay doesn't operate an umbrella sell/ship by eBay, like Amazon. It's kind of a whack-a-mole situation on the Interwebs. How much time/money does a company spend to chase down trademark infringement? Is it worth going to court for persistent violators? (These are, for the most part, civil cases, not criminal). Violators can always open a new account on sites such as Redbubble and eBay under a different name. And it starts all over again. | To pick up on your comment 'Does this mean if I wish to build a chair for personal use, then since trade of chairs exists between states, Congress has the authority to outlaw possession or manufacturing of chairs?': Yes. For example, the US Congress can legislate to prohibit a farmer from growing wheat for use on his own farm, on the basis that there is interstate trade in wheat and therefore the Commerce Clause permits Congress to regulate the growing of wheat: Wickard v Filburn (1942) 317 US 111. If you grow marijuana, or build a chair, or whatever, you conceivably affect the number of marijuanas, chairs, etc that are traded between states. Therefore you affect interstate commerce. Therefore the US Congress can regulate you. The fact that your marijuana or your chair or your what is trivial in the scheme of the national economy is irrelevant if the aggregation of all regulated marijuana, chairs or wheat is significant: 317 US 111, 127-128. If the law didn't prohibit possession of marijuana absolutely but instead prohibited, say, the carrying of marijuana in schools, then the US Congress might have trouble relying on the Commerce Clause: see United States v Lopez (1995) 514 US 549 and replace 'marijuana' with 'handguns' (OK the marijuana/handgun analogy is bad but hopefully this illustrates that there are at least some limits on Congress' power -- it's not just 'any physical object that relates whatsoever to interstate trade therefore unfettered federal legislative power'). | Almost certainly, there is no such right. It's illegal under 18 USC 831 to possess "nuclear material" without specific authorization. 18 USC 832 forbids the possession of a "radiological weapon". If there is intent to use the device to cause death, serious bodily injury, or damage to property or the environment, that's also a violation of 18 USC 2332i. I don't think these laws have been explicitly tested against the Second Amendment, but related cases suggest they would hold up (if the challenge wasn't simply dismissed as frivolous). The Second Amendment doesn't grant a blanket right to own weapons. Federal law, 18 USC 922 (o) makes it unlawful to own a "machinegun" (as defined in the statute), and in the case of Hollis v. Lynch, the Fifth Circuit held that this law was constitutional, because, as they said, the Second Amendment only protects weapons that are in "common use [...] for lawful purposes like self-defense." This case doesn't seem to have been appealed further, but the reasoning cited by the Fifth Circuit comes from the Supreme Court's opinion in D.C. v. Heller. If machineguns aren't in "common use", and therefore not protected, surely the same would apply to nuclear weapons. |
Is it ok to use slack in EU without data residency option? Since you can only setup Slack data residency in EU on the most expensive plans, is it ok to use their service still under GDPR rules without that option? Would signing a DPA stating they are compliant would be enough? | When you are the data controller, and are transferring data under your control into non-European countries, you need to protect that transfer. Slack proposes that you use the “standard contractual clauses” (SCCs) mechanism, which is incorporated into their DPA. To enter into SCCs, you as the controller must be convinced that the data importer on the other end is also able to enter into these SCCs. This cannot be the case if the data importer is subject to non-European laws that could require disclosure without legal basis. In the Schrems II judgement, the partial adequacy decision for the United States was invalidated. SCCs can still be a valid transfer tool. However, exactly the same reasons that invalidated the adequacy decision also call into question whether US-based companies can enter into SCCs: electronic communications services can be compelled to disclose personal data to US intelligence agencies without suitable options for redress by the data subjects. Slack is such an US-based company that is probably within scope of these spy laws. If no sufficient legal protections are available, SCCs might still be permissible by implementing supplemental measures that effectively prevent access to the personal data by US intelligence agencies, such as end to end encryption with keys that never leave Europe. The EDPB has issued recommendations on such measures. However, such technical measures are generally incompatible with SaaS services such as Slack. Thus, you must perform an analysis of the available legal and technical measures: If you find that Slack is subject to relevant US laws and that you cannot implement supplemental measures, then the data transfer is probably illegal. Otherwise, a transfer based on SCCs combined with suitable supplemental measures might be legal. In this answer, “Europe” means the UK for the UK GDPR, and EU/EEA for the EU GDPR. | If a data controller fails to fulfil your data subject rights, lodge a complaint with your data protection authority. In Hamburg, the appropriate form is here. However, they are not required to investigate your complaint. Independently from a complaint, you could consider suing Wordpress for compliance – Automattic has a subsidiary in Ireland so this might actually be feasible. I'm not quite sure though that Automattic is indeed the data controller for wordpress.org, as opposed to the .com domain – the privacy policy isn't quite GDPR compliant. While your GDPR Art 17 Right to Erasure might not apply in this case, there's a definite GDPR violation because the data controller failed to respond to your request within a month as per Art 12(4). That your posts on the bugtracker were deleted doesn't look like an issue in this context, what does matter is that they didn't respond to emails to the addresses mentioned in their privacy policy. Whether you have a right to erasure depends on the legal basis for storing your data. In general, you have a right to erasure if: the data is no longer necessary; processing is based on consent (because you can always withdraw consent); or processing is based on a legitimate interest and they have no overriding legitimate grounds to continue processing despite your objection (Art 21). The data is still necessary to identify you for your actions on the bugtracker, but depending on your particular situation you may be able to object successfully and force them to anonymize your posts. | The tricky bit from a GDPR standpoint is that the US has a law that says a US-based company must hand over data to US government agencies even if the data is stored outside the US. This is US specific and a case where the US government gives itself jurisdiction outside the US but the EU can't directly do anything against it (outside of international negotiations). As you noticed this means if you store data at a US data processor there is no real difference whether the data is physically stored in the US or the EU. So to avoid transferring EU consumer data to the US several steps are needed. First the servers have to be physically located in the EU and second the company needs to be non-US based, EU based seems the obvious choice. AFAIK constructions of a US-based company creating a fully owned EU-based subsidary are currently used to achieve the second part. Whether this is sufficient may have to be decided in court. | There is no requirement about "data" in the GDPR, so provided this is just "data", no. An empty form with fields for personal data contains no personal data. On the other hand, if the form is filled in by the user with personal data (as defined in GDPR article 4), and you receive a copy of the filled in form and process these personal data (as defined in GDPR article 4) - then the answer is: Yes. However, if you do not process the personal data (i.e. the form is just printed out on paper and filled in with a pen, and nobody except the data subject has access to the piece of paper with the filled in form - then the answer again is "no"). | You could certainly allow twitter to delete the exchange, unless it is part of some record that the law in the relevant country require to be retained, which would be quite unusual. That would depend on the nature of the exchange, and the particular law requiring that records be retained. However, if the request is to be able to demand that Twitter delete the exchange, that would be much harder. In general a person or business is entitled to retain copies of communications, such as emails, sent to that person or entity. There is the "right to be forgotten" which applies under EU law, but that would not apply to records which a business needed to retain for its own legitimate purposes, and was not posting publicly, as I understand it. In any case Twitter is not an EU business, so I am not sure if the right would apply at all. (Twitter has an office in Amsterdam, so teh GDPR and other EU law clearly applies to it.) There might be some other basis on which such a demand could be made, depending on the detailed circumstances and the specific jurisdiction, but I cannot think of one offhand. | The data processor is not responsible for complying with the GDPR. You are ultimately responsible, since you are the data controller. The data processor is merely required to assist you, but it's unclear what that means in the presented scenario. Per Art 28(3)(e) GDPR, the DPA must require the data processor to provide reasonable assistance: That contract or other legal act shall stipulate, in particular, that the processor: […] taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III; However, per Art 28(1) you can only engage processors that you deem sufficient to protect the data subject's rights: the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject. Here, it seems that your company failed to ensure that the processor provides the features you need for compliance. Many companies claim to be GDPR-compliant, but that doesn't mean that your use of their services will be GDPR-compliant as well. Depending on how the Art 28(3)(e) requirement was implemented in the DPA you may have a right to assistance even if the processor doesn't implement necessary features in their software, but enforcing this contract could require a lawsuit in a foreign jurisdiction (but that's par for the course for international B2B contracts). It is worth noting that the GDPR right to erasure doesn't always apply. In a processing activity where no erasure right is likely to arise, it would be perfectly fine to use a data processor that doesn't offer any possibility for erasure. Similarly, it can sometimes be legal to use technologies like Blockchain or Git that make erasure difficult or impossible. However, it is the responsibility of the data controller to analyze the impact of such a choice up front, before commencing the processing activities. In some cases, this could require a Data Protection Impact Assessment (DPIA). Note that transfers of personal data into the US are illegal or at least questionable in the wake of the 2020 Schrems II ruling. The Privacy Shield is no longer a legal basis for such transfers. Standard Contractual Clauses (SCCs) are technically allowed, but only “on condition that enforceable data subject rights and effective legal remedies for data subjects are available” (cf Art 46). The ECJ's judgement calls this into question. This could be a further incentive to migrate to a more GDPR-compliant service. | The GDPR applies to such sites if they offer services in the EU/EEA. If they clearly wanted to avoid being subject to the GDPR, they should block visitors from the EEA. For the GDPR, only location matters. Other concerns like residence or citizenship are generally irrelevant. Personal data does not turn non-personal just because it was public. So the GDPR still applies when the data was collected from public sources. However, the data controller (who determines the purpose of processing) often has to balance your rights and interests against other interests (e.g. when using legitimate interest as a legal basis for some processing). For the purpose of publicly displaying your data, only showing data that was already public anyway makes it easier to argue that this is fine. But when the GDPR applies, you have data subject rights. Relevant rights include: a right to access, to see all the data they have about you a right to rectification, to correct wrong data they hold about you a right to restriction, effectively an opt-out a right to erasure (also known as the right to be forgotten) These rights apply both against the website and against Google Search (arguably, both are doing the exact same thing). Google correctly points out that they can't remove information from the Web, but they can hide information from search results. If you feel that your requests have not been resolved correctly, you can issue a complaint with your country's data protection authority. In theory you can also sue them. In practice, GDPR enforcement against overseas data controllers can be quite difficult and has not yet happened. | I understand that storing any hash or IP that can identify "user uniquely" is against GDPR. That is not correct. However any data which is identifiably associated with a an individual human, including any data which could be used to identify that human, is generally "Personal data", and may not be processed (which includes storing it) without a lawful basis, if the GDPR applies. Any of the six lawful bases allowed by the GDPR may be used, including consent, and the legitimate interest of the data controller. The GDPR does not generally specify that particular technological solutions are permitted or forbidden. If this usage pattern could reasonably be used to identify a particular person, or to single out a person from among a group of people, it is probably personal data, and a lawful basis would be required. Otherwise, not. As for whether such a person is "identifiable" if use of this technique permits the Data Controller to identify two visits at separate times as having been made by the same person, when the later visit is still in progress or is recent, the IP for that visit will still be available, and thus could be associated with the first visit as well. And even if that is not done, such a technique could permit building a profile of such a person, including the actions taken on different visits. I think that would be enough to make this "personal data". |
GDPR: Storing consent for non-personal data cookie According to GDPR you need to store information about consent given to using cookies. We don't process any personal data, but we place an analytic cookie (to recognize returning visitors) so we need to ask for the consent. Do we have to store this consent? We don't process any personal data so we don't need privacy policy, only cookie policy explaining that we place an analytics cookie. But storing this consent, requires us to store user identifiable information about the consent: user (IP), date, consent version etc. So, to have non-personal data cookie, we need to create privacy policy for recording information about user who agreed to that non-personal cookie? | Cookies are information stored on the end users device and require consent¹ per the ePrivacy directive, even if the cookies or similar technologies don't contain personal data. Conditions for consent are defined by the GDPR. This was also confirmed by the "Planet49" case. 1. consent is required unless the storage of or access to information on the end users device is either strictly necessary for a service explicitly requested by the user, or necessary for technical reasons. E.g. functional cookies like a shopping cart feature in a web shop are fine, as are cookies used solely for security purposes or technical features like TLS session resumption. It is however likely that this cookie does qualify as personal data in the sense of the GDPR. The cookie contains an ID that lets you single out/distinguish this user from all other users, even though that ID doesn't link the user to a real-world identity. It is also possible to argue that the cookie is entirely anonymous, but the safer approach is to treat it as personal data. Similarly, other features of the website necessarily involve the processing of personal data, such as processing the user's IP address, if only for the purpose of responding to their HTTP requests. The GDPR's criteria for valid consent are mainly about ensuring that the consent is a freely given unambiguous indication of the data subject's wishes. For example, consent can never be the default, it needs to be an opt-in. However, Art 7(1) GDPR says that the data controller has the burden of proof of showing that valid consent was given. The GDPR itself does not provide further guidance on what this means specifically. I would argue that it can be decomposed into two aspects: Showing that valid consent was given. The manner in which you ask for consent must enable a free choice, and must respect that "no consent" is the default. For example, you could archive screenshots of the cookie management flow to show that there is a free choice. You could archive the frontend software so that it can be demonstrated that the cookie is not set until consent is given. Showing that this user gave consent. There is a wide variety of opinions on how to do that. My personal opinion is that the existence of a cookie paired with a valid consent flow to set that cookie demonstrates that the cookie can only have been set in a valid manner. However, there are consent management solutions that provide additional insight, such as the user's entire history of giving and revoking consent. For example, the user's browser might generate a pseudonymous ID enabling that user's consent history to be stored on some server. Indeed, that would be personal data, and this would have to be disclosed transparently. It would not be valid to use the consent management information for other purposes, for example by using the consent management ID for analytics purposes. Storing the user's consent history is definitely appropriate if you have a concept of identity, such as for signed-in users. I have doubts whether this is also helpful on websites that don't have user accounts, and I have not heard of a case where the existence of such records made a difference. After all, such records can only be relevant if the user gave consent but later disputes this in a complaint with a DPA or in a lawsuit. Which approach to choose will depend on more specific guidance provided by your country's data protection authority, and on the risk balance appropriate for your business. After all, the purpose of such compliance work is not to be 100% safe from lawsuits, but to reduce risks from enforcement/litigation to acceptable levels. What is acceptable is ultimately a business decision. E.g. the only 100% safe way to do web analytics is to have no analytics at all, but that is not acceptable for most businesses. | There is no requirement about "data" in the GDPR, so provided this is just "data", no. An empty form with fields for personal data contains no personal data. On the other hand, if the form is filled in by the user with personal data (as defined in GDPR article 4), and you receive a copy of the filled in form and process these personal data (as defined in GDPR article 4) - then the answer is: Yes. However, if you do not process the personal data (i.e. the form is just printed out on paper and filled in with a pen, and nobody except the data subject has access to the piece of paper with the filled in form - then the answer again is "no"). | The GDPR doesn't generally distinguish public from non-public personal data. If you have a good reason to contact the professor, do send them an email. GDPR does not prevent this. If you're sending this email for “purely personal or household purposes”, then GDPR doesn't apply anyway. There are rules in the ePrivacy Directive against unsolicited emails, but these specifically relate to emails for direct marketing purposes. A company is not allowed to send out spam marketing, regardless of whether they obtained the email address from a public data source. Companies can send email marketing to their own existing customers, or to people who have given consent. Consent is defined in a fairly restrictive way (as a specific, informed, freely given, and unambiguous indication of the data subject's wishes), so that mere publication of an email address cannot be interpreted as consent to receive marketing from a particular company. | The European Convention on Human Rights has an article about privacy (article 8). Note that this is from the Council of Europe, which is not the same as the European Union: non-EU member states such as Russia, Turkey, and Azerbaijan are also part of the Council of Europe and therefore the ECHR. I'm not sure if you first have to go to a lower court, but the European Court of Human Rights is the authority on this (commonly mistaken for the European Court of Justice, but they are distinct entities). According to this ruling of the ECtHR, it is not illegal to monitor your employees' communications per se. However, the monitoring has to be: for legitimate purposes ("the employer had only accessed the account in the sincere belief that it contained only messages of a professional, not personal, nature"), proportionate ("it was the only possible way available"), and communicated to the employee (or, if the monitoring is not announced, at least the restriction on personal use should be communicated, for example through company policy). In the European Union, there is also the GDPR, but this does not change much. It applies to your employer the same as any other organisation and basically says that they have to be reasonable about it: collect only what they need, for a legitimate purpose, and tell you about it. I think you should be able to request a copy of any data they collected about you, ask a human to review an automated decision, and your other usual rights. They don't need your consent to start collecting data, as Esa Jokinen already commented: "GDPR doesn't even require consent to handle PII data, but the consent is just the last option when there's no other legitimate reason to process the data." In fact, your employer probably cannot ask you for consent: because of the employer–employee imbalance of power, the consent would probably not be considered to be freely given (where this article mentions "The GDPR states", I think they are referring to recital 43). | The territorial scope of the GDPR is defined in Article 3. It covers "personal data of data subjects who are in the Union", whether they are EU citizens or not. So to answer your questions: 1) are EU users, but moved to USA a few years ago, and signed-up on my website? They are not in the EU, so are not covered. You don't need to know if someone is an EU citizen, just if they are currently in the EU. 2) went for holidays in USA, signed-up on my website, and then came back to EU? (note - potentially skipped any Consent questions at sign-up, because IP was from USA) If someone moves into the EU while using your service then they fall under the GDPR for the time they are in the EU. If their home address is in the EU then that is covered, and monitoring of their behaviour while in the EU is also covered. Your other two questions are about VPNs. If a VPN is used to evade IP address geolocation and you have no other clue about where someone is then you can't be blamed for not knowing where they are (although I'm not aware of any actual case law on this topic). But if someone with a USA IP address gives a home address in the EU then you should probably treat them as being in the EU to be on the safe side. Basically, if you don’t know if they are in the EU or not, you should treat them as if they were. | Update: On 1 October 2019 the CJEU ruled in Case C‑673/17 (Verbraucherzentrale Bundesverband vs. Planet49 GmbH) that cookies require explicit consent regardless of personal data is being processed. (Where the exceptions don't apply). (paragraphs 68-70 of the ruling). That does probably invalidate my answer below. However, because I have based my answer on information provided by the Dutch DPA, I will not update my answer until that DPA has responded on this. 'By clicking agree or continuing to use this site you agree to our privacy policy' Neither of theses options is considered clear consent. Continuing to use the site, is implied consent, which is not sufficient. Also it does not give you the option to reject. Clicking agree to agree the privacy policy is not specific enough. You must offer a separate opt-in box for everything for which you need consent. The privacy policy is just a text in which you explain your privacy policy. It is not a contract which needs agreement. Also keep in mind that withdrawal of consent must be as easy as giving it. So you must be able to return to the settings and change them. Having said that, it is possible to configure Google Analytics in a way you don't need consent; Accept the Data Processing Amendment Go to Admin Choose Account Settings Scroll down to the data processing amendment Accept it Click Save Disable Data Sharing Go to Admin Choose Account Settings Scroll down to the data sharing settings Uncheck all checkboxex Click Save Disable Data Collection for Advertising Go to Admin Choose Account Settings Choose Property settings Choose Tracking info Choose Data collection Turn off these two options Click Save Disable the User-ID feature Go to Admin Choose Account Settings Choose Property settings Choose Trackinginfo Choose User-ID Turn off these options Click Save Anonymize your visitors IP Address Add { ‘anonymize_ip’: true } to the tracking code on your website Even though you don't need consent, you still need to add a few lines to your privacy policy: You are using Google Analytics cookies. You have a data processing agreement with google. You have enabled IP anonymization/masking. You have disabled data sharing. You are not using any other google services in combination with Google Analytics. The Dutch DPA has a more complete manual, but unfortunately it is not available in English. | The line they'll rely on for GDPR compliance is the first part of that sentence - "If you agree to this during the order process", which suggests that there will be a separate request to opt in to marketing communications at some other time in the process. Check any order documents. There's likely to be a tick box or similar on at least one. If that implies opting out rather than opting in there may be grounds to argue with that under GDPR, but there's nothing in the quoted text that suggests a problem. | Yes, a site may check for a cookie indicating past consent before prompting for consent to read and store cookies When people speak of the "Cookie law" they usually mean the ePrivacy Directive, (ePD) more formally the Privacy and Electronic Communications Directive 2002/58/EC. The full text of the directive is here First of all, being a directive and not a regulation, the ePD is not itself legally binding. Instead it instructs the legislatures of member states to implement it, which they generally have done. So the actual binding law is the law of a particular country, which could vary from the wording of the directive. However, in this case, my understanding is that the implementations do not vary significantly. An updated and revised ePrivacy Regulation (ePR) has been proposed, which would replace the ePD and complement the GDPR. But there has been dispute over the proposed terms of the ePR, and it has not yet been passed. Article 5 section (3) of the ePD reads: Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user. Notice that this covers both writing (storing) and reading (gaining access to) cookies and other information stored on a user's device. Cookies ar one form of such locally stored information (LSI). Note that the GDPR, which replaces Directive 95/46/EC, is used to define "consent" in the ePD. In general, one must have consent to read or store, and consent must be sought only when the user has been given "clear and comprehensive information ... about the purpose" of the stored information. The relevant exception for this question is that information (including cookies) which is "strictly necessary" to provide a service specifically requested by the user. Here the user has requested access to the web site, and may have previously agreed to accept cookies. The site must prompt for consent if the user has not previously consented (and the site will store cookies not strictly needed), and should not if the user has. Therefore, it is strictly necessary to check for and read if present a cookie indicating that such consent has previously been granted. If such a cookie is not found, no consent has been granted. Strictly required LSI should not have a dual purpose where one purpose is not strictly needed. For example, an "I accept cookies" cookie should not also be used for tracking. That should be done (if at all) with a separate cookie, and only after consent is received. Note that there should be an easily found and easily used method or link on the site (preferably on each page of the site) to review the purposes of stored or accessed LSI, and to withdraw previous consent. If consent is withdrawn, the cookie indicating that consent has been granted should be erased, as should any cookies or other LSI not strictly needed to provide the services requested by the user. Keep in mind that the legal distinction is not between cookies that contain "technical" information and those that do not. That is not relevant. Nor is the distinction between cookies that might be used to identify a person and those that do not. The legal distinction is between cookies (or other LSI) that are strictly needed to provide the services requested by the user, and all other LSI. Strictly needed LSI does not require consent, all other LSI does. For example, a random string, used to determine the number of unique visitors, but not linked to any identifying info about the user, does not help to identify an individual user. But it is not strictly needed, so it can only be stored with consent. Data that are associated with an identifiable natural person (human being, not a firm or organization), are governed by the GDPR (where it applies). There must be a lawful basis for processing such data, which includes reading them from LSI, and storing them. Consent is one of the six possible bases for such processing, but consent need not be obtained if another lawful basis applies. When consent is the basis, it must be easily withdrawn by the user. Note that this applies to all data (PI) that is associated with a person, not just data that can readily be used to identify the person (PII). Note that other workflows are also lawful. For one example, if a site is a strictly membership site, it could prompt for a login before reading or storing any LSI, and then read previous preferences stored on the server by that user to determine whether consent for cookies has been granted. Conclusion A cookie indicating that consent to access and store cookies hs previously been given by a particular user can lawfully be read before a user is prompted for consent, under the ePD and its implementing laws. |
What exactly is illegal about the Canadian trucking protests? I have been following the coverage of the Canada convoy protest in the news, and particularly the invocation of the Emergencies Act by PM Trudeau. In his announcement, he says: We're entering the third week of illegal blockades, that have been disrupting the lives of too many Canadians. Here in our capital city, families, small businesses have been enduring illegal obstruction of their neighbourhoods He is not alone in his position that the protests are illegal. Doug Ford called the protests "an illegal occupation" last week. We're now two weeks into the siege of Ottawa. I call it a siege because that's what it is: an illegal occupation. My question is: What's illegal about it? I can find lots of quotes from politicians saying that it's an illegal protest, but not much about exactly what laws are being broken. I'm not Canadian, and don't know exactly what sort of protests are protected under Canadian law. So I'd like to find out what's illegal in this case. Some protesters have been found with illegal weapons. A war memorial was also desecrated, and other individual acts that are obviously illegal have been reported. I'm not aware that that makes the protest as a whole illegal (but I could be wrong). The blockades are severely economically damaging. Again, to my knowledge, this does not by itself make a protest illegal. The noise is disruptive to the local area. Does Canada have laws against noisy protests? Local emergency powers make occupation of certain areas illegal. My interpretation of the above quotes is that the justification of the use of emergency powers is that the protests are already transparently illegal. Again, I could be mistaken. | You can't break the law just because you say "I'm protesting" While Canadians have a right to gather and protest in their charter of rights, such protests must be conducted lawfully. In the present example, the protesters are blocking roads, bridges and border crossings. This is illegal. | The segment of the video I watched is wrong or misleading in several ways. The speaker apparently claimed to be performing a "citizen's arrest" on a police officer on the basis of s.5 of the Public Order Act 1986. The question above also talks about s.26 of the Criminal Justice and Courts Act 2013, which deals with an offence of improperly exercising the powers of a constable. Somebody who is not a police officer is allowed to arrest somebody else without a warrant only under tightly defined circumstances. These are given in s.24A of the Police and Criminal Evidence Act 1984 (inserted by the Serious Organised Crime and Police Act 2005). The elements include that the offence be indictable, which does not mean as claimed in the video that "you can get sent to prison for it", but refers to the mode of trial. Some summary offences are imprisonable. Since the offence under s.5 of the 1986 Act is a summary one, rather than indictable, we fall at the first hurdle. A further qualifiction is that this power of arrest can only be exercised if the person believes it would be impractical for a constable to do it instead, and that the arrest is necessary to stop the arrestee from escaping, hurting themselves or someone else, or damaging property. In the video, the police officer does not look like he is doing any of those things, and there is another officer right next to him. Thus it would be hard to argue that there are reasonable grounds for arresting the officer in this way. Also, while members of the public may object to the conduct of police officers, that does not always amount to an offence under s.26 of the 2013 Act. The offence there is about corruption, exercising the powers of a constable for personal benefit. That personal element does not seem to be shown in the video. There are some other mistakes in the part I watched. A lawful arrest cannot be effected just by using the words "I am arresting you". The arrestor has to take or imply some directive action as well, or else there is no arrest at all: just two people continuing to stand awkwardly. This also goes to the point about needing to stop the arrestee from causing injury (etc.) - if you aren't actually taking steps to restrain them then you can't say you're preventing the harm. The point of the provision is to take the fact of an arrest (I am stopping you from getting away) and make it a legal arrest; it can't conjure up an arrest where none exists. In a citizen's arrest there is no need to give a warning about "anything you say may be used against you" or whatever. This is applicable to the police when they are questioning suspects, which is not what is happening here. Indeed, while the police can arrest somebody without warrant because they want to investigate whether they've committed a crime, a regular person can't. Although there is a statutory requirement to tell somebody why they've been arrested, coming from ECHR as well as domestic common-law principles, the police are not expected to cite the law with precision. It's OK to say "I'm arresting you for selling heroin" rather than "I am arresting you because I have reasonable grounds to suspect you of supplying a controlled substance to another without lawful authorisation, contrary to section 7 of the Misuse of Drugs Act 1971". While there are more rules that kick in during pre-charge detention or questioning, the law recognizes that the operational circumstances of an arrest make a briefer explanation more appropriate. Indeed, more formal language would defeat the point of the rule, which is that the arrestee should know what's going on. "You can only arrest a cop for an indictable offence" is not quite right. You (a non-constable) can only lawfully arrest anyone for such an offence, and if the other conditions are met. A constable can be arrested for any kind of offence: there's no special immunity for summary offences. As to the general question of "How can one arrest a police officer?", the usual way is to become a police officer yourself. Almost all arrests, especially those involving police misconduct, are done by the police. For corruption it is likely that an arrest would be made after a long investigation and after the issue of a warrant, rather than on the spur of the moment. As a normal person, wilfully obstructing a police officer in the execution of his duty is an offence (Police Act 1996, s.89), and affecting an arrest may amount to assault on the officer. That does not make it impossible to arrest an officer in this way, just fraught with future difficulty. | it's not illegal to sign a contract that demands illegal things, however, such a contract, in general, is called an illegal contract. Illegal contracts are null and void. Contracts that violate public policy never have force in the first place. A contract can't force people to declare lies under oath or demand them to murder someone. Thus, a contract demanding such is illegal. As a result, such a clause would not just be unenforceable, it might void the entire contract wholesale if it is not severable. In the least, any clause demanding illegal acts was null and void ab initio, and never was valid. void contracts in law germany explicitly makes contracts void that are "Sittenwidrig" in § 138 BGB and also illegal ones in § 134 BGB Declarations to the Agentur für Arbeit are made under threat of perjury, and thus lying is illegal. It is also Sittenwidrig. This makes the provision void. Murder is illegal, inciting to murder someone is illegal, and so a contract to murder someone for pay is void. Such a contract also is Sittenwidrig. Selling the right to ask to marry your daughter per see isn't illegal, but it is Sittenwidrig and as such the contract is void. california judges refer to such contracts as illegal contracts, defining this as a test where making non-enforcement of such a contract something of public interest: It is in the public interest that people tell the truth to the unemployment office, so a contract demanding you to lie is illegal. It is illegal to lie on the stand (perjury), and thus the contract is illegal. Conspiracy However, the contract can also be evidence of criminal activity in itself: It manifests the will of two parties to commit an illegal act. That is the core of a conspiracy charge. Conspiracy is illegal and usually a felony. germany: Conspiracy to commit a crime is §30 STGB | You are allowed to ask the police whatever questions you like. There is an upper limit that you can't refuse to obey a lawful order on the premise that you want to ask a bunch of questions, but they don't seem to have ordered you to do anything, so you can ask away. They have no obligation to tell you anything or to be truthful, except for certain questions like "am I free to go" when you want to leave and are testing whether you are under arrest. Even then they don't have to answer your questions right away. The police can therefore ignore you, especially if you are asking curiosity questions. It might be that they are restricted from giving information in certain circumstances (pertaining to the privacy of others). If there is an issue of legitimate concern (e.g. Little Billy has been beating up on cats again) and you feel that you need to know this, then you can request the police record on the matter. Certain information will probably be redacted under state law, but you could get a report that states that some [redacted] juvenile was beating up on animals. The Florida records law is one of the first in he nation, dating back to 1909. You can read this, to see if you think the circumstances match one of the exemptions, though all you have to do is make the request and be told that the record is exempt, then you will have some idea what was going on. | 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. | This is known as a retroactive or ex post facto law. Such laws are explicitly forbidden by the US Constitution (Wikipedia reference), and are generally frowned on in jurisdictions where the rule of law applies, partly because it is difficult to prove criminal intent when your action was not at the time criminal. | 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. | There are two cases to consider. If there is some evidence that the city intends to enforce the ordinance, then the business can go to court for an injunction preventing the city from doing so, if they can show that such enforcement would harm them (e.g. by making them impose a records policy they don't want). They don't have to risk arrest by actually violating the ordinance first. In granting the injunction, the court would likely rule that this particular ordinance is unconstitutional, which seems to be the "voiding" that you're looking for. If the city shows no signs of wanting to enforce the ordinance (e.g. they are well aware that it is unconstitutional and not legally enforceable), then a request for an injunction would likely be dismissed as not ripe. Courts do not want to waste their time on cases where there is no real dispute between the parties, or on issuing orders for an entity not to do something that they weren't going to do anyway. It's understandable that the business might wish for an explicit ruling anwyay, in case they fear that the city will change its mind tomorrow and start cracking down, but unfortunately for them, courts do not agree that this is worth doing. Note in either case the ordinance will remain on the books until such time as the town council (or other relevant legislative body) should vote to repeal it. Courts have no power to make that happen, no matter how unconstitutional the ordinance might be. So the business might find it more effective to petition the council for a repeal. |
If you pay taxes using a cryptocurrency, is that a potentially taxable event? With California and Colorado accepting cryptocurrency in lieu of fiat currency for paying taxes, there is a concern that paying taxes in this fashion is a potentially taxable event under federal law. But presumably, paying taxes is involuntary (unlike purchasing something with that cryptocurrency) | Paying taxes with cryptocurrency is a potentially taxable event under federal tax law. It is equivalent for federal income tax purposes, for example, to paying taxes in kind with IBM stock. See, e.g., this IRS FAQ. You can owe capital gains taxes on involuntary transfers. For example, if you own a rental property and don't pay property taxes and it is sold at a tax sale, you owe capital gains taxes and depreciation recapture taxes on the amount realized in the tax sale if it exceeds your basis in the rental property (which it usually would since third-parties bid at tax sales). | No, lowering the value of a asset does not constitute a "taking" of the property. The investors can still exercise their property and mineral rights, they are merely restricted from performing fracking. You mentioned drilling; as far as I am aware, the ordinance only prevents fracking, which I believe is a practice of inserting water in a well to force oil to the surface. There are several older techniques such as drilling and pumping that where developed centuries ago that could be used, that as I recall are not banned. For another example: Say you had a car that got low gas mileage, but was desirable because despite this it had low running and maintenance costs. If the government (federal, state or local) passes a sufficiently high excise tax on gasoline, the running costs of the car may exceed it's competitors, causing it to lose value: this would not be considered "taking" your car either, since you own the same exact vehicle. | I doubt that they are legally required to get your VAT as a condition of registration. However, they are a private company, and they are allowed to attach almost any restriction they want to registration. It is more likely that they require your VAT for some of the business interactions that they expect will happen after you register for the site and have decided to make it a condition of registration. | Neither of those clauses has anything to do with whether a tax on the use of Whatsapp is legal: The first clause tells users that they are responsible for any taxes that may be owed. It says nothing about whether such a tax is or is not legal. The second clause says that users may not charge for Whatsapp services. It says nothing about whether the government may impose a tax for the use of the services. That is all beside the point, though. Even if the TOS explicitly said, "No one may tax the use of our services," that would have no legal effect. Saying that you're exempt from taxation does not make you exempt from taxation. | Yes If it is illegal to transfer money between the jurisdictions then any contract that requires that to happen is unenforceable. This is a subset of "sovereign risk" in a trans-national deal. | Yes it is perfectly legal. Good luck finding investors for a such an indebted company, though. (Not disclosing the contract to potential inverstors would be illegal.) | When the buyer hears "to avoid sales tax" and hears the seller describing as a gift something that s/he knows was nothing of the sort, a reasonable buyer would know that this was at best suspicious, and would find out if this was legal. But assuming that the buyer accepted the seller's suggestion ignorantly and in good faith, the buyer can file a report of the transaction and pay any tax that should have been paid. The exact way of doing this will vary based on the laws of the buyer's jurisdiction (state-level if in the US) which is not given in the question. Such a report and payment might not prevent the local tax authorities from assessing an additional penalty. Criminal charges seem unlikely, but would be possible. If the seller was a used car dealer, the authorities might want the buyer to testify against the seller. They buyer might be wise to consult a lawyer with expertise in sales tax issues in the buyer's jurisdiction. Such a lawyer could advise on exactly what the buyer's legal obligation was, and how to avoid or minimize penalties or other consequences. | You are describing a charity. In the simplest case, a charitable foundation could be established to receive donations and dispense payments for medical services. There are various irrelevant non-legal reasons why it might not work (e.g. insufficient contributions relative to demand). The main legal concerns of such a foundation are its tax liability (do they have to pay income taxes on contributions?), and local regulations (how do you distinguish between a scam and a real charity?). The tax question is primarily about 501(c)(3) status, and for the most part there should be no problems with charitably dispensing contributions, though there is a requirement that no part of the net earnings of a section 501(c)(3) organization may inure to the benefit of any private shareholder or individual – perhaps the CEO would be an exception to the universality of the program (but providing equivalent service could be a pre-tax employment benefit). A recipient does not have to pay tax on a gift, owing to the "medical exclusion" Registration is a state-level matter, here is the Washington law. Nothing in that law says "you can't provide coverage of medical expenses", and no maximum income level is imposed on the recipient of a charitable gift. The concern of these regulations is mainly record-keeping and access to records, not on specific ways of benefiting the community. Since unlike taxes contributions cannot be coerced, this means that some people might not pay what other people deem to be "their fair share", which is, again, a political issue. |
Question about US law being sued in Canada Suppose a Canadian subscription website is created providing valuable information on certain properties of a product to consumers. Unfortunately, a mistake was made where some images on the website were taken from an online source that broke copyright laws in US. These images were quickly taken down to settle this problem. However, the opposition in question continued to try and sue for more, claiming that the information on these properties were taken from them (which is apparently incorrect and lacks proof), but they continue to drag this on in an assumed attempt to try and make the defendant basically spend all their money fighting this off before it gets before a judge. My questions is: to what end can something like this continue to be dragged out? | These images were quickly taken down to settle this problem. It doesn't settle the problem, at least under US law, because a former infringer may still owe statutory damages under 17 USC 504 (and I imagine under some analogous Canadian law). Ceasing the infringement does not extinguish the plaintiff's right to those damages, although it may limit the size of the damages. However, the opposition in question continued to try and sue for more, claiming that the information on these properties were taken from them (which is apparently incorrect and lacks proof) Information, in and of itself, is not subject to copyright protection in just about any jurisdiction in the world (see for example 17 USC 102(b)). It has been suggested in the comments of another answer that this may nevertheless be a trade secrets violation, but that would only be the case if the information had been non-public and the site appropriated the information from an unpublished source belonging to the plaintiff. If the plaintiff deliberately caused this information to be published on their own website, then trade secret law certainly does not apply to it. Nevertheless, if the site copied literal text or images from the plaintiff's website, or closely paraphrased it, that is an infringement of copyright. Copyright protects the creative elements of the text, even where the text is serving a primarily utilitarian or functional purpose. but they continue to drag this on in an assumed attempt to try and make the defendant basically spend all their money fighting this off before it gets before a judge. It is unclear what you mean by this. The normal process is for the plaintiff to send the defendant some sort of written demand, the defendant either complies or they don't, and then the plaintiff either files a lawsuit or they don't. If the plaintiff never files a lawsuit, the defendant is under no obligation to continue interacting with the plaintiff, and can simply wash their hands of the matter. Depending on the circumstances, this may or may not be wise, as settling is often more cost-effective than going to court. Ignoring the plaintiff increases the likelihood of a lawsuit being filed. But if there is no lawsuit, then there is nothing to "fight off" in the first place. | The site's owners would likely be immune from any civil action based on its users' conduct, under Section 230(c)(1) of the Communications Decency Act: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. The users, though, could still face liability. Although it would be libel rather than slander (because it is published rather than spoken), any damaging falsehoods could be actionable. The emotional distress component would also be a possibility, but it would probably be a tougher case. The laws vary from jurisdiction to jurisdiction, but generally speaking an emotional-distress case requires really outrageous behavior and and very serious emotional damage. | You have the copyright on all your pictures. He had no permission to copy any of them, so he has committed copyright infringement on a massive scale. You can just get a solicitor who will happily take him to court for you. You shouldn't be overdoing it, $750 per infringed work (per picture) as statutory damages should be fine. If you want it cheaper, the solicitor will write a letter for you that asks him to destroy all the pictures, sign that he has destroyed all the pictures, pay the solicitor's fees, or otherwise be taken to court for copyright infringement (see above). Now I am not a lawyer, so you go to a lawyer which will correct whatever I got wrong here. Just forgot: In addition to having the copyright, if he publishes pictures of people (like you and your family), he needs permission of these people. So if anything gets published, that goes on top of the copyright infringement. | Your question is essentially this: consider a defamation lawsuit in which A alleges that B falsely stated that A did X (and it is not contested that B made the statement) also consider that B has done X in the past is it of any relevance to A's defamation suit that B has done X in the past canada Evidence must be relevant to a live, material issue In order for evidence to be admissible it must be "relevant to a live, material issue in the case" (this is from a dissent, but there is no disagreement about this point). Stage 1: Did B make a defamatory statement about A that was published - no relevance to this issue Defamation is prima facie proven if B's statement was published and if it tended to lower the reputation of A. The fact that B has done X in the past is irrelevant to this aspect of the analysis, especially when the defendant is not alleging that they did not say "A did X." Stage 2: Defences - there is a very narrow path for relevance on this issue Once defamation is prima facie proven, the burden flips to the defendant to establish a defence. Of all the possible defences, the only one in which I could see B having done X in the past being relevant is the defence of fair comment: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. The fact the B has done X in the past could be relevant to this defence if B were to use that familiarity with the activity X as part of the commentary on why they believe that A has done X. It could also be relevant (not on its own, but along with much more context) for an allegation of malice on B's part. Conclusion: Evidence that B did X in the past would likely not be relevant I see it very unlikely that B having done X in the past would be relevant. It would likely be treated as a collateral issue, unless B's credibility somehow became absolutely central to the litigation and if the judge was convinced that such acts relate to credibility. On the facts as described, and even for a fair comment defence, I don't see that being the case. | Both Bob and Charles are liable for infringement in the US. The fact that Charles had no idea that Bob was an infringer is not a defense, but it mitigates the statutory damages consequences for him. Either party can negotiate with Alice after the fact for a license, and Alice can grant either party but not the other permission to copy. The terms of the license that Alice gives Bob could either allow CCo reposting, or some more restrictive redistribution right. If the license requires a notice prohibiting further redistribution and Bob omits that notification, Bob will have breached the terms of the license in omitting the notification, so we're back to square 1. If Alice fails to specify a no-redistribution notification condition on Bob's reposting, Alice may have granted an implied license to the world, a matter which has to be determined by the courts. | Yes, it's actally happened. Several outfits have filed cases by the hundreds, and they were even literally photocopies. And it works rather well, until one victim stands up for what's right - and then the house of cards comes tumbling down. Molski For instance, due to a minor ADA issue (toilet paper roll 2" too low etc.) poor Jarek Molski was injured using the bathroom... in hundreds of restaurants, many on the same day, and hundreds in the same week. On one hand, hundreds of defendants simply paid Molski off, raising about a million dollars. On the other hand, the first defendant to actually fight back was able to uncover the hundreds of other cases, and the obvious fraud. The court swiftly ruled that Jarek Molski is a vexatious litigant and can file no more lawsuits, except by asking permission (presenting the facts to a judge and the judge deciding that there's really a worthy case there). The lawyers which represented Molski are likewise barred from representing anyone in an ADA case. Their law firm, likewise. Righthaven Another group of lawyers set up a law firm specifically to sue the owners of "BBS's" / internet forums / Q&A sites such as StackExchange, whose public users had pasted up copies of newspaper articles into the BBS. They Bought the "right to sue" from copyright owners such as newspapers - Righthaven didn't own the content, just the "hunting license" to go after people who infringed on the content - with the content owners getting a cut of proceeds. They too filed hundreds of "madlib" lawsuits. In fact their lawsuit engine was so automated that they 'accidentally' sued journalists writing about Righthaven - (who quoted material from the entirely public lawsuit papers themselves - complaints are public by definition unless sealed by the courts.) Needless to say, Righthaven had never heard of DMCA Safe Harbor, or hoped the forum owners hadn't. Again it worked: hundreds "paid up". Molski and Righthaven carefully chose "settlement offer" numbers ($5000-ish) that would be slightly cheaper than raising a legal defense ($6000-10,000). In the USA, each party pays their own legal bills - there's no concept of "loser pays" unless the other party's conduct is outrageous. It's so rare that when I had the pleasure of doing so, the court told us to take the standard garnishment forms, cross out "defendant" and hand-write "plaintiff" :) And again, the first defendant to actually stand up to Righthaven in court, asked the court to knock Righthaven to the moon, which the court gleefully did. RIAA / MPAA BitTorrent is a file-sharing network with no central hub. It breaks files into thousands of "chunks". Users collect chunks from hundreds of other users until they have the whole thing. Part of the social contract of BitTorrent is that people who download also upload (seed) to share the chunks they have gotten so far. People who refuse to upload are called leeches. RIAA and MPAA are the trade associations of the music and movie industries, respectively. They searched for BitTorrent (pirated, they claim) copies of their members' music and movies. They then "leeched" those copies with modified BitTorrent software that recorded the IP address of the "seeder". They took the IP address to the owning ISP, and demanded the customer identity. Then they sent out "pay-us-or-else" letters by the tens of thousands, and filed suits by the thousands. The argument was that the seeder had pirated the music, and that the ISP account holder was financially responsible for that activity, neither claim 100% reliable. This campaign has been supported by the courts, because RIAA/MPAA were very careful of their legal footing. But I only mention this because another gang of lawyers was paying attention, and they had their own ideas. Prenda "Law" This gang of lawyers correctly guessed that if users panicked at an RIAA/MPAA demand letter, they'd really panic if the topic was pornography. So they set up a law firm specifically to apply RIAA/MPAA's techniques to porn. (one wonders if they paid RIAA a royalty). But they were much more outrageous and careless. For instance, rather than partner or purchase legitimate porn content, they worked with porn stars like Sunny Leone to create shell companies who, unbelievably made original content specifically as bait to ensnare BitTorrent users. Again, this situation only works until someone stands up for what's right: then it all falls apart. This ended much, much worse than Righthaven or Molski. The civil judges were so offended they referred the matter out for criminal prosecution. The organizers got 19 years in prison between them. | I'm not familiar with the lawsuit, but generally speaking, a court's finding that a lawyer falsified evidence would not directly result in the lawyer being disbarred, as the trial court does not have authority to regulate the practice of law. Instead, a court that reached that conclusion -- either by a verdict, or because a judge was persuaded by the evidence without reaching a verdict -- would likely report that outcome to whatever organization is responsible for licensing attorneys in that jurisdiction. | You might be able to use a site like the Internet Archive to preserve the TOC even after the site is shut down. The real liability trap here is if the site does not have the authority to give you this license. If a user uploads a photo that they do not own, and you use it, you are infringing the copyright of the original owner. Innocent infringement is not a defense to liability (although it may reduce damages in some cases.) |
What is the meaning of the Contracts Clause? The contracts clause establishes that no state may make any law "impairing the Obligation of Contracts." I am curious about the use of language here. In particular, the use of the verb form "impairing" instead of "to impair" or "that impairs" makes the meaning of the law a bit unclear. For example, if one says that "you cannot say something offending someone," they are saying "you cannot say something that offends someone" and not "you cannot say something to offend someone." It seems like the Contracts Clause has been understood as meaning both "to inhibit" and "that inhibits." The precursor to the Contracts Clause found in the Northwest Ordinance prevented the government from direct interference with contracts. It seems like the framers intended for this to be the purpose of the Contracts Clause. However, the language of the clause and supreme court precedent appears to say otherwise. For instance, in Energy Reserves Group v. Kansas P. & L. Co., 459 U.S. 400 (1983), the court stated that "The threshold inquiry is 'whether the state law has, in fact, operated as a substantial impairment of a contractual relationship.'" This suggests that the Contracts Clause is capable of invalidating laws that indirectly inhibit contractual obligations. How should one reconcile these conflicting understandings? | How should one reconcile these conflicting understandings? A holding of the U.S. Supreme Court that it has not later abandoned is, by definition, the correct interpretation of the U.S. Constitution for all purposes of U.S. law, even if a plain reading of the constitutional language might suggest otherwise. | I fear that it may mostly be defined by common sense and context, rather than any particular statute. I've certainly not been able to find anything quite as explicit as, for example: An Act of Parliament is an Act passed by the Parliament of Canada and definitely not in any way an Act of a provincial legislature. Nevertheless, if you'll bear with me while I slog through a sea of clauses that all imply the above, then the best places to look for usage and definition are the Constitution Acts, 1867 and 1982, as they form (the basis/bulk of) the Canadian Constitution. I've also (credit to Zizou212) included some definitions from the Canadian Criminal Code. Looking at the Constitution Act 1982 (as amended, via the Canadian justice department's website) and taking the crudest possible approach (i.e. looking for instances of "Act of") there is, in the main body of the text, only one reference to Acts of Parliament, or to Acts of the provincial legislatures, namely in the notwithstanding clause (section 33 of the Charter of Rights and Freedoms): Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. Not, I fear, not a full answer to your question, but it's worth noting that a distinction is drawn between "Parliament" and "the legislature of a province". For context, section 32, directly above, reads, This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament [...]; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. We're getting closer. I would argue (though IANAL) that from these two sections alone it's pretty clear that Acts of Parliament are Acts passed by the Parliament of Canada ("This Charter applies [...] to the Parliament and government of Canada") while Acts of "the legislature" of each province are Acts passed by the legislature of that province ("This Charter applies [...] to the legislature and government of each province"). Going back to the original question, I think it's pretty clear that "Parliament" – with a capital P – is (fairly) explicitly the Parliament of Canada. Note that it's the only body of the 4 mentioned there that gets a capital letter, and I imagine that it's because it's the only one referred to by its proper name. Whereas "the legislature and government of each province" is, presumably, just a common sense descriptor and a stand-in for the proper names of those governments and legislatures – it would be tedious to say "the Legislative Assembly of Ontario, and the National Assembly of Quebec, and [...]" – while "the government of Canada" is, I assume, not capitalised because it's also just a descriptor (the 'proper' name being Her Majesty's Government) but I'm descending now entirely into the realms of wildest speculation, as the Constitution Act 1867 is perfectly happy to use the phrase "Government of Canada" (though those were, seemingly, more capital-heavy times). Furthermore, as Zizouz212 pointed out, the Criminal Code of Canada contains an interpretation section: In this Act, Act includes (a) an Act of Parliament, (b) an Act of the legislature of the former Province of Canada, (c) an Act of the legislature of a province, and (d) an Act or ordinance of the legislature of a province, territory or place in force at the time that province, territory or place became a province of Canada; Again, the mention of "Parliament" alongside – and distinct from – provincial legislatures, makes fairly clear that it's the Parliament of Canada. Going back to the typesetter's nightmare that is the 1867 Act, we can eke out a few more puzzle pieces in the definitions: In the Constitution Act, 1867, Part IV: There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons [...] The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada Part V: There shall be a Legislature for Ontario [...] There shall be a Legislature for Quebec [...] the Legislature of each of the Provinces of Nova Scotia and New Brunswick shall [...] continue as it exists at the Union Part VI: It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces [...] In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated Between those three Acts, I'm hoping there are enough bits of context to make clear that Parliament only ever refers to the Parliament of Canada, and not to the provincial legislatures. If, however, you want one more bit of evidence, I can offer the pre-amble to the Canada Act, 1982 the Constitution Act's slightly older, British twin. This was the law that finally patriated the Canadian Constitution, passing (at the British Parliament in Westminster) an Act that defined how Canada could amend its own Constitution, and renouncing any power for the British Parliament to do the same. In that text, (emphasis mine) there are, by necessity, two Parliaments discussed and accordingly it's always made very clear which one is being talked about: An Act to give effect to a request by the Senate and House of Commons of Canada Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that Purpose. Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: The Constitution Act, 1982 set out in schedule B to this Act is hereby enacted for and shall have the force of law in Canada and shall come unto force as provided in that Act. No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law. ...ergo, in the main body Constitution Acts etc., "Parliament" was presumably felt to be clear enough. | Caveat Keep in mind that words do not have uniform definitions for all times and places and contexts. Words can have different meanings in particular contexts and can be defined in a contract or statute to have a meaning different from the common meaning. "Person" Usually Includes Entities Of Any Kind This said, usually the term "person" in the law refers to any human being and any trust, estate or entity that is capable of suing and being sued and entering into contracts. An "entity" in this sense would often include partnerships, limited liability companies, corporations, non-profit associations (whether or not incorporated), business trusts, joint ventures, local governments, states, the federal government and foreign governments. (I break out trusts and estates separately because there is divided authority in different jurisdictions over whether trusts and estates are entities, or are simply a special hat that the trustee or executor wears that are not entities, which can be relevant in some highly technical situations.) Agency Situations The term "person" is also often used in the sense that it refers to the principal and not the agent, when an agent is taking action on behalf of the principal. Thus, if there is a law that says "a person who enters into a real estate contract must disclose that person's taxpayer identification number", and someone with a power of attorney from you signs a real estate contract on your behalf, the power of attorney agent should disclosure your taxpayer identification number and not theirs. Why Is The Term "Person" Defined So Broadly? One important reason for using the term "person" to apply to entities as well as human beings, is that it allows for statutes and contract terms or case law legal rules to be stated in very general terms without being wordy in a way that accurately reflects how those legal rules or contract terms should apply to entities. For example, a statute using the word "person" might say: A person who is engaged in business in this state must register with the department of business licenses. By using the word "person" in this way, the statute wouldn't have to say instead (probably less accurately and less comprehensibly): Any individual, partnership, limited liability company, corporation, business trust, non-business trust, estate, governmental entity, or other entity, including the principal of any agent acting on behalf of the principal, engaged in business in this state, must register with the department of business licenses. The phrasing without the word "person" would be more likely to create loopholes because some kind of entity is omitted, and would be prone to ambiguity because one would have to decide which words that define the kind of persons and entities that are covered modify which other words in the sentence. Thus, using the word "person" is often makes entities more rather than less accountable to the law, by making legal language more clear and more general (and hence containing fewer loopholes). "Individual" or "Natural Person" Usually the term "individual" or "natural person" would mean a human being, although, of course, there are other senses of the word "individual" such as "an individual Widget" referring to exactly one Widget in particular, as opposed to Widgets in general. Alternative Definitions Of "Person" There are isolated times when the word "person" would not include minors and incapacitated people who are incapable of suing or entering into contracts in their own name due to lack of legal capacity. It isn't uncommon to have a definition of "person" in a statute or contract that omits governmental entities, that omits all kinds of entities, or that omits particular kinds of entities (e.g. foreign entities or corporations). For example, a tax statute might define "person" in a way that includes natural persons and entities, but excludes governments. Some of the definitions of terms like these in the bankruptcy code are particularly non-intuitive. | Wiipedia says - An unenforceable contract or transaction is one that is valid but one the court will not enforce. Unenforceable is usually used in contradiction to void (or void ab initio) and voidable. If the parties perform the agreement, it will be valid, but the court will not compel them if they do not. In a quiz card about U.S. real estate law I found: An oral contract to convey an interest may meet the five conditions for validity, but a court will not order a defaulting party to perform. However, if the parties do perform, the contract is executed and cannot be rescinded under the Statute of Frauds. It looks like if there is performance of both parties of a valid but unenforceable contract, the contract can't be undone or rolled back by action of law. | 1. Are this and similar ordinances constitutionally valid? Yes. Some future court might decide the law is invalid at some future time. But that possibility is hypothetical and speculative. Therefore, as of now, the law is valid unless and until it is challenged and overturned. 2. What defenses could a government make if challenged? It depends on what grounds the law is challenged. Your question about possible defenses is highly dependent on the nature of any challenge — which you have not specified in your question. The U.S. Constitution, for example, prohibits laws respecting a number of things such as freedom of the press, speech, religion, peaceful assembly, bearing arms, etc. to list just a few of the most notable ones. But your question does not assert the law in question violates any specific or particular prohibition against it. Although the question mentions "restricting free movement as well as targeting only a specific demographic," it does not specify any part of any constitution that prohibits these things. Therefore, your question is unclear as to what might present a constitutional problem for the law. It is also unclear which constitution you think might contain prohibitive language. Is it a federal constitutional issue that concerns you? Or is it a state constitutional matter? In either case, which issue specifically concerns you? Your question needs to address these specifics in order to analyze it and respond in a meaningful way. Look at it like this... just as it is impossible to prove a negative, so is it impossible for anyone to conclude with absolute certainty that any law is not unconstitutional because no one can predict with certainty every possible future challenge a law might face. There are just too many possibilities to (pre-emptively) exhaust them all with certainty. Also, no one can predict with certainty how any future court might rule on the future challenges (which themselves are unpredictable as previously argued). Therefore, one can only say I think the law is unconstitutional and here are my reasons. Then others can analyze the law and the reasons; then offer an opinion. Further, based on precedent, would they likely be successful? See above answer to question numbered 2. Laws aren't required to be "justified" by the constitution. Constitutional justification for a law is a meaningless phrase. There is no requirement for a law to be "justified" by any constitution other than that the legislature is empowered by the constitution to make laws. That's all the justification any law needs. Beyond that, however, no law can violate the constitution as determined by a Supreme Court (or the last court to rule) if challenged. | You have read it: legally It doesn’t matter if you haven’t read it in fact. At law, you have. Therefore you cannot avoid obligations or consequences by saying “ I didn’t read it”. It’s an extension of the common law principle that if you affix your ‘mark’ to a document you were acknowledging that you understood it and would abide by it: even if your mark was an X because you were illiterate. There are protections. At common law an unconscionable term is unenforceable and may void the contract entirely. Additionally, many jurisdictions have passed legislation to make unfair contract terms unenforceable, particularly in contracts of adhesion. Further, consumer protection laws often have non-excludable warranties that operate in spite of the contract. | That would likely be treated as a preamble. These have been held in some jurisdictions to not have any weight. For example, see Sherbrooke Community Centre v. Service Employees International Union, 2002 SKQB 101: The preamble to a contract is nothing more than an introduction to that about which the parties have actually agreed. It puts the agreement into context. It describes the goals of the agreement. It speaks to what went before and the spirit in which agreement was achieved. On the other hand, it does not contain any promises. It does not contain any restrictions or commitments. It could be removed entirely without in any way altering that which was agreed to and set out in specific terms. [...] this clause in the preamble does not create or eliminate rights or obligations Granted, the introductory phrase in your hypothetical clause is not literally a preamble, but it has the same characteristics cited in the above decision: "it describes the goals", "it does not contain any promises", "it could be removed entirely without in any way altering that which was agreed to". If you wanted the clause to only take effect if toilets overflowed, use an alternative wording, like: Company B may not resell any products purchased from Company A at a discounted price in a manner that causes toilets to overflow. | The parties can be required under oath to explain what they understand the plain meaning of the words to be. Where they disagree about the plain meaning of the words, they can use expert witnesses to give weight to their interpretation. Once the judge determines the plain meaning of the words (either by agreement between the parties or by reference to expert witnesses or other evidence), it is a matter of standard contract interpretation. Even in the case of an idioticon, where no expert witnesses are available, if the disagreement between the parties surrounds only a few words, the judge could find that there is no actual ambiguity because the context. Also, the judge could refer to parole evidence if needed. The purpose of the written contract is to provide evidence of your agreement. It is a bad idea to create evidence that you both may want to rely upon at some point if nobody else can understand it. |
Should Canadians be seeking asylum to other countries? Just wondering, in the plight of some recent news coming from Canada, and the Emergencies Act being evoked (protesters; thier right to protest in a certain area were vanquished and they were arrested); is there any justification for the current government to do so? At this moment as I write, Ottawa is ending the use of the Emergencies Act, the current prime minister says. And also to note, a State in the USA is trying to pass a bill for these oppressed Canadians to give them temporary asylum. Should Canadians be fleeing their country in light of what has happened in the past few days? I believe the CCLA stated, "Let's be clear: There is no legal justification for using the Emergencies Act." If there is no legal justification, could Canadians seek asylum in other countries on the evoking of the emergencies act and would other countries take in Canadians seeking asylum from this current situation? | Just wondering, in the plight of some recent news coming from Canada, and the Emergencies Act being evoked (protesters; thier right to protest in a certain area were vanquished and they were arrested); is there any justification for the current government to do so? There is legal justification for the current government to do so. As explained in the link above: In the weekend before the invocation of the Emergencies Act, Deputy Prime Minister Chrystia Freeland, who also serves as the finance minister, met with the CEOs of the largest Canadian banks to discuss how they could help resolve the situation. On February 14, 2022, during the Canada convoy protest, the Emergencies Act was invoked for the first time in Canadian history by Prime Minister Justin Trudeau's government, declaring a public order emergency. Under the Emergency Measures Regulations enacted after the declaration of emergency, participation in public assemblies that could result in a breach of peace by disrupting the movements of goods and people, interfering with the operation of critical infrastructure, or by supporting violence, was prohibited. Travel to and within places where these rallies were occurring was restricted, and foreign nationals were barred from coming to Canada to attend them. The regulations also specifically outlawed the bringing of children under the age of 18 to these assembles. Additionally the use, provision, collection, and solicitation of property and funds to support the prohibited assemblies or the people participating in them was banned. The regulations further empowered the federal government to protect critical infrastructure, Parliament Hill and the parliamentary precinct, official government residences and buildings, war monuments, and any other places that may be designated by the minister of public safety. The federal government was also given the authority to compel the towing and removal of vehicles, structures, and other objects used in blockades. Violations of the regulations is punishable by up to 5 years imprisonment and/or a fine up to $5000. Under the Emergency Economic Measures Order, also enacted pursuant to the declaration of emergency, crowdfunding platforms and their payment processors were required to register with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), and report large and suspicious transactions. Cryptocurrencies are also included in the expanded financial regulations. Banks were ordered to freeze personal and corporate bank accounts suspected of being used by people violating the regulations, and are protected from civil liability in enforcing the order. Insurance coverage for trucks being used in blockades will be suspended. Furthermore financial institutions had to determine on a continuing basis whether any persons violating the regulations were using their services and were required to promptly report findings to the RCMP or CSIS (Canadian Security Intelligence Service). Background and links to other stories with background can be found in a recent article at the Washington Post which notes that: Prime Minister Justin Trudeau on Wednesday revoked the use of emergency powers that he invoked to quell weeks-long blockades in the Canadian capital that spread to several U.S.-Canada border crossings and inspired copycats abroad. “Today, after careful consideration, we’re ready to confirm that the situation is no longer an emergency,” he said at a news conference in Ottawa. “Therefore, the federal government will be ending the use of the Emergencies Act. We are confident that existing laws and bylaws are now sufficient to keep people safe.” The move was a shift for Trudeau, who on Monday said his government still needed the sweeping powers even after the blockades protesting public health restrictions and his government were cleared over the weekend because it had “real concerns” that new blockades could pop up and that protesters might be regrouping at satellite hubs outside Ottawa. Trudeau last week became the first leader to invoke the 1988 Emergencies Act, and the House of Commons voted Monday to endorse the use of the law. But its unprecedented use also drew criticism from civil liberties groups, some opposition lawmakers and several provincial premiers, who cast it as government overreach. The act was written to be a last resort, to use when there were no other laws on the books that might end an emergency. Several legal analysts said that it wasn’t clear that the blockades met the threshold or that authorities had exhausted existing tools. Alberta Premier Jason Kenney is challenging it in court. The Emergencies Act allowed police to designate no-go zones where people participating in prohibited public assemblies or bringing minors to them could face arrest. One such area was Parliament Hill in Ottawa and the surrounding precinct. The fact that the House of Commons approved the use is pretty much the end of the line since the parliament in Canada has the authority of suspend individual rights in most cases under the Canadian constitution. And also to note, a State in the USA is trying to pass a bill for these oppressed Canadians to give them temporary asylum. This is clumsy and naked political posturing. States have no say in immigration matters including asylum and the people trying to pass that bill know perfectly well that such a bill is meaningless even if passed. Should Canadians be fleeing their country in light of what has happened in the past few days? No. I believe the CCLA stated, "Let's be clear: There is no legal justification for using the Emergencies Act." The CCLA's statement greatly overstates the situation. If there is no legal justification, could Canadians seek asylum in other countries on the evoking of the emergencies act and would other countries take in Canadians seeking asylum from this current situation? No. Asylum requires an individualized threat of persecution which the vast majority of Canadians who didn't participate don't face. Moreover, they would have to show that it violated their human rights without lawful justification which they would be unable to do, and it has to be so severe that it puts your life and ability to live in the long run in your country in danger. Not being permitted to fully protest at a particular place for a week and having your bank accounts frozen for allegedly engaging in illegal activities doesn't meet that threshold. | Does this mean that anyone who is born in the US is automatically a US citizen, whether they want it or not? Yes (subject to a couple of exceptions, namely the children of diplomats with full immunity and the children of a hostile foreign occupier). Or does this amendment just offer the possibility of requesting citizenship? In other words: is there an action to be made in order to become a US citizen when born in the US (and therefore one is not before this action is performed)? No. For someone who falls under the 14th amendment's citizenship clause, the only way to avoid being a US citizen is to relinquish or renounce it, which generally means that one is stuck with the US citizenship for at least 18 years. Most countries' citizenship laws, or at least all of those with which I am familiar, operate this way—automatically—for "normal" cases of acquisition of citizenship by virtue of the circumstances of birth. This is true whether the citizenship derives from the place of birth or from the parents' citizenship. | All Four of them! Double Jeopardy is not in play if a jurisdiction can lay claim to your criminal action, so if you stand on the Four Corners and shoot a man in any of the four states, each state has a right to charge murder. In addition, the Federal Government can have a go at you because you crossed state lines while in comission of a crime. Plus the Navajo Nation, which controls the reservation land the border is on. So that six separate charges. That said, the state the dead body occupied at time of Murder would have the best case for action and the other three would likely let that state try you first. The Feds would only step in if each of the four states failed to convict, though they can step in whenever they want (they are just watching to see if you'll serve time first). Not sure at which point Tribal jurisdiction applies, but given that this is a fairly common Jurisdiction issue, I'm sure it's been worked out. | Does this mean all countries law applies to it? Basically yes. If the videos are in english and are about science in general does this mean if some country some day bans ( imprisonment ) science videos or use of a specific colour in videos can they extraterritorialy enforce this imprisonment if they are in some other country like USA or India? With respect to criminal cases, only if it can arrest that person or convince another country to arrest and extradite that person. Generally speaking, countries will only extradite someone if it is a serious offense under the domestic laws of the country of arrest as well as the country requesting that the person be handed over, and also only if the crime occurred in or was targeted at the requesting country. Sometimes the arrest is not legal in the place where it is made. For example, in this case decided by the U.S. Supreme Court (the quote is from the official syllabus to the case): Respondent, a citizen and resident of Mexico, was forcibly kidnapped from his home and flown by private plane to Texas, where he was arrested for his participation in the kidnapping and murder of a Drug Enforcement Administration (DEA) agent and the agent's pilot. After concluding that DEA agents were responsible for the abduction, the District Court dismissed the indictment on the ground that it violated the Extradition Treaty between the United States and Mexico (Extradition Treaty or Treaty), and ordered respondent's repatriation. The Court of Appeals affirmed. Based on one of its prior decisions, the court found that, since the United States had authorized the abduction and since the Mexican government had protested the Treaty violation, jurisdiction was improper. Held: The fact of respondent's forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws. U.S. v. Alvarez-Machain, 504 U.S. 655 (1992). I mean can a country just bring to jail any youtuber outside its borders ( using its national language as the language of the video ) who uploads content of international appeal because of some law? If the country can manage to arrest the person, yes. There are high profile cases from Saudi Arabia where that has happened. See, e.g., here and here (a blogger and his sister arrested in Saudi Arabia, while his wife and children flee to Canada), here (journalists for Lebanese periodical arrested in Saudi Arabia in relation to years old publications) here (more journalists arrested in Saudi Arabia), here ("A male Saudi Arabian teenager has been arrested in Riyadh over a series of online videos of conversations between him and a female Californian streaming-video star that went viral."), here (Yemeni blogger), and here (Washington Post journalist tortured and killed in Saudi Arabian embassy in Turkey at the direction of a senior member of the Saudi Arabian royal family). Also can a country just hold liable for youtube's data privacy practices a youtuber outside its borders and enforce the judgement if the practices of both youtuber and their chanell and youtube is legal in their home country? A country can hold anyone liable for anything its domestic laws allow it to hold someone liable for, and can enforce that judgment against any assets it can exert power over. Some countries with similar legal systems recognize each other's court judgments widely. Countries with very different legal systems often don't recognize each other's judgements. For example, most European countries do not recognize U.S. money judgment for torts (i.e. civil wrongs such as personal injury awards). Similarly, the U.S. does not recognize most foreign defamation judgments, and does not recognize most judgments of Saudi Arabian courts. One last thing is wether inclusion of ads make a difference? Usually not. But it can matter for purposes of assertions of lawsuit liability over someone outside the jurisdiction seeking to impose liability for something that harmed someone in their country. If conduct amounts to "doing business" in the country seeking to impose liability or amounts to a "purposeful availment" of the laws of the country seeking to impose liability in some why, an imposition of extraterritorial liability is more likely, and that tends to happen more in cases where there are ads that are commercial targeting the people of the country where the courts seek to impose liability. | It seems like a lot of "punishments" can be applied to a person without having to go to court. Yes, because everyone has the right and freedom to associate, or dissociate, with other people, and the freedom of contract, at least when the state does not decide to interfere. The state, owing to its monopoly of legitimate violence, has a duty towards everyone under its rule and the people in many countries decided that the state's power should be significantly limited with judicial supervision where individual rights and freedoms are implicated. Other individuals or legal persons do not in general owe a duty to be friend with you or to sign or continue a labour or rental contract with you. At the same time, the people and their government have also decided in certain situations there exists a power imbalance (e.g. between the landlord and the tenant, the employer and the employee, groups suffering from discrimination and stereotypes) where unlimited freedom of association and contract not only harms the individual's human dignity but also harms the society as a whole (e.g. homeless and unemployment, which may lead to increased crimes etc.). Thus, in some situations, the law prohibits discrimination and provides for legal rights generally for the more vulnerable. However, this is a decision that is undertaken by each jurisdiction. A court order is only required if the law says that you normally have a legal entitlement but the state or someone else wants to take it away or limit it, or if the law explicitly requires a procedure before the court. Since you tagged the question with canada... Can a person be fired ... without a court order? Yes. However, in Canada, all jurisdictions have labour laws that regulate dismissal of an employee. Dismissal without cause usually requires notice period and/or severances, depending on the length of employment. Dismissal for cause can be challenged in court and the employer has the burden of proof to justify the cause on a balance of probabilities (more probably than not) and the terminated employee will have the right to have them heard before the court and present their evidences. If the person occupied a unionized position, they may also be able to file grievances with the union before an arbitrator, depending on the text of the collective agreement. The collective agreements also often provide for procedural requirements before the dismissal of an employee in a unionized position. Violation of these procedural requirements may lead to the annul of dismissal or awards of damages. Can a person be banned ... without a court order? Yes. You have no general right to be on another person's property in Canada. Your rights end where others' property (or other) rights begin. Like said in the beginning, this is a societal decision and an act of balancing particular to each jurisdiction, for example, in some places, there exists a right to roam over certain publicly accessible lands. The property owner or another person otherwise legally authorized has the authority to decide who they want on their property (which means what is one's own), subject to certain narrow exceptions, under common law and provincial trespassing acts. Your neighbour cannot prevent you from crossing on their land if you have a valid easement and are not abusing it. But if you are abusing your easement, your neighbour may take you to court for an order. Here the property owner includes the state. However, like almost all decisions made by the state, in Canada and many other countries with the rule of law, can be judicially reviewed for their reasonableness, and sometimes correctness. Like all decisions made by the state, trespassing notices may be challenged if the decision is arbitrary or without legal basis. Can a person be evicted ... without a court order? No. In all jurisdictions in Canada, eviction, that is, the forced removal of tenant from a premise, can only be carried out by sheriffs or other legally authorized officers upon an order from a court or tribunal (often called Landlord and Tenant Board or similar), with exceptions for certain tenancies (e.g. where the landlord and the tenant share living area). Court order is not required for the termination of a tenancy; but the termination of tenancy can only be achieved if the tenant agrees or a tribunal or court orders so. Does Habeas corpus come into play in any of these situations No. Habeas corpus means "that you have the body", which is an order from a judicial official to command the state to bring someone in its custody before the court, so that the legality of their detention by the state may be determined. In Canada, habeas corpus only protects liberty interests of an individual. | The Queen doesn't need legal rights, she is the law! As per Dale M's answer, Her Majesty doesn't meet the requirements to be a citizen of Australia under the Citizenship Act, nor has she ever been granted that status. Someone else will need to fill in the legal reasons as to whether or not a law like the Migration Act could be enforced against Her Majesty personally. I suspect there is an argument in there about the Crown generally not being bound by statutes. In practice, I can't imagine anybody at the Department of Immigration trying to turn Her Majesty back at the border (although this would be an interesting step towards a republic...). In any case the Royal Family and members of its entourage have the special status of not needing a visa when they visit Australia: Migration Regulations 1994, reg 2.40. | The main question is whether the US has jurisdiction outside the US, which means either "in another country" or "in no country" (viz. the high seas or outer space). It has generally been felt (legally) that the US has no jurisdiction over foreign countries, see especially Banana v. Fruit, 213 U.S. 347 "the general rule is that the character of an act as lawful or unlawful must be determined wholly by the law of the country where it is done". This is known as the "presumption against extraterritoriality": it is a presumption, not a rigid absolute rule. However, there are exceptions. The Alien Tort Statute (one of the first laws of the US) says "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States". An application of that law is Filártiga v. Peña-Irala, where defendant tortured and murdered plaintiff's daughter, all parties being in Paraguay at the time: the court held that the US did have jurisdiction, under the ATS. Nevertheless, in Sosa v. Alvarez-Machain, 542 U.S. 692 which involves an extraterritorial kidnapping, SCOTUS seems to have said that this law is primarily about granting jurisdiction, and not about creating new torts, and they indicate that the wrongful acts within the scope of the ATS are, specifically, "offenses against ambassadors, violation of safe conducts, and piracy" (at any rate, it's clear that damage arising from pollution would not be within the class of bad acts referred to by ATS). Kiobel v. Royal Dutch Petroleum Co. reaffirms the limit on what torts can be pursued under ATS. In this case, the issue is whether RDP might be corporately liable for acts that could be illegal under US law, and the court says "[w]hen a statute gives no clear indication of an extraterritorial application, it has none" (citing Morrison v. National Australia Bank Ltd.). Accordingly, Taylor Jr. was held liable for his role in torture in Liberia, since the Torture Victim Protection Act does specifically allow for actions against individuals acting in their official capacity, outside the US, for torture and extrajudicial killing. "Sanctions against" is kind of open-ended. The US government can (under some circumstances) prevent US persons from doing things with respect to some other country, such as the restrictions against doing business with or visiting Cuba, Albania, North Korea etc. as have existed withing the past quarter century. Were I interested in sending money to a person in Iran vs. a person in Canada, I would have more problems in the former case owing to "sanctions". I think we can safely conclude that the US cannot (in terms of US law) declare that "whatever acts of a foreign entity overseas offend the federal government shall be litigated as though the acts were committed within the proper jurisdiction of the US" (or, more simply, "the proper jurisdiction of the US government is the universe"). Congress has not yet passed such a law about extraterritorial pollution, so until it does, it cannot sanction overseas polluters. When/if it does, it presumably can, though enforcement is another (political) matter. | You didn't bother to state who this appeal is with or even where you are but I'm almost certain I know the answer. Just once. If the appeal is denied, you may be able to appeal to a higher body such as a higher court or an ombudsman. However, any group or court allowing the same appeal ad infinitum until you get what you want would be farcical. |
How much of law enforcement is discretionary? When I look at the Cannabis situation in the US, I find that Cannabis is still a Schedule 1 drug under federal law. However, such a law is not enforced. So I wonder, how much of law enforcement is discretionary? On the other hand, the IRS of the US is notorious around the world for heavy handed enforcement of US federal tax laws. I see so many complaints online by US expats, as well as domestic US tax persons, of how onerous and punitive US tax enforcement is, relative to other countries. So when I see comments like "Congress writes the law, IRS merely enforces the law. So blame congress, do not blame the IRS" I know that this is not true. Case in point would be the enforcement of Cannabis laws. So what causes the heavy handed enforcement of US tax laws, but near-total non-enforcement of Cannabis as a Schedule 1 Federal drug? Can someone sue the DEA for refusing to enfore Cannabis laws? Similarly, can someone sue the IRS for heavy handed enforcement of tax laws? | So what causes the heavy handed enforcement of US tax laws, but near-total non-enforcement of Cannabis as a Schedule 1 Federal drug? Tax Enforcement In The U.S. Is Not Particularly Heavy Handed First of all, enforcement of U.S. tax laws is not, contrary to your perception, heavy handed. In fact, tax law non-enforcement is one of the most well quantified circumstances in which there are good estimates of how often tax laws aren't enforced. For example, as of 2001, the federal income tax tax gap (i.e. the difference between taxes paid and taxes owed) was summarized as follows: About 44% of [the tax gap] ($148 billion a year) comes from income and self-employment taxes owed by closely held businesses. About 16% comes from understated non-business income (disproportionately from investment income not subject to information return requirements such as capital gains and rental income), and about 9% comes from overstated deductions, exemptions and credits. About 33% comes from other sources (mostly underreporting of corporate income taxes and employment taxes). Non-compliance rates vary greatly by type of income. About 1.2% of potential wage and salary tax revenue are not collected. About 4.5% of potential dividend, interest, pension and taxable Social Security income tax revenue are not collected. About 8.6% of potential tax revenue alimony, partnerships, S-corporations, capital gains, and overstated deductions and exemptions are not collected. And, about 53.9% of potential tax revenues from farms, rents and royalties, and sole proprietorships are not collected. The biggest factor in tax law compliance is the degree to which income appears on information returns. Taxpayers whose income isn't reported by third parties are much more likely to cheat. More than a third of returns with capital gains incorrectly report that amount of the gain. Independent contractors omit on average 17% of income not subject to information returns, but just 3% of income subject to information returns. The I.R.S. is not funded at at level that maximizes compliance. It estimates that for every additional dollar spent on enforcement, it could collect about $14 of additional tax revenues. (Source: Senate Finance Committee testimony in 2005 summarized here) Since 2001 the amount of enforcement done by the IRS has significantly declined due to reduced IRS funding. According to the U.S. Treasury Department (which includes the IRS), in 2019, the tax gap was as follows: Today, the “tax gap”—the difference between taxes that are owed and collected—totals around $600 billion annually and will mean approximately $7 trillion of lost tax revenue over the next decade. The sheer magnitude of lost revenue is striking: it is equal to 3 percent of GDP[.] While there are countries with low tax compliance (e.g. Greece and Italy) those countries have serious public finance problems as a result, and internationally, U.S. tax law enforcement is weak. See, e.g. here (quantifying tax gaps in E.U. countries and in the chart below from this source): (The U.S. estimate of 3% of GDP is not a fair comparison to these figures which include all taxes in a country, not just federal income taxes as in the U.S. figure). U.S. expats are, in part, unhappy, because U.S. citizens are taxed as a matter of substantive U.S. tax law on foreign income that many other countries do not tax their citizens upon. But, expat tax enforcement in the U.S. is hardly comprehensive and is generally speaking, less vigorous and less consistent than tax enforcement in domestic cases. Cannabis Law Enforcement In The U.S. The shorter story of cannabis law enforcement is that historically, most enforcement of marijuana laws has been by state and local governments, since federal, state and local governments had parallel and similar laws on the subject. Some localities and states deprioritized enforcement or legalized it under state or local law. The federal government did not want to spend the money to replace the state and local enforcement that ceased to be present. Several U.S. attorneys (the federal DA for a U.S. District Court District) decided to allow the state legalization experiment to proceed and to not be arbitrary in making cannabis prosecutions. When they did this they issued statements stating that they would not enforce federal cannabis laws in places where it was legalized where the violators were in compliance with state and local law and where the additional conditions imposed by federal prosecutors were met. This also reflected the fact that with state legalization, the risk of jury nullification in federal prosecutions for marijuana offenses that were legal under state law became much greater reducing the value of attempting such prosecutions. This was later rescinded (at least at the national level) but was replaced by Congressional language in appropriations bills deprioritizing such criminal enforcement and not authorizing federal funds to be spent for this purpose. CBD and hemp (which are cannabis products that are not psychoactive) have effectively been legalized nationally, although THC has not and is only tolerated at the federal level where states have legalized it. Is Prosecutorial Discretion Subject To Judicial Review? Can someone sue the DEA for refusing to enforce Cannabis laws? No. Another answer correctly cites the U.S. Supreme Court case of Town of Castle Rock vs. Gonzales as the basis for this realty. In some cases, however, individuals can bring a private cause of action against a cannabis law violator under RICO (the Racketeering And Corrupt Organizations Act) if they can show particularized damages to them from this activity. Similarly, can someone sue the IRS for heavy handed enforcement of tax laws? No. The IRS has to prove that taxes are owed, in every cases where the taxpayer contests the liability, in either tax court (prior to payment of the tax) or in U.S. District Court (after payment of the tax in a refund lawsuit). But, there is no private cause of action related to the level of enforcement of meritorious cases that the IRS can bring. That is a political decision for the Secretary of the Treasury, the President, and Congress in funding the IRS. Claims that equal protection of the laws are violated under the 14th Amendment with discriminatory enforcement choices of prosecutors and law enforcement are almost completely (although not quite entirely) barred. Certainly, such suits are not permitted in the context the question raises. | 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). | 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 Usually, and assuming the smoker is aged 18 or over and there are no aggravating features, an arrest is not always necessary as what's referred to as "simple possession" is dealt with proportionately either by a: Cannabis Warning Which is: a non-statutory disposal. It can be used as a proportionate response to dealing with offenders found in possession of small amounts of cannabis. It is an informal warning, administered by a police officer, to adults found in possession of small amounts of Cannabis, consistent with personal use. ... First offence, no aggravating factors - Cannabis Warning; Second offence, no aggravating factors – PND (see below); Third offence – arrest. Or, a: Penalty Notices for Disorder (PND): You’ll be asked to sign the penalty notice ticket. You won’t get a criminal conviction if you pay the penalty (usually £60, but may be £90) You can ask for a trial if you disagree with the penalty notice. You’ll get a bigger fine if you don’t ask for a trial but don’t pay the fine. | This is called a qui tam action. It's a concept that's been around a long time in the English legal system (predating the US), to encourage people to help the government enforce its laws. The more contemporary system is to give private parties the right to sue on their own behalf for some wrong (known as a "private attorney general" system), which is how things like civil rights claims tend to work; the difference with qui tam is that the government is the plaintiff (source) It's possible when the law says that a claim under some section may be filed by a private person on behalf of the government; at the time the article was written, the false marking statute (35 USC 292) stated that "Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States." In a qui tam action, the government is the plaintiff; it's just that instead of a public attorney handling the case, it's handled by a private party. There were three active qui tam statutes in US federal law as of 2009 (source: CRS): the False Claims Act (31 USC 3730), the patent marking claim, and an Indian protection statute (25 USC 201). The patent marking qui tam provision has been repealed, leaving just the two. For the Indian protection statute, I can't find any reference to any special procedure; for the False Claims Act, there is a special procedure included in the law. In the False Claims Act, when an action is submitted, the government is notified and the complaint kept sealed for 60 days while the US government decides what to do. If the government wants to take over the case itself, it can do that; if it wants the private party to run the case, it can do that too; if it wants to dismiss or settle the case it can do that as well. It can also ask for the time to be extended, or for discovery to be delayed to gather evidence or prosecute a separate criminal or civil case. If the government lets the private party run the case, they can still intervene later if they have a good reason. After the case finishes, the private party gets 15-25% of the judgment or settlement (if the government took over the case) or 25-30% (if the private party ran the case), plus attorney fees. If the facts the case was brought under were publicly known when it was filed, the amount shrinks to 0-10% if the person supplied information to the government that wasn't publicly known when it was supplied, and the case is dismissed if the person just learned about it from public sources. For the false marking statute, a district court actually found it unconstitutional in part because of the lack of the extensive procedure found in the False Claims Act. There, the procedure was just to file the case like normal; the clerk had to tell the Patent Office that a claim had been filed within a month, but one issue was that a settlement could have happened in that time and bound the government. It's possible higher courts would have ruled had that section not been repealed later that year. As for other countries, the idea came to the US from England, but the Common Informers Act 1951 eliminated it there. However, private prosecutions (which do exist in England) are similar in that the case is on behalf of the Crown, but handled by a private party; they're different in that the private party doesn't get any part of the judgment. While it's hard to prove a negative, I can't find any evidence of qui tam provisions outside the US. | It is illegal to break into the house even if you don't steal anything. It is illegal to steal the drugs even though the owner of the drugs possessed them unlawfully. So that's at least two crimes. On top of that, the thief will be committing the crime of illegal possession of a controlled substance after the theft. | In the US, "insider trading" includes both legal and illegal versions. When a corporate employee buys or sells shares of their company, they are insiders and they are trading (there is a requirement to report to the government). The illegal version involves breach of fiduciary duty or confidence. The relevant section of the federal regulations is 17 CFR 240.10b on "Manipulative and Deceptive Devices and Contrivances", and you will note that the section does not rely on the term "insider" in the law part, instead it directly characterizes what acts are illegal. Thus it would not matter, from a legal perspective, if someone considers you an insider. It is illegal to trade in securities using a “manipulative, deceptive, or other fraudulent device or contrivance”. This relates to what is commonly known as insider trading via rule 240.10b5-1, by defining as manipulative and deceptive trading on the basis of material nonpublic information about that security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or derivatively, to the issuer of that security or the shareholders of that issuer, or to any other person who is the source of the material nonpublic information (emphasis added to focus on the core requirements). Whether or not you have a "duty of trust or confidence" is determined by common law standards, that is, it depends on how courts have ruled on similar matters. For instance if the CEO of Apple tells you "Our computers explode and it's gonna be on the news tonight, the stock is gonna tank, but it would be illegal for you to act on that information", then it would be illegal, because you are aware that the CEO has a duty to not use that information (thus you "inherit" the duty). This also holds if he doesn't tell you that acting on the information, since it is expected that you know that the CEO of Apple could not legally act on that information (even if in fact you are unaware of the law -- ignorance of the law doesn't get you anywhere good). However, if you are unaware and could not know that the person making the factual disclosure is divulging information that he has a duty to shut up about, then you might not get prosecuted. | A prosecutor's discretion is almost unassailable. The main reason for this is to prevent prosecutors from having to defend in a legal forum every single decision made. In a civil matter, prosecutors have absolute immunity form being personally sued for their actions (again, to prevent a prosecutor from being sued from every single defendant). https://en.wikipedia.org/wiki/Prosecutorial_immunity Misconduct by prosecutors may be resolved by reversal or retrials of court proceedings. But this is not something that really has criminal penalties. https://en.wikipedia.org/wiki/Prosecutorial_misconduct#:~:text=In%20jurisprudence%2C%20prosecutorial%20misconduct%20is,is%20similar%20to%20selective%20prosecution. Occasionally, a prosecutor may be subject to discipline from the state's Bar. This is rare, and is not much of a deterrent. https://publicintegrity.org/politics/state-politics/harmful-error/misconduct-and-punishment/ Theoretically, a prosecutor who out and out breaks the law can be prosecuted. Examples seem to be rare, and are more about government malfeasance (expense reports, misuse of government equipment, etc.). Due to the above standards, proving criminal conduct around prosecutorial discretion will be extremely difficult, as will finding a fellow prosecutor willing to even go down that road. It is in no prosecutor's interest to set the precedent of prosecutors being jailed for their behavior. So, why has nothing happened? Because in general, prosecutors can get away with almost anything. And I will add, Because America seems to like it this way. |
Does a copyright owner own infringing derived works? If a person infringes on someone's copyright by making a derivative work (like fanart for example), who owns that work? I'm aware the copyright holder can stop the work from being distributed and take it down, as well as claim damages that the derived work may have caused. This question comes from a recent controversy where Disney started selling a toy made from a 3d model that they took from a fan work made by an internet user. The 3d model seems to be clear copyright infringement as the fan didn't obtain permission and the object depicted in the model was copyrighted by Disney. They could have made him take it down and/or get paid for damages, but It's not clear to me if they can just use the work as if it was a derived work made by them. Is Disney in the right here? Does the ownership of the original work grant them ownership over these infringing derived works? If not, does the fan have a case here or does the initial infringement invalidate any claim he may have? Sorry if this has been asked before, I looked for this question but didn't find anything close enough. | To my understanding, the answer is in theory no, in practice yes. Ordinarily, non-infringing derivatives gain copyright on the creative elements contributed by that derivative's author (17 USC 103(b)). However, as I cover here, the United States has a specific statutory provision in 17 U.S.C 103(a) which bars infringing derivatives from gaining copyright (internationally, most statutes are silent on this specific scenario). So in theory, Disney does not own copyright on the derivative because no one does - no copyright was assigned to the derivative author due to its infringing nature and the elements original to that derivative are technically in the public domain (unless they are far enough removed from the original, per the wording of s. 103(a)). However, in practice Disney effectively owns the copyright. By definition of being a derivative, it contains original elements of another author's work. Disney is the rightsholder of that author's work and as such can effectively exercise the rights granted to it by copyright law on the derivative by virtue of holding the underlying original's copyright. | In a hypothetical case like you are describing, you could make a contract with them regarding the duplication of the content, irrespective of copyright law. Their violation of that contract would not necessarily be a copyright violation (which would allow statutory damages), but you might win a breach of contract lawsuit. But if someone took it from them and made copies, you would likely not have a case against that person because copyright would not protect you and you have no contract with them. In addition, you could obtain a very "thin copyright" in a particular new presentation of the material. This would mean that copyright law would apply, but only to the particular presentation (e.g. new footnotes, a particular layout, etc...) If considering doing this IRL, you should consult a copyright attorney. | The US does not provide copyright protection for font design. As long as you dont distribute font generating programs, that would themselves be copyrighted, you are not infringing. Your derived information is okay because it is derived from a non-copyrightable work and is therefore not a derivative work. https://law.stackexchange.com/a/25673/1340 | There is no provision for automatically relicensing infringing works (for example, distributing a program that contains parts covered by the GNU GPL and that is therefore a derived work will not automatically place the infringing program under GPL, even if that is the expected way for derived works to comply with the license. Instead, the derived work becomes at the very least undistributable, as there are competing copyright holders that disagree. | No These are derivative works and making them is copyright breach. Doing this as a hobby or even for the entertainment of friends in private is likely fair use. Distribution or performance in public (monitored or not) is likely not fair use and you would need a licence. Here is a summary of the relevant law in australia. | For works released after 1989, Copyright notices don't have any legal consequences in the United States. They are just a friendly reminder of who created the work and that they take their copyrights seriously. But those notices are not required anymore to enforce your copyrights on the works you created. If you have proof that you own the copyright on something and when it was created, and if it's still within the term limits, then you can take legal actions against people who violate your copyright. Disney has a history of repeated worldwide lobbying for extending the expiration durations in copyright laws in order to avoid any of their classic cartoons from falling out of copyright protection. So it could be that they try to intentionally muddy the waters and make it harder to find out which of their works expire when. That way people are less sure about what Disney works are and are not in the public domain, making it more risky to use them. But that's just my theory. | If you change a single character, that's clearly a partial copy. Copyright protection has a limited extent, however. The protected work must be original and not obvious. For example, there are only so many ways to write a function that computes the average of two numbers, so the copyright owner of one body of code cannot claim infringement by the author of a second body of code simply because they both have a function float Average(float a, float b) { return (a + b) / 2; } A surefire way to avoid infringing copyright is to specify the function of the code and then have someone who has never seen the code write it from scratch. This is sometimes called clean-room engineering. Otherwise, there is no way to answer your question definitively. If you create a modified copy of the code (a "derived work" in copyright terminology), there is no strict formula available to evaluate the extent of the infringement. It comes down to a case-specific analysis of the facts by a judge. Depending on the jurisdiction, which you have not specified, there may be specific laws or judicial precedent that guide the judge, but the determination will still require a specific analysis of the facts. For example, if the alleged infringer raises these arguments, the judge would have to determine how obvious the code is, or whether the copyright claimant even owns the copyright to the code. | You can make a derivative work if: the original is not under copyright, you are the copyright owner, you hold a licence from the copyright owner that says you can, or your usage is fair use or fair dealing as applicable. For your proposal, the image is copyright, you don’t own it, you don’t have a licence and what you propose is neither fair use nor fair dealing. You can’t do it and you can be sued if you do. |
Company pays employees corona bonus for the previous year, but I've quit in January My ex-company decided to pay its employees a bonus for the struggles with Corona in 2021. I've resigned from my job at that company in January 2022. They announced the bonus payment in February 2022, I've gotten the info from an ex-coworker. This Corona bonus bases on a special law in Germany, that allows a company to pay its employees up to €1.500 tax-free because of the Coronavirus. There are no other statements about this bonus in my contract. The bonus is voluntary, though. My understanding is, that because I've worked for the company in 2021, I should be still eligible for the bonus payment, even if I've quit already. I know that there were other employees who planned to quit in early 2022 and handed in their notices already at the end of 2021, I feel like the company delayed the announcement to late February 2022 on purpose, to save money. Am I right with my assumption that I am still eligible for that bonus, and would it be worth to contact my old company about this, or even to contact a lawyer for that matter? | Not likely The company decided to pay the bonus on a certain date. They most likely announced that everybody that is part of the company on a certain date in 2021/2022 [and who has worked at it for a certain duration] will get a bonus. If you are able to get the bonus is dependent on the exact wording of the document that promised the bonus. | The German law mandates minimum notice periods for work contracts. But there is no restriction on maximum notice periods, as long as the employee does not have a longer notice period than the employer (§622 BGB de|en). So yes, in theory you could negotiate that the company is not allowed to fire you in the first 4 years. But I would find it unlikely that they would agree to that. When the stock options are really your only reason why you want to avoid getting terminated in the first 4 years, then they are more likely to be open to negotiations about the stock option clause than about the termination clause. | being overtime-exempt means they're not required to pay me time & 1/2 for overtime, but they're not prohibited from doing so correct? No, the employer is not prohibited from paying you time & 1/2 for overtime. Nor is the employer doing you a favor with respect to the overtime you have been paid already. The employer looks foolish by telling you "I'm doing you a favor by breaching our contract only for future payments but not for past ones". are they required to keep paying me that as part of the contract or can they just stop whenever they'd like since I'm exempt? Yes, the employer is required to keep paying you under the terms of your contract: 1.5 times the normal rate in case of overtime. Your clarification reflects that the notion of "overtime-exempt" is not contemplated in the contract at all, and the employer just brought it up belatedly. Even if the contract were ambiguous or contradicted itself in this regard, the doctrine of contra proferentem would entitle you to the reasonable interpretation that favors your position (that is because the employer is the party who drafted the contract). | Can my accountant bill me for previous work he agreed to perform for free? No. The difficult part will be for you to prove that he agreed to do the job for free. Hence the importance of having this kind of "gentlemen's" agreements in writing. You have the burden of outweighing --even by means of circumstantial evidence-- the common presumption that professional work is done for compensation, not for free. However, just like it might be hard for you to prove the aforementioned "gentlemen's agreement", it would also be hard for him to prove that you agreed to (or knew, or should have known, you would have to) pay the amount he is billing now. In the event that you are unable to prove he agreed to work for free, you might want to dispute the reasonableness of the amounts he is pursuing so belatedly. It is noteworthy that the work at issue being "really simple" would not be the only factor for assessing how much he may recover. Other factors such as the accountant's qualifications or the market rate for similar services would be weighed in awarding recovery (if any). Can I legally ignore these invoices? It does not make any sense that he sends me invoices for work done 4 years ago. You may ignore the invoices regarding older work, that is, those for which the period of limitations has elapsed. For most cases, section 4 of the Ontario Limitations Act provides a two-year period to bring a claim. Since the accountant himself did the job, and most likely he was --or should have been-- aware of the payments due for his services, he would be unable to prove that his "discovery" of claims (see section 5 of Limitations Act) regarding older tax filings meets the period of limitations. Equivalently, see here the paragraph starting with "For example, if the courts determine that [...]". | When does a CEO (or the investor or the board) have to notify employees they will be unable to pay them for work already done? Directors and officers (which includes executive officers like the CEO) but not investors have a duty to ensure that the corporation does not trade while insolvent. In this context, "trading" means incurring new debts and "insolvent" means being unable to pay their debts as and when they fall due. Unfortunately, it is a judgment call by those directors and officers and the exact point where it occurred is generally only clear with hindsight, if then. For example, you describe a "tumultuous week"; quite likely the company was urgently seeking additional sources of funds and until it was clear they had no prospect of getting those, they weren't insolvent. The director's duty is to act reasonably (a broad range of activities) and not be overly pessimistic nor optimistic about the company's prospects. As far as I know, they don't have a positive duty to inform their creditors that they can't pay. If that happens their obligation is to file for bankruptcy and their obligations cease - the bankruptcy trustee then invites creditors to prove their debts. Does an investor have a responsibility to ensure all employees are paid? No. That is pretty much the purpose of limited liability corporations: to shield the investor from the debts of the company. Do the employees have any recourse? Yes. Employees are typically priority creditors in Colorado and rank ahead of many other creditors. However, if the company is not based in Colorado different laws will apply. Of course, you must be an employee of the company - this priority doesn't apply to true independent contractors. Also, the liquidator's fees rank ahead of anyone and unless the bankrupt company has adequate realizable assets, even employees are unlikely to get a dividend. You also need to be clear who you work for as you say "that last Friday was paid for/fronted by the HR company". Do you work for the bankrupt company or this (non-bankrupt) HR company? If the latter then they owe you your wages and the bankruptcy of their principal is their problem, not yours. Is "secured debt" real? And does that reduce the likelihood of receiving a paycheck in a bankruptcy settlement? Yes. There is a priority in the payment of creditors in liquidations and it varies by jurisdiction but a typical arrangement might go like: Liquidator's Fees Employee wages and entitlement accrued within the last 6 months Certain taxes Secured creditors (who may have a ranking among themselves) Unsecured creditors (including employee entitlements more than 12 months old, other taxes, trade creditors etc.) Shareholders (who may have a ranking among themselves) Basically, the lower you rank, the less likely you are to see a dividend. Does any of this change if the company doesn't file for bankruptcy? Sure. Until the company does this it is still a going concern and it has to pay its debts. If it doesn't it's creditors can sue and recover their monies as best they can which may include forcing the company into bankruptcy. | It isn't 100% clear from the question if a case has been filed in court, or someone was just planning on filing a lawsuit, which is an important fact. It seems like the ex filed a court case and you hired attorneys who responded. If there is a court case filed, that can't just be abandoned until all the i's are dotted and t's are crossed in the eyes of the court. The lawyers can't quit unless the court gives them permission to do so. Usually, lawyers are entitled to be paid for all of the work they do and out of pocket charges they incur in a case, until it is wrapped up, even if some wrap up work happens after the event that determines the final outcome of the case like your ex deciding to abandon his arguments. But, otherwise, if there isn't a pending court case, you normally have the power to tell your lawyers to stop everything and give you the moment left (if any) in your retainer. At first read, it almost sounded as if your lawyers are willing to do that, but are warning you that your ex might continue to be a problem after the lawyers quit and that if that happens, it will be more costly and time consuming to start all over dealing with the threatened lawsuit that your ex made, than it would be to get it over and done with now. But, upon closer inspection, it seems that there is a pending lawsuit and that this is the issue. | According to your description, you have a contract to work 200 hours, and this must be accomplished between May 12 and July 10. Apparently you are 25 hour short on that obligation, which may mean that you probably will be in breach of contract. I don't see what error there is w.r.t. the date: whatever the contract says, that is what you agreed to. Perhaps you are wholely responsible for the shortfall of hours, or perhaps the employer bears some responsibility (e.g. making it impossible for you to work). It sounds like the employer is offering you an accommodation so that you can fulfill the hours part of the contract, by extending the termination date. Technically, you also have to do the work by a particular date, but a reasonable delay in performance is standardly allowed under contract law, unless the contract has a "time is of the essence" clause which states that completion by the specific date is essential to the contract. If not, then there is reasonable flexibility in completion. Doing less than you contracted for, on the other hand, is not a standardly-available option. Pursuant to the comment, it sort of sounds like the employer made it impossible to satisfy the conditions of the contract, and wants to use the end of contract date as a form of hardball to extract additional hours (i.e. "we'll sue you for breach of contract for not having done this by the deadline, unless you agree to work an additional 15 hours"). Hardcore deadlines without a time is of the essence clause don't support a claim for damages in case of minor delay, and even less so when the employer bears responsibility for the delay. Consulting an attorney (bring in the contract and all), in this case, would be a good idea, if they are hinting at a lawsuit if you just walk away 15 hours short, or won't accept your compromise. | Not legal advice - you should consult an attorney who knows your local jurisdiction. That's a general statement, but especially true here because the GDPR does not include personal liability for directors (or others) in the event of a data breach, but domestic laws may indeed do just that. The UK is one example where certain circumstances can lead to criminal liability for directors of a firm in the event of a breach. That said, your company should care. The fines for knowingly allowing a breach or not reporting it properly in a timely manner have been made more significant than the prior Directive. There are things you could do to potentially mitigate consequences in the event of a breach and a fine being levied on the company, such as aligning with best practices and getting certifications. In sum, the actual punishments for noncompliance will vary by jurisdiction, but any business that handles data in the EU should undoubtedly be ensuring it is aware of what, if any, obligations it has and taking steps to comply before May's deadline. |
Why is a freeware EULA considered a contract if issuer is not receiving adequate consideration? I understand that a EULA can be a contract if the user agrees to compensate the issuer for using the software, but if the software is freeware, then the issuer gains nothing of value. Without the issuer gaining anything of value, how is there adequate consideration/why is the agreement still considered a contract? Again, I understand that consideration need not be monetary, it can be the other party waiving a right. But that right must exist prior to entering into the agreement. The EULA grants the user the right to use the product so prior to entering into the agreement the user has no right to use it to begin with. | The user gains the use of the software, the EULA issuer gains the limitations on how the user of the freeware will use it, that for example, prevent the freeware user from exploiting the issuer's labor by reusing it for profit. Consideration doesn't have to be monetary. As a practical matter, sometimes the business model is to give the software away as a loss leader and to have the issuer make their money with training and consulting on how to use it. Also, even in the absence of consideration, a promise upon which the person benefiting from the promise reasonably relies is enforceable under the doctrine of promissory estoppel. Further, EULA stands for "end user license agreement" and there are many times that license agreements aren't full fledged contracts. They are merely limited grants of permission to use something, often not even amounting to a full fledged property right or contract right. For example, if I let my neighbor walk into my living room while we talk and have tea, the right of the neighbor to be in my living room is called a license, even though it is not a contract. A license can be embedded in a contract, but it doesn't have to be. | If a contract sometimes uses the wrong name, is it still valid? Yes. It is valid as long as the contract as a whole permits identifying the parties (unequivocally) and ascertaining their role with respect to the contract. Using "Contractor" and "Consultant" interchangeably despite only the former being explicitly defined seems a bit sloppy, but it does not by itself alter or invalidate the meaning of the contract. The excerpt you reproduce is self-explanatory. Its first sentence identifies the parties, and there are only two. Thus, there is no reasonable way to dispute that the second sentence means "Contractor shall indemnify Company", since a clause of the sort "he will indemnify himself" makes no sense. Moreover, the legal definitions of Indemnitor and Indemnitee (Black's Law Dictionary) clearly make reference to "the person" (who protects or is protected, accordingly) and "the other" (that is, not to self). | There is no contract between you (the licensee) and the licensor of the software. The creator of the open source software just says "here's the software, you may use it if you like, as long as you fulfil some conditions. ". No contract, no liability. I think the developer would only be liable if they intentionally created software that causes damage. (Which has happened, some open source browser plugins have recently been modified to run bitcoin mining software, or worse. I suppose the miscreants could follow all the GPL rules or whatever license is used). | 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. | Data, as it happens in law, can also be owned. That's why we have a discipline called "Intellectual Property". It is a "thing" - like other properties like cars, houses etc., someone owns it. Now, does the transfer of a computer also includes a transfer of data ownership stored inside the computer? Practically speaking, this clause is very unlikely to be included in the agreement when a computer is sold. It didn't explicitly say "yes" (you may use anything you find in the hard drive), but it didn't explicitly say "no" either, hence the question. Looking at data, we can list a few legal concepts related to them: Data collection Data storage Data usage Copyright The exact details vary by jurisdiction, but in general: Data must be collected through legal means Data must be stored in a secure manner to protect the data subjects Data must only be used by purposes agreed during data collection by the data subjects Copyright is not transferrable without signatures "License to use" is not transferrable either Example 1, let's say a software is installed in the computer, with an appropriate license. This license was purchased by the original owner, therefore the software company licensed him to use the software, not you. The agreement does not have your name on it. Example 2, the original owner is a photographer and have some beautiful photos stored on the hard drive. By virtue of Copyright, he is the author and copyright owner of these photos. There has been no signed document describing the transfer of copyright ownership to you, nor license you to use these photos in any way. Example 3, the computer belongs to a company, and client information is stored on the hard drive. By transferring the computer to a third-party without wiping the drive clean, the company fails to use reasonable measures to protect the data of their clients. If somebody uses this data, then he is using data collected through illegal means, and can be prosecuted. A counter example would be someone transferring ownership of the computer for the purpose of transferring the data inside. Note this is different: it is clear to both parties that the purpose of the exchange is to obtain the data stored inside the medium. The ownership of the storage medium and the data inside are separated. Likewise any intellectual property associated to a physical object. When you go to the store and purchase a Bluray of a movie, you buy the physical ownership of the plastic disc + permission (license) to view the contents of the disc in a private setting. You do not buy the copyright of the movie even though it is in your hand. To conclude, the answer is No - transfer of ownership of a storage medium has nothing whatsoever about the transfer of ownership of the data inside. | No contract can limit a court's jurisdiction An NDA is a contract: it cannot prevent the application of the judicial process. Should your dispute reach a courtroom, the NDA and the documents it seeks to protect are all admissible and you should subpoena them from the defendant and submit those copies to the court (that way you are not breaking the terms of the NDA). What is not admissible is bona fide "without prejudice" documents: that is documents that contain admissions and offers made in a genuine attempt to settle a dispute. This privilege is established by the context of the document, not by if it does or does not have the words "without prejudice" on it (except, of course, that their presence/absence is part of the context). | According to Nolo.com five requirements must be met for an agreement to be binding and enforceable by a court. Your scenario meets one requirement at best (see comments). Therefore, there is no legally binding agreement. Contract Requirements To be enforceable by a court, every contract (whether written or oral) must meet several requirements. Let's take a look at each of them. Consideration. As Cole Porter wrote in the song, True Love, "You give to me and I give to you." That sums up consideration. Each party has to promise or provide something of value to the other. Without this exchange, there is no contract. (Learn more in Nolo's article Consideration: Every Contract Needs It.) Offer and acceptance. There must be a clear or definite offer to contract ("Do you want to buy this?") and an unqualified acceptance ("Yes!"). Legal purpose. The purpose of the agreement must not violate the law. For example, you won't be able to enforce a loan agreement that charges interest in excess of what is allowed by usury laws or a service agreement to hire someone to rob a bank or kill your mother-in-law. Capable parties. To be "capable" of making a contract, the parties must understand what they're doing. For example, there is a presumption that minors and insane people usually don't know what they're doing and, for that reason, contracts they enter into won't be enforced under certain circumstances. (Learn more in Nolo's article Who Lacks the Capacity to Contract?) Mutual assent. This is also sometimes referred to as a "meeting of the minds." The contracting parties must intend to be bound by their agreement and must agree on the essential terms. If this isn't enough, there is another common law defense available to such a defendant called estoppel. Courts look to the behavior of the parties to determine if there was an actual contract or not. If the behavior does not fit the alleged agreement, then the plaintiff is estopped from enforcing the words on paper. | To answer the question in your title: Yes, software licenses are copyrighted. They are written works that involve (significant, expert) creative effort to create. The best solution would be for Grammarly to hire a lawyer and say "we want a new EULA. We think this one covers a number of points our current one doesn't". Most legal documents will be copyright for the same reason (there may be a few that are so stereotypical that there is essentially no creative effort in putting them together). |
Can a plaintiff call the defendant as a witness in a civil trial? Alice is suing Bob, representing herself. She has decided that her best strategy is to catch Bob in a lie to undermine his credibility. Can Alice call Bob as a witness? What questions can she ask? | Only in a civil case Yes, in a civil case, Alice generally can call Bob as a witness to take the stand. In many cases, this is done very early, locking in their testimony, before expert witnesses or other evidence by the plaintiff are presented to try and undermine the testimony. Alice may ask only questions that have relevance to the case. Let's take for example a dispute about a contract: Alice may ask Bob if he engaged in negotiations to form the contract, about the matter of the contract, if he signed the contract, or how he (or his employees) fulfilled (or not) the contract. Pretty much everything that pertains to the contract or the execution thereof. This does not extend to the settlement of the case or attempts thereof. Alice may not ask if Bob has an affair with Clarice unless that somehow is material to the contract at hand. Alice may not re-ask questions where an objection was sustained in the same way. However, Bob might not need to answer all questions (there are things that are banned from being asked), especially as Bob's attorney will object to questions. A few examples of competent questioning can be seen towards the end of My Cousin Vinnie, though this is a criminal trial. Never in a criminal trial In a criminal trial, not only can the prosecution not call Bob to the stand, he has to elect to go to the stand to even be questioned by the prosecution. That is because he can "plead the 5th". There is a tiny exception for civil cases, where they can do so there too. | In the United States, the question that determines whether it's perjury is whether or not you believe what you said was true. Whoever— (1) having taken an oath..., willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or (2) ... willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury. So if an attorney asks if you saw the defendant, and you believe you saw the defendant, "yes" is generally going to be the correct answer. You're free to qualify your answers or answer questions that weren't put to you, but you aren't obligated to do so. Generally speaking, our adversarial system puts the burden on the defense to ask if you're sure, how the lighting was, whether you were wearing your glasses, whether you were drunk, etc. | Your belief in the truth of a statement is of only limited value in a defamation suit. Saying that a person is incompetent in that person's profession can certainly be defamation, and may even be defamation per se, depending on the jurisdiction. If the person sues and the speaker asserts truth as a defense, the speaker may have to prove that the statement is true. Why would one need to say anything at all in such a situation? Whether such a statement was a factual statement or a statement of opinion would depend very much on the detailed circumstances. But it is at least possible that a suit might be filed and won on this fact pattern. See this answer for more on defamation under US law. | I've never heard of a rule specifically addressing this in the united-states, but I expect most courts would disallow it. I suspect a court would believe that the note-taking would be a distraction to the witness, whose focus should be on listening to the questions and providing truthful answers. The note-taking may be perceived as a distraction from the testimony for others in the courtroom, as well. If I were examining the witness, I would probably be entitled to see what the notes say, dragging out the witness's examination. Then the witness would want to take notes about my questions about her notes, and I'd want to see those notes, and you can see how it can get out of control. | Generally they don't. If the conversation was made while there was a third person present, the person can be a witness at trial. Unless the witness is impeached, the witness's statement may be sufficient for you to meet your burden of proof to show the statement was made, because the burden is just a preponderance of evidence in most civil cases. Note that, the existence of a statement is not sufficient to prove breach of privacy. The context surrounding the statement is important. If you intend to record communications from the landlord in the future, please check with your jurisdiction's laws regarding recording of communications. Many jurisdictions (such as California) only permit a private communication to be recorded when all parties give consent. Not only an illegally recorded conversation is inadmissible as evidence (with the exception to rebut a witness), it is also a crime to do so. Some other jurisdictions in USA allows one party to record the conversation without obtaining consent from the other party. | She would want a litigation attorney that specializes in this kind of case. For instance if the underlying issue is an OSHA violation, there may be questions that imply a degree of culpability by the witness, and an attorney who knows that area of law (as opposed to copyright or drug-trafficking) would be in the best position to protect the interests of the witness. | Often, you aren't screened only for one trial, but for several trials. If you declare yourself biased for one trial, you might be asked to be considered for a second, or third, etc. If you continue to give answers that make yourself ineligible such that the judge does not believe you are telling the truth or acting in good faith, you can be held in contempt of court. | what reasoning would the court use to evaluate the competing claims? Absent a verifiable contract, the dispute would require assessment of the extrinsic evidence and/or of other aspects reflecting the parties' credibility. Those types of factors would help for discerning whose position is meritorious. You are right in that Bella's co-signing of the loan is likely to render her hypothetical allegation of gift not credible. Bella's history of defaulting on her debts as well as her failure to keep up with insurance & tags are examples of prior act evidence. As such, these might be inadmissible for proving that she entered the contract with Abe. However, they are admissible both for proving Bella's pattern of missing her commitments and possibly for detecting inconsistencies in Bella's allegations (thereby weakening Bella's credibility). Unless Bella is able to point greater inconsistencies or weaknesses in Abe's credibility, a competent and honest court (where available) would rule in favor of Abe. |
Downloading an MP3 that is not available for purchase If I download an album, from 2011, from a TV show from a foreign country on archive.org, is that illegal or legal? I was not able to find the music to purchase legally in any capacity digitally. The only way seems to be second hand via ebay. It's an album from Japan and I live in America and was able to find it on archive.org. | An album from 2011 is pretty clearly going to be protected by copyright. Downloading such a work without permission would be copyright infringement, and therefore unlawful. However, it is not a crime in the US. If the copyright owner or the owner's agent learns of the download, you could be sued. Whether the owner would choose to bring suit is hard to say. However, for some content the Internet Archive has a program where a digital copy can be "borrowed" or "checked out" for a limited period of time. This is supposed to work like a library. The IA has made arrangements that will authorize this, or it is supposed to have done so. You only retain use of such a download for a limited period of time. | Copyright in the US is usually a civil matter. Meaning that the copyright owner can sue (typically for money damages or injunctive relief) an infringer. The criminal laws that we have are aimed at the reproducer and/or distributor. In other words, chances are that you won't get in any criminal trouble for accessing academic articles of dubious origin. But never say never. RIP Aaron Schwartz. | The players behind KAT don't make themselves known. The owners of Pirate Bay were known and were personally legally pursued. That's the place to start. Law enforcement can't criminally charge anyone if they don't know who is responsible. Second is that KAT complies with DCMA takedown rules. They publicly claim to at least. PB was known to have a more f-off attitude. The US Justice Dept does pursue KAT which is why KAT changes domains so often. They do get shut down. Law enforcement has better things to do. The record and movie studios and industry-groups have money and technology to pursue infringers. It's my impression that law enforcement is happy to let the copyright holders do the heavy lifting and the government can come in with criminal charges. | You are framing it wrong. It is not that "they have put a barrier" to public domain information, it is that they have added an additional source of that information. The new source has a barrier, yes, but that does not prevent you from accessing the same information elsewhere. If you own a copy of some public domain data, you are not allowed to prevent other users from accessing other copies (by claiming copyright infringement or the like); you cannot even prevent people from doing copies from the copies you did provide them. But you are not forced to allow other users to access your copy. Consider the logical conclusion if that were the law. The moment that you downloaded some public domain file into your computer, you would be forced to give access to your hard disk from the internet, isn't it? Would you need to leave your home door open if you happened to have a printed copy of the text there? Of course, there is a need to discriminate between "public domain" (without licence) and "not public domain but open licence" (BSD, CC, GPL, etc.). In the later case the licence could be tailored so that the work could appear in archive.org but that it would be illegal to provide it with the business model of Academia.edu1. But that would be possible only for works not in the public domain. 1 To be decided by a judge on the basis of the wording of the licence and jurisdiction. | Interesting that they don't give a source and also don't link to anywhere (such as Wikimedia commons). So I assume that content is google's own. So generally speaking: No, when no license is provided, that means you can't use whatever it is in a project of yours (whether commercially or not), because the "default", when nothing is specified, is that no license is given. So unless you find a license that grants you a permission on google's own content, these sounds can't be used freely. | I see that channel offers playlists and "videos" of popular music by several artists. The one video I tried had the music with no accompanying video or images. The channel's about page says that then operator does not own the copyrights to the music and cannot grant others permission to play it. It is possible that the channel operator has obtained permission from the artists and is thus operating under a valid license. It is possible that the channel is committing copyright infringement, but the various copyright owners have not noticed the channel, or have noticed it but decided not to take action. There is no easy way for an outsider to tell which of these is correct. If the operator has not obtained proper permission, then it seems that this would be copyright infringement. If so, any copyright owner could send a takedown notice, use YouTube's own copyright complaint mechanism, or could file a copyright infringement suit. But nothing compels the owner to act if the owner chooses not to, it is entirely the owner's choice. I do not see that the US fair use or any other exception to copyright would be likely to apply here. If the owner brought suit and won (and a win seems likely to me, from what I can see), the operator would be liable for damages, which might be sizable, or mild. In the US at least the owner could also obtain a court order (injunction) requiring the operator to stop using the owner's copyrighted music. If the owner complained to YouTube, the site could add a "copyright strike" against the operator's account. After a few strikes (I think three) YouTube will cancel the account, according to its posted policies. Similar outcomes could face anyone else who posted or made available for streaming copyrighted content (such as music) without permission from the copyright owner. But again, everything depends on action by the copyright owner. If the owner chooses, for whatever reason, not to act, then nothing is likely to be done about the infringement. | Can he name a particalur one, like Linkin Park? Or that would be considered non-allowed type of advertising? Generally speaking, that does not constitute unlawful advertising. Public figures are allowed to broadcast their preferences on issues that are more sensitive than topics of music. There might be few, rare exceptions where something like this would be outlawed, but most likely that has to do with a regime's censorship of specific bands or music styles rather than with a general prohibition. | Depending on where exactly you are in the world, there is some protection for the representation of copyright-expired material if work went into presentation. So you might be allowed to put a Bach cantata into musical notation yourself, since he died in 1750, but you cannot simply copy another publisher's sheet music to save that work. The same might apply to an old newspaper article. If you find a print and scan it, you can upload it, but you may not be able to take it from the database organized by someone else. In austria, there is §40f Urheberrecht, which defines databases (they may or may not be collected editions). §40h clarifies how the right to a private copy in §42 extends only to "private use and neither directly nor indirectly commercial purposes." In germany, there is 87a-e UrhG, which covers databases whose assembly did not represent creative work (e.g. by simply ordering things by date). They are protected if the assembly required significant investment. This "lesser protection" lasts only 15 years, not 70, and there is a "a significant part" test for copying less than the whole database. |
Is it libel if you claim someone said something that they actually didn't? What is the legal term for claiming someone said something they never actually did, basically, putting words in their mouth? Is it called libel? Is it some other legal term? Or is there no legal term for that? | The word for a false statement of fact that is used most often is a "misrepresentation" or "false representation of fact" or more generally, an inaccurate quotation. A statement is a libel only if it damages the reputation of the person about whom one makes a misrepresentation and is communicated in writing to a third-party. Making a false statement of fact about what someone said to the person who said it is frequently a form of "gaslighting." | Is there such a phrase in jurisprudential or legal thought? In those instances it is common to say that the evidence is inconclusive. Accordingly, it is unavailing because that evidence does not prove the party's allegation. | "Seditious libel" has happened before, but not in the US. This comes up in NY Times v. Sullivan, which notes that For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. This Volokh article gives various citations showing that a government entity cannot sue for libel. | I'm sorry to deflate what is clearly a very philosophically interesting question, but the law is straightforward here. The truth, essentially, is the set of facts that you believe to be true. Yes. It means that you will not lie by omission, and that you will provide the relevant facts. No, you don't need to recount history since the first instant of the big bang. Only expert witnesses may answer by giving their opinion or evaluation. This is presumed accurate by their experience and where it is not accurate, the other side may present opposing expert witnesses to contest their conclusion or evaluation. Laypeople are permitted to answer only with their recollection of facts. Lawyers may not ask them what their opinion is, although by your definition every question is about opinion, since perception and memory is limited. But the question "What colour was Mr Smith's house?" and "What architectural style informed the facade of Mr Smith's house?" require different amounts of expertise and opinion. "Truth" isn't jargon, or even technical language here. I generally aim to be truthful, and so when someone asks me what time it is, I don't feel compelled to answer to the nano/picosecond. Would you call me a liar? Am I lying by omission? Similarly, if someone asks me what colour a car is, I don't feel compelled to say "I can't possibly know, because my perception may differ from yours. If you honestly feel that when someone asks you to be truthful about something, then you must either be lying, or lying by omission if you don't start your answer with the first instant of the big bang, your problem is not one of law. | The question of whether a person was acting on their own behalf or that of a company would generally be a question of fact, so if such a case came to court it would be for both sides to present evidence and argue for their interpretation of it. In most cases the context makes it clear. You mention having a company email domain and associated email signature; that is certainly good practice and would go a long way towards creating a presumption that you were acting for a company. Also signing yourself with your job title or role (e.g. "Joe Bloggs, Chief Bottlewasher") makes it clear that you are speaking in your role as an employee. The content of the communication also matters; if you use your company email address to order goods from a supplier that the company has used before then the recipient can reasonably assume that you are ordering on behalf of the company and a court is likely to agree. OTOH if you use the company address to send libellous emails then the recipient would have a much higher bar to claim that this was the company view rather than a personal one. | Sometimes In general, intentionally false speech gets less protection than other speech, and in some cases it is unprotected. The classic example of speech that is unprotected is "Falsely shouting FIRE in a crowded theater". Note that this is both intentionally false and highly likely to be seriously harmful to multiple uninvolved people. On the other hand, the classic case of New York Times vs Sullivan said that, at least when the subjects were public officials (later broadened to public figures) it was not enough to prove simple falsehood in a defamation case, one must prove "actual malice" (an unfortunate term) which in this context means statements that are either knowingly false or are made with reckless disregard for the truth. The court in that case said, in effect, that if a newspaper had to be sure that its every statement could be proved true in every detail, it would be unwilling to vigorously report on matters of significant public concern (this is a paraphrase, I'll add a quote later). Opinions are considered legally not to be either false or true. "President Jone is the worst leader the US has ever had" Is a statement of opinion, and so is not defamation. Moreover, in political contexts, attempts to punish false statements of fact that are not defamatory have been held unconstitutional. One example was the "Stolen Valor" act, which punished falsely claiming to have been awarded a medal by the US armed forces. This was held to be against the First Amendment. In general, regulation of speech (which here includes writing and other forms of communication) must be fairly narrowly drawn and must have good reasons behind them to survive a court challenge. How much so depends on the nature of the law, and particularly whether it is "content-neutral" or not. Details and cites to come when i have a little more time. | Your confessions, to anyone, can be used against you. If A admits to B that A stole the car, B can testify to what A said. In fact, if B accuses A of a crime and A says nothing (and C witnesses this), C can testify as to what B and A said (or didn't say) – this is known as an adoptive admission, and it is up to the jury to decide if they think the silence is significant. Recordings are likewise admissible. All evidence is in principle defeasible, so if there is a video of "you" committing a crime, you can make the case that it wasn't really you, and the jury will weigh the evidence to see if they are firmly convinced that you did commit the crime (at least in New Jersey... long story about 'burden of proof'). | Yes, a statement made to only a single other person can be defamation, at least in the US (you don't mention the jurisdiction that you or the accused person are in, and it may matter). Only the accused person can normally sue, and that person would need to establish that the statement was made, and that it was false. In most cases actual damage to reputation also needs to be established. However, a few limited categories are considered defamatory per se. these include an accusation that a person is guilty of a serious crime. (The exact line for defamation per se will depend on the jurisdiction.) If a statemant is defamatory per se actual damage need not be proved. Strictly speaking saying that someone "is a pedophile" only says that that person is sexually attracted to children, but it is usually taken to mean that the person has in fact sexually abused children, which is a crime, and would I am sure be considered defamatory per se. Even so, proof of actual damage to the reputation of the person defamed might be important to the measure of damages to be awarded. often the number of people to whom an accusation is made is relevant to the degree of damage to the reputation, and thus to the damages to be awarded, but the relation is not always 1-to-1. Particularly with a very serious accusation, the damage to reputation could be significant, even if only one or a few people heard the false statement. By the way, the word is spelled "pedophile" (or paedophile in UK English), it is from two Greek words meaning literally "lover of the young". A now obsolete related term is "pederast", with much the same meaning. |
Law regarding toilets use in The Netherlands Today my manager sent an email to our department regarding the toilet use; they said that it is not allowed to use the ladies' room as a man, by law, and vice versa. That got me curious. Note that I work for a fairly large company which is not in the catering industry. My questions: Is is prohibited for a man to use the ladies' room? Is there any other law saying something about the construction or possession of such toilets, such as the Arbeidsomstandighedenbesluit or something? Are there perhaps special laws for the catering industry regarding this affair? | Indeed, article 3.24 of the Arbeidsomstandighedenbesluit: Toiletten en wastafels In een bedrijf of inrichting zijn in de nabijheid van de ruimten waar de werknemers hun werkzaamheden verrichten een voldoende aantal toiletten aanwezig. In of in de onmiddellijke nabijheid van de ruimten waarin de toiletten zich bevinden zijn voldoende wastafels. De toiletten of het gebruik van de toiletten zijn naar seksen gescheiden. My translation (intentionally less idiomatic than it might be in order to parallel the Dutch word order): Toilets and lavatories In a business or facility there are in the vicinity of the areas where the workers perform their work a sufficient number of toilets present. In, or in the immediate vicinity of, the areas where the toilets are, there are sufficient lavatories. The toilets or the use of the toilets are segregated by sex. It's a very long law, so I haven't read it all, but it doesn't seem to impose a penalty on people who disregard the sex segregation of the toilets. I suspect that it imposes a responsibility on the employer to enforce the segregation, and presumably a penalty could be imposed on the employer for failing to do so. I do not know what mechanisms would be available to the employer to penalize an employee who uses the wrong toilet. I don't know anything about the catering industry, and I cannot infer why you ask about it specifically. If you're asking about toilets provided by such businesses for their customers, however, I suspect it's likely to be governed by another law. (I further suspect that sex-segregated toilets for customers are optional in at least some circumstances, since small bars and restaurants often have only one toilet.) | A store owner may ban any person from that store that s/he chooses, provided that the ban is not for a reason forbidden by applicable anti-discrimination law, such as banning all people of a particular race or religion. That does not appear to be the case in this situation, from the description. Since this is a franchise, the store has a local owner who is not the chain company. The company will have a franchise contract with the local owner, which will specify in what ways the company can and cannot control the store. They might or might not have the power to require the store owner not to ban you, or not to engage in verbally abusive behavior in the store. In any case, you, or any third party, cannot force them to exercise such power, even if they have it under such a contract. It is very unlikely that law enforcement the authorities will treat the verbal harassment as a crime based on a customer report. You could publicize the situation, as by an online review, which might cause the chain company to take some action, for fear of bad publicity. But be careful. You have already learned that your initial understanding of the situation was significantly incomplete. If any public statements you make are untrue, and harmful to reputation, you could be accused of defamation and sued, perhaps successfully. | 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. | Yes, you can put pretty much anything you like into the co-op statutes. You are actually interested in whether it makes a difference, though, whether the sheriff will come enforce a court order if it came to a trial. a rule that every owner must live in their property, or that everyone who owns a property in the building must also live in the building, or By virtue of indirect effect of basic rights (mittelbarer Wirkung von Grundrechten) a court will never issue an order mandating Diya to live in her apartment, Art. 11 GG. The sheriff will not forcefully “shove” her into her apartment: “You must live here now!” that the majority of homes must be owner-occupied, or Similar, but Art. 2 I GG. Vacancy of apartments is legal in Germany. that new rentals are not allowed, or As soon as Diya is recorded in the Wohnungsgrundbuch (apartment register) as the new owner of units B and C, she incontestably assumes the role of owner about said units. If she rents them out despite the co-op statutes forbidding so, she does nothing illegal (that means breaking state/federal law). After all she is indeed the owner, so there is no fraud involved, § 263 Ⅰ StGB. The fact that she agreed to not rent out is a matter between Diya and the co-op. No court will evict the new tenants from units B and C, because Diya has breached her obligations. However, it might be a just cause to oust Diya from the co-op, § 17 WEG. Yet still it requires severe grounds as it essentially means exercising eminent domain, Art. 14 Ⅲ GG. I tentatively claim it won’t work out as long as Diya pays her share in maintenance and the tenants chosen by Diya are well-behaved. something similar? You will need something that produces evidence. “Diya does not live in unit B” is a claim that needs corroboration in court. […] restrict long-term rentals in general. […] Tenancy agreements are by default unlimited in time. Short-term rents are sort of “forbidden” except if justified by one of the reasons named in § 575 Ⅰ BGB. Hence restricting long-term rentals borders on a blanket-ban on all rentals. | Not going to hold up. Dutch Supreme Court confirmed 2012-09-21 in LJN BW6135 that arbitration is still covered by the the right to an independent judge, as established in Golder v UK, ECHR 1975-02-21, nr. 4451/70. Stack Exchange can't decide the rules themselves. (The Dutch case confirms that sector-wide arbitration is in fact legal, with regard to a standard arbitration clause commonly used in the Dutch building sector. The arbiter was found to be independent in that case precisely because they weren't picked by the builder involved.) The GDPR is only indirectly relevant, but the fact that it's mentioned does mean that there is an indisputable intent to provide services to EU consumers. (See section 23 of the GDPR, or its national equivalents). As such, you can't hide behind a US business address. If you intend to do business in the EU, it's under EU laws - all of them. You can't say that only the GDPR applies, and not other rules. I'm having a bit of a problem finding a source, but I'm fairly confident that consumers have the right to sue at their own, local court, overruling the default of suing in the court where the counterparty is located. Finally, I have the right under national law (Dutch: BW 6:236 start and sub-n) to strike the arbitration clause up to 30 days after the conflict arises, and demand a court decision. That's not 30 days after I accept the "Public Network Terms", that's 30 days after the arbitration is invoked. Dutch law explicitly allows arbitration abroad, and arbiters may apply foreign law, but as written the arbitration clause has no legal basis in the Netherlands, and any arbitration resolution would therefore not be considered valid. You may wonder if it matters to Stack Exchange that the arbitration decision would not hold in the EU. Well, consider a clause like Indemnification, which demands the user indemnifies Stack Exchange. That's a pretty empty demand if it's not enforceable. | Adding m/w/d in a job posting is not explicitly required by any German law. It is however the established way to implement the requirements of the AGG (~ general equal treatment act) which in turn implements various EU directives. Protected classes under the AGG are race, ethnic origin, gender, religion or belief system, disability, age, and sexual identity. Of these, only gender manifests itself in the German language, making workarounds necessary that indicate that no gender is preferred. Within certain bounds, the German language can use gender-neutral terms, for example a job called “Lehrer/-in” or “Lehrer*in” could also be called “Lehrkraft”. If you are able to use gender-neutral language in English but are still subject to German law, adding “m/f/d” is probably not necessary but still a very sensible idea as it corresponds to German best practices. If you fail to add some explicit note that applicants of all genders are welcome, nothing bad will happen automatically. However, a person with a not-explicitly listed gender may apply for the job, get denied, and then sue with the argument that they were denied because of their gender. The employer would have the obligation to prove that their job postings are non-discriminatory. | http://www.healthinfoprivacybc.ca/confidentiality/when-can-and-cant-they-tell-others is a pretty good summary. Different rules apply to private practices than public clinics and hospitals. I will assume that the clinic on campus is private. This is a summary of the summary about who your information can be shared with: Health care professionals can share information within your "circle of care". Specifically, they are allowed to assume your consent to this but you can explicitly withdraw that consent. This would include doctors within the same practice. Admin staff can access your information for administrative purposes. Anyone you have authorised them to share it with e.g. relatives, friends etc. The Medical Services Plan for billing and admin If you are unable to drive If there is suspected of child abuse If you are wounded by a gun or a knife If you are a danger to others For your specific questions: I asked about it and they said it's confidential, but confidential to the clinic. Correct, unless you explicitly revoke this. the counselling department can share information with the doctors This is tricker, these people may be either within your "circle of care" or they may be part of the same organisation. Notwithstanding, councillors are not doctors and are governed by the everyday laws related to confidentiality i.e. information given in confidence is confidential and everything else isn't. If you are told the limits of the confidentiality i.e. they tell the doctor, then those are the limits unless you renegotiate them. he would know I only have one kidney? Well you said "the counselling department can share information with the doctors" and this would require the information going the other way i.e. the doctor sharing with the councillor. Even if this type of sharing was OK in general (and I'm not sure it is, see above); the information shared should only be what is required for the councillor to do their job - the number of kidneys you have is probably irrelevant to this. What laws apply to situations like this where confidential information in one entity (medical office) decides to share it without the consent of the patients to another entity (the counselling dept.)? Well, we are not sure there are 2 entities: legally there may only be 1 - the university. Anyway, the laws are the Personal Information Protection Act and common law (Smith v. Jones, [1999] 1 SCR 455) | There's no law as such; it's just an age-old mark of respect that a visiting Royal not sit on your throne. The Queen has encountered other royal families so it makes sense that she'd know this tradition, and was likely just being humorous on the Game of Thrones set. That or she decided the Iron Throne didn't look very comfy! |
How is soliciting a prostitute illegal in states where prostitution is legal? This question is not concerned with whether prostitution should be legal or not. It is also not concerned with the moral implications of either position. What I find hard to accept is in states where prostitution is legal, soliciting a prostitute still gets you on a register of sex offenders. You can pay money for sex in Nevada: You just have to have the prostitute infer your desire for the service from deductive reasoning alone. I don't get the logic of how a service can be legal but asking for it is not. If soliciting a prostitute is a problem then prostitution should be illegal. To me both should be illegal or legal together. | Focusing on the titular question, it's not. Soliciting prostitution is not illegal in exactly those places where it is legal to engage in prostitution. Here's the law. NRS 201.354(1) says It is unlawful for any person to engage in prostitution or solicitation therefor, except in a licensed house of prostitution. FYI, street prostitution is not legal in Nevada, or anywhere else in the US. This is not to be confused with the situation in jurisdictions which shifted the onus of illegality onto the customer as opposed to the service-provider. | In general, a seller may make different and inconsistent sales terms with different customers on whatever basis the seller chooses. In some jurisdictions, for some kinds of transactions, specific laws may regulate this. They may require similar treatment, or advertised prices, or whatever. I do not know of any such laws governing the sale of oil, but there might be some. This will depend on the exact jurisdiction (country, state/province, and perhaps city or other locality). Please edit the question to specify the jurisdiction if you want a more specific answer. Price discrimination on the basis of membership in a protected class under anti-discrimination laws, such as race or religion under US federal laws, would be illegal. Proving that the basis was unlawful might be hard, however. | According to a blog post (written by a lawyer who actually has had multiple people ask about that), it depends on several things. The gist is that they're not getting away with this "brilliant plan" unless they take so many steps to make it look legitimate that it will, in fact, become a legitimate porn production enterprise — in which case, why bother with the ruse in the first place? To find you guilty of prostitution, a jury would have to be convinced beyond a reasonable doubt that you were guilty of prostitution and not just making porn. But putting a camera in the room doesn't necessarily make it First-Amendment-protected porn; sometimes it just means you're giving them evidence of your crime. Since juries can differ, there's not really a bright line. But some things look bad to judges and juries. If the director is also doing sexual acts in the film, that looks bad. If he's also never directed or acted in porn before, that looks bad. If a person in the film is paying for the "actresses" instead of getting paid for "acting", that looks very bad; see United States v. Roeder, 526 F.2d 736, 737 (10th Cir. 1975). Having an actual script, on the other hand, may look good. Keep in mind that if the film is not just pornographic but actually obscene, obscenity laws could still apply even if you convince them it isn't prostitution. The First Amendment does not protect obscene materials. Additionally, if you claim it's porn, you will need to properly keep records of the names (and all former names/aliases) and dates of birth of your "actors" and "actresses", unless you want to be guilty of a federal felony. This includes making a copy of their photo ID. The records must also made available for inspection by the Attorney General and his inspectors for a minimum of 20 hours per week, with no advance notice given by them. Is everyone involved really going to be OK with all of this - especially since the law specifically notes that the records may be used as evidence in a federal obscenity prosecution? | We can start by looking at the text of the law. US federal law 18 USC § 2252A(a)(3)(B) says: Any person who... knowingly... advertises, promotes, presents, distributes, or solicits through the mails, or using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains— (i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or (ii) a visual depiction of an actual minor engaging in sexually explicit conduct... shall be punished as provided in subsection (b). I'm not sure how much posting the name without the link would protect you, given that you posted it with the explicit intent that someone would go and look at it. On the other hand, your intent was not to "advertise" or "promote" it, and you didn't actually "distribute" the material. | It is not obvious that is it illegal in Washington state. Everett WA has local ordinances against "lewd conduct" (there are versions of this at the state level and in most municipalities). Having sex and masturbation are included in the class of "lewd acts", and are also included in "sexual conduct". An activity is "obscene" if three things are true. First, the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest and when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political or scientific value. I think having sex or masturbating could pass these two tests. The third condition is that the act explicitly depicts or describes patently offensive representations or descriptions of... [sex, masturbation, or excretion] The prohibition is more narrow: A person is guilty of lewd conduct if he or she intentionally performs any lewd act in a public place or under circumstances where such act is likely to be observed by any member of the public. If lewd conduct were completely illegal, you could not excrete or have sex withing the city limits. Now we have to turn to the definition of "public place": an area generally visible to public view, and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, automobiles (whether moving or not), buildings open to the general public, including those which serve food or drink or provide entertainment and the doorways and entrances to buildings or dwellings and the grounds enclosing them, and businesses contained in structures which can serve customers who remain in their vehicles, by means of a drive-up window Focusing not on the probable intent but on the words, it is primarily defined as "an area generally visible to public view". Your house qua building is probably generally visible to public view, as is a public toilet or hotel. The inside of your bedroom is probably not generally visible to public view, nor is the inside of a toilet stall. While the building is probably a public place, a closed stall within the building does not meet the definition (nor does a hotel room). It might however qualify under the clause "or under circumstances where such act is likely to be observed by any member of the public". The statute does not give a definition of "observe", but under ordinary language interpretation, observation may be seeing or hearing. Silent sex, masturbation or defecation might not qualify as being public. Obviously, excretion in a stall of a public bathroom cannot be a lewd act, presumably because the average person does not generally consider ordinary excretion as appealing to the prurient interest: but there could be contexts where it does. Another avenue for prosecution is the Indecent Exposure state law which is when one intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. It is totally non-obvious that sex or masturbation in a toilet stall is "open". There is a slippery slope regarding quiet sex or masturbation w.r.t. knowing that the conduct is likely to cause reasonable affront or alarm. Because the contexts where sex and masturbation are not clearly spelled out by statutory law, the matter would depend on how courts had interpreted previous cases. There have been arrests in Washington of people having bathroom sex, but I don't know if anyone has ever or recently-enough been convicted for having quiet sex out of view in a toilet stall, or similar place. There is a potentially applicable case, Seattle v. Johnson, 58 Wn. App. 64, which seems to involve public sex, and the conviction was overturned because the complaint was defective, in not including the element "that the defendant must know 'that such conduct is likely to cause reasonable affront or alarm'". It is not clear from the appeal what the act actually was – it probably was for public nudity. There is also an decision by the state appeal court division 3 (not publicly available) in Spokane v. Ismail which, in connection with a charge of public urination declares that "A toilet stall is not a public place. The center of Riverfront Park during the lunch hour is a public place", in connection with an ordinance just like the Everett one against public lewd acts. | Because breaking the law is not breach of contract (Necessarily). Were you to use the model to 3D-print a gun and rob banks with it, without this clause, you have not broken the contract. That would mean that the provider could neither sue you for any damages the use of their model in your crime spree might have caused them, nor can they legally terminate the licence with you. | No. According to the Section 18 of the U.S. Code, § 2251: (a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct,shall be punished as provided under subsection (e) [...] and a minor is defined (Section 18 of the U.S. Code, § 2256) as "any person under the age of eighteen years". As such, you cannot be considered a pedophile. However, if you have sexual intercourses with animals, depending on the State laws on the matter, you might be charged with bestiality or similar offences. | It is not entrapment because entrapment must be done by officers of the State (police usually). A member of the public inducing another to commit a crime is not entrapment and not a defense to having committed it. Entrapment is a "thing" in Ireland as it is in all common law jurisdictions, however, the specific limits on what police can and cannot do vary by jurisdiction. Police posing as underage children to catch pedophiles is legal throughout Australia (i.e., not entrapment). Police are more restricted in Canada and the USA but I believe that online "trawling" by police is legal in those jurisdictions too, however, they must remain more "passive" than Australian police. Yes, there is a crime being committed, the crime of attempting to engage in underage sex. It doesn't matter that the actual crime attempted is impossible to commit because the "victim" is not actually underage. Evidence is evidence – it doesn't matter who collects it. However, amateurs in the handling of evidence are more likely to botch it up in a way that would allow the defense to have it ruled inadmissible than professionals (although even they can botch it up). |
When is a person a co-author of a joint work? What rights do co-authors have? This question is partly inspired by this comment on this answer When does a person become a co-author of a joint work for copyright purposes? What rights does a co-author have? How is being a co-author different from being the author of a derivative work? I am particularly aiming at US law, but answers for the law of any country are welcome. | Overview A co-author is a person who made a significant contribution to a work of authorship, that is a work protectable by copyright. Many works of fiction have two, and a few have three or more authors. The Mote in God's Eye by Larry Niven and Jerry Pournelle is a well-known example. Many scientific papers have several authors, Many popular songs have one author for the lyrics, and another for the music. Textbooks often have multiple authors. Three are many other common cases. It is generally up to the primary author to decide who else has made a contribution sufficient to warrant making that person a co-author. In other cases, co-authors agree, sometimes in writing, on their roles. I myself have been a co-author on a scientific paper for which I did the computerized statistical analysis, while the senior author did the experiments and largely wrote the text. In the US, any co-author may grant a license to a third party on whatever terms the co-author pleases, unless the co-authors have an agreement to the contrary. (The rule is different in the UK, where all co-authors must agree ro such deals.) The co-author must, however, account to the other authors for all receipts from any such license. In the absence of any agreement to the contrary, each co-author is entitled to an equal share of the profits, if any, of all sales, royalties, license agreements, and other profits from the joint work. In those cases where the term of copyright is set as the life of the author plus some number of years, the death of the last surviving co-author starts the fixed term of years. A derivative work is different. It is a new work in some way based on a previous work. (Examples are a translation, an adaptation, a sequel, a dramatization, a fictionalization, and a novelization.) The author of a derivative work does not become a co-author of the original work, nor does the author (or authors) of the original become co-authors of the derivative work. The copyright owner(s) of the original must approve the creation of the derivative, and may charge a fee for this permission. Such a fee may be fixed, or be based on sales of or income from the derivative work. This is a matter of agreement, there is no default fee amount or structure for a derivative work. US Law In US copyright law 107 USC 101 defines a joint work: A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. 107 USC 101 also defines a derivative work: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. 17 USC 103 (b) provides that: (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. 17 USC 106 provides in relevant part that: Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: ... (2) to prepare derivative works based upon the copyrighted work; 17 USC 201(a) provides that: Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work. 17 USC 203 (a)(1) provides in relevant part: ... In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s interest. 17 USC 302(b) provides that: (b) Joint Works.—In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death. Other Sources on US law The article "Copyright Ownership: The Joint Authorship Doctrine" from Fndlaw reads in relevant part: The Rights and Duties of a Co-Author If the work qualifies under the law of copyright as a work of joint authorship the co-authors or collaborators may allocate the rights and duties of the work of authorship among themselves. However, since no formal agreement is required between the co-authors or collaborators a legal relationship of joint authorship may occur even without the intent of the respective authors to create a work of joint authorship. Therefore, if no joint authorship agreement has been formalized it will be presumed that the following principles shall apply. Each co-author will own an equal ownership share in the work. This will occur even if one of the co-authors has contributed a greater quantity of the work than the other co-authors. Each co-author will own an "undivided" interest in the entire work. This means that if the publishing project consists of illustrations and text that the artist and the writer will each own fifty percent of the entire work, i.e., the art and the text. Any co-author, without the permission of their fellow co-authors, may grant non-exclusive rights to the work to third parties. However, a co-author may only grant exclusive rights to the work to third parties if the co-author obtains the prior consent of the other co-authors. Each co-author has a duty to account to the other co-authors for any profits obtained from the exploitation of the work. A co-author has the right to assign his/her ownership share in the work to a third party or to bequeath his/her ownership share to his/her heirs. Each co-author will be entitled to equal authorship credit for the work upon its publication. The policy document Joint authorship and collective works from the University of California reads in relevant part: A joint work is a work prepared by two or more individuals, with the intention that their separate contributions be merged into a single work. A joint author can also be an organization or a corporation under the definition of "work made for hire." A person who has merely contributed ideas without actually documenting those ideas generally cannot be considered an author for purposes of U.S. copyright law. Co-authors own the work’s copyright jointly and equally, unless the authors make an agreement otherwise. Each joint author has the right to exercise any or all of the exclusive rights inherent in the joint work. Each author may: Grant third parties permission to use the work on a nonexclusive basis without the consent of other joint authors Transfer their entire ownership interest to another person without the other joint authors' consent Update the work for their own purpose Additionally, each joint author must account to the other joint authors for any profits received from licensing the joint work, though such profit accounting could be altered through an agreement among joint authors. Collaborators should try to clarify joint ownership interests in a written (or even an oral) agreement, covering such issues as: ownership and use rights to revise the works marketing and sharing of any revenue warranties against copyright infringement At UC, the ownership of joint works is determined by assessing the category of work for each of the contributors, as described in Section III.B of the UC Policy on Copyright Ownership. ... As explained on “What do I own?,” copyright protection is automatic for any "original work of authorship" created and "fixed in any tangible medium of expression." From the perspective of copyright law, an author is generally someone who creates that expression, such as the artist who drew a picture, the musician who composes the notes, or the writer who composes a short story. Authorship under copyright law is a separate determination from the concept of authorship in scholarly publications like research articles, which may be based on disciplinary norms about credit. Such norms may instead consider things like who designed an experiment, who did the laboratory work the article is describing, or who leads the laboratory where the research took place. Those factors, by themselves, are not necessarily sufficient to establish authorship (either sole or joint) under copyright law. "Collaboration, Co-Authors, and Joint Authorship: Who Owns the Copyright?" from Res Nova Law reads, imn relevant part: The U.S. Copyright Act provides the default rules for who owns what when it comes to joint works, or collaborations between two or more authors. As stated above, co-authors are co-owners of a joint work. This means that each co-author is entitled to an undivided interest in the work as a whole. In other words, each co-author owns the copyright equally, regardless of the extent of their authorship. For example, even if you did 95% of the work and your collaborator only did 5% of the work, you still share equally in the ownership of the copyright. Having an undivided interest in the joint work means that each co-owner can license or transfer their interest to another without permission from the other co-owner(s), and each have independent standing to sue for copyright infringement without needing to join the other co-owner(s). See Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008). However, each co-owner is subject to a duty of accounting to the other co-owner(s). That is, a co-owner who unilaterally exploits the joint work must account to the other co-owner(s) for profits derived from such exploitation. See Goodman v. Lee, 78 F.3d 1007, 1012 (5th Cir. 1996). The Copyright Act's default rules come into play when the co-authors do not have a contract stating otherwise. However, you can always draft your contracts around the default rules. For example, if you do not intend for each co-author to have an undivided interest in the work under the default rules, then you'll have to draft very clear contract terms ... Canadian Law Rights and licensing of joint works in Canada indicates that in Canada, unlike the US, all co-authors must consent to any licensing arrangement. However this is based on "exactly one case, in a court of first instance, with no citation or in-depth reasoning as to why consent of all joint authors is required." The case cited is Pinto v. Bronfman Jewish Education Centre, 2013 FC 945 sand the answersuggests that: Canada's joint copyright regime is a joint tenancy regime like that of the UK as opposed to a US-style tenancy-in-common approach to joint copyright. Section 9 (1) of the Candian Copyright Act of 1985 provides that: 9 (1) In the case of a work of joint authorship, except as provided in section 6.2, copyright shall subsist during the life of the author who dies last, for the remainder of the calendar year of that author’s death, and for a period of fifty years following the end of that calendar year, and references in this Act to the period after the expiration of any specified number of years from the end of the calendar year of the death of the author shall be construed as references to the period after the expiration of the like number of years from the end of the calendar year of the death of the author who dies last. Section 13(3) of the act provides: (4) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium or sector of the market or other limitations relating to the scope of the assignment, and either for the whole term of the copyright or for any other part thereof, and may grant any interest in the right by licence, but no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by the owner’s duly authorized agent. But this section does not address the case of joint authors. | I want to use a couple of lines from "What is life?" by Erwin Schrödinger as quote on the front of my thesis. Would i need permission for that form publisher or would that be convered in fair use? There are close cases of fair use, but this is not one of them. This is unequivocally and clearly fair use. It is a brief excerpt of a much larger body of work, it is for non-commercial use by a student, and it is for educational and academic purposes (presumably to advance science). Also do i need to attribute the quote properly Yes. This is necessary both because of the moral rights of the author under E.U. copyright law (assuming that works by Erwin Schrödinger are still in copyright), and for reasons of academic ethical considerations. It is still in copyright, because he died on January 4, 1961, which is 58 years ago. So, in countries that protect copyrights for the life of the author plus 50 years (the minimum required by the Berne Convention) this is out of copyright, but in countries that protect copyrights for the life of the author plus 70 years (e.g. Germany), the copyright is still in force until January 4, 2031. Also, even if the work were out of copyright, as a matter of academic integrity, you would be required to attribute the quote in an academic thesis in any case. Quoting someone without attribution in academic work is considered plagiarism, and could result in your thesis being stricken and also in your degree being revoked in a serious case. Government ministers in the E.U. have been forced to resign over plagiarism in their academic work as students in recent years. This is taken much more seriously in Europe than it is in the U.S. | Yes. Content not created by a user is not protected by Section 230, and if the platform agents or employees begin to substantively edit content, the platform becomes a co-author rather than merely a platform for that content. | When a company is dissolved, someone takes over the company's asserts, often the creditors, or they may be sold for what they will bring. Failing anyone else, it may be the crown. Assuming that the copyright was in fact owned by the company (and not by someone else and merely licensed to the company), someone owns it, (just as someone owns the physical property that the company had) but it may be hard to find out who. It is even possible that the owner is not aware of the copyright. As for Person A, that depends on the details of A's contract or agreement with the company. A may be a co-owner (unlikely). A may have rights to use the code to some extent. Or A may have no more rights than I do (that is, none at all). According to "Ownership of copyright works " an official UK government web page: Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work (subject to any agreement to the contrary). The expression “in the course of employment” is not defined by the Act but in settling disputes the courts have typically had to decide whether the employee was working under a ‘contract of service’ (eg as an employee) or a ‘contract for services’ (eg as a freelancer or independent contractor). Where a person works under a ‘contract for services’ he will usually retain copyright in any works he produces, unless there is a contractual agreement to the contrary. Thus if person A was acting as an employee of the company, the copyright would automatically be owned by the company, in the absence of any written agreement between A and the company. The page goes on to state: When you ask or commission another person or organisation to create a copyright work for you, the first legal owner of copyright is the person or organisation that created the work and not you the commissioner, unless you otherwise agree it in writing. However, in some circumstances, for example when copyright is not dealt with in the contract to commission the work, courts may be willing to find that there is an implied licence allowing the commissioner to use the work for the purpose for which it was commissioned. This does not necessarily result in a transfer of ownership. Instead, the commissioner of the work may only get a limited non-exclusive licence. ... Thus if A was acting as an employee in creating or co-creating the code, and there was no written agreement on the matter between A and the company, A would have no rights to the code, and the copyright would pass to whoever purchased or was awarded it after the company dissolved. Such a copyright might well have been included in a purchase of "all other assets" (or some such language) and no explicit or specific mention of it been made. The situation in the US would be basically similar. Work by an employee within he scope of employment is a "work-made-for-hire" (WFH) under US copyright law( See 107 USC 101), and the employer is legally the author (which is not true in UK law), unless there is a written agreement to the contrary. The natural person(s) who in fact created the wok have no rights unless an agreement grants such rights. On dissolution the copyright does not end, nor is it transferred to the creator, but passes to whoever bought it, or bought or was awarded the general assets of the company (such as in a bankruptcy proceeding). | All the CC licenses permit anyone to use the licensed content, and to make copies of it for others. Some of them permit using it for commercial purposes, others (the ones including the -NC- clause) do not. Some CC licenses permit creating modified versions of the original work (derivative works), others (the ones including the -ND- clause) do not. I do not know of any standard license which allows users to create and distribute derivative works, but not to distribute the original. The license used by Project Gutenberg permits re-use and re-distribution, but if a fee is charged beyond recouping expenses requires the removal of the PG name and logo. One problem is that if derivative works are allowed, this would include works which are only trivial modifications to the original, which would have the effect of allowing distribution of the original. If the main concern is about commercial sales, possibly a CC-NC-SA license would effectively serve the purpose? That allows redistribution, including of derivative works, but forbids commercial reuse or distribution without separate permission, and requires all redistribution to be under the same license. Otherwise a new license for this situation might have to be created. It is often a good idea to have the assistance of a lawyer with IP expertise in creating a new license, or the wording chosen may have unexpected effects or include unintended contradictions. Or one could simply place a basic copyright notice along with text such as "Modified versions may be created only with permission from the author. Request permission at [email protected]". However, if the work proves popular, there might be a large volume of requests. | You can do whatever you like with posts made after you change the rules - you have to leave the previous stuff alone. The contributors' have accepted the terms of the licence: They own the copyright or have permission from the copyright holder to post it (the promise) They agree that it can be edited altered or removed CC-BY-SA allows people to copy the stuff off the website and republish it - this is way outside what the contributors agreed to. These people have given permission for their work to be altered but not copied. | All your work is yours. They've made it very clear it wasn't a work for hire, so it's yours. They can't copyright any of their ideas. You can't copyright an idea. Only specific creative elements authored by them and present in your work could be covered by copyright. You didn't use their block diagrams. I don't see how references to other sites to look at would constitute a creative element they authored. That said, you probably want to talk to a lawyer and get a written legal opinion that you can rely on. | In the US, at least, facts - like the speed of light, the name of a dinosaur or the moons of Jupiter - are not copyrightable. But the words or pictures, designs and original work used to express and present those facts in books, websites and other publications by individuals and publishers are copyrightable. (Original work doesn't need to be published to be copyrighted; it is copyrighted at the moment of creation.) See How can "factual" intellectual property be protected? Plagiarism can be copyright infringement; it's copying and presenting work of someone else's as your own. But not all copyright infringement is plagiarism in the sense that someone is claiming others' work as their own: if you're selling a T-shirt with an unlicensed design, you're not really claiming the design is yours; you're just trying to make money. If you use all or part of an image or a quote or a song from a copyrighted source in your own work, you need permission and attribute the source. Or, you have to decide if the amount of the copyrighted material you are using might be Fair Use and you don't need permission. But decisions on what might constitute Fair Use are ultimately decided in court, because that's where can you end up when a person or a publisher sues you for alleged copyright infringement. |
Left item in an Airbnb, host no longer available. Responsibility lies with owner, host or Airbnb? After staying one night in an Airbnb, my friend realised he left an item in the property (not expensive, cost of around €50). I immediately contacted the Host over Airbnb messaging, she confirmed she had found the item and would post it out to me (I asked how much postage would cost and how to pay her). This was the last time I would hear back from the host. Giving time for the busy postage period over Christmas, I tried to contact the host again around 20 days later but didn't get a reply. After another week, I contacted Airbnb support who said that the host had already responded that she would send the item out in the post. After yet another couple of weeks waiting, I reached out to Airbnb again. This time, I spoke to someone who said they would try to reach out to the host. A couple of days had passed and they got back to me and said they were unable to reach the host and there was nothing they could do and that would be the end of it. Furthermore, they said I couldn't apply for a refund through their resolution centre as 60 days had passed since the trip. I'm wondering from a legal perspective where responsibility lies (mostly as a thought exercise). My friend should have taken his property with him, but presumably the host can't just keep it, especially after reaching out to them? As my contract was with Airbnb and the host works from them, is there any responsibility on their part, e.g. Could I hypothetically open a small claims case against them? Or would any small claims case be directly against the host themselves? Looking for answers based in law or with real world examples. This is in Ireland / EU. | My friend should have taken his property with him, but presumably the host can't just keep it, especially after reaching out to them? Correct. However, the host does not have to do anything to facilitate its return i.e. they don’t have to post it to you. So long as they keep it for your friend to collect and don’t appropriate it for their own use, they are not breaking the law. If they do appropriate it, that is called theft or its tort equivalent, conversion. As my contract was with Airbnb and the host works from them, is there any responsibility on their part, e.g. Could I hypothetically open a small claims case against them? Or would any small claims case be directly against the host themselves? This is not true. You and the host each have a contract with Airbnb for the use of the platform. The contract for the accommodation is between you two and doesn’t involve Airbnb at all. In any event, there is no contractural issue here. | Point three should include "to the best of my knowledge and belief", or be modified to state that none of those "house or the adjacent shop" have informed the affiant of any such delivery, or delivered any such package to the affiant. It might add that the affiant had questioned such persons and they denied receiving such a delivery. The point here, of course, is to prove that the package was never properly delivered, no doubt in support of a claim on the delivery service. The ordinary assumption is that if a person in the "house or the adjacent shop" had accepted a package, it would normally have been given to the addressee at an early opportunity. | Yes, it's illegal You are missing something terribly important: The package might not be your property [yet]. In any way, it is not in your possession, while it is in the hands of the postal service! The contents of the package started fully owned by the sender and were entrusted to the postal service to deliver it. This entrustment is (contractually) defined as the time it is handed to the postal service, but the postal service does not gain any ownership. They do however have insurance on the parcel (to some degree), as they are liable for the loss of it. In many cases, the transfer of ownership happens upon delivery (for example, in the UK), so that you can't even be sure you own the contents while the box is still on the truck. At least in the eye of many postal services I know, it is the basic presumption, that they hold the item as entrusted. So to be on the safe side, it's best to presume that the package only becomes your package the moment you sign for the receipt of the package or it is dropped into your mailbox or at your dedicated dropoff point (you can specify that with many postal carriers btw). Otherwise, your actions might interfere with the contract of the mail service [to bring it to your door] and might incur liability upon them as their insurance presumes the parcel was lost and it has to be replaced. By the way, it is customary that any message of the parcel is damaged go to the sender, not the receiver so that in the case of commercial mail they can send/fund a replacement, as the sender needs to ensure that a non-defect item is delivered under their own contract with the recipient. Criminal lawsuits But, you want to know which specific law you'd be sued under 18 USC §1708 (2) not only for taking the box, but also for taking the item from the box (emphasis mine)! Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein [...] Shall be fined under this title or imprisoned not more than five years, or both. The act of taking is relevant. It is irrelevant that you would receive the parcel later. You take it from the car on the delivery route. You also do trespass under whatever jurisdiction applies where the car is parked. For example, Criminal Trespass on Indian country is defined under 25.CFR § 11.411 (b). The rules in other jurisdictions are very similar: you are not allowed to enter the car, as it is clearly off-limits to the general public. The car is btw. supposed to be closed to prevent such, so you have to actually break property of the postal service (which is an extra charge to just the normal B&E). (b) A person commits an offense if, knowing that he or she is not licensed or privileged to do so, he or she enters or remains in any place as to which notice against trespass is given by: (3) Fencing or other enclosure manifestly designed to exclude intruders. A car door, even if not locked and left ajar, is an enclosure manifestly designed to exclude intruders, and the inside of a car is "any place". So, in the correct jurisdiction, this statute of criminal trespass does apply. And as pointed out above, taking the mail without the driver knowing is illegal. In some fashion, taking your own mail is also a strange case of obstructing the correspondence, which specifically calls out that the parcel has to be given by the mailman to the recipient (emphasis mine). Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both. If it is discovered by the driver while still on route, they will have to call the base and investigate the missing parcel, which takes time from the delivery, so might constitute retarding the passage of mail. If you break the lock to the car, you'd be charged as Injury to mail bags: Whoever tears, cuts, or otherwise injures any mail bag, pouch, or other thing used or designed for use in the conveyance of the mail, or draws or breaks any staple or loosens any part of any lock, chain, or strap attached thereto, with intent to rob or steal any such mail, or to render the same insecure, shall be fined under this title or imprisoned not more than three years, or both. A Postal car, especially with a lock on the door, is such a device. And if you somehow had the key to the car, you'd break 18 USC § 1704 instead. Plus, your taking does possibly incur monetary damages to the postal carrier, so civil charges for that money and expenses in investigating would also accrue against the taking person. civil lawsuits? If you'd take the parcel, you make the postal driver accountable for the loss of the parcel and the worth of the package, as the internal system of the postal service does recognize that they did not deliver the parcel, did not scan it out at the home base, but they did scan it onto their route. So unless they can point the finger at you or a known thief, they might need to admit that they did not lock the car or committed some other misconduct that allowed someone to steal the parcel. This can lead to the financial loss of the delivery driver or them being fired. Should the mail carrier or the postal service discover it was you, the mail carrier can now sue you for the injury the lost parcel meant to them as you interfered with their work contract. The tort is Tortious interference. Then, the mail service can sue you for intentionally interfering with the delivery contract the service had with the one ordering the delivery done: they were required to bring the parcel to the target and got paid for that. Only your action of taking did prevent this. Would you not have taken the parcel, they would have delivered, so you interfered with their contract. Life Advice: Approach the driver, get out a photo-ID (Drivers license, passport, ID-card etc) and ask them something akin to this "The website told me you might have a parcel for me. Can you look? I am this person, and this ID proves I live at the target address, as indicated on this ID." With those credentials in hand, the postal driver can check and give it to you but isn't technically obligated to. But as it often means they can save a few valuable minutes getting to your house, they might, especially if you know your mail carrier and are friendly. On the other hand, it's extremely unlikely for letter mail to be given this way, as searching for a parcel on a truck is much easier than looking for the letter mails in the bags. | You are not supposed to "explain" anything. See this site: http://www.dmlp.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content What you have to do is to state, under penalty of perjury, that you have a good faith belief that your material was wrongly removed. That's it. Nothing more, nothing less. Google (or whoever the host is) doesn't care and shouldn't care about the actual copyright situation, only whether you supplied a counter notice where you state that your material was wrongly removed. Now Google should reinstate your app (however, since nobody can force them to host your app at all, I suspect they can remove it at any time for any reason), and whoever put in the DMCA claim can then go and sue you for copyright infringement. If they do, you can use as a defence that they could have and should have a DMCA notice to you. The whole DMCA is about your host, here: Google, to remove itself from any copyright infringement case. By following the rules for a proper notice and proper counter notice, they achieve that. And then the matter is between the complainant and you. | If you had an agreement that amounts to a contract, it is binding even if it was informal. However, if your agreement was not in writing, it might be hard to prove. You can easily prove that you transferred money to the other party. But can you prove that it was a loan an not a gift? And even if it is agreed to be a loan, if no repayment time was specified, what says that the debt is due now? Was the agreement really for a loan repayable on demand? The court would have to determine what your real contract was, or what contract can be implied from the actions of the parties. Also, if you are in a common-law jurisdiction, there could be a question of what consideration there was for the loan. Without consideration, there is no valid contract in such a jurisdiction. Perhaps a promise to repay could be treated as sufficient consideration. Small-claims courts do deal with unclear verbal contracts on a regular basis, but the outcome will depend on the facts of the case, and on the details of local law. It might be wise to consult a local lawyer with small-claims experience. A single consultation should not be too expensive. In response to comment If the "written binding agreements" include a statement from the other person that this is a loan, and a promise to repay it, you are in a stronger position than I had thought from the original question. The question for the court would be, since there was no due date agreed, what is a reasonable date to impose. The court might treat it as a loan repayable on demand, or specify some particular date for repayment. | Possibly In most contracts, the parties sign in their capacity as people (or agents for other people). However, some contracts are signed in the capacity as the owner of a piece of land and the contract transfers with the land. The liability rests with the current owner and, if unpaid, creates a lien over the property. These are particularly common in contracts with utilities or where the contract involves the a structure on the land. Surprise, surprise, the situation you describe involves both. You need to refer back to your contract for the land as these types of contracts are usually disclosed (unless they are a function of local law because everyone just knows - I don't know anything about Pa. law on this) and the original contract with the gas company. Your settlement may have also involved you paying a figure to purchase the gas in the tank as at the date of settlement. For example, in new-south-wales, council rates and water rates attach to the land as a matter of law and the vendor pays the purchaser for any amount they have paid in advance (or vice-versa if they are in arrears). Electricity and piped gas don't; the vendor ends their account on or before settlement and the buyer opens a new account on or after settlement and each pays for their own use. Propane for portable bottles doesn't but for fixed installations does as a matter of contract with the gas company. | I don't have enough to comment but I know where I live it's the landlords responsibility to take care of mold. That being said, if it is mold caused by negligence of the tenant e.g. always leaving the window open in the rain or something, then the landlord can claim compensation. Where I live the landlord keeps some of the damage deposit he must prove to the tenant why he did so within a months time of when he was supposed to return the damage deposit. For example if it cost him $200 to repair damage done by the mold, he must return the rest of the damage deposit and a letter explaining why $200 was kept, and the receipts. Where do you live? The laws really do very greatly from region to region. It has been my observation that it's not that uncommon for landlords to try and sneak something into the lease that isn't really allowed by law. | The house Owner owns the washing machine. Paying the deductible on Owner's warranty has nothing to do with (changing of) the ownership of it. Effectively, the tenant has incurred expenses just for arranging the replacement. Lease specifically stipulates that Tenant is welcome to use washer/dryer but that Owner is not responsible for fixing them if they break. Note that depending on the jurisdiction this term may be unenforceable: tenancy laws often stipulate that landlords have to keep things in working order at their expense (unless things break because tenants misuse/abuse them). In this case the tenant could claim the deductible he paid. But again, this would not affect the ownership of the washing machine in any way. |
What is the significance of raising one's right hand before making an oath or affirmation? It is common in many jurisdictions to raise one's right hand before making an oath or affirmation. What is the origin and meaning of such a practice? This can help answer similar questions. For example, are there religious connotations connected to raising one's right hand? If so, would it be sending mixed signals to raise one's right hand when simply affirming before giving testimony, as opposed to the legally equivalent-but theologically different practice of swearing an oath before testimony? Knowing the origin of raising the right hand will clarify. Note: To confirm this question was on-topic, I first asked here: https://meta.stackexchange.com/questions/375785/law-english-or-somewhere-else-where-should-these-two-questions-go | In Western law this surely derives from Biblical precedent. See for example Genesis 14:22, or Exodus 6:8. Some other times when hands are lifted up in the Bible, it's an expression of power. These concepts are linked in that an oath involves appealing to divine power to witness what is promised (and to punish the speaker if they break it). The story that it comes from forcing witnesses or the accused to display brands is false. While branding was used historically to mark certain criminals, these marks were not often on the palm of the hand, but could be on the cheeks or chest or elsewhere. Courts have never asked witnesses to remove their shirts while taking an oath. Even in the era when branding was used, checking for the marks would not be applied to all witnesses, but perhaps just to the accused. In contemporary practice, raising the hand is optional, and the oath or affirmation is taken as "good" if the court is satisfied that the witness is taking it seriously. Raising the hand might be seen as a gesture of respect for the law and not necessarily any particular religious tradition. Raising the hand while affirming is not unusual, nor even a mixed signal: affirmation arose because of Quakers wishing to observe the Biblical command "swear not at all". | It is Latin - "through". It means that someone is signing on behalf of the company, and is not generally required but can be printed explicitly as evidence that the person signing purports to be authorised to do so. | The use of the word counsel for barristers has a long history. It was used in England before the modern legal profession developed. Baker, Counsellors and barristers: an historical study (1969) traces homo consiliarius back to the 13th century plea rolls: The sum of [a pleader or counsellor's] functions may be termed "counselling" in its widest sense, and the subject of the present study must be what the plea rolls call homo consiliarius, the counsellor. Even this compendious name can mislead. It eventually became synonymous with "barrister," in the sense of "jurisconsult," while some of the counselling came in fact to be done by attorneys and solicitors. Sense 8(a) of counsel (n.) in the OED ("A body of legal advisers, engaged in the direction or conduct of a cause") is dated back to the Confessio Amantis (1393): Help, that I hadde counseil here Upon the trouthe of my matere. Sense 8(b) ("A single legal adviser; a counsellor-at-law, advocate, or barrister") is first quoted in 1709, but seems also to cover sense 8(a)'s quotation of Greene's coney-catching pamphlets (1591), by distinguishing between counsel and attorney: [He] hath his mind so full of cares to see his counsell and to plie his Atorney. As barristers came to replace the serjeants at law, the association of counsel with barristers may have become entrenched with the appointment of Sir Francis Bacon as the first King's Counsel (1603). According to Holdsworth, A history of English law (1924), vol 6, p 472: It soon became clear that the king's attorney and solicitor could not by themselves do all the work which their office imposed upon them. It is to this cause that we must ascribe the rise of a body of "king's learned counsel," who are the ancestors of our modern king's counsel. It would seem from D'Ewes that a body of persons so designated was known at the very beginning of Elizabeth's reign [1558 – 1603]. | 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. | It is the duty of the witness to give the testimony, no matter what their nationality is. As a witness, a German citizen is not different from a French, Uruguayan, or even a stateless. The only letter the judge will usually give them in addition to a verbal thanks is a formal letter recognizing that they have, on suchandsuch day(s), been called as a witness to the court and appeared. This is usually given to any witness and pretty much a form. It does serve as evidence for example in cases of absence from work - and you are entitled to the losses you incurred for appearing in court if you formally request them. It isn't forbidden to request a different letter from a judge, but they might not give such an extraordinary letter of appreciation, because that might taint the case: it could raise the question if the testimony was bought with or made to gain such a letter. | 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. | Lawyers cannot act for their client without instructions. "May I take instructions" is a request by the barrister to have a conversation in confidence with their client about what to do next or how to respond to the court. Sometimes this is just a momentary discussion, but if necessary, this can even result in the court standing down for a short break, or fully adjourning to another day. It is not a euphemism used to disparage the client. | Unless you received an order from the court prohibiting contact, it might be legal; but it's probably not the best idea. Let the lawyers handle it Attorneys have far better, more effective means of dealing with this situation than the course of action you describe. Lawyers have productive tools to accomplish the job and they know how to use them. For example, assume the best-case-scenario results from your idea and you get the other side to admit their affidavit is fallacious in some way. "Aha!" you shout. "Success! Daylight!" But then what? It's not on record. You can't testify to the admission because that's hearsay. Now imagine they next share this information about your little conversation with the counterparty that had them sign the affidavit in the first place. After first being alerted of your concerns, they both now act in concert to shore up their stories and you never see that "daylight" again. Contrast that outcome with one where your guy or gal's attorney deposes the witness under oath, gets them to concede to your version of the facts then introduces the deposition as favorable evidence at trial. That's a much better outcome for "your side." Wouldn't you agree? Be wary of unintended consequences Generally speaking, such direct contact between the parties is often problematic and rarely helpful. (Except, in some cases, when direct contact between the parties leads to a negotiated settlement. Which happens far less often than the direct contact going sideways making the situation even more intractable.) Before you launch off on your own and do something that might be counterproductive. First, identify the areas of the affidavit that you think are inaccurate. Give that information to the party you support, then have them run it by their attorney to figure out the best way to handle the situation. |
How do states sue each other? As I understand it one of Scotus jobs is to mediate inter-state litigation. Did this happen with equal regularity over the years or was this something that happened mainly when the union was new? Is it therefore at least in theory possible for two states to have contrary laws and scotus be forced to make a value judgment contrary to state law to resolve some dispute? Can scotus decide not to hear inter-state litigation in the same way it often does with constitutional matters or are they forced to mediate because there is no other way to settle such matters? | As I understand it one of Scotus jobs is to mediate inter-state litigation. Did this happen with equal regularity over the years or was this something that happened mainly when the union was new? You are right the Supreme Court of the United States is the venue for state vs. state disputes. Though I would be careful to differentiate "inter-state" litigation from "stave vs. state" litigation. These disputes did happen regularly over the years yes, but with differing success as the strength of the Federal Government and Supreme Court increased*. In general state v. state cases are not too common, and generally deal with issues such as land and border disputes or questions. *(See as a partial reference this video where when NJ sued NY over a land dispute, NY effectively ignored the Court/ the Court didn't hear the case in 1832. Whereas in the 1990s NY did not ignore it https://www.youtube.com/watch?v=SgZ1f4ACZBQ) For background the relevant provisions of the Constitution and statute are as follow: U.S. Const. Article III: Sec 2: In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. https://www.law.cornell.edu/constitution/articleiii 28 USC Sec. 1251 (a)The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States. (b)The Supreme Court shall have original but not exclusive jurisdiction of: (1)All actions or proceedings to which ambassadors, other public ministers, > consuls, or vice consuls of foreign states are parties; (2)All controversies between the United States and a State; (3)All actions or proceedings by a State against the citizens of another State or against aliens. https://www.law.cornell.edu/uscode/text/28/1251 For a recent/ current state v. state case see Mississippi v. Tennessee: https://www.supremecourt.gov/docket/docketfiles/html/public/22o143.html concerning territorial matters/ water rights. Is it therefore at least in theory possible for two states to have contrary laws and scotus be forced to make a value judgment contrary to state law to resolve some dispute? Generally no, unless the state law is impermissible under the United States Constitution or otherwise preempted by federal law for example. But the Supreme Court wouldn't really rule on "contrary" state laws, most cases are concerning federal laws or land matters. Also, unless there is a matter of Federal Law ("federal question") or the state v state controversy under Article III the Supreme Court doesn't have jurisdiction to rule on state matters (again unless a "federal question" is involved). Can scotus decide not to hear inter-state litigation in the same way it often does with constitutional matters or are they forced to mediate because there is no other way to settle such matters? Yes, they can choose not to hear state vs. state cases. Rule 17 of the Supreme Court Rules regards "Procedure in Original Action" https://www.law.cornell.edu/rules/supct/rule_17 in which the Court "Court thereafter may grant or deny the motion, set it for oral argument, direct that additional documents be filed, or require that other proceedings be conducted." Though, and I will note for completeness in answering your question, some current Justices believe it is not discretionary. See below: 155, ORIG. TEXAS V. PENNSYLVANIA, ET AL. The State of Texas’s motion for leave to file a bill of complaint is 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. All other pending motions are dismissed as moot. Statement of Justice Alito, with whom Justice Thomas joins: 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. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). 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. https://www.supremecourt.gov/orders/courtorders/121120zr_p860.pdf | Both civil law and common law have civil codes, so that isn't the difference. It is common in civil law jurisdictions for these to be called civil codes and consolidated into the great big book of law. In common law jurisdictions, the civil code is scattered through legislation, regulation, administrative and case law and often not consolidated although, each piece of legislation typically deals with only one (or a related number) of topics. Adversarial vs Inquisitorial In a common law jurisdiction, the role of the judge/jury is to decide the dispute that the parties have brought to the court based solely on the arguments and evidence that they make. A judge who seeks their own evidence or decides the case based on a law the parties have not argued is making a mistake. The judge is free to say to the parties "But what about xyz law?" and let them make an argument about that but they would be denying the parties natural justice if they decided the case on xyz law if that law was not argued. In civil law jurisdiction, the role of the judge/jury is to find out the truth. They have inquisitorial power and decide the case based on all the evidence, the law that was argued and their own knowledge of the law. Precedence In common law jurisdictions, the cases decided by the courts are just as much the law of the land as the acts passed by parliament. When a court hands down a decision on a certain fact pattern, then all courts lower in the hierarchy must make the same decision when presented by a similar fact pattern. These are binding precedents. In addition, decisions of same level or lower courts (where not actually the ones being appealed) as well as decisions in "parallel" jurisdictions are persuasive precedents. A parallel jurisdiction is anything where the law is close enough that it makes sense to use it: Australian courts will tend to look first to other Australian states, then to England & Wales, Canada, New Zealand and other Commonwealth countries then the United States of America and then to civil law jurisdictions. There is nothing nativist in this, it is just that these are the jurisdictions where the laws are "closest" to one another: partly because the courts have historically done this (which tends to lock the common law together), partly because there has been governmental will in creating harmonized laws in Australia (i.e. enacted in each state and territory but essentially the same law - often word for word) and partly because parliaments, when drafting legislation, nick ideas from other parliaments. If the Supreme Court of Western Australia has made a decision on a similar fact pattern under a similar law, a District Court judge in New South Wales had better have some damn good reasons for deciding this case differently but they wouldn't automatically be wrong if they did. However, if the precedent had been set in the Supreme Court of New South Wales than the District Court judge would be wrong to decide differently. Naturally, a lot of argument in common law courts is about why the facts of this case are sufficiently similar/distinct that the precedent should/shouldn't apply. Also, common law judgments emphasize the reasoning that led the judge from the evidence to the conclusion and include detailed analysis of the case each party presented - this is because they need to be understandable to a wide audience. Court hierarchy can be quite complex, this is the one for NSW, Australia: In a civil law jurisdiction, courts are not bound by the rules of precedence - each judgement is a first principles analysis of the facts and the law. This is not to say that civil law judges do not use other judgments in their analysis but they are not required to do so. Broadly speaking, the common law approach promotes consistency, the civil law approach promotes individualized justice. | In Uzuegbunam v. Preczewski (2021), the US Supreme Court addressed a case that sought one dollar in nominal damages. I'm assuming you mean only claims involving money damages as a remedy, because there are many claims every year involving no literal money damages and the remedy sought is some other kind of relief (although such relief would still have practical or economic value). | 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! | It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question. | The companies agree to resolve the dispute with a neutral arbitrator. This is similar to a court action, but instead of a judge or panel of judges, there is an arbitrator or panel of arbitrators. The two parties to the dispute must agree to this in advance. For more information, you can consult the rather thorough Wikipedia article on the subject: https://en.wikipedia.org/wiki/Arbitration | The answer is, "No, it will not default to the state where the recording device is located." Whether your recording is legal or not may depend on where the device is located, but it may depend on other things as well. For example, to sue under Florida law, "the persons bringing suit must be Florida residents or the improper "interception" must have occurred in Florida." Thus, if the someone from NY is recorded while in Florida by someone in NJ, Florida law does not apply. The rules used to determine which state's laws apply under which circumstances are explained thoroughly here. The issue of which state's laws apply is what is known as "conflict of laws." The basic idea is simple: Because you and the insurance company are citizens of different states, you have "diversity of citizenship." If the laws in your states differ, the court must decide whose law applies -- is it the state you called from, the state you called to, or federal law? Unfortunately for you, choice of law is hard even for lawyers to get a handle on. There are several different approaches states use to answer questions about conflict of law. Which approach a state uses to settle conflicts of law will determine whose law that state's courts will apply. To get a correct answer, you need to talk to an attorney who understands conflict of law and the admissibility of wiretaps. | Assuming that all of these locations are in the same state, this is not an issue of federal law and is not governed by the U.S. Constitution. The geographical jurisdiction of state and local law enforcement officers is exclusively a matter of state law and has no single correct resolution. Different states handle the issue differently. Even if state law or the state constitution prohibited the arrest, this violation of state law or the state constitution, would not give rise to a federal claim for violation of civil rights under 42 U.S.C. § 1983, which may vindicate only federal rights, and could not form a basis for a collateral attack on a state court conviction in a federal court habeas corpus petition which is likewise limited to vindications of federal law rights. Any remedy would have to be secured in the state court system invoking state law rights (assuming for sake of argument that state law provides such a remedy), or in a diversity lawsuit in federal court applying state substantive law, if the defendant was from another state and the amount in controversy was in excess of $75,000. |
A tradesperson does more work than what is on the contract and is asking to be paid for it I have a fixed price contract that has a long list of tasks to be performed but is somewhat vague on the details. The contractor said a number of times "well we could do this" and the this was not on the list. No mention was made of additional payment for it. My typical response was "are you sure about that - there's already a lot to do". In some cases I just said "yes that sounds good". The contractor has become surly because the amount of time being spent is well greater than the amount he had anticipated. (Note: I have not "held" him to the contract - if he wants to leave he can). He has now come forward saying he will put a lien on the house for items that are not in the original list. Will he win a judgment on this? My problems with this: he came to me saying he would give me a bargain price. I was not even planning to do many parts of the work: he offered to do them at a low total price and I accepted I would not likely have agreed to the "extra" things if I had known there would be additional charges In any case I would most certainly not agree to the kinds of prices that he is now presenting: I could get lower prices from other tradespersons. Even given all that I would not likely have agreed to have the additional work done before the items on the original list were completed If I were to have these additional work items done then I have been denied the opportunity to do a bidding/negotation/ terms / agreement cycle. I never signed anything to pay a dime over the contract amount, or even verbally agreed to additional costs. Instead I frequently harped on my limited expenses ability and the fact that labor and materials were well over the estimates. My take on this is his claim will not fly - there is no definitive evidence that I approved additional compensation for the additional items he did. At worst case the additional items would be costed out on a similar basis to the items in the original list. That amount of money I can handle- it is an order of magnitude less than the costs he is trying to impose now. Having said all that - having a lien on the home is a real headache. My question would be along the lines of: would I be likely correct in the following most likely no judgement since lacking an indicator that I were expected to pay more if a judgment were allowed its magnitude should be aligned with the pricing of the original contract - not market rate having a lien filed will in any case be a long arduous headache of a process to deal with even though the claim would have limited or little merit Update Apparently there is some chance a contractor might be able to get market rate for additional work even though the existing work was at a much lower rate. That is concerning. So here is more info. There were numerous discussions that my finances were constrained, that he was providing a cut-rate service to help out, and that i needed to control any additional expenses. We came to a conclusion some time in that any new work would require a change order. He agreed in a text message and verbally that I had met any existing payments by virtue of retroactively reimbursing some fuel costs. He is now reneging on that as well as the spirit of the deal. Epilogue I made a settlement with this huckster. I would have likely won on merits against a lien - but the amount of the settlement was low enough to justify expediting the whole thing. It is a matter of having trusted too much and trusting the wrong person. There is a big cost associated with that class of mistakes. Now the day after a very explicit "final" settlement - in which there is specific verbage that no further charges can be levied - this guy insists on adding a surcharge to materials that were already paid for or he won't deliver them. I just denied denied denied. "No more addition charges". The point here is: this is a guy just out to get as much as he can. Justice is NOT being served: just be careful to detect these folks before doing business with them! | My question would be along the lines of: would I be likely correct in the following most likely no judgement since lacking an indicator that I were expected to pay more This might happen but the outcome would be very uncertain. A contractor is entitled to be paid the contract rate for work within the scope of the contract, and also a contract rate (if stated) or the fair market value of the services rendered (if not stated) for work subsequently authorized by the property owner and work done with a mutual expectation that the contractor would be paid for it even if not expressly authorized by the property owner. The legal theory for payment when work is done without express authorization, but with a mutual expectation that the contractor will be paid is called "unjust enrichment", "quantum meruit", or an implied in fact contract. The existence of authorization would not generally have to be in writing, and a provision requiring additional work authorization to be in writing in the contract is not necessarily legally enforceable in all U.S. jurisdictions (e.g. it would be void in Colorado). There is likely to be disputed evidence concerning what was said and what the parties understood what was actually said to mean. This could easily go either way in litigation. To be clear, it isn't a clear slam dunk win for the contractor either. But neither side's arguments would be considered frivolous or groundless in the face of this kind of fact pattern as it is typically litigated by reasonably competent counsel. You would be particularly disadvantages by the fact that you would have had the ability to inspect the work being done and to have immediately ordered the contractor to stop doing additional work that wasn't authorized if you saw that the contractor had started to do that additional work. Failure to immediately object to the additional work being done without authorization could be viewed by a judge as a form of implied consent to the work. if a judgment were allowed its magnitude should be aligned with the pricing of the original contract - not market rate If the original contract was a fixed price contract and the original contract did not provide for another rate for additional work done beyond the original scope of the contract, the amount owed would be based upon the fair market rate, not the discounted fixed price rate. Construction contracts that are well drafted by lawyers usually contain a provision governing the rate of pay that is due in cases where there is an agreement, express or implied, to do additional work, and also try to clarify what process must be taken to approve additional work (although the process provisions don't always hold up well in court). Of course, fair market rate is something subject to reasonable disagreements and the fixed price for the original contract would be one piece of evidence among many that the fair market value rate for this particular contractor was lower than the average fair market value rate for all contractors doing work of this kind in this market (e.g. perhaps your contractor has less experience than average or lacks a particular kind of relevant training). having a lien filed will in any case be a long arduous headache of a process to deal with even though the claim would have limited or little merit Yes, it would be, and your evaluation of the claims as having little merit probably significantly understates your risk of liability. Even if the contractor does not ultimately prevail on the claim for the additional work, it is unlikely that the contractor would face any sanction for not doing so, and unless the contract has a broad enough provision to shift attorney fees in this dispute over additional charges as opposed to the original scope of the fixed fee contract work, each side would bear their own attorney fees in the litigation over the lien for the additional work. It is unlikely that a court would impose a groundless/frivolous litigation sanction upon the contractor or damages for slander of title in this fact pattern. For example, a settlement agreeing to pay for the additional work at a discounted rate commensurate with the rate implied by the fixed fee part of the contract would probably be preferable to having the house subjected to a lien and then litigating the case on the merits. | If it's not in the lease agreement, then you did not agree to it. Even in the absence of the law prohibiting the late fee, the landlord would not be able to impose it because it is not in the lease. It is of course up to you whether you want to test it. It may be more trouble than it is worth. Then again, it's probably not worth the landlord's trouble to begin eviction proceedings over a late fee. Paying late and refusing to pay the fee would probably sour your relationship with the landlord, which is usually something you want to avoid. If you do pay late at some point, you may want to point out to the landlord the relevant provision of Massachusetts law. The matter would probably end there: either the landlord doesn't know about it, or the landlord is hoping that you don't know about it. Pointing it out in a polite manner will inform the landlord of the law and that you are acquainted with the law. Unless the landlord is quite unreasonable, that should take care of it. Whether there is any law prohibiting landlords from announcing an intention to take a prohibited action is indeed a different question. Is there any legal reason for me to bring this up and get the landlord to formally acknowledge that they will not in fact charge illegal late fees? No. You have a contract with the landlord that already says you are going to move in. He cannot modify that contract simply by sending you a letter. | There is a reason these are commonly called "TRAP"s (Training Repayment Agreement Provision). These agreements don't just protect the employer from paying for training that an employee can use elsewhere. These agreements frequently act to "trap" the employee in difficult employment circumstances where the employer can demand long hours and excessive dedication in difficult jobs for little pay, knowing that if the employee tries to leave, they could face a substantial financial burden. These agreements are generally legal, provided they are executed in good faith. However, certain circumstances have been used to void the agreements. In particular: If the cost or value of the the training is vastly overstated, so the training actually provides minimal value to the employee, but has a disproportionately large repayment cost that only benefit the employer. If the term of the agreement is excessively long (typically, more than 1 year). Training is unlikely to be so valuable and specialized that the employee would need years to repay the benefits. (Certain exceptions apply, such as for advanced engineering work or specialized skills like airline pilots) If the "training" doesn't actually have much value; if the training is just company propaganda and policies, rather than job specific skills, repayment costs are unlikely to hold up in a dispute. If the employee already has demonstrated skills before the training, then forcing them into unnecessary training just for a TRAP contract is unlikely to be supported. For example, someone with years of skilled electrical design work probably cannot be forced to repay thousands of dollars of "training" for a few weeks of basic electrical refresher courses. Basically, if the training isn't valuable to the employee and the cost isn't reasonable for the training, the TRAP line can frequently be voided. Yet doing so almost always requires mediation or a suit, which are also expensive, time consuming, and have uncertain outcomes. Its best for a prospective employee to call out a TRAP provision as a red flag before accepting an offer, and avoid it if at all possible unless they truly believe they'll benefit from the training, intend to stay the full term, and understand the employer might use the cost as a way to expect more from them or hold back their professional advancement. | If two parties have a contract, where one party is required to do X in exchange for the other party doing Y, then the terms specified in that contract would determine what happens. You would have to see exactly what it says, especially if the other party has the option to not give you money. A contract might say "A shall at his option give B $5,000 by date X; if A elects not to make payment, notice must be given 60 days before X". Failing to give timely notice is thus breech of contract. However if the clause only says "A shall at his option give B $5,000 by date X", then there is no requirement for advance notice. And this assumes that there is a contract whereby both parties have some obligation to the other. A gift, on the other hand, carries no obligations on the giving party. There may be some social code to the effect that they should have told you by now, but failing to give advance notice is at most rude and certainly not legally actionable. | Yes. The formation of a contract requires (among other things) that the parties intend to be legally bound. Their sending the offer from a corporate email address shows this. You replying in the same way shows your intention. Signatures are optional. Consider, verbal contracts are binding; how do you sign those? | Variations of contracts must be consented to by all parties. This means that if the company sent your friend varied terms, it would have included means by which she would have consented - this may be by continuing to use a service. You cannot unilaterally change the terms of a contract. You could try to charge the company PoS terminal storage fees, but it's highly unlikely to be enforceable if they don't agree to it. In theory if they are aware of the change and they accept them in some way then they are bound to the terms just as she would be, even if they later claimed that they were not aware of them. There is some precedent - in Russia - for this with a bank and it made the news some time ago. There's plenty of cases in which people who don't read EULAs or loan contracts thoroughly are still forced to honour their obligations to their creditors under them. | It depends How good is your (legal) English? For example, do you know the legal difference between "will", "shall" and "must"? Or, the difference between "employee", "subcontractor" and "worker"? Or the difference between "bankruptcy", "insolvency" and an "act of bankruptcy"? Contingency What are you going to put in your dispute resolution clause? Do you prefer mediation, arbitration or litigation? Will it be a one size fits all or will it be escalating? What happens if one of you dies? Or emigrates? Or divorces? Or is convicted of a crime? A financial crime? A violent crime? A sexual crime? Or what if such is just alleged but not proven? What happens if the company ceases to exist? Or is sued? Or is acquired by someone else? Or by one of you? Who is responsible for insuring the subject matter of the contract (if anyone)? To what value? If the person who should doesn't can the other person effect the insurance and claim the premium as a debt due and payable? Not all of these will be relevant to your contract. Familiarity How familiar are you with this sort of contract? Is this something you do all the time or is this a one off? For example, I am happy to enter a construction contract without legal advice because that's my business and has been for many years - I know my risks and how to manage them, inside and outside the contract. However, when I set up shareholder's agreements, wills and business continuation insurance with my partners, we went to a lawyer. What is your relationship with the other person i.e. how much do you know and trust them? Stakes If the contract is not very important (which is something that varies with the participants, for some people a million dollar contract is not important for others a $5 one is), so that if, by screwing up, you are OK if you lose everything you've staked then write it yourself. Alternatively, if the contract is vitally important to you and your heirs and assignees unto the 6th generation, I'd get a lawyer to write it - its pretty cheap insurance. How long the contract lasts will be a factor in this - a contract that exposes you to risk for 3 months is different than one that does so for 25 years. Basically, its a risk reward calculation. TL;DR Contracts only matter when relationships break down. If you reach for the contract then you can expect that the other party will be playing for keeps and that contract is your only defense against the worst they can do. If you are happy with your skills in mitigating against a cashed-up opponent who wants to see you go down no matter the cost then draft it yourself. | There is, in general, a rule that all matters connected with a single transaction or event should be included in a single legal case. Different jurisdictions apply this diffidently, and I haven't yet researched this in Maryland specifically. Also, if you agree to pay a part of what the landlord claims, you will quite likely be asked to sign a settlement agreement as part of the transaction. This is likely to include a release of all claims connected with your tenancy at the apartment. If it does, and you sign the agreement, you will be giving up any claim you might otherwise have because of the failure to properly notify you. You may want to consult a lawyer about this. A one-time consultation might not be very expensive. If you sued the landlord, you could do so in small claims court, where legal costs are significantly lower than in other courts. |
Copyright question on use of quotations Writing a book on history of structural analysis and use extensively secondary sources. To which extent can I copy long paragraphs of the book while clearly indicating one of the following just cite write based on or adapted from I do not put in quote long passages. Can I get by placing a grey background from copied passage Trying to avoid having to paraphrase | When you are citing a source to back up your statements, you may generally quote a reasonable amount. Under US law, this will be a form of fair use Under the laws of other countries, this may be permitted under one or another exception to copyright. The available exceptions and how they work vary from country to country, but reasonable quotes should be allowed in almost every country. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? You should: Make it clear what content is quoted, who originally wrote or said it, and when and where it was published; Quote not more than is needed to support your point. Not quote in such a way that your work can be used as a substitute for the source work. If you are not making a reference quote, but merely reusing an idea from a source, it is usually better to write the idea in your own words, not closely following the structure or wording of your source. However, if you are criticizing or commenting on what another author has written, you may (and should) quote enough to show what your comments or critique refers to. The same principles apply as with a reference quote: make what is quoted clear; attribute the source; and quote no more than is reasonable needed for your purpose. Consider whether you really need to quote "long paragraphs" or can just quote key sentences, perhaps along with paraphrases of the rest. If at all possible, the parts you quote should be only a small proportion of the source work. | Wikipedia and you likely have no contract. If you don't have to click "I agree" to access the data, its likely there is no contract. Therefore this is a pure IP law question. The ONLY IP law issue that I see is copyright. The DATA is not subject to copyright. Only the expression of that data. So copying the html and selling that IS potential copyright infringement. Copying the data in some other format and using that is not. Finally, even if you do copy the full html (i.e. full expression), this MAY be licensed by their terms of use (as you suggested they have licensed some content). That is a more particularized legal question that I can't answer here. | 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. | A proof can be protected by copyright. The underlying facts of math cannot. But if one has copied details of the order of the proof, or of the selection of theorems to use, and if several other choices would have been possible, then the new proof may constitute a trivially modified copy, or a derivative work, and in either case making of it might be copyright infringement. However, making and distributing a copy, even with no changes at all, for purposes of comment and criticism, might be fair use in the US, fair dealing in the UK or some other parts of the Commonwealth, or fall under an exception to copyright in other countries (these generally vary significantly by country). This is usually a very fact-driven question. | The CC-ND license seems to be what you are looking for. However, Sec. 2(a) has two conditions, one allowing copying and distribution of the unmodified original (as stated in A), but also allows the user to modify but not distribute a modified version of the work (they may "produce and reproduce, but not Share, Adapted Material"). This would mean that a reader could rewrite your paper, as long as they keep it to themselves. If this bothers you, I think you could not rely on a standard named license, instead you'd have to provide your own – such as CC-ND 4.0 without clause (2)(a)(B). Rewriting a legal document is a risky proposition, even for a legal professional, because you have to carefully think through all of the implications of any new punctuation, adjectives, and deletions. If you contemplate deleting clause (2)(a)(B), you should come up with a line of reasoning that compels you do delete it in order to accomplish your goal, and check that the deletion doesn't thwart that goal. That is why people pay money to lawyers (and also why you need to make your goal clear to that lawyer, lest the agreement be inconsistent with your goal). | 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. | It wouldn't be at all uncommon to cite to a new public law with a section number in the public law but not a pinpoint citation. For example: Pub. L. No. 116-315, § 2002, 134 Stat. 4932 (January 5, 2021). The citation form in the question is also acceptable: Veterans Health Care and Benefits Improvement Act of 2020, Pub. L. No. 116-315, § 2002, 134 Stat. 4932, __ (Jan. 5, 2021). This is a similar to the form commonly used in citations to newly decided court cases that haven't yet been typeset for a hard cover volume of case reports. It would be commonplace to omit a pinpoint citation from the published Statutes at Large, if the section number if provided, even in a law review journal or academic publication, in the case of a newly enacted statute. For what it is worth, the relevant Bluebook (i.e. the leading guide to citation) addresses citations to statutes at large in Rule 12.4 but doesn't specifically address what to do when pinpoint citations are unavailable, although Bluebook Rule 10.8.1 provides some options for pending and unreported court opinions. Almost all law libraries and most larger public libraries and university libraries also get hard copies of Statutes at Large on a subscription basis, although there is a considerable lag between passage and distribution of the dead tree version. | The first copyright law dates from 1710, so it's not true that Chekhov wrote before any copyright laws. Any work from prior to 1924 isn't necessarily safe to use (it depends on when the author died). It is in the US but will complicate things if you publish internationally. Unless you translate with something like Google translate, translation is definitely a creative process. This is especially true (although probably not significant legally) for something like a poem, where its' extra hard if you try to keep the original metre and rhyme scheme. If you publish work in the public domain, you would have some claim to the typography. If the translator has done a copyright assignment to the publisher as part of the publishing agreement, they would hold the rights to the translated version. |
Is it legal for a company to restrict people from re-selling (second hand) their products? "Hive Home" lock their hardware devices to specific accounts. If you move into a house with Hive products already connected to a previous user: you’ll need to buy a new Hive Hub. source And what they don't say is: you have to throw away the old one. The old one is completely useless, and tied to previous person's account. It's like Apple saying once you tie a MacBook to an Apple ID, you can't disconnect it and cannot sell it to anyone. Is it legal for a company to restrict people from re-selling (second hand) items - they call this "transferring ownership"? Both their app, and their human customer service representatives have told me I cannot transfer ownership or rename the account - as this is the same as transferring ownership. | This is not prohibiting the resale. You can resell your old box, but you can not transfer your account, and since the box can't take a new account, it is not a useful item to anyone but the original account holder. It is not illegal to make a resale effectively impossible, but you can not ban it under the First Sale Doctrine and [Patent] Exhaustion Doctrine. Accounts are in this case not sold items but subscriptions and don't fall under First Sale but instead are running contracts - and can be regulated as the contracting parties put into the contract. This contract can ban the transfer (for money or free) of the contract. | No, you cannot ever legally use copyrighted property without a valid license from the copyright owner. It is understandable that when government restrictions prevent people from licensing intellectual property, people will turn to piracy and black markets to obtain them. However, whenever you find yourself in a region where you can legally license the property, you are (presumably) also in a region where intellectual property rights are respected, and it is illegal to use the property without a proper license from the owner. I.e., the fact that you paid a pirate for a copy – even where that was the only option to obtain one – does not give you a license. You have to obtain a license from the owner. | Yes. You can sell it for whatever you can get for it. The license allows you to watch the DVD. If you sell the DVD, you won't be able to watch it - but the buyer will. This is same principle that books are subject to copyright, but there is nothing stopping you selling your books second-hand to a dealer. | You can't You agreed: by submitting Materials in any form to the Company, in addition to other provisions of the Terms, you automatically grant Company a royalty-free, world-wide, irrevocable, non-exclusive, and assignable right and license to use, copy, reproduce, modify, adapt, publish, edit, translate, create derivative works from, transmit, distribute, publicly display and publicly perform such Materials for the purpose of displaying and promoting the Materials on any website operated by, and in any related marketing materials produced by, the Company and its affiliates. They can keep and use your data forever and give it to whoever they want. The clause you quote doesn't alter that. All it says is that once a year, if you ask, they will tell you what information they shared and with whom. If they feel like it they will tell you how to get the information deleted. | A store owner may ban any person from that store that s/he chooses, provided that the ban is not for a reason forbidden by applicable anti-discrimination law, such as banning all people of a particular race or religion. That does not appear to be the case in this situation, from the description. Since this is a franchise, the store has a local owner who is not the chain company. The company will have a franchise contract with the local owner, which will specify in what ways the company can and cannot control the store. They might or might not have the power to require the store owner not to ban you, or not to engage in verbally abusive behavior in the store. In any case, you, or any third party, cannot force them to exercise such power, even if they have it under such a contract. It is very unlikely that law enforcement the authorities will treat the verbal harassment as a crime based on a customer report. You could publicize the situation, as by an online review, which might cause the chain company to take some action, for fear of bad publicity. But be careful. You have already learned that your initial understanding of the situation was significantly incomplete. If any public statements you make are untrue, and harmful to reputation, you could be accused of defamation and sued, perhaps successfully. | You would not be required to do either of the things you state (unless you explicitly agreed to do so). What, strictly speaking, you need to do is to advise the seller that the original goods arrived and ask them if they want to collect them, have you return them at their expense or abandon the goods to you. (In all likelyhood they will give the goods to you because the cost of them recovering them is to high). Although I'm not in the UK, I believe the Sale of Goods Act 1979 applies. Strictly speaking, as you have not paid for the goods, they still belong to the seller - but you do not have to pay to return them. | 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. | Note: IANAL Does the placement of a sticker stating, "We accept XYZ credit cards," essentially obligate a business to accept that card? It depends on whether you mean whether they are obligated to provide goods/services to someone who presents the card, or whether, having provided goods/services, they are obligated to accept the card as payment. For the first question, the answer is "no". The credit card brand could theoretically go after them, however, as names of credit networks are trademarks, so claiming to accept a card but not doing so is trademark infringement. For the second, the answer is "pretty much". Since they misrepresented their establishment, there is no mutual assent and therefore no contract. If they try to use "defrauding the innkeeper statutes", those require fraudulent intent. If you fully intended to pay for you meal by a credit card, and it was their choice to refuse payment, then you have no fraudulent intent. The only avenue I can see for them is some sort of equity argument, but that would be problematic, especially if they ask for the retail, rather than wholesale, price, and not worth the hassle of collecting. So, legally, you can just walk out, but in practice if they have a bouncer they might make trouble for you. |
Can a "repo man" be arrested and charged for repossessing the wrong car (or other asset) Is it a crime for a repo man to accidentally repo the wrong car? I'm sure at least occasionally they'd repo the wrong car. The bank (or whoever owned the loan) had already sent notices and tried other options. They had to do quite a bit of detective work to find the owner. The owner had also gotten plenty of notices in the mail and probably a visit from someone trying to collect, so they were already on the lookout. Simply by the law of averages, a couple of mistakes have to happen. My question is What happens when a car that is legally owned by someone is "repossessed"? Is the repo man charged with theft? What happens to personal items in the car? For example, a laptop in a book-bag. How does the rightful owner go about getting the car back? Do they file a police report? Are there special statutes that protect repo men from honest mistakes? There were several popular "repo shows" in the early 2000s. Most of them were staged, but I believe some showed real repos, at least at first. I believe most of the shows filmed in Florida or California. I don't doubt sometimes repo men played a bit fast and loose with the rules. Repo was generally the final option after notices and visits from collectors had failed. | Is it a crime for a repo man to accidentally repo the wrong car? Not unless the car was retained after the accidental repossession was discovered, and then, only by the person retaining it (as the repo man may have turned over the car to the creditor whose loan on a similar car is in default). Generally speaking, taking property of another with an intent to permanently deprive the owner of the property of it is a crime only if one knows that the property is the property of another. For example, if two people leave black umbrellas in an entry room and someone accidentally leaves with the wrong one, the taking of the wrong umbrella is not a crime. Whether the repo man's assertion that he accidentally took the wrong car is credible is a question of fact to be determined at trial, if the prosecution doubts him. If he was supposed to repossess a 1936 Ford and he repossessed a 2021 Tesla, the repo man is probably going to lose and be convicted of theft. If he was supposed to repossess a white 2021 Tesla and he repossessed a different white 2021 Tesla in the same neighborhood with a license plate from the same state as the one he was supposed to repossess, he has a very good chance of prevailing. However, once someone learns that they have taken the wrong property, they have a duty to return the property promptly to the owner upon request, and probably, to notify the owner (if the owner can be determined) and the authorities who were informed that a different vehicle was taken, promptly. Otherwise, the originally good faith mistake becomes theft. If the repo man's explanation is convincing, he is not likely to be charged with theft, even though no special law applies. What makes the repo man special is that he did have permission from the secured car loan creditor to repossess it due to the secured car loan debtor's default by the Uniform Commercial Code. If he had taken the right car without a breach of the peace, the Uniform Commercial Code would have absolved him of liability and given him legal permission to do so. If the repo had been of the right car, the creditor would have had a duty to promptly return the personal possession in the car in which it did not have a lien to the rightful owner. This conclusion doesn't change when the repo man accidentally takes the wrong car. While the repo man's mistake was not knowing or intentional, it was probably negligent to repossess the car without carefully confirming the VIN number and license plate to make sure that he was repossessing the correct car. As a result, the car own probably has a claim against both the repo man (whose negligence caused the wrongful repossession) and the creditor (for whom he was acting as an agent to repossess the car) for any damages caused to the owner of the wrongfully repossessed car, including damages to the vehicle and damages from loss of use of the car and possibly damages for emotional distress caused by thinking that his car had been stolen or by missing a non-economic opportunity that he could have had if the car had not been wrongfully taken (e.g. if this caused the car owner to miss the funeral of the car owner's father). The creditor and the repo man probably have insurance policies in place that cover legal defense of such claims and also economic settlements or money judgments entered on that kind of claim. | Broadly speaking, theft offences in common law jurisdictions are defined as the dishonest appropriation of property that belongs to another with intent to deprive the rightful owner of it, without proper authority (e.g. permission or legal right to do that). Appropriation means the assumption of the rights of ownership of the property, i.e. behaving as if you were now its owner, not simply or solely the taking of the property. Possible defences include absence of intent to deprive the rightful owner of the property and intent to search for the rightful owner of the property and return it to them. You say: The facts are presented as follows: One day, couple wakes up to $120,000 extra dollars due to teller error. The money was intended for a business. They are aware that this must be an error but spend the money anyway. The bank wants the money back. The couple quits talking to the bank. The couple is charged with theft and receiving stolen property. I don't know about the charge of receiving stolen property (unless that relates to how they transferred or spent the money) but on the facts presented it's certainly prima facie theft. Reportedly, by their own admissions they found money in their account that wasn't theirs, they knew it wasn't theirs and they spent it. | No. This would not be illegal. You are not trespassing or breaking and entering since you have permission to be on the premises, and you are the rightful owner of the guitar so you are not depriving him of property that belongs to him. If you did this with the assistance of a law enforcement officer, rather than Bob's family, without a court order describing the property to be retrieved, this would be called a "civil assist". If the guitar were collateral for a loan, it would be a self-help "repossession" (a.k.a. "repo") authorized by the Uniform Commercial Code if it could be accomplished without a breach of the peace, and it would not require a court order. If you did this pursuant to a court order the case you brought to retrieve the guitar would be called a "replevin action" and you would also need to obtain a "writ of assistance" to authorize a trespass in the presence of law enforcement to retrieve the guitar. Also, Bob would still be be guilty of the crime of theft of the guitar, even though you got it back, because he took it with an intent to permanently deprive you, its owner, of the property that belongs to you. You could also probably sue him for conversion or "civil theft" in some jurisdictions, but your damages would be nominal except for punitive or statutory damages under a civil theft statute, because you ultimately got the guitar back, and so you suffered only minimal economic harm. | A car loan is technically called a "secured debt" and some states have a law called "defrauding a secured creditor", or something similar, that can cause mere failure to pay a debt or to voluntarily deliver the collateral to the creditor to become a type of theft or another crime in some circumstances. Usually, even then, there must be evidence of an intent to defraud the creditor and not merely an intent to fail to perform a promise to a creditor. For example, in Colorado there is a criminal offense entitled "Concealment or removal of secured property" at Colorado Revised Statutes § 18-5-504 which states: If a person who has given a security interest in personal property, as security interest is defined in section 4-1-201(b)(35), C.R.S ., or other person with actual knowledge of the security interest, during the existence of the security interest, knowingly conceals or removes the encumbered property from the state of Colorado without written consent of the secured creditor, the person commits a class 5 felony where the value of the property concealed or removed is one thousand dollars or more. Where the value of the property concealed or removed is less than one thousand dollars, the person commits a class 1 misdemeanor. But, the default position at common law and under the Uniform Commercial Code, is that merely passively not paying a debt or passively not turning over collateral for debt to a creditor is not a crime. | From a comment on the question: They did damage the trailer door and headlight is smashed This seems like the best thing to focus on, especially if you can show that it was not damaged before they towed it. The unusual method of towing (with video evidence) may be a factor in whether they are considered negligent. If the damage to the door looks like they caused it directly by breaking in, that would also help your case. You also asked in your comment if you should go to the police or to a lawyer first. Might as well go to the lawyer and see what they tell you to do. I'm not sure what the police would do if there is no clear crime that has been committed. (The lawyer should have better advice about whether/why to go to the police.) | How far can one go to defend him/herself from an unreasonable search and seizures, in the same sense of one defending him/herself from an unlawful arrest? Not very far. Basically all you can do is try to talk the officer out of it. He thinks he sees evidence in sight... If the police officer reasonably believes that there is evidence of a crime in plain view, then the officer can proceed to seize the evidence. If the property owner tries to use force to prevent the seizure, then the officer can arrest the property owner. ... the property owner ... highly believes there is no possible way he could have seen the evidence from outside his property. It doesn't matter what the owner believes (unless the owner can somehow convince the officer before the search). What matters is what the court believes. But the owner cannot bring the matter to court before the officer enters the shed. If the officer insists on entering the shed and the owner can establish in court that the officer couldn't see the evidence and that there was no other lawful basis for a warrantless search or seizure, then the evidence will be inadmissible. The owner might also be able to prevail in a civil suit for the violation of civil rights, but the bar for such a suit is very high, so the likelihood is very small. | united-states In the US, the default rule is that your home is your castle. In general, nobody, not even the police, can enter your home without your permission. The main exception to this rule is that police do not need your permission if they have a search warrant to search your home. To get a warrant, the police must convince a magistrate that they have good reason (ie, "probable cause"), such as a gps track, to believe they will find evidence of a crime if they search the house. The police in your hypothetical are in a similar situation to police who are tracking the gps signal from a "bait car/bike/phone/tablet/package." (A bait car is a car/etc that has been fitted with a camera and gps tracker, and left out as bait for thieves.) As long as the car is in public view, the police do not need a warrant to search it and arrest the person driving it. However, once the bait car is out of public view, where the police can no longer see it, they need a warrant to go in and recover it, even if they can see it on the tracker. (See, for example, the instructions for bait car programs from the Eugene and Reno Police Departments.) (For phones, which may not be in "plain view" even if the thief is, the police use ring programs to make the phone ring. Hearing a phone respond to a ring program gives them probable cause under the "hearing" version of the "plain view" doctrine.) Bottom line: In the US, the police need a search warrant. Since search warrants take time and effort, police may be unwilling to get a warrant for something as low valued as a phone. If the police can't or won't help, there are various options for privately enforcing one's rights. These range from the legal -- knocking on the door and confronting the thief -- to the illegal -- left to your imagination. | 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. |
Naming a favorite music group - non allowed type of advertising? In a theoretical scenario, there is an actor having an interview in a TV show. They ask him, what is his favorite music. Can he name a particalur one, like Linkin Park? Or that would be considered non-allowed type of advertising? Thank you. EDIT: Is there a difference when the person being interviewed in a TV show is a not a famous actor, but a normal dude? | Can he name a particalur one, like Linkin Park? Or that would be considered non-allowed type of advertising? Generally speaking, that does not constitute unlawful advertising. Public figures are allowed to broadcast their preferences on issues that are more sensitive than topics of music. There might be few, rare exceptions where something like this would be outlawed, but most likely that has to do with a regime's censorship of specific bands or music styles rather than with a general prohibition. | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. | I'm based in England, but I'm sure the principle is similar in Canada. The night club or concert venue is private property. When someone owns or rents private property one of the main things they are buying is the right to control who is present on that property, and generally they can use reasonable force to remove people who are not authorised. Security guards generally act as agents for a property owner, tenant or similar. | OK, the prohibition on commercial use stems from either: The tort of passing off; this is a private civil matter between the model and the publisher, or Breach of s18 of the Australian Consumer Law which involve misleading or deceptive conduct; this is a public civil matter with strict liability (i.e. intention or negligence is irrelevant) between the ACCC and the publisher with fines of up to $1,100,000 for a body corporate and $220,000 for an individual. In both cases the cause of action arises from the possible presumption by a person who views the photograph that the model in it is endorsing the goods or services that you are selling. The standard is: Would a reasonable person, viewing the photograph in context, come to the conclusion that the model is endorsing the goods or services (either because they really like it or they were paid to show they really liked it). Context is everything here. Some examples: If you a photo studio selling the actual photograph then there is no endorsement. If you are using the photograph to promote the studio there is. If you are showing a crowd scene (e.g. at a football match) there is no endorsement. If you are showing a building and the people are incidental there is no endorsement. If you are showing individuals or small groups in a way that promotes your goods or services there is endorsement. So, look at the photograph and the purpose you are using it for: could a reasonable person draw the conclusion that the people in it are endorsing your application? | It is legal and quite common. Your choice as consumer is at the point of selecting insurance company. If you dislike ES enough, that would be a reason to select a different insurance company. It would be surprising if your ES contract disallows pharmacy pick-up, but even if it did, that would also be legal. This does not mean that the government doesn't have the power to break up Express Scripts, under anti-trust laws. There is no clear rule regarding how successful a company can be in attracting customers. | You cannot use a trademark in a way that may cause confusion that your goods and services are associated with or endorsed by the trade marked goods and services. If you are clear that they are not then you shouldn't have any problems on that front. You also cannot defame the brand: that is make derogatory comments that are not true. On a practical note, when Pepsi (for example) sends you a cease & desist notice, what are you going to do? They can go to the petty cash tin for $2 million to make your life a legal hell for 18-36 months: how much do you have to defend your rights? | 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. | It's not illegal to say things in your profile. SE requires you to license your content to them on a non-exclusive basis pursuant to CC BY-SA 4.0. "Non-exclusive" means that you can also license the material to others on some other basis, e.g. CC0. In that case, a person who uses your material can rely on the other license that you granted. If SE wanted to, it could prohibit putting licenses in a user profile, in which case you would have to promulgate your more generous license elsewhere. |
Can I make and sell printable worksheets for board games without infringing on copyright? I'm hoping to sell printable worksheets online for around $2 dollars each that are designed to reformat the character sheets that came with the base board game. Where I believe I am adding value is by consolidating a number of sources of information together from the original game (rigid player cards, disposable character sheets) into one sheet that can reduce "table clutter" while including new elements also making it easier to (a) track one's progress over multiple game sessions, or (b) managing multiple playing groups (i.e. solo vs. groups of 4). My main concern is that I am worried about infringing on trademarks or copyrights associated with the game. On the sheets themselves, no original artwork is used; instead, I'm using icons that are identified as free for commercial use. In addition, the title of the game is not on the worksheet, so I'm hoping this does not give indication of it being an official product. I'm also planning on including some sort of footnote both on the document and in the listing for the product that this is not produced by the game publisher. However, what does concern me is the inclusion of a quick-reference table that I've re-created into visual instructions rather than copying the words themselves. Ultimately, I do believe my character sheet helps with the game experience while not altering it at all, but I do not want to be skirting the lines of copyright / trademark infringement. | united-states Under US copyright law blank forms generally do not have copyright protection, because they do not have sufficient originality to quslify for copyright under the doctrine of Feist vs Rural. According to the US Copyright Office Circular 33: "Works Not Protected by Copyright" (pages 3-4): Blank forms typically contain empty fields or lined spaces as well as words or short phrases that identify the content that should be recorded in each field or space. Blank forms that are designed for recording information and do not themselves convey information are uncopyrightable. Similarly, the ideas or principles behind a blank form, the systems or methods implemented by a form, or the form’s functional layout are not protected by copyright. A blank form may incorporate images or text that is sufficiently creative to be protected by copyright. For example, bank checks may be registered if they contain pictorial decoration that is sufficiently creative. Contracts, insurance policies, and other documents with “fill-in” spaces may also be registered if there is sufficient literary authorship that is not standard or functional. In all cases, the registration covers only the original textual or pictorial expression that the author contributed to the work, but does not cover the blank form or other uncopyrightable elements that the form may contain. A trademarekd name or logo could be used nominally to show compatibility with the trademarked product, such as: This character sheet is compatible with the game "GreatRPG"(tm) and is suitable for recording characters to be used in that game. However these sheets are not made, approved, authorized, or sponsored by Heartland Mages, who own the trademark "GreatRPG". They are a product of "MySheets" which is in no way affiliated with Heartland Mages. Used with that sort of disclaimer, there will be no trademark infringement. And of course if the name and/or logo of the RPG is not used at all, there wiull also be no infringement. However, if the name of the game is used in advertising the sheets, or on the packaging of the sheets, it should be made clear to any consumer that the sheets are not authorized by the maker of the game. A disclaimer similar to the above serves this purpose. If reasonable people could be confused into thinking that the sheets came from the makers of the game, or were approved by the makers, there might be a valid action for trademark infringement. | There are several things going on with Akinator and their use of trademarked names and characters. If you look at akinator.com Legal Notices it says: 2 – Copyright – Reproduction rights All the content of this site falls under French and international legislation on copyright and intellectual property. All rights reserved. Reproduction in whole or in part of this website, in any form or by any means is strictly prohibited without prior authorisation of the publications director. All products and trademarks mentioned are property of their respective owners. (emphasis mine) The fact that they mention that all trademarks belong to their respective owners is good, but it's a formality. What it appears the site really relies on for use of trademarked characters is what's called Nominative Use, which is a type of "trademark fair use." The product or service cannot be readily identified without using the trademark (e.g. trademark is descriptive of a person, place, or product attribute). https://en.wikipedia.org/wiki/Nominative_use Akinator has to use the names and trademarks to identify those names and trademarks. Akinator could possibly be sued to establish their type of fair use is not valid in their case, but it's probably not worth it for the companies to pursue. And, most companies would rather people use and see their trademarks in a marketing and money-making fair use sense rather than sue to stop their use. See In the US, when is fair use a defense to copyright infringement? for a full description of Fair Use. Now, when you get to the "answer" part of the game, you will see a "copyright" link. Part of that resulting page says Displayed pictures are accessible from the web. It is Elokence's policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law and make the necessary changes. In respect of Elokence's Intellectual Property Policy, Elokence operates a complaints procedure accessible via the form below. So the company has given itself a further bit of protection by only using images on the web they can link to (at least in the web browser game; I don't know about the App), so that means the image is already "out there", uploaded by someone else, and Akinator can claim they didn't upload it. And, further, there is a contact form for trademark holders to send DMCA takedown notices for their work. It's a belt and suspenders approach to the use of trademarks in their game. | Don't get hung up on unauthorized resale. That only prohibits unauthorized resale. Authorized resale is ok. From http://www.justice.gov/usam/criminal-resource-manual-1854-copyright-infringement-first-sale-doctrine: The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction. | 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. | Copyright protection is about certain acts, and not about relationships between products. Copyright law says that the creator of an original work hold the exclusive right to copy and to authorize creation of derivative works. Copyright law does not say that anybody can freely create derivative works as long as they are different to a certain extent. So if you take an original Mario and modify it a teeny bit, that is a violation of copyright; if you take an original Mario and modify it hugely, that is a violation of copyright. Degree of similarity is relevant on some cases when the factual question arises whether the allegedly-infringing work is based on some protected original. This is most obvious in music cases, where all baroque music has some similarity to all other baroque music, all death metal has some similarity to all other death metal, and so on. There is not a legal quasi-statutory standard for measuring substantial similarity in music. The scientific underpinning of such a standard would be based on (weighted) combinatorics and the idea that there are only so many tunes possible (that would be a huge number, until you get to the "within a genre" condition). It seems obvious (by your "admission") that the derived works are based on protected works, so Nintendo's permission is required to legally create such works. However, you do or would hold copyright in your unauthorized derived work. Without a trail of evidence such as a SE question pointing to the connection, the derived images might be hard to connect to the originals. In addition, you may be able to avail yourself of a "fair use" defense, in case you get sued by the original creator. Factors favoring such a defense are the insubstantiality of the copying (a small portion) and the "transformativeness" of your creation. | You also retain the right to license the work to others. Therefore you can sell similar rights to MusicBook and anyone else, as long as you do not grant an exclusive license (you have already licensed another party to distribute). They do not gain the right to sub-license your work. If you had executed a copyright transfer, you would have no rights to the work whatsoever (leaving out moral rights for jurisdictions that have them and where they are absolute). | The answer by Dale M. is correct, but a bit brief. "Selling" is not an exact phrase. What you do not want to do is to transfer ("sell") the copyright to the source code. If you did that, you would put yourself in legal danger because they now own the copyright to code that you use in other products, and can sue you for copyright infringement. However, you selling a copy of source code does not imply transfer of copyright in any shape of form. When you buy a copy of a book in a book store, the author's copyright is not transferred to you. Accepting this deal would put the other party in legal danger. Even if they have bought the source code, they still don't have a license to make further copies of it and sell those. This is why you need to license the software to them. In brief: Copyright grants the copyright owner a lot of rights. These rights are always licensed, not sold. The right that is relevant here is the right to create derivative works. A license is simply a contract between the two parties, describing a particular business arrangement in legally binding terms. If I were in your position, I would hire an IP lawyer to help drafting the license. But, basically, the license should say that you, as owner of the copyright to ABC software, grants XYZ company access to its source in its present form, and also grants XYZ company the right to create derivative works, but only for hardware platform DEF, and to create and distribute copies of their derivative work. | Say I wrote a spy novel, in which some character refers to my protagonist as "Mr Bond" suggesting that he thinks of himself as a "master spy" like the movie character. Would that infringe a trademark on "James Bond" (assuming, for the moment that that name is trademarked)? No it would not. Or suppose my main character mentions having met Bond years ago during training, or on a previous mission. Would that infringe? Again, No. Or suppose I write a brief, one-paragraph walk-on scene in which the James Bond character appears? Infringement? Again, no. Or suppose my spy character is waiting for a meeting, and stops for a meal, and i mention that he has a Coke. Would that infringe the trademark on Cocacola? No it would not. All of these are forms of nominative use, and none of them are "uses in commerce", so there is no trademark liability. (Interestingly, there was a series of stories set in an alternate world, written by Randall Garrett in the 1960s-90s. Some of these are spy stories, and his major spy character is "Sir James le Lien" Now a "lien" is a French-derived legal term for a secured debt. The most common English-derived term for a (slightly differently) secured debt is "bond". No one ever tried to sue Garrett for trademark infringement.) The game "Cards Against Humanity" includes, as I understand, many brief references to real-world and fictional things and characters, some of which are trademarked. But none of these uses are "in commerce" and no reasonable person would be confused into thinking that the game was sponsored or endorsed by any of the trademark holders, nor are these trademarks being used to promote or advertise anything. So, No infringement. Now if the game were advertised as "The only card game to feature super-spy James Bond", that might well be infringement. at least a case could be made for infringement then. But as it stands? I don't think so. Also, use of the R-in-a-circle symbol is totally optional when one makes nominative use of someone else's trademark. It can help, along with a disclaimer, to make the point that the user is not claiming ownership. Something like: {X}® and {Y}TM are trademarks of {Z-corp}. They are used here to refer to {Z-corp}'s products. The use here is in no way approved of by Z-corp, nor does Z-corp endorse, sponsor, or recommend this product. No ownership of these trademarks is claimed. However such a disclaimer is not in any way required, any more than the ® symbol is. One exception, if a trademark is used with permission, the owner may make use of the ® symbol a condition of the permission. |
Can copyright or trademark protection of names expire because they have become common? Can the copyright protection of the own names from books, like the names of the monsters, expire because they have become a common words? For example, if a very popular MMORPG game have included giant spiders called 'aragogs', and J.K. Rowling didn't protest, could another party use the name 'Aragog' claiming, the copyright protection has effectively expired, because it's now the word as common as 'ogres' or 'dragons'? Are there any similar court cases? I'm interested mostly in Western World, especially USA. | Copyright does not Protect Names at All Names and book titles and other short phrases are never protected by copyright, whether they are common or uncommon. The US Copyright Office Circular 01 "Copyright Basics" states on page 2: Copyright does not protect: Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down) Titles, names, short phrases, and slogans Familiar symbols or designs Mere variations of typographic ornamentation, lettering, or coloring Mere listings of ingredients or contents For more information, see Works Not Protected by Copyright (Circular 33) Circular 33 "Works Not Protected by Copyright" states on pGES 2-3: Names, Titles, Short Phrases Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, distinctive, or lends itself to a play on words. Examples of names, titles, or short phrases that do not contain a sufficient amount of creativity to support a claim in copyright include: The name of an individual (including pseudonyms, pen names, or stage names) The title or subtitle of a work, such as a book, a song, or a pictorial, graphic, or sculptural work The name of a business or organization The name of a band or performing group The name of a product or service A domain name or URL The name of a character Catchwords or catchphrases Mottos, slogans, or other short expressions Under certain circumstances, names, titles, or short phrases may be protectable under federal or state trademark laws. For information about trademark laws, visit the U.S. Patent and Trademark Office website or call 1-800-786-9199. Use of a name from a previous work can be one element that makes the later work a derivative work, but the name of a character alone will not m make a later work derivative. There must be significant and distinctive aspects of the source work (not merely common or generic aspects, or bare ideas) that are sufficiently original to be protectable, and those must be used in the later work to make the later work derivative. Even then a fair use defense may apply. Having giant spiders called 'aragogs' would probably not alone be enough to make a work derivative of a Harry Potter novel, but if the detailed description and behavior of those monsters was used, it might possibly do so. Failure to object to an infringement does not forfeit copyright, and later infringements can still have legal action taken over them. Distinctive Characters: Court Cases The OP asks: Are there any similar court cases? In Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2d Cir. 1930) the famous Judge Learned Hand wrote: If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare's "ideas" in the play, as little capable of monopoly as Einstein's Doctrine of Relativity, or Darwin's theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.[Emphasis added] In he later case of Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D. Cal. 1989) the court wrote: The precise legal standard this Court should apply in determining when a character may be afforded copyright protection is fraught with uncertainty. The Second Circuit has followed Judge Learned Hand's opinion in Nichols v. Universal Pictures, 45 F.2d 119 (2d. Cir. 1930), cert. denied, 282 U.S. 902 (1931). Judge Hand set forth a test, simple in theory but elusive in application, to determine when a character should be granted copyright protection. Essentially, under this test, copyright protection is granted to a character if it is developed with enough specificity so as to constitute protectable expression. Id. at 121. ... The Rocky characters are one of the most highly delineated group of characters in modern American cinema. The physical and emotional characteristics of Rocky Balboa and the other characters were set forth in tremendous detail in the three Rocky movies before Anderson appropriated the characters for his treatment. The interrelationships and development of Rocky, Adrian, Apollo Creed, Clubber Lang, and Paulie are central to all three movies. Rocky Balboa is such a highly delineated character that his name is the title of all four of the Rocky movies and his character has become identified with specific character traits ranging from his speaking mannerisms to his physical characteristics. This Court has no difficulty ruling as a matter of law that the Rocky characters are delineated so extensively that they are protected from bodily appropriation when taken as a group and transposed into a sequel by another author. Names may be Protected as Trademarks A name may be protected as a trademark. This means that no one else can use it to promote or label a product or service of a similar type without permission. Trademarks do not expire as long as they remain in use. But trademarks only protect against uses "in trade", that is uses that identify a product, or are used to advertise that product, or are used to imply endorsement, approval or sponsorship of a product. If a reasonable person could be confused as the the source of a product, or who endorsed it, then the use of the mark may be infringing. Trademarks are also country-specific. What is a protected mark in country A may be quite unprotected in country B. While trademarks do not expire if they remain in use, if a term becomes "generic" and loses the distinctive association with a specific brand or maker, then it may also lose protection as a trademark. At one time Xerox feared that its name would become a generic synonym for "photocopy" and that it would lose trademark protection. It undertook to discourage people from using the mark "xerox" in connection with photocopying using non-Xerox equipment. Similarly the maker feared that "Kleenex" would become a generic synonym for "face tissue" and took steps to avoid this. However, a single use would not cause this result, it would require widespread use amounting to a change in the language for such distinctive marks to lose protection. I strongly suspect that "Harry Potter" has been protected as a trademark in a number of countries. I am far more doubtful that "aragogs" has been, or even could be, protected as a trademark. The word "aragogs" is one fictional element in the HP books, but it is not used to label, identify, or advertise those books (or related products). Thus it is probably not protected. And even if it were, using such a term in the text of a work of fiction is probably not infringing I could write a mystery novel in which one of my characters has a Coke without seeking permission, and it would not be infringing the soft drink company's trademark. Unless the "aragogs" appear in the title, blurbs, or advertising of the fan novel, or are in some other way used to identify or advertise the novel, they would not infringe on a prior trademark of JKR's even if she has obtained one. | We cannot and will not try to answer "what should i do?" questions here. Nothing in the linked page makes me think that the views expressed in the previous question here are any less correct. They certainly have not changed the law on copyright. The linked page is an open forum. Many of the posts o9n that thread express ill-informed and incorrect views of how copyright works, and what it protects. Several google searchs find no trace of the suit described in the thread. Note that in US law no copyright claim may be heard in a small claims court, except for the federal copyright office's small claims tribunal. I am not sure if the same is true in Canada, but it might be that the suit was simply dismissed on such a basis. In any case small claims cases do not establish legal precedents in Canada or the US. Of course it is true that anyone can sue over almost anything, even when there is no valid legal basis for the suit. If the suit had been won by the claimant, or even settled that would be larger grounds for worry. A person seriously worried over publishing a book such as that described in the question might do well to consult a lawyer with relevant expertise. A single consultation plus an opinion letter might not cost very much. But 17 USC 102 (b) is very clear that copyright never protects facts, as are the copyright laws of other countries. Note that reports of the events of sports matches are not protected by copyright, although expressive language and analysis may be. 17 USC 102 (b) reads: (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. Article 2 paragraph (8) of the Berne Copyright Convention provides that: (8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. There seems little room for copyright protection of the moves of chess games. | The length of a literary work doesn't determine if its use is fair use. Copyright does not cover names, titles of works, catchwords/catchphrases/advertising slogans etc. or lists of ingredients (like in a recipe or chemical instructions), however, the procedure can be copyright. The work must also be original. If the tweet copies something that already exists then there is no copyright in the tweet - if the thing that is copied has copyright protection then the tweet itself may be a violation. That said, assuming that the Tweet enjoys copyright protection, the owner will be the author: presumably the owner of the Twitter account. For anyone else to legally use it, the use must be either: Licensed by the copyright owner Fair use (USA) or Fair Dealing (most everywhere else in the English speaking world) For Item 1, the Twitter terms of service say: You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). In case you don't know what that means, Twitter gives you this plain English summary: Tip: This license is you authorizing us to make your Tweets on the Twitter Services available to the rest of the world and to let others do the same. So, you can get permission from the copyright holder or from Twitter. Well, Twitter has given permission: Except as permitted through the Twitter Services, these Terms, or the terms provided on dev.twitter.com, you have to use the Twitter API if you want to reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Twitter Services or Content on the Twitter Services. Providing you use their API, you can "reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the ... Content ..." Therefore, fair use/dealing considerations are irrelevant. | Under Swedish copyright law, a work such as a movie is protected for 70 years after the death of the "creator". It is unclear who the copyright holder is, but it has not been 70 years since the film was made. Unless it was explicitly "released into the public domain", it is still protected, so you can get sued. | Can the word "Cola" be used for commercial purposes? It depends on what you want to do with it, but most uses would be permissible. "Cola" is, as you note, a generic term, comparable to "trout" or "sugar" or "beer." Still, generic words may be subject to trademark protection. Even "coca" is a generic word. Such protection is, furthermore, not exclusive; trademark protection is more subtle and complex than most people realize. There might be a company called "Cola" that operates guided outdoor activities, but that wouldn't necessarily prevent an unrelated company of the same name from pursuing the same business in another jurisdiction. Similarly, it might not prevent a company that repairs household appliances in the same jurisdiction from calling itself "Cola." For example, in the US, you can buy "Dove" personal care products and "Dove" chocolate; they are sold under distinct trademarks. The central criterion is confusion: trademark protection primarily prevents others from confusing consumers about the source of goods or services. Even if a word or phrase is unambiguously a protected trademark, there are still allowable uses, most notably to designate the product, service, or company associated with the trademark. For example, if someone wants to tell a story about a bottle of Coca Cola (or even to claim "our product is better than Coca Cola"), the owner of the Coca Cola trademark cannot use trademark protection to prevent them from using the phrase "Coca Cola" in the story (or to make the claim). For a specific opinion about a specific use of a specific trademark, you should engage a qualified lawyer with experience in trademark law. | The duration of copyright varies according to different laws; however generally copyright lasts for 70 years after the death of the author(s), and you can check if the author died on Wikipedia or on the internet. Once copyright expires, books are considered public domain and you don't need permission to reproduce or copy etc. Books, as well other types of creative works listed at 17 USC §102, are automatically protected by copyright even without a copyright notice. You need the permission of the copyright owner to reproduce or transmit such works. On top of that is generally accepted to make a copy (often referred as backup copy) of a work protected by copyright for you own benefits. That means that if you bought a printed book and you want to read on your e-book reader, you could scan it and store on your device. However you must keep in mind these: It's meant for your personal use; You can't share it You'll be considered responsible if somebody else gets a copy of that book Furthermore in some countries, laws explicitly forbidden to scan the whole book without the permission of the copyright owner. It's worth to ask the publisher for permission to scan it if you want to read on you e-book reader for personal use. Some publishers offers digital copies of their book (either for free or for a very small charge) and you'll get a better copy than what you could scanning the book. | Copyrights You may use the circle c mark (c) normally with a year, the name of the author of the work and possibly the words "all right reserved" without any legal permission. This gives you more rights legally than you would have from the copyright rights that arise automatically upon the creation of the work. Registering the copyright with the copyright registrar simply gives you additional litigation rights and must be done before you file a lawsuit to enforce a copyright. "All rights reserved" means you aren't granting a license to people who see the website to republish it or use it themselves. "All rights received" would mean that you are using someone else's copyright with their permission, but would more commonly be expressed "used with permission of [name of copyright owner]." Trademarks A trademark arises from use in commerce that causes people to associate your mark with your goods and services. You may use the superscript letters TM to claim a common right trademark in a trademarkable item such as a logo or slogan by affixing it to the claimed mark. This is a basis to sue for trademark infringement but requires proof of many elements that can be dispensed with when the Patent and Trademark Office includes a trademark in its principal register following a formal application to them. What you can't do. You may not say "patent pending" if you have not applied for a patent, may not claim that something is "patented" when a patent has not been approved, and may not use the circle R mark (R) if your claimed trademark has not been including in the principle register of the Patent and Trademark Office. (This answer is based on U.S. law, but copyright and trademark laws are quite similar on these points internationally.) | First, copyright does not apply to "brands". Copyright exists in literary works which includes art - a picture (any picture) usually has a copyright belonging to the creator of the picture. Brands are protected by Trade Marks. To be clear: A picture of you is protected by copyright belonging to the creator The phrase "Mickey Mouse" is protected by trade mark belonging to the Disney corporation A picture of Micky Mouse is protected by copyright and trade mark. (when) would it be legally OK for me to do so without the copyright owner's permission? You can use copyright material without permission if you meet the fair use criteria in your jurisdiction. You can use trade marks if there is no risk of people confusing your goods and services with the trade mark holder's and you do not cause damage (including loss of potential income) to the trade mark holder or it is fair use (e.g. you are writing a review of a Micky Mouse cartoon). Is it legal if I do not distribute them to others at all? No, this would be OK as copyright fair use, but not as trade mark fair use. Is it legal if I give them to my family/relatives for free, e.g. as a gift? No, not fair use for either copyright or trade mark. Is it legal if I give them away to others for free (meaning I'm losing my own money on them)? No, see above. Is it legal if I sell them to others at-cost (i.e. for the same price I obtained them, meaning I'm not making any money from them)? No, see above. If the answer is "yes" to any of the above, can the copyright holder explicitly prohibit me from doing so, or would such a prohibition be unenforceable (e.g. if this would be fair use)? It isn't allowed. Yes they can stop you. No, it isn't fair use; there is no "fair use" defence for trade mark infringement here - you are depriving them of income because you are not buying their T-shirt! Any other factors that are relevant but which I'm forgetting? Will they sue you for doing these things? Probably not. |
What IPs does my personal coding project have? Hi I am a software engineering student, say I code a random personal program and upload it as a website. And I make the code closed-source. What IPs/trademarks/copyrights do I automatically have? I see a lot of personal websites, they just put a "Copyright © 2015-2022" at the bottom, does that do anything? What if someone takes my website, copies everything, and uploads it to their website? Obviously that'll never happen since I don't make anything noteworthy, but what can I do in that case? | Copyright Your code, and the display it produces, is automatically protected by copyright the moment it is "fixed in a tangible form", which includes saving it in a computer file. In the US, a copyright notice has been optional since the effective date of the 1976 Copyright act, and in most other countries even longer. This is mandated by the Berne Copyright convention, and almost every country follows Berne, either directly or via the WTO's TRIPS Agreement. If an original work was posted to a web site, and then copied and re-posted without permission, the owner could send a takedown notice to the site where it is unlawfully posted, or that site's host. Or the author could sue for copyright infringement, and possibly collect money damages or get a court order forbidding further use of the content, or both. To sue in the US, the owner must first register the work with the copyright office, which requires payment of a fee. Trademark Unless you sell your program, or offer it for sale or rent, or sell or offer for sale something connected with it, such as a service, there will be no trademark. A trademark is a word, phrase, image, or design that identifies a particular product or service in the commercial marketplace. It serves to distinguish the trademarked product or service from other possibly similar things offered by other sellers. Product names, business names, slogans, logos, distinctive packaging, or design can all serve as trademarks. Once a person or business has acquired a valid trademark, others cannot, lawfully, use that mark or a closely similar one in ways that might confuse potential customers or members of the public about which goods come from which source, without permission. One also cannot lawfully use someone else's mark or a confusingly similar mark to suggest endorsement, approval, sponsorship or affiliation, unless one has permission from the trademark owner. To do either of these is to commit trademark infringement. If a trademark is infringed the owner may sue and possibly collect money damages, or get a court order against further infringement, or both. In some countries, only registered trademarks are protected against infringement. In others, such as the US, a degree of protection can be achieved just by using a mark "in trade", that is, commercially. Valid copyrights are valid all over the world, automatically. Trademarks, however, must be protected country-by-country: what is protected in one country may well not be in another. Trademark registration is generally separate for each separate country where the trademark is used. Unlike copyrights or patents, trademarks do not automatically expire after a fixed period. But if an owner stops using a trademark "in trade" it may be canceled for lack of use in a relatively short period, as short as 5 years in some countries. | 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. | Yes That is very simple - copyright is an exclusive right that starts automatically with the creation of a copyrightable work. The default situation is that the author has an exclusive rights to make copies of the work and derivative works. If the code is published somewhere by the author but the author has not said anything about its licence or copyrights, then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. They have the right to just publish it somewhere, others don't. If you try to contact the author and they don't say anything and ignore you, then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. If it's impossible to find the author (e.g. I have certain cases with literary works where it's not clear who inherited the rights after the author died), then the default situation applies - you need permission and you don't have it, so it's not legal for you to distribute their copyrighted works. That being said, certain forms of reuse (recreating ideas, learning from them, etc) would not be a copyright violation. But in general the situation with the author not saying anything is almost the same as the author explicitly stating "all rights reserved, you're not allowed to do anything, violators will be shot" - some specific uses are allowed even against author's wishes (e.g. 'fair use' clauses) but everything that needs their permission really does need their explicit permission. | All computer programs are not just copyrightable, they are protected by copyright as soon as they are put into fixed form (for example, as soon as I type it on my computer which will save it as a file on a disk). The copyright owner doesn't have to take any actions whatsoever to have a computer program protected by copyright. It’s not just computer programs, even many fonts are copyrighted because they are essentially computer programs. BTW. What I just wrote is also protected by copyright. There are some licenses involved that I agreed to when I submitted it to this website, and which allow the website to publish and you to read this text, but I'm the copyright holder. PS. There is a comment saying “computer programs are not literary works and therefore not copyrightable”. That may have been true or arguable in the 1980’s. It’s not true now. PS. No, stack exchange doesn’t own the copyright to my post, I do. Unless I was an employee of the company and posted on their behalf. Stack exchange needs and has a license to publish this post. | 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. | As @amon stated in a comment, copyright requires creativity. If the author of a tool wants to claim copyright on the output of that tool, then that output must contain something that required the creativity of the tool author. For a tool that just re-indents its input, the output is created from the input with a mechanical, non-creative, transformation and the output does not contain any creative content that wasn't already present in the input. For that reason, authors of such tools can't claim any copyright on the output. For a tool like bison, which was mentioned in the comments, the output contains a measurable amount of creative content that was not present in the input, but which was provided by the authors of bison. For that reason, the authors of 'bison' do have a copyright claim on the output of the tool (for which they give a broad permission to use). So, the basic question becomes, how much of the (creative) content of the output can be traced back to the tool itself and not to the input that the tool processed. For linters/formatters, that is likely to be very little. For code generators, it can be anywhere between very little and all of the output. The license restrictions on the code produced by the tool itself are by default the same as the license restrictions on the source of the tool, but the tool author can choose to apply any other license to the tool code that ends up in the output. If the output of the tool is, at least in part, dependent on an input file, then the authors of the input file also have a copyright claim on the tool output (as their creative work influenced the output), so the tool author can not claim exclusive ownership. The usual situation is that for tools that don't add creative content to the output, the author explicitly states that the don't have any copyright claims on the output. For tools that do add creative content, that content might be released under very permissive conditions (like, "you can use the output as a whole for any purpose, but you can only separate out the code that comes from the tool's codebase if you adhere to the <X> license") | 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. | Impressum Requirement Wow, based on your citations, you've done a lot of research on this topic. I'm just going to add one more reference, which is from the same site as your first German citation and has incredibly detailed and judicially referenced information on almost everything related to the Impressum. All my non-GitHub links are to sections of that page. Based on your research, I'm going to take it for granted that you understand that according to the Telemediengesetz (TMG), an Impressum is required on a web page if it is "business-like" (geschäftsmäßig), or if it helps, I prefer to word it as "potentially commercial." I would have to argue that open source projects have to be seen as inherently "business-like" for the purposes of the TMG for two reasons: Some other legal person may have similar software as part of their business and might have the need to serve legal notifications to the owner of a GitHub project (TMG § 8 gives competitors the right to sue). Think potential copyright violations here. It is possible to build a more traditional commercial business around open source, for example what Canonical is doing around Ubuntu. Additionally, the common legal advice is to even include an Impressum on a personal blog, though I'm not aware of any court case having occurred at that level yet. In my opinion, a GitHub account can be seen as more "business-like" than a personal blog, and would follow that advice out of caution. I'll note that the XING situation you bring up is complicated. It centers over whether the content of XING pages is "business-like" according to the TMG. It may well turn out that some pages will need an Impressum and others won't. As for placing it in the project's readme.md, that might work but I have two concerns: The courts have essentially stated that the text of the link must imply that the required information under TMG § 5 is located there. For example, the words Impressum and Kontakt work, but the word Information does not. To me, "readme" is not sufficient, but this concern might be negated by the fact GitHub by default renders the readme.md directly on the project home page. While it has been ruled that the Impressum does not necessarily have to be directly on the home page (for GitHub, that would be the company's/users profile page), it must still be readily available in an intuitive location. I don't know if putting it in a project page satisfies the legal requirement. If it was sufficient, it's also likely that each project would have to have an Impressum so that it can't be missed. Examples The dominant pattern that I could find1 on GitHub is an off-site link to the Impressum contained in the profile page's byline right underneath the title. Examples: https://github.com/sedadigital, https://github.com/comsysto, https://github.com/znes, https://github.com/eSagu, https://github.com/TIBHannover. I'm almost certain this meets or exceeds the legal requirements. Example screenshot: Additionally, I found a few that had a repository specifically for an Impressum. Example: https://github.com/johsteffens. Since these repositories were clearly visible on the user's main page (either because there weren't enough repositories to make them span multiple pages, or because it was specifically pinned to the main page), I would argue these also meet the legal requirement for being readily available. While I didn't find any examples of it, another possibility would be to combine the above two approaches, having a link in the byline that links to an Impressum repository or some other page within GitHub. This would be useful if you didn't otherwise have an Impressum hosted elsewhere. There were also scattered examples of people placing an Impressum on a project wiki page or on an impressum.md file at the top level. However, none of the users I looked at were consistent in doing this across all their projects. Also as previously mentioned, it's questionable whether not having it on the main user profile page meets the legal requirement. The Wiki page in particular I don't think meets the requirement that it can easily be found. Found using the following Google search: site:github.com impressum -impressum.php -impressum.html -impressum.jsp -impressum-manager -github.io -issue. Exclusions meant to filter out a lot of false positives, mostly projects for websites that had their Impressum in code format meant for deploy and not for display on GitHub itself. |
Will an arrest without charge in England affect a DBS check? Suppose someone was arrested last year following harassment allegations made by their former partner, but was not charged. Would this be revealed on a DBS check if they were to apply for a teaching assistant role working with children? | Those seeking to work with children should1 have an Enhanced with Barred Lists DBS check which will show (in addition to any unspent convictions, conditional cautions, reprimands, final warnings, and whether they are barred from working with children) any information held by local police that’s considered relevant to the role. Whether the police consider an arrest that did not progress to a charge being made to be relevant or not is fact-dependant based on (for example) the nature of the allegation, any evidence or information supporting or negating it, what a suspect said in interview and any other information available to them. 1One can check the actual level of check required here | You are allowed to ask the police whatever questions you like. There is an upper limit that you can't refuse to obey a lawful order on the premise that you want to ask a bunch of questions, but they don't seem to have ordered you to do anything, so you can ask away. They have no obligation to tell you anything or to be truthful, except for certain questions like "am I free to go" when you want to leave and are testing whether you are under arrest. Even then they don't have to answer your questions right away. The police can therefore ignore you, especially if you are asking curiosity questions. It might be that they are restricted from giving information in certain circumstances (pertaining to the privacy of others). If there is an issue of legitimate concern (e.g. Little Billy has been beating up on cats again) and you feel that you need to know this, then you can request the police record on the matter. Certain information will probably be redacted under state law, but you could get a report that states that some [redacted] juvenile was beating up on animals. The Florida records law is one of the first in he nation, dating back to 1909. You can read this, to see if you think the circumstances match one of the exemptions, though all you have to do is make the request and be told that the record is exempt, then you will have some idea what was going on. | Isn’t this discrimination since nationals do not have to apply? Yes it is discrimination. But that does not make it illegal. In fact discrimination is in general legal unless it is based on some characteristic which is specifically forbidden as a basis for discrimination (e.g. race). And in general, all of the countries in the world allow and enforce discrimination based on nationality; for example non-nationals will not be able to run for Head of State (and additional restrictions may apply). The EU members allowing similar rights to the citizens of other EU countries is the exception, not the rule, and once the UK stops being bound by EU treaties it can impose its own legal system on non-nationals. And while EU treaties give lots of rights to EU member-countries citizens, they still allow for discrimination based on nationality (for example you cannot run for Prime Minister or MP of Spain as a foreign EU resident). Isn’t the UK Government breaking the law? This could go against EU treaties, but the point is that the UK will no longer need to comply with them. is the UK Government responsible for the harm and distress caused to the individual health and mental wellbeing? No, the UK Government is not responsible if you do not like its laws to the point that it affects your health. Is there any ground for challenging this scheme legality in court? Unlikely. In any case it will not be because you are frightened by it, any challenge would be in the grounds that the government actions act against some other UK law. For example, if the decision to make such a list was made by the Executive but it contradicts some law approved by the Parliament. If this list does not contradict any law, then there are no grounds for challenging it. Would there a breach of my human rights if I was not to apply for settle status and then subsequentially got deported (taken away from my children, home, business, etc.)? How about if I was refused, re-entry or access to public services (NHS for example)? If you do not apply you will not have any evidence that you were settled, and the government could legitimately believe that you are irregularly in the country and try to expel you; you probably would have an opportunity to prove that you were settled even if you were not in the list but that could be way slower, more expensive, riskier and stressful than just registering now. Get this clear: that settled person list is to help you to show that you were a UK resident before Brexit and to give you the protections that are being negotiated between the UK and the EU for expatriates. Probably you could choose not to enlist, but it would work against you. | 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. | 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)) | 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. | There isn't an automatic exclusion rule for all forms of improperly acquired evidence in the UK. I can't find the exact quote but there was a judgement from a senior court that said in terms: "it's not the court's job to discipline the police but to see that justice is done." However, judges have the discretion to disallow individual pieces of evidence if they think the interests of justice require it. Section 78 (1) of PACE (1984) has: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Senior judges have been reluctant to lay down general guidelines, holding the trial judge best placed to make these decisions (although of course, subject to appeal). The foundational principle is the accused's right to a fair trial, so in principle one could appeal to the ECtHR under Article 6. However it generally takes a similar line to courts in the UK: It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, unlawfully obtained evidence - may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. PACE Section 78(2) is: Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. The general principle in 78 (1) does not override specific prohibitions: for instance, intercept evidence is never admissable under the Regulation of Investigatory Powers Act 2000. | There is no cognizable grounds for a criminal prosecution in those circumstances. There are also no cognizable grounds for Bob to deny paternity, or to bring a civil action against Alice. Bob will be obligated to pay child support and to have all of the responsibilities of an unmarried co-parent with Alice. |
Can you steal the height of water? I have a plot of land very close to a spillway that has no hydroelectric attached to it and I'm considering discreetly attaching my own hydroelectric to it. I understand that the piping work will be an act of vandalism and the working will be trespassing but I was wondering if there is a further law regarding the redirection of the water. If I don't increase the flow from what would have been going over the spillway (although I would be reducing the amount going over the spillway) and the water is returned to the stream after energy extraction, are there any other regulations, beyond those broken for the sake of construction, that I would be in breach of? I don't believe the project would count as abstraction of water because I'm not taking it. It could be in breach of impoundment but I'm not really changing the flow. | I think you are very likely wrong in believing that if you return the water further downstream it doesn't count as illegal abstraction. Government guidance says: If you want to build a new hydropower scheme, you need to apply to the Environment Agency for: an abstraction licence - if you divert or take water from a river or watercourse Admittedly, guidance isn't law. However, your position is quite close to arguing that taking and borrowing are two different things, and I wouldn't want to try to argue it. | Is it legal to trespass the fence (with little passage in it) with no signs, if there's no buildings behind it (for example, construction site)? As usual, it depends, but probably not. By entering the property you would probably commit Hausfriedensbruch (trespass). According to German law, Hausfriedensbruch applies not only to a building, but any "enclosed property" ("befriedetes Besitztum"). So in this case the question is whether the site qualifies as a "befriedetes Besitztum" in the legal sense. There is no complete list of criteria for that, but the general rule is that the property is physically protected from access. For example, a fenced-in lawn would count (even if the fence is easy to step over), while a temporary barrier (such as a plastic chain) in an otherwise public passage would not. There is no requirement for there to be a building, thus it does not matter that the construction site is empty. So in your case, you would likely commit Hausfriedensbruch by entering the property, unless the passage is obviously intende to allow access to anyone (and is not just an accidental opening). The penalty for Hausfriedensbruch is up to one year of prison (though in many cases you'll probably get away with a fine). | In this answer, I address title question: "If someone catches a Pokemon that is on my property, is that theft?"1 The Pokémon is an entry in a database, presented by Nintendo to users in their mobile app and can be included in a user's collections after that user completes some in-game actions. It isn't your property. It isn't even their (the users') property. Further, a Pokémon appears for all users can be captured again and again by multiple users until it disappears for all users. One user capturing a Pokémon doesn't make it unavailable for others. The Pokémon doesn't "become subject to" any property rights of the owner of the real property that it happens to be virtually overlaid on. Said another way, it doesn't "incur" any of their property rights. Capturing it in-game is not theft. 1. The question in the question body is "does [a Pokémon] incur any kind of property right for the property owner". Incur means "to become subject to". That is different than the broader verb "implicate". This question does not ask (and this answer doesn't answer) whether the Pokémon can implicate the property owner's property rights (e.g. via attractive nuisance, trespass, etc.). Some of that is addressed at a separate question. | Your problem is not just that you don't have a working stopcock, but that you now know that you don't have one. Of course it's not illegal by itself, the problem is what is going to happen if you have an insurance case. Your home insurance most likely has to pay for accidental damage. But any damage that would be caused by not being able to close the stopcock, when you knew it wasn't working, they could claim that this is due to gross negligence. Whether they would succeed with that claim or not, I don't know, but fixing the stopcock seems to be a much, much cheaper solution. PS. Seems I made a wrong assumption here - that it was your home, owned by you. The same reasons that would have made it a good idea for you to fix the stopcock obviously make it a good idea for the landlord as well. So I would make sure that you tell the landlord as soon as possible. If something goes wrong, and the insurance doesn't pay, your landlord would be responsible for the damage. Whether it's legal to not fix the stopcock - that's a different matter. I thought you were the owner. You would have endangered yourself and your property. Nothing illegal with that. But with the landlord it's different; he wouldn't be endangering himself but someone else's property. | The Missouri trespass law is here. The police will not detain a person for expressing himself, even repeatedly, though a court order to stay away would change things. The law says A person does not commit the offense of trespass in the first degree by entering or remaining upon real property unless the real property is fenced or otherwise enclosed in a manner designed to exclude intruders or as to which notice against trespass is given by: (1) Actual communication to the actor; or (2) Posting in a manner reasonably likely to come to the attention of intruders. You can also use purple paint markers. There is also a law against stalking which prohibits unwanted communication that may be threatening, intimidating, frightening or causes emotional distress to another person. However, you need to petition the courts for an order of protection. If granted, violating the order would be a felony, and more likely to get the attention of the police. Getting an attorney is the simplest immediate solution, since I expect that purple paint won't mean much to him. | 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. | I'd take the city council's advice and realize that you could be charged with a crime. Their job is to know the local laws and put them into place, as well as know how those laws relate to state law. As for state law, the Revised Statutes of Missouri, RSMo Section 574.115 Making a terrorist threat says: 574.115. Making a terrorist threat, first degree — penalty. — 1. A person commits the offense of making a terrorist threat in the first degree if such person, with the purpose of frightening ten or more people or causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation, knowingly: (1) Communicates an express or implied threat to cause an incident or condition involving danger to life; or (2) Communicates a false report of an incident or condition involving danger to life; or (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. 2. The offense of making a terrorist threat in the first degree is a class D felony. 3. No offense is committed under this section by a person acting in good faith with the purpose to prevent harm. A fake gun turret on a porch in the public view that tracks people who walk by could be interpreted as making a terrorist threat because it (3) Causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life. And, it's probably safe to assume your turret has the "the purpose of frightening ten or more people." The fact that the gun turret is on private property doesn't mean much; it is in view of the public and your intent is for it to be seen by the public and you want to invoke fear in the public members who walk by. And it's not going to be seen by the council as some sort of security; threats are not security. If you did put up such a turret, and the state didn't take action under 574.115, and there is no local law on the books that applies, the council can easy put one in place at their regular council meeting with a simple motion and vote. Since you already asked the council, they may already be considering such a law. And, depending on the county, the council could invoke a law addressing threats to the public that has more severe penalties that the state law, because Missouri is a home rule (Wikipedia) state. | The landlord might be able to sue the tenant for actual damages arising from the double occupancy, if utilities are paid by the landlord. Two people tend to use more water than one person. Establishing that there has been any loss would be tricky, but let's assume that there is evidence pointing to some dollar figure. Then the landlord might sue the tenant for causing this damage. |
What is the legal status of publishing chess games played by real people? (update) About a year ago I asked whether I can commercially publish a chess book containing chess positions that were played by real people. I got pretty convincing replies, which solved the question for me (i.e., that chess games including names and places and piece positions cannot be copyrighted, but annotations and collections can). So now I've finished my book, containing real life examples of chess games played by real people with my own annotations, and I was almost ready to publish it, when I learned that the Canadian Chess Federation had recently been sued for publishing (on their website) a chess game with their own annotations, but featuring real people. A link for the discussion is here, and here are some excerpts: And yet someone is trying to do so. We (the Chess Federation of Canada) are being sued in small claims court in Burlington, Ontario by someone alleging that they own the copyright to a game that was published on our website newsfeed. Perhaps more worrying is this: The names of the players are given on our newsfeed. Our editor included his own annotations including a brief quote of something Botvinnik said about one of the intermediate positions. There are no annotations from either of the original players. The litigant is trying to make new law. If he is successful we will probably no longer be able to post chess games on our website and will have to close down our email news magazine. So a major chess publisher/club is being sued for exactly the things I was told are not sue-able in my previous stack exchange post. The person concludes that: I believe a national Canadian and prominent NY paper are also being sued. So now I'm having second thoughts about publishing my book. This is obviously a hobby for me and I have a family, a day job to take care of and I don't want to waste time and money defending myself in court. | We cannot and will not try to answer "what should i do?" questions here. Nothing in the linked page makes me think that the views expressed in the previous question here are any less correct. They certainly have not changed the law on copyright. The linked page is an open forum. Many of the posts o9n that thread express ill-informed and incorrect views of how copyright works, and what it protects. Several google searchs find no trace of the suit described in the thread. Note that in US law no copyright claim may be heard in a small claims court, except for the federal copyright office's small claims tribunal. I am not sure if the same is true in Canada, but it might be that the suit was simply dismissed on such a basis. In any case small claims cases do not establish legal precedents in Canada or the US. Of course it is true that anyone can sue over almost anything, even when there is no valid legal basis for the suit. If the suit had been won by the claimant, or even settled that would be larger grounds for worry. A person seriously worried over publishing a book such as that described in the question might do well to consult a lawyer with relevant expertise. A single consultation plus an opinion letter might not cost very much. But 17 USC 102 (b) is very clear that copyright never protects facts, as are the copyright laws of other countries. Note that reports of the events of sports matches are not protected by copyright, although expressive language and analysis may be. 17 USC 102 (b) reads: (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. Article 2 paragraph (8) of the Berne Copyright Convention provides that: (8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information. There seems little room for copyright protection of the moves of chess games. | For your example of items with Marvel characters on them for sale by people and companies not licensed by Marvel, Redbubble clearly states that We ask, rather we beg, that you remember this when you are posting work on Redbubble. If you make sure that all the works you upload consist of your very own, original ideas and are not infringing on the intellectual property or publicity rights of another... (from https://help.redbubble.com/hc/en-us/articles/201579195 ) and further, Redbubble has full contact information for the submission of Notice and Takedown Reports by each real trademark owner. There are many individuals who upload products which use unlicensed artwork in violation of trademarks, and Redbubble acknowledges this and gives recourse to the license holder to inform them so they can remove the items. It's not a perfect system, but Redbubble it seems makes every effort to help police their market. ( Teepublic has a very clear policy statement, too: https://www.teepublic.com/copyright-policy ) Many companies - such as Marvel - employ agents to regularly check such websites and issue takedown demands to the sites; the sites in turn remove the products, and in some instances, ban the individual from using the site again. In the case of Amazon, there can be two types of products sold that use trademarked artwork and characters: items sold by legitimate businesses that have license agreements with the trademark owners and who have the products sold by Amazon itself; and items sold on the Amazon marketplace by individuals who open Amazon Marketplace accounts themselves and don't have licenses. Amazon will be sure to check the products they sell; they will have a takedown notices system for their marketplace vendors. eBay is somewhat the same way; there is a mix of individuals and businesses on eBay, but eBay doesn't operate an umbrella sell/ship by eBay, like Amazon. It's kind of a whack-a-mole situation on the Interwebs. How much time/money does a company spend to chase down trademark infringement? Is it worth going to court for persistent violators? (These are, for the most part, civil cases, not criminal). Violators can always open a new account on sites such as Redbubble and eBay under a different name. And it starts all over again. | united-states The flowchart included in the question is trying to summarize a rather large amount of legal uncertainty into one image. It must be emphasized that each decision point represents an unsettled area of law. Nobody knows which path through that flowchart the law will take, or even if different forms or implementations of AI might take different paths. The short and disappointing answer to your question is that nobody knows what is or isn't legal yet. To further elaborate on each decision point: The first point is asking whether the training process requires a license at all. There are two possible reasons to think that it does not: AI training is protected by fair use (see 17 USC 107). This is a case-by-case inquiry that would have to be decided by a judge. AI training is nothing more than the collection of statistical information relating to a work, and does not involve "copying" the work within the meaning of 17 USC 106 (except for a de minimis period which is similar to the caching done by a web browser, and therefore subject to a fair use defense). The second point is, I think, asking whether the model is subject to copyright protection under Feist v. Rural and related caselaw. Because the model is trained by a purely automated process, there's a case to be made that the model is not the product of human creativity, and is therefore unprotected by copyright altogether. Dicta in Feist suggest that the person or entity directing the training might be able to obtain a "thin" copyright in the "selection or organization" of training data, but no court has ever addressed this to my knowledge. This branch can also be read as asking whether the output of the model is copyrightable, when the model is run with some prompt or input. The Copyright Office seems to think the answer to that question is "no, because a human didn't create it." The third decision point is, uniquely, not a legal question, but a practical question: Do you intend to distribute anything, or are you just using it for your own private entertainment? This determines whether you need to consult the rest of the flowchart or not. The final decision point is whether the "output" (i.e. either the model itself, or its output) is a derivative work of the training input. This would likely be decided on the basis of substantial similarity, which is a rather complicated area of law. To grossly oversimplify, the trier of fact would be shown both the training input and the allegedly infringing output, and asked to determine whether the two items have enough copyrightable elements in common that copying can reasonably be inferred. | This falls within the penumbra of Feist v. Rural Telephone. The principle articulated there is that facts are not subject to copyright protection, but the expression of facts can be. Quoting from the ruling, "no author may copyright his ideas or the facts he narrates...however, it is beyond dispute that compilations of facts are within the subject matter of copyright". The distinction between protected vs. not protected hinges on originality: "The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author". But it is not sufficient that the work is created by the "sweat of the brow" of an author: it must possess at least some minimal degree of creativity. Thus "[t]he writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like". As a concrete example, the ruling states "Census-takers, for example, do not 'create' the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them...Census data therefore do not trigger copyright because these data are not 'original' in the constitutional sense." But, compilations of facts can be protected: Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws An email list requires nothing more than brow-sweat, and even then, not much. A cleverly annotated and arranged email list would involve substantial creativity and would be subject to protection. That does not mean that you didn't sign some agreement that prohibits you from copying or using the list, but it isn't a matter of copyright. | 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. | Generally speaking, if a person sends you an email you can publish it. Like if they call you a bunch of nasty names, or threaten you in some way, that information is yours and you can publish it. However, I'll give you three scenarios where you should not publish an email sent to you (and I'll edit to add more if they come up). Private facts. There is a tort called publication of private facts. A plaintiff must establish four elements to hold someone liable for publication of private facts: Public Disclosure: The disclosure of facts must be public. Another way of saying this is that the defendant must "give publicity" to the fact or facts in question. Private Fact: The fact or facts disclosed must be private, and not generally known. Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities. Not Newsworthy: The facts disclosed must not be newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern. From Digital Media Law Project Note one thing - the offensive fact does not need to have been completely private for you to be liable, it must not have been generally known. In other words, someone like you who has a really low "public" bar needs to be careful. Also note that your buffer system might not help if the facts you publish are about someone other than the email sender; you are the one who published them. Stolen Information If someone sends you some intellectual property of a third party it is not yours to publish. Trade secrets, copyrighted works, prototype photos, etc. The sender might be breaking the law by sending the stuff to you but you're the one who published it so you can join as co-defendants. Barrett Brown was indicted for sharing a link to some stolen information. A link! He's in prison on other charges. Copyright held by the original sender (ht to @Dave_D) If the sender is the original author of the email, then the sender holds the copyright to the body of the email. Publishing the email violates the copyright. However, you could account for this in your buffer. Maybe. I am not sure is that is explicit enough. | Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles. Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Link https://www.copyright.gov/registration/other-digital-content/ | Only if you ask Valve for permission first, and they agree in writing. I'm not a lawyer, but when I was reading through the Subscriber license you linked, this stuck out to me: You are entitled to use the Content and Services for your own personal use, but you are not entitled to: (i) sell, grant a security interest in or transfer reproductions of the Content and Services to other parties in any way, nor to rent, lease or license the Content and Services to others without the prior written consent of Valve, except to the extent expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use); (ii) host or provide matchmaking services for the Content and Services or emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services, use of a utility program or any other techniques now known or hereafter developed, for any purpose including, but not limited to network play over the Internet, network play utilizing commercial or non-commercial gaming networks or as part of content aggregation networks, websites or services, without the prior written consent of Valve; or (iii) exploit the Content and Services or any of its parts for any commercial purpose, except as expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use). The part that I've bolded is probably the part that makes this against the Terms of Service, since in order to post these sorts of automated messages to their service, you'd need to use a "utility program" to "emulate or redirect the communication protocols used by Valve in any network feature of the Content and Services, through protocol emulation, tunneling, modifying or adding components to the Content and Services". I doubt that Valve would ever agree, since such a program could very easily be used to create spam bots that works bombard users with unsolicited advertisements, but maybe Valve would be willing to cut deals with AAA video game companies to let them deploy tools to automatically manage their store pages. |
Did Texas and other US states actually execute people with intellectual disabilities just because they were disabled? I have many times heard how Southern US states used to (or maybe still do) execute retarded/mentally challenged people. I always thought that this sounded crazy, because I assumed that they did this solely because of the fact that they were retarded/mentally challenged. However, it turns out that this is apparently not the case at all. They were executed because of horrible crimes such as rape-murders, but just so happened to be retarded/mentally challenged. This little "unimportant" bit of info was just always left out, or brushed off to the point where I never understood that it was the case. Or maybe I've yet again got it wrong, and they actually did kill people just because they had a tested IQ lower than some number? If so, that truly is something to debate as cruel/unjust, but if they actually did do serious crimes that a normal person would be executed for, I don't understand why this would be such a big deal that it has to be perpetuated as something "shocking". Of course, the death penalty as a concept is a very scary and sad thing, and I don't even want to think about all the innocent people who have been killed throughout history, but my question is not about the death penalty as a concept, but rather whether or not US stated had some sort of law that they are to kill anyone not smart enough just for the sake of not being smart enough to live, or if all those had committed heinous crimes that would justify the death sentence, whether one agrees with it as a concept or not. | To the best of my knowledge, there never has been any US law which authorizes killing or executing someone simply because of their low intelligence or mental illness. The arguments have been over cases where people were accused and convicted of serious, even horrific, crimes, but were sufficiently low in intelligence that it was argued that they would not understand why they were being executed, or even could not form the criminal intent required for a valid conviction. I never saw any news story or advocacy piece, even from the most passionate advocates of preventing such executions, that said or implied that people were being executed just because of low intelligence. Some may have suggested that comparable criminals of higher intelligence were not as likely to be executed. If any publication claimed the people were being executed just because of low intelligence, who were not convicted criminals, it was incorrect, and I would like to known what publication that might have been. However, there was a time in the US, not so very long ago, when coercive actions were taken against people solely because of their alleged low intelligence. I refer to Buck v. Bell, 274 U.S. 200 (1927) a US Supreme Court case in which the Court held that a state law providing for the compulsory sterilization of the "unfit", including the intellectually disabled, "for the protection and health of the state" did not violate the Due Process clause of the 14th Amendment. The decision by Justice Oliver Wendell Holmes included the passage: We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. and went on to say: Three generations of imbeciles are enough. The Wikipedia article linked above says that Buck's lawyer was a member of the Board of the mental institution that issued the order of sterilization, and may have intentionally done a poor job of arguing the case. The late Stephen Jay Gould, in his essay "Carrie Buck's Daughter" (published in Natural History, July 1984, reprinted as essay 20 in The Flamingo's Smile, 1987, and available online) wrote: As scholars and reporters visited Carrie Buck and her sister, what a few experts had known all along became abundantly clear to everyone. Carrie Buck was a woman of obviously normal intelligence. For example, Paul A. Lombardo of the School of Law at the University of Virginia, and a leading scholar of the Buck v. Bell case, wrote in a letter to me: As for Carrie, when I met her she was reading newspapers daily and joining a more literate friend to assist at regular bouts with the crossword puzzles. She was not a sophisticated woman, and lacked social graces, but mental health professionals who examined her in later life confirmed my impressions that she was neither mentally ill nor retarded. ... When we understand why Carrie Buck was committed in January 1924, we can finally comprehend the hidden meaning of her case and its message for us today. The silent key, again and as always, is her daughter Vivian, born on March 28, 1924, and then but an evident bump on her belly. Carrie Buck was one of several illegitimate children borne by her mother, Emma. She grew up with foster parents, J.T. and Alice Dobbs, and continued to live with them, helping out with chores around the house. She was apparently raped by a relative of her foster parents, then blamed for her resultant pregnancy. Almost surely, she was (as they used to say) committed to hide her shame (and her rapist’s identity), not because enlightened science had just discovered her true mental status. In short, she was sent away to have her baby. Her case never was about mental deficiency; it was always a matter of sexual morality and social deviance. ... ... She [Carrie's daughter Vivian, the crucial "third generation"] was a perfectly normal, quite average student, neither particularly outstanding nor much troubled. In those days before grade inflation, when C mean “good, 81-87” (as defined on her report card) rather than barely scraping by, Vivian Dobbs received A’s and B’s for deportment and C’s for all academic subjects but mathematics (which was always difficult for her, and where she scored D) during her first term in Grade 1A, from September 1930 to January 1931. She improved during her second term in lB, meriting an A in deportment, C in mathematics, and B in all other academic subjects; she was on the honor roll in April 1931 Gould also notes that sterilizations were performed at the same institution, under the same law, until 1972, for a total of over 4,000 cases at that institution alone. That is what US jurisprudence has in fact done to people alleged to be "feeble-minded". | The Fifth Amendment only protects you against being compelled to testify by the government. So unless Wonder Woman is acting on behalf of the government, information obtained through the use of the Golden Lasso is admissible. The question about whether she has been "deputized," is not the right one. Rather, the question is whether she is a "state actor." The answer to such a question is not always clear, as courts may ask a variety of questions to reach it: Is the actor paid by the government? Directed by the government? Assisted by the government? Acting under some power established by law? Also, is it "fair" to attribute that actor's actions to the government? Lugar v. Edmondson Oil Co., 457 U. S. 936 (1982). Undoubtedly, there are occasions in Wonder Woman's history where she has worked closely enough with the police that a Golden Lasso confession would be inadmissible. And there are many times where she was working so independently that a Golden Lasso confession would be plainly admissible. I don't remember the exact circumstances of the confessions you're talking about, but if they were from the "small group of reactionary terrorists" I remember from the beginning of the film, I can't think of any basis for excluding their confessions. Wonder Woman came on scene independently, took control and subdued the suspects without any police direction or assistance. Unless the police later asked her to assist with the interrogations, those confessions could not be "fairly attributed" to the government. (All of this is of course ignoring the fact that the crime and confessions occurred outside of the United States and are therefore not covered by the Fifth Amendment.) | It is an unquestioned pre-American axiom, expressed in Latin as actus reus non facit reum nisi mens sit rea ("the act is not culpable unless the mind is guilty") which has been part of the Anglo-American legal system since at least the 17th century. It is thus presupposed in all criminal proceedings. It's not that a person only commits a crime with free will, it's that it is not deemed to be a crime if there is no free will. A person can be held at gunpoint and required to commit a criminal act: the person does indeed have free will to choose to be killed rather than commit the act, but the act is legally excused since dying is never held to be the only acceptable alternative to committing an otherwise-criminal act. | The state argued, and the jury was convinced, that Mr. Holle turned over his keys specifically intending to facilitate the robbery. They necessarily found that Mr. Holle was not telling the truth when he said he thought it was all a joke. I don't know what evidence they had to demonstrate that, but I could imagine that there was testimony indicating Mr. Holle knew that these people had engaged in similar acts before, that the group spoke of the plan with a level of specificity that made him aware they were not joking, or that he saw them taking other steps to prepare that let him know they were planning a crime. It doesn't matter if he wasn't renting the vehicle or didn't have an agreement to divide the spoils. The question of "why" he facilitated the crime is technically irrelevant to the legal question of whether he facilitated the crime. Nonetheless, I could imagine several reasons why he would have lent his car: he wanted to ingratiate himself with this group, he was bullied into doing it, he believed he would get some of the pot they stole, he didn't like the target, and so on. The fact that he was risking prison time is a uniquely poor argument that he didn't know what he was doing. The risk of punishment is always present for committing a crime, and yet we know that people commit crimes all day, every day. Why do they do it? Probably a good question for psychology.SE. | This isn't about bullying at all, this is about Virginia being a "one-party" state. Virginia Law 19.2-62 outlines that: B.2 It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. However what is not said in the article is that the daughter didn't know that the recording device was in the backpack. This means that the mother did not get consent from either party being recorded (it isn't clear that a minor could give consent anyway), and is therefore in violation of 19.2-62. The (US) law has been quite clear on "two wrongs don't make a right", the mother was not getting satisfaction through other channels, but that does not mean she is right in violating the law in pursuit of justice. This is still very much in the early stages of this particular case, but I'm willing to bet that the mother will see very little if any punishment in this matter. As for why the DA doesn't prosecute the children (or their parents) for the bullying, this really depends on what kind of bullying is subject here. If the children are verbally bullying, this may not be a crime (yes, it is morally wrong, but may not be a crime). It isn't to say though that the children in this case haven't been reprimanded according to State law, at least the subject of the bullying has been moved to a different class as a result. Unless the bullying reaches a physical level, most State laws require the schools to deal with the bullying directly (through moving children to different classes, suspensions, expelling, etc), so the DA doesn't typically get involved until physical injury occurs. | The "felony murder" doctrine, which applies in most of the U.S. (including California), holds criminals engaged in "dangerous felonies" responsible for any deaths that occur during the commission of such crimes. In the given example, the hostage taker and anyone who is an accessory to that aggravated assault would, if convicted, also be guilty of murder for deaths that occurred in connection with the incident, regardless of their intent. | Most U.S. states provide zero compensation of any kind in this situation, although there are a few states that are exceptions. (Far more states provide compensation from conviction to release for a wrongfully convicted person.) Even in those few states that provide compensation to acquitted defendants, the compensation is typically set by statute and is frequently much less than what a middle class person would earn and certainly does not capture the full extent of the defendant's economic loss. | Murder is one of the few cases where the intention and not just the act is relevant. The act – killing a person – is the same for Mord and Totschlag, whereas fahrlässige Tötung covers acts that have caused the death of a person. The language of the Stgb labels the perpetrator who killed someone as a murderer or manslaughterer depending on their intention. That a person and not an act is punished is often criticized, but it has no practical consequence. Clearly, the intention isn't that the second one is free. Courts are able to interpret the law reasonably. However, the distinction between two kinds of killings seems to have no basis in reality and robs courts from flexibility to find a just sentence. There are occasional attempts at reform, but none will be successful while CDU/CSU is part of the government. |
Does selling a sculpture based on a copyrighted painting violate that painting's copyright? I am planning to sell a physical sculpture based on Michelangelo's Creation of Adam. There would be some additional features besides just the sculpture, but those are irrelevant for the purposes of this question. The painting, for those unfamiliar: The sculpture would be 3d modeled and then 3d printed. To give a sense of what I'm talking about, here's a link to a 3d model that I found. Unless I can license that particular model, my plan is to pay another artist to create a similar model that I would then have ownership of. But, here comes the problem: According to this Wikipedia page, "The Holy See owns all copyrights in the works published under its name or created on its commission (art. 5)." Since this painting was commissioned by the Vatican for the Sistine Chapel, they own the copyright to it. So, I have several questions: In general, if a painting is copyrighted, can a sculpture be created based on that painting without violating the painting's copyright? If not, would the religious nature of the scene be a good legal defense? I.e. this sculpture was inspired by the story of God creating man (not copyrighted), rather than inspired by a specific painting of God creating man (copyrighted). If I do somehow violate copyright, how likely is it that the Vatican would actually sue? How far does their jurisdiction extend? If I commission another artist to create a sculpture based on the painting, could I be violating the copyright of the artist who has already created a sculpture based on the painting? If it matters, I am based in the US, though I would ideally like to be able to sell outside of the US. Any advice would be appreciated. Thank you! | "The Holy See owns all copyrights in the works published under its name or created on its commission (art. 5)." Since this painting was commissioned by the Vatican for the Sistine Chapel, they own the copyright to it. The first sentence just says the Vatican owns all copyrights that exist, it doesn't speak to whether any copyrights exist in the first place. Earlier in that article, it says "The law provides for copyright 70 years after the death of the author, or 70 years after publication for works with no named author." I don't know off-hand when Michelangelo died, but I'm pretty sure that it was more than 70 years ago. So if there is a copyright, it has long since expired, and who owns it is a moot point. The painting is well in the public domain. If there were a valid copyright, a sculpture would be a derivative work and would require a license. | A document, or an image of a document, created using a font would not be considered to be a derivative work of that font. If it were, our system of licensing fonts would need to be significantly different. In any case the part of the license which reads: [This license] allows the licensed fonts to be used, studied, modified and redistributed freely as long as they are not sold by themselves. It specifically permits such use of the fonts. By "derivatives" the license seems to mean modified versions of the fonts, which it permits the licensee to create and use subject to certain restrictions. This seems to be confirmed by the license text which says: The requirement for fonts to remain under this license does not apply to any document created using the fonts or their derivatives. The plain meaning of this is that derivatives of the fonts are used to create documents, not that they are documents themselves, and that in any case "any document created using the fonts" is not subject to the license restriction. | Generally, it's illegal. You are creating a derivative work and you are not allowed to do that without the permission of the copyright holder. Some jurisdictions may have exceptions, such as fair use under US law. However, this generally protects uses that are intended to comment on or parody the work. It doesn't sound like that is the purpose of your image modification. NOT including: faceswaps, modifications that would shame or affect negatively the reputation of the actors on the image. That doesn't make it legal. I share it in a way that I don't make any economic profit out of it, and clearly stating that it is a modified image (not sure if inside the image, or in the caption under it) and state who is the legal owner of the original image. That doesn't make it legal, either. | You don't seem to be distinguishing properly between "original artwork" and photographs of it. A 19th-century painting will be out of copyright, so you can set up an easel copy it yourself, or even take a photo if the owners don't mind; your copy can be used however you please. However, other people can't use your photograph without your permission. Similarly, if you want to reuse a photograph used in an art book, the important thing is the copyright on the photograph, not the painting. | Not very novel What you are talking about is a derivative work. This is arguably the most famous example: It's an interesting example because Leonardo da Vinci did not have copyright in the original but Marcel Duchamp and Francis Picabia do have copyright in the derivative. Even though the changes are physically small, they are enough. A crucial factor in current legal analysis of derivative works is transformativeness, largely as a result of the Supreme Court's 1994 decision in Campbell v. Acuff-Rose Music, Inc. The Court's opinion emphasized the importance of transformativeness in its fair use analysis of the parody of "Oh, Pretty Woman" involved in the Campbell case. In parody, as the Court explained, the transformativeness is the new insight that readers, listeners, or viewers gain from the parodic treatment of the original work. As the Court pointed out, the words of the parody "derisively demonstrat[e] how bland and banal the Orbison [Pretty Woman] song" is. For an author to have copyright in the derivative they must: Meet the (low) threshold of originality for copyright to exist. Make their derivative lawfully - either because they have permission or because their use falls under an exception to copyright like fair use or fair dealing. However, they do not have copyright in the original elements. For example, I could take the Mona Lisa and give her different clothes, a different background or a hat I will not be infringing their copyright. If I give her a different style of moustache? However, there is an issue with "I have copyright on the contents of the post" when you don't. Even if your work is derivative, you do not have copyright in the original parts and do not have the right to licence them. So, for example, this post is a derivative work of the Wikipedia page linked to above and I have copyright in my original contributions because: They meet the threshold of originality I have permission to make the derivative either through the Wikipedia licence or because my use is fair use. I can give Stack Exchange a licence for my work but I cannot give them a licence for the original work including, for example, the image and quote above. So, someone could quote my entire answer subject to the licence or fair work, but they couldn't copy just the image or quote. | I'm just going through high-level concepts with this answer, it's possible I miss a detail. Architectural works are indeed copyrightable works in accordance with Berne Convention Article 2(1). Both Big Ben and Eiffel Tower are no longer under copyright due to their architects dying more than 70 years ago. French moral rights do not expire (UK moral rights expire with the economic rights). Most relevant to this question are the rights to attribution and against derogatory/damaging/prejudicial treatment defined by Berne Convention Article 6bis(1). Copyright law is on a per-country basis and under Berne Convention Articles 3 & 4, foreign works are accorded equal rights to domestic works. French moral rights apply within France. Taken together, in the UK these architectural works are in the public domain. In France, economic rights (copyright) have expired, but moral rights still exist. Miniature replicas should be fine, but be sure to include attribution. | When the site says "a license is highly recommended" I can think of one possibility. A web site can be so designed that it uses a particular font if that font is already installed locally, but falls back to some other font if it is no0t, rather than embedding the font. Since the font in question is provided free for personal use, those who individually download it could use such a site. The designer of a font holds copyright on it, and may license it under whatever terms s/he chooses. If a person wants to design a web site with this as an embedded font, then it must be licensed from the rights-holder on whatever terms the rights-holder offers or will agree to. There does not seem any option but to pay the licensing fee if this font is to be used in a commercial site or product. Using it without permission would be copyright infringement. The rights-holder could sue for damages. Whether it is worth paying that fee is a matter of judgement for the site designer. But there does not seem to be any provision making a license optional for a commercial developer. | This may well be infringement, but I agree that you should start by reaching out to the instructor. You don't want to pay a lawyer if the matter can be be adjusted peacefully. In the US there is a special limited exemption to copyright for "use in classroom instruction" which might apply in such a case. I am not sure if there is a similar provision in Canadian copyright law. But the instructor is likely to change his practice if you notify him of your objection, even if he has the technical right to use the photo. At least it is worth finding out. If he won't, then you can always consult a lawyer. |
Who’s legally responsible to maintain fiancée K1 documents? Example: I am a U.S. citizen. I invite my fiancé to the U.S. on a K-1 visa. My fiancé and I do not get married within 90 days. We simply do not get married, period. He (my fiancé) stays in my house and lives with me as a husband and a wife. We have kids in 9 months, then more kids. One year down the road, what will happen? Two years down the road? Who’s legally responsible? | The non-citizen is responsible for themselves. If you do not marry within 90 days, the visa expires, and the non-citizen is no longer legally present, thus will have to leave the country. | The transaction you describe is a "taxable gift" to the extent that it exceeds $15,000 in fair market value (as of 2019) and that your significant other is not your U.S. citizen spouse now (special rules apply to non-U.S. citizen spouses and an unlimited amount of gifts can be made without being taxable to a spouse, including a same sex spouse). The first $15,000 of fair market value per donor per donee per year doesn't count, however (there is a $100,000 of fair market value per donor per donee exemption per year for gifts to non-citizen spouses, if a qualified domestic trust is not the true recipient of the gift). This means that the donor is required to report the gift on IRS Form 709 by April 15, of the year following the year in which the gift is made (or later if the donor files for an extension). But, each person is entitled to make up to $11,400,000 of tax free gifts (during life and at death combined) that would otherwise be taxable per lifetime, and this amount is indexed for inflation, so it goes up each year. So, in your situation, it is highly unlikely that any tax would actually be due in connection with your filing of Form 709, even though the donor is required to complete and file that form. In the event that both the annual and lifetime gift exclusions have been exceeded, the tax rate would be 40% of the fair market value of the gift (net of the mortgage debt to which the house is subject. For example, if the house were worth $40,000,000 and had a $10,000,000 mortgage and you were given a 50% interest in it, the amount of the taxable gift would be $14,985,000 of which at least $3,485,000 would be subject to a 40% gift tax, i.e. $1,394,000), if you didn't get married (the tax would be $1,360,000 if you were a non-citizen spouse of the donor). At one time there were some states with their own state gift taxes that had to be considered, but as of 2019, there are no such states. Also, upon a sale of the house, the donee would be subject to one half of the capital gain that the donor would otherwise have owed taxes upon (this is called a "carry over basis"). We paid with a loan from a family member which I helped to pay back. I also paid for work done on the home. This could arguably reduce the amount of the gift (which would ordinarily be valued at fair market value as of the date of the gift), but given the amount of the lifetime exclusion, that detail is probably irrelevant unless your home is a world class mansion or castle. | "the birthdate is on or after November 14, 1986" refers to your birthdate (the birthdate of the parent is irrelevant). "Citizen at birth" means that, if the conditions describe hold, the person has been a citizen ever since they were born, and there is no requirement for parents to register their citizen children as citizens. Mention of age 18 is relevant in case a person's parents are not married to each other at the time of birth. A person who is a citizen at birth does not (technically) have to apply for a Certificate of Citizenship but if you want to document your citizenship, you have to file that form (but simply applying for a US Passport is much simpler and more useful). Since you are at least 18, you can file it on your own, otherwise the U.S. citizen parent or legal guardian must submit the application (which is another way that 18 becomes relevant). | This Marriage Annulment FAQ purports to be based on real-world examples. The reasons for not knowing the status of a marriage appear to fall into three main categories; That the marriage process is later found out to be suspect (e.g. that the marriage may not have been conducted or registered correctly) The one or both parties may have still been married at the time of their subsequent marriage (or may not have gone sufficiently far through the process of divorce to be allowed to be legally remarried). That the wedding or divorce have additional complications relating to different territories or jurisdictions, for example marrying in a foreign country and not realising that ceremony may be invalid elsewhere. | Exact wording might matter here, so I looked up the law. It says "a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are physically present in Canada". Immigration and Refugee Protection Act, 28(2)(a). If you visit the Canadian side of the park, you're "physically present in Canada". It would therefore appear that this would meet the requirement. I am by no means an expert in Canadian immigration law, though. | This is very, very weird. I've never heard of a case like this one. Is there some context that could explain why anyone would refile a divorce someplace new twelve years after getting divorced the first time around? The logical thing to do if Canadian civil procedure is at all analogous to U.S. civil procedure on this point, would be to have a Canadian lawyer file a motion in the Canadian divorce case to set aside the judgment on the extraordinary grounds that you were not married any longer at the time that the 2015 divorce was filed, seeking to set aside the 2015 case ruling. In most U.S. jurisdictions with civil procedural rules modeled on the federal rules of civil procedure (California's are not), this would be a motion under Rule of Civil Procedure 60, but obviously, the Canadian rule numbering would probably be different. Alternatively, if the home is in California, you could bring an action for declaratory judgment declaring that the Canadian judgment is invalid because it was brought in a divorce action between people who were already divorced and probably also lacked jurisdiction over you and the property. I'm not sure what you mean by CPL in this context. Normally, in a real estate context, a CPL would mean a "closing protection letter", but in the context you are using it, it sounds like you are referring to something akin to a lis pendens or a lien. Perhaps you mean a "certificate of pending litigation" which is another name of a lis pendens in at least some Canadian jurisdictions (but is terminology rarely used in the U.S.). This sounds like slander of title, or "abuse of process" or the filing of what is known as a spurious lien, any of which are actionable, but without knowing what a CPL actually is, it is hard to know. | In jurisdictions that recognize common law marriage, it is generally necessary to show that the spouses agreed to marry each other, that they held themselves out to the public as married, and that they cohabited or consummated the marriage. Once this happens, a common law marriage comes into being. In Colorado and most jurisdictions that recognize common law marriage, once a common law marriage is entered into it is binding for all purposes, and cannot be dissolved except by divorce. In all jurisdictions that recognize common law marriage, any subsequent relationship which would otherwise constitute a common law marriage does not give rise to a common law marriage of someone who is already in a common law marriage, because the law does not recognize that you can be married to more than one person at once (and indeed, criminalizes marrying more than one person at once). Many jurisdictions that do not themselves have common law marriage will recognize a common law marriage which was effective where it was entered into between the parties. Colorado and some other states and some programs in the federal government (including the Social Security Administration) also recognize the rights of someone who is a "putative spouse" which is someone who believes in good faith that they are married to their spouse and that their spouse was not married to anyone else at the time that they believed that they were married to their spouse. For example, someone who married in a state that requires a marriage license to do so, who thought that a marriage license was obtained when it wasn't, might be a putative spouse. Similarly, someone who obtained a marriage license or met the requirements of a common law marriage at a time that their supposed spouse was divorced when in fact a decree of divorce was never obtained, might be a putative spouse. One spouse can be a putative spouse, even if the other one knows that the marriage isn't valid. But, anyone who knew that their supposed spouse was already married at the time that they purportedly got married would not qualify as a putative spouse, because the person could not believe in good faith that they were married under a legal regime mandating monogamy. Note that I am using the term "common law marriage" in the somewhat narrow sense of a marriage not formally licensed by the government based upon the principles of the English common law as received by the jurisdiction in question. There are countries, in which, by statute or legal custom that does not derive from the English common law, marriages are recognized without being registered with the government. For example, a country might recognize Islamic law as effective for family law matters between Muslims, and might hold that a marriage not licensed by a government marriage license was still valid if the marriage was effected in a manner recognized by Islamic law. In that case, the first four unregistered marriages of a man made without a death or divorce of a spouse would be valid, and any further purported marriages would be invalid. But, a purported marriage of a married woman to another man would be void and probably punishable by some very severe Islamic law sanction. | 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 . |
Can someone request to a Judge in your country to give a letter of appreciation for appearing as a witness? Say a person X appeared as a witness in a case where the judge was presiding in a criminal case (Jugendstrafsache). The testimony of X was welcomed and appreciated highly by the prosecutor as well as the judge. X is not an EU citizen. X wants German citizenship under "special integration" circumstances. Can X request the judge to write/sign a draft letter that states that X has acted in a manner as would be expected of a German citizen? Broader question: Are people allowed to write to the judiciary for any such relevant requests at all? | It is the duty of the witness to give the testimony, no matter what their nationality is. As a witness, a German citizen is not different from a French, Uruguayan, or even a stateless. The only letter the judge will usually give them in addition to a verbal thanks is a formal letter recognizing that they have, on suchandsuch day(s), been called as a witness to the court and appeared. This is usually given to any witness and pretty much a form. It does serve as evidence for example in cases of absence from work - and you are entitled to the losses you incurred for appearing in court if you formally request them. It isn't forbidden to request a different letter from a judge, but they might not give such an extraordinary letter of appreciation, because that might taint the case: it could raise the question if the testimony was bought with or made to gain such a letter. | In the US, a person is "within their rights" to invoke the Fifth Amendment, i.e. refuse to self-incriminate. However, the government can give a person immunity from prosecution for offenses having to do with the testimony, in which case he can be compelled to testify. A person is not required to guess about whether they could actually be convicted based on their testimony. It is the privilege of the court (judge) to determine whether a witness has "a reasonable cause to apprehend danger from a direct answer" (Ohio v. Reiner, 532 U.S. 17). | can really anyone in Germany call the police on others without proof of anything? Anyone anywhere can call the police without proof of anything as long as they have a phone. The question is, what will the police do about it. Police in Germany are more professional and less corrupt than in many countries in the world (e.g. they are much less corrupt than police in much of the United States or police in Southern Italy or Mexico, or in much of the "third-world"). Most German police are unlikely to exercise their power unless they are genuinely deceived into thinking that you committed an actual crime. But, German cops are human too. Some German cops are bad cops and even good cops aren't perfect truth detectors or bias free. and if so what are my rights? There has to be some evidence to arrest you or prosecute you, but testimony from people who claim to be eye witnesses is a form of evidence and proof. People are routinely convicted of crimes (everywhere in the world) based solely upon the testimony of other people with no additional proof. This is usually a good rule. As a society we don't want the criminal justice system to let people who commit crimes that are witnessed by lots of truthful witnesses and testified to, to go free just because there is no non-testimonial evidence. But because people lie (or are simply mistaken about the truth) sometimes, it isn't a perfect way of determining who is guilty and who is innocent. You also have the right to lodge a complaint of criminal defamation with the police in Germany and in Germany hundreds of thousands of such cases are prosecuted by police every year. Making false accusations against you (or even just insulting you in an extremely offense manner) as they did is a minor crime in Germany. and the person I mentioned had 2 of his employees with him but I am sure and I know for a fact they are on his side and I had no witnesses with me so how can I prove I am innocent? if they agreed on making up a story against me? The possibility that people will be wrongfully arrested and wrongfully convicted of crimes because people lie and authorities believe the people who are lying is a constant risk. The best you can do is to tell your story consistently and honestly and hope that you are believed. But it is impossible to eliminate the risk that people will lie and be believed and that you will suffer the consequences, even if you are doing everything right. In the long run, you may want to avoid people who you think would lie and make false accusations around you, and to have the presence of either friendly witnesses and/or audio/visual recording at times when you are in their presence. You may also, as a long run strategy try to figure out if there was anything you could have done to prevent them from being out to get you so badly that they would make false accusations against you. While I don't want to blame the victim, and often enough, especially for example, if you are a foreigner or otherwise different in a homogeneous community some people are doing to hate you for no reason, sometimes their real motivation may be a failure to follow social norms that are not actually illegal, or a misunderstand that could be cleared up. | National security letters can compel the production of some kinds of (non-"content") user data, and (according to Wikipedia) typically contain a nondisclosure requirement forbidding the recipient of the letter from disclosing it. I assume that a witness has received and complied with a national security letter, and a non-government party wants to ask the witness questions which outside the courtroom, the witness would be forbidden to answer by the national security letter. The witness, or the government if represented in the lawsuit in question, may object to the questions. The purpose which justifies the secrecy requirements of a national security letter is also likely to justify the exercise of state secrets privilege. If the judge thinks a statute might otherwise be violated, they might intervene in the absence of any objection, or consider alternative remedies like an in camera hearing. If the court does not intervene to prevent the evidence being given, and the witness is charged with breaching the secrecy law, this would raise complex questions about the interpretation of the law imposing criminal penalties. The common law doctrine of absolute privilege for witnesses giving evidence in judicial proceedings applies in the United States, and could be raised in defence to any criminal charges. | NY Est Pow & Trusts L § 3-2.1(a)(1)(C)(4) requires that There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will. That means that the witnesses attest to having seen you sign the will, and you must know that it is a will being signed. There is no requirement that they see the will itself, and they do not "attest" anything regarding sound mind, memory or testamentary capacity. It is not required that witnesses receive a copy of the will (for any reason), and it is probably extremely rare for them to do so. However, a witness could be called, during a subsequent court procedure, to testify as to relevant facts such as that a beneficiary held a gun to the testator's head. | I'd imagine that testimony from the defendant is rare enough that in the majority of cases, prosecutors do not meaningfully prepare for a cross examination. To the extent they do, I'd expect the preparation is similar to that for basically any other witness. So I wouldn't expect complicated flowcharts, because the general rule at trial is that you only ask questions whose answers are both known and helpful. So if I need to place the defendant at the OK Corral at 3 p.m., I'm only going to ask him where he was at 3 p.m. if I have evidence showing that fact is true -- maybe he gave a written statement to the sheriff, maybe he posed for a daguerrotype, whatever. I expect him to deny it, so I don't ask the question unless I have evidence more convincing than his denial. In this way, a defendant -- like any hostile witness -- is used less to provide any facts of their own, but rather as an involuntary narrator of my own story, authenticating evidence and validating the facts consistent with my theory of the case. | As I understand it, legal procedure in Common Law jurisdictions (e.g. the UK) is primarily based on evidence given by a person. Paperwork exists to verify that someone has not misremembered something, but even when you have paperwork you need to have someone testify that this is the right paperwork and it hasn't been forged. A piece of paper on its own means nothing. In practice of course the two sides will agree to accept routine matters rather than dragging lots of third parties (e.g. the post office employees) into court to no point. In the case of a letter where you need to prove it was received, the sender will testify that they sent the letter and that the copy they have introduced into evidence is a true copy. The proof of delivery merely shows that the item wasn't lost in the post. If one party testifies that they sent a letter and the other testifies that they merely received an empty envelope then someone is lying, which is a crime meriting further investigation. | 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. |
Is it truly illegal for the US Armed Forces to hire someone whose IQ is less than 83? In this video, Jordan Peterson says that [...] anybody into the Armed Forces if they have an IQ of less than 83 Is this true? What law is this supposed restriction based on? | Short Answer Applicants are required by military regulation to have a percentile score on a standardized test called the ASVAB that is 31 or more, which is roughly comparable to an IQ score on the Stanford-Binet scale of a little bit less than 92, for high school graduates seeking to enter the Army or Navy (other services have more strict requirements and applicants with only a GED or to the national guard must have an ASVAB score in the 50th percentile which is equivalent to an IQ of 100). But, U.S. law allows the Department of Defense to allow people with a percentile score on the ASVAB that is as low as 10 if it chooses to do so. An IQ score of 83 on the Stanford-Binet scale is the 14th percentile of the general population and is fairly close to a 10th percentile score on the ASVAB, although the conversion is not very exact, because ASVAB test takers have fewer people in the top and the bottom of the IQ range than the general population. So, the assertion that the law prohibits people with an IQ score of 83 or less from serving in the U.S. military is close to the truth, although the reality is somewhat more complicated. Long Answer The U.S. military sets, as a matter of policy in a government regulation at the Department of Defense level, certain minimum requirements for people who seek to enter military services. Some of the main requirements are found here. There are also requirements not described there such as a requirement that people enlisting may not have juvenile or criminal records of a certain severity. Additional requirements apply to certain military occupational specialties within the military. For example, someone may qualify to be an Army cook, but not to be a military intelligence specialist in the Air Force. If a person does not meet those requirements, that person is not allowed to serve unless a waiver is obtained from a person with the authority to do so, and even the kind of exceptions that can be made and the factors that must be considered when making an exception on a case by case basis, are specified by a regulation or official pronouncement of the Department of Defense. Among the requirements specified by regulation are educational requirements (a high school diploma or GED subject to some exceptions). Applicants are also required to take the Armed Services Vocational Aptitude Battery (ASVAB) from which the applicant receives an AFQT score is equal to the applicant's percentile ranking of the applicant's raw score on the test. An applicant's AFQT score is strongly correlated with a applicant's IQ score on a traditional IQ test. Applicants with a GED rather than a high school diploma, and all national guard applicants, must score at least 50. Applicants with high school diplomas must score at least 31 to enter the Army or the Navy, 32 to enter the Marines, and 36 to enter the Air Force or the Coast Guard, as a matter of federal regulation. ASVAB scores from one year are not necessarily full comparable to ASVAB scores from another year because the test is rescaled from time to time based, among other things, on the scores earned by people who take the test. For all practical purposes, a Department of Defense regulation has the force of law with respect to an individual applicant seeking to enlist in the military, or an individual recruiter evaluating military applicants. But, Congress has vested the task of setting exact cutoffs and deciding which tests to use to evaluate applicants in the U.S. military and it changes its regulations from time to time based upon the recruiting targets that it needs to meet to satisfy Congressionally set force sizes, and the quality of the applicant pool, subject to the requirement that no one with an AFQT score of below 31 may enlist without a high school diploma, that everyone that enlists must have an AFQT score of at least 10, pursuant to 10 USC 520, AND that no more than 20% of enlisted soldiers may have an AFQT score below 31. AFQT score percentiles on the AVSAB and IQ percentiles aren't completely comparable to each other, however, because IQ percentiles are based on the general population and AFQT scores are based upon people who take the test. People with very high IQs (who tend to go to college rather than the military in the U.S.) and people with very low IQs (who tend to not even try to enlist in the military, knowing that it is futile) are underrepresented among AVSAB test takers, so very low AFQT scores correspond to somewhat higher IQ percentiles, while very high AFQT scores correspond to somewhat lower IQ percentiles. IQ scores are scaled with a Standard Deviation of either 15 (Weschler) or 16 (Stanford-Binet), and a mean of 100 for the general population. In a 16 point standard deviation IQ test, the 30th percentile is an IQ score of 92 and an IQ score of 83 is the 14th percentile. It isn't unreasonable to estimate that an AFQT score of 10 corresponds to an IQ score of 83, although I haven't seen any source making that exact conversion. My best guess is that the minimum AFQT score of 10 corresponds to an IQ score of more than 83 but less than 92 on a Stanford-Binet scale. For comparison's sake, an IQ score of 70 is normally considered developmentally disabled (a.k.a. mentally retarded). The minimum IQ score for entry into the military according to Congress would be considered a bit "dull", but within the range of ordinary self-sufficient people in the general population. The minimum IQ score for entry into the military by current regulations of about 92 would be within the "normal" range of 90-110 that includes about half of the general population. UPDATE (September 26, 2019): While this is a law that the U.S. military is duty bound to honor, it isn't at all obvious that anyone, with the possible exception of Congress or at least a majority of one house of Congress, would have standing to bring a civil action in court to enforce this requirement. To have standing one would have to show an actual injury from the violation to you personally, and that in turn, would be extremely hard to show in a casual manner. Generally speaking, however, mere statistical evidence of some actual injury to you on average is insufficient. One could imagine a case where a low IQ person's mistake harmed a fellow soldier, but it would be almost impossible in practice to segregate the IQ contribution to the mistake happening to myriad other facts that could also have led to the mistake (e.g. insufficient training). | I conclude (contrary to an earlier expression) that there is no such list, nor can there be, because the term "officer" is not well enough defined. The inferior officers are those officers who are not principal officers (as specified in the Constitution, e.g. ambassadors, cabinet members, judges), since there are only two kinds of officers. There is no constitutional or statutory definition of "Officer of the United States", so we have to figure it out from case law. As noted in Morrison v. Olson 487 U.S. 654 The line between "inferior" and "principal" officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. Officers of the US cannot be appointed by Congress (Buckley v. Valeo 424 U.S. 1 (1976), so that narrows down the possibilities – if in fact an appointment can be made by Congress, that is not an inferior office (since Congress has no such authority). That court also said that We think that the term "Officers of the United States," as used in Art. II, defined to include "all persons who can be said to hold an office under the government" in United States v. Germaine, supra, is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an "Officer of the United States," and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article. To take a specific example, "special trial judges", authorized in 26 USC 7443a are an example of an officer. We know they are officers, because Freytag v. Commissioner 501 U.S. 868 says so (since they read Buckley): A special trial judge is an "inferior Office[r]" whose appointment must conform to the Appointments Clause. Such a judge acts as an inferior officer who exercises independent authority in cases governed by subsections (b)(1), (2), and (3). The fact that in subsection (b)(4) cases he performs duties that may be performed by an employee not subject to the Appointments Clause does not transform his status. The Dept. of Justice offers an analysis of "Officer of the United States". The main elements in their opinion are that the position must possess delegated sovereign authority of the Federal government, and the position must be continuing. There are other criteria possibly applicable (things that were invokes at some time) including method of appointment, having been established by law, taking an oath of office, an emolument (not a volunteer), and receiving a commission. Still, Congress authorizes (by law) the hiring of federal employees, and not all employees are "officers". An earlier memorandum on the topic is here. Footnote 54 notes that It is at least arguable, however, that the authority exercised by second lieutenants and ensigns is so limited and subordinate that their analogues in the civil sphere clearly would be employees. Warrant officers and non-commisioned officers would likewise have quite limited authority. Since the definition of "Officer of the United States" is up for grabs, there can't be a complete list of inferior officers, especially if all military officers are included. There is a long list of civilian officers under the executive branch published in United States Government Policy and Supporting Positions, after each presidential election. The so-called Plum Book is on a government web page here in the 2012 version, and here for 2016. However, you will not find special trial judges of the tax court in the Plum Book, which were held in Freytag to be officers, and are civilians in the executive branch. The special trial judges are apparently listed here, as are the sitting judges (who are also not in the Plum book). | Ignorantia juris non excusat You can say I didn't know: it won't keep you out of jail. Rather than delving into the specifics of your question, I will keep my answer general. If you break the law, you break the law. It doesn't matter if: you don't know what the law is, you didn't think the law applied to you, you thought what you were doing was in accordance with the law. "Break the law" is an objective fact - there is no subjectivity involved. The state of mind of the person is, in most jurisdictions, irrelevant; the common law doctrine of mens rea or "the guilty mind" has almost universally been done away with. Now specific offences have specific defences. Generally, in underage sex cases genuine ignorance of the age of the person is one such defence. A court may decide that ignorance that the person was underage under US law may qualify for this defence. | Firstly, this is actually a really good question - The Australian Constitution grants few explicit protections or rights to people, and it does not protect you from discrimination on the basis of age. In any case, you'll find that it is not a violation of the Age Discrimination Act 2004 (Cth) - see s39. This makes an exemption, amongst others, to the Act when acting in compliance with specified Commonwealth laws, or with State or Territory Acts or Regulations, which typically enact minimum drinking ages. In general, governments are able to legislate within the bounds of their powers, usually as enumerated in a constitution, and sometimes limited by a bill of rights. Even where the power to legislate with respect to age is not specifically granted, governments are generally empowered to legislate with respect to other matters where age may be a factor: employment, sale of goods, gambling, etc. | I think your confusion stems from assuming there is a universal definition of "minor" across laws, jurisdictions, and rights. 18 is the age of majority for the purpose of voting (26th Amendment), the death penalty, labor law (although age 14 is the minimum age for employment), and many other laws. But, 21 is the age required to buy alcohol in all states (by their own choice in order to receive highway funding). Nothing requires the age of majority to be consistent across different sections of code or statute or between jurisdictions (except when constitutionally prescribed, like voting age, or minimum age for certain elected offices). There are many counties that prohibit purchase of alcohol at any age. The age of consent varies between 14 and 18 across US states. Age 65 is a threshold for certain tax credits. You need to be 25 in order to be a member of the US House of Representatives, 30 to be a Senator, 35 to be President. You are only protected from age discrimination if you are 40 or older. Here is a rough list of various age-based thresholds for various rights, privileges, or responsibilities in the US. (I havn't vetted this whole list, and some are clearly satire, but the ones I know about are consistent with my understanding.) | One way in which it holds legal water is that if you use the website in violation of the terms, then you may forfeit your right to take civil action against the company. Analogous language especially regarding the age of the user may protect the site against actions by third party governmental entities (COPPA-like laws), though nothing patently obvious springs to mind (insofar as this deals with firearms and there is also an age 21 restriction both on the web site and in terms of US firearms law, this is not a totally crazy idea). The citation of 18 USC 1030 non-probatively points to an issue which may be disposed of by SCOTUS in US v. van Buren, that knowingly violating the terms of service is a crime (a proposition rejected by lower courts, see US v. Valle). Facebook v. Power Ventures in particular clarifies how "being put on notice" may make such unauthorized access indeed "unauthorized access" in the statutorily-relevant sense. This does not prevent a legally-authorized law enforcement investigation, pursuant to para (f), but if the "violation of TOS = unauthorized access" theory is upheld, it limits how LEOs can legally access the website (and the limitations extend past LEOs). It is a separate and potentially interesting question whether there actually are any legal limits on the investigative powers of the government – if any law enforcement officer has the liberty to investigate anyone they want, with no supervision or requirement of justification, then this would be a rather gaping loophole in their legal strategy. Web pages involve massive copying of copyright-protected data, and the function of terms of use is in part to conditionally grant access to that copyright-protected content. When a person copies protected material from someone's web page having been explicitly denied permission to copy, they run the risk of an infringement lawsuit. | So it's not that SCOTUS is declining to review the matter on Constitutional Grounds but that it's declining to rule because 1.) It's a military matter 2.) It's under review by congress. SCOTUS is basically saying that, of the three branches, they are the least equipped to deal with military policy and when a better equipped branch is reviewing the matter. SCOTUS doesn't want to dictate to Congress how to change the rules when Congress is in the process of changing the rules itself... but they can say "Hey, we got our eyes on this as a constitutional matter so keep that in mind when you decide on what you're gonna do about this. When Congress makes a decision on this particular law (either change it or keep it), SCOTUS may take a look, but that doesn't mean they'll rule against it, as Congress and the Military can present an argument that it might be necessary for military defense reasons. | The protection lies in the fact that these sorts of restrictions are expressed in state laws, and states are Constitutionally forbidden from denying to any citizen the equal protection of the law, or from interfering with religion. The First Amendment, as applied to the states through the Fourteenth Amendment, forbids states from making any law impeding free exercise of religion, or having the effect of establishing a state religion. This means that any law that forbids people of any religious denomination (including atheists) from holding any office (elected or not) under any level of government is unconstitutional. See Torcaso v. Watkins. Moreover, Title VII's protected classes are also (with the exception of sex) suspect classes under the Equal Protection Clause. A state or local government may not pass a law discriminating against a suspect class unless it is a narrowly tailored law which is the least intrusive way to achieve a compelling state interest. In practice, that means a state can't pass a law discriminating on the grounds of national origin, race, or religion. Sex is a quasi-suspect class; government discrimination on the grounds of sex must further an important state interest in a way reasonably related to that interest; again, in practice this will tend to rule out laws saying "no women can be elected to this post." The Americans with Disabilities Act actually does not exclude elected officials. It defines "employee" as "an individual employed by an employer." The Equal Pay Act doesn't apply to elected officials, but again, sex is a quasi-suspect class. The Age Discrimination in Employment Act also excludes elected officials, and this is the one case where a state really could discriminate -- the applicable test is whether the law is rationally related to a legitimate state interest, which is not an especially high bar. |
To what extent are US state laws enforceable across state lines? Can laws enacted by a state legislature be enforced on people or organizations that are not strictly within that state? A notable example is Texas' S.B. 8 bill which essentially criminalizes anyone who aids in an abortion by providing funding, transportation, etc. If an individual or organization located in another state provides such funding, or in the case of a doctor located in another state provides an abortion, can a lawsuit be brought against them within the Texas state legal system? Another example might be with regards to labor laws. If a state has a law, say, requiring a certain pay rate for overtime work, can a lawsuit be brought against an out-of-state employer for failure to comply with such policy (perhaps pertinent in the case of remote work or distributed work such as rideshare drivers). | To the extent Constitutionally permitted or as further limited by the state’s own law Constitutionality, a suit may be brought (or a prosecution launched) when the state has personal jurisdiction over the defendant. … a state court may only exert personal jurisdiction over an individual or entity with "sufficient minimal contacts" with the forum state such that the particular suit "does not offend 'traditional notions of fair play and justice.'" What constitutes sufficient "minimum contacts" has been delineated in numerous cases which followed the International Shoe decision. For example, in Hanson v. Denckla, the Court proclaimed the "unilateral activity of those who claim some relationship with a nonresident cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the nature and quality of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protection of its laws." For the abortion bill, an organisation that provides funding to Texas residents probably has “minimum contacts”, an out-of-state doctor who treats all-comers probably doesn’t. For employment laws: if the employee is based and work takes place in the state, yes. There is a separate question of which state's law applies which is independent of which state's courts can hear the case. A California court can decide that it can hear a case according to Texas law for example although, in practice, if the California court felt that all of the issues were Texan, they would probably decide they lacked jurisdiction. | Very few terms have a single "legal" definition or meaning that applies to all laws, and can be looked up as if in a dictionary. Rather, when a specific meaning is needed in connection with a particular law, that law will include a definition. But that definition will often not apply to the use of the same term in other laws or other contexts. Here I suspect that the OP has found the definition section of a US Federal law regulating commercial transport in interstate commerce. Obviously in such a law, those terms would be defined in the context of commercial transport. That does not mean that the same meanings will be applied in other laws. Driver's licenses and other traffic and motor vehicle regulations are largely matters of state law in the US. Definitions from a federal law, or indeed any law but that state's Motor Vehicle Code (or whatever a given state calls such a body of law) will simply not be relevant. The argument sketched in the question simply does not follow. | A state or local law enforcement officer cannot enforce federal laws unless the officer has been deputized by the federal government to do so. State and local law enforcement officers are sometimes deputized to enforce federal law, but this would almost never be done in the case of FCC regulations. | Assuming that all of these locations are in the same state, this is not an issue of federal law and is not governed by the U.S. Constitution. The geographical jurisdiction of state and local law enforcement officers is exclusively a matter of state law and has no single correct resolution. Different states handle the issue differently. Even if state law or the state constitution prohibited the arrest, this violation of state law or the state constitution, would not give rise to a federal claim for violation of civil rights under 42 U.S.C. § 1983, which may vindicate only federal rights, and could not form a basis for a collateral attack on a state court conviction in a federal court habeas corpus petition which is likewise limited to vindications of federal law rights. Any remedy would have to be secured in the state court system invoking state law rights (assuming for sake of argument that state law provides such a remedy), or in a diversity lawsuit in federal court applying state substantive law, if the defendant was from another state and the amount in controversy was in excess of $75,000. | It's a bit of an oversimplification. You're correct that there is a federal law against murder, 18 USC 1111. However it applies only to a murder committed in the special maritime and territorial jurisdiction of the United States. This covers situations like crimes committed on federal lands such as national parks or federal buildings, or crimes on US-flagged ships at sea, aircraft in flight, or in space. It does not apply to "ordinary" crimes committed at most locations within the US. 18 USC Chapter 51 covers a few other situations, such as murder of a federal officer, foreign diplomat, by incarcerated or escaped federal prisoners, US nationals murdering each other while abroad, and so forth. The idea is that these restrictions keep the laws within the enumerated powers of Congress as stated in Article I Section 8 of the US Constitution. A federal statute covering all murders throughout the US would probably be unconstitutional for this reason. So while what he says is not strictly correct, it is true that in the vast majority of cases, murders are covered by state laws and not by federal laws. Even if one was to agree with Ramaswamy that medical abortions are a form of murder, even still, no federal murder law currently on the books would apply to a typical abortion, except under very unusual circumstances. | A common phrase regarding US cities is, "cities are creatures of the state." All of their authority comes from the authority granted states, and states can limit the authority of cities, counties and their other political subdivisions. In the US cities cannot have additional authority beyond the authority the containing state has, as opposed to, for example, cities granted Royal Charter in the United Kingdom, which may have equal or greater authority than their containing counties. Most states have constitutional and legal descriptions of what powers cities and towns can exercise. Recently many cities have begun passing laws to ban things like plastic grocery bags or hydraulic fracturing, and states have then passed laws to remove that authority from cities. States also set requirements for creating new towns. In Texas, any town smaller than 5,000 population is a general law town. General law towns have very little authority to create laws, but they can have a police force to enforce state laws. A city in Texas with population larger than 5,000 people can enact a charter by popular vote and become a home rule city. Home rule cities in Texas can enact some laws with criminal punishments (only citations and class C misdemeanors) and have greater taxing authority, but really can only pick from a menu of options created by the state. | The interpretation of state rules of civil procedure is a matter purely for state courts. Whether a state procedural rule (or even substantive approaches to jurisdiction) violates federal law, including the U.S. Constitution, is a question of federal law, but state courts are still competent to answer such questions that arise in the process of state litigation, subject only to precedent from the Supreme Court of the United States. I may be starting to just repeat things now, but even if the legal issue you're interested in (the extent to which trial courts are divested of jurisdiction during non-frivilous interlocutory appeals in matters controlled by the FAA) is substantive or jurisdictional rather than procedural, Federal circuits do not bind state courts. However, the Supreme Court of the United States can provide binding prcedent on federal law that state courts must apply. I could see the reasons in Coinbase being written broadly enough to apply to both state and federal proceedings. | Yes, legislative bodies can pass legislation that constrains the interpretation of the rest of their legislation. In the U.S., see 1 U.S.C §1-8. In Canada, see The Interpretation Act. In British Columbia, see The Interpretation Act. As an example of a back-and-forth between the courts and congress regarding a setting a standard of review, consider the passage of the Religious Freedom Restoration Act (RFRA). Summarizing from Holt v. Hobbs 574 U. S. ____ (2015): In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the Supreme Court held that "neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment". Congress desired a stricter test that prohibited the burdening of religion regardless of whether the laws are neutral or generally applicable. Congress passed RFRA in 1993, which required that "[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, unless the government demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest". RFRA was passed with the goal of setting the standard of review for all other legislation that burdens a person's exercise of religion. Without RFRA, the standard of review would have been that used in Smith, based solely on First Amendment protections. With RFRA, the standard of review became stronger, basically strict scrutiny. An example of Congress setting the factors to be used in a balancing test is the addition of fair use via the Copyright Act of 1976. Prior to 1976, courts had been applying a fair use exception based on common law rather than statute. The act encoded in statute the four factors that Congress wanted to be considered and listed several purposes for which fair use was explicitly applicable. In this case, Congress basically codified the fair use doctrine as it was being used at the time by the courts. It could be considered an expression of approval for the existing interpretation of the time and a desire to prevent drift in that analysis. |
What does "circumstantial evidence" mean in criminal procedure? What does the term "circumstantial" or "circumstantial evidence" mean in a legal context, particularly in regard to criminal law? How is it different from other kinds of evidence. Is it correct that circumstantial evidence is weaker or less valuable than direct evidence? Please cite reliable sources for any answers. I am particularly interested in answers for the US (any state) but answers from other jurisdictions would also be welcome. | Overview The term "circumstantial evidence" refers to evidence that does not directly establish the elements of the crime, but that permits the finder of fact to draw inferences about what happened. It is called circumstantial because it shows the circumstances, often of the crime scene, but in any case of something in some way related to the alleged crime. For example, a knife found in a dead body would be circumstantial evidence, as would fingerprints found on the knife. An eye-witness account of the crime would be direct evidence, not circumstantial evidence. So would a video of the events of the crime, say from a security camera. Most physical evidence is circumstantial evidence. Much eye-witness is direct evidence. There is also opinion evidence, also known as expert testimony. In a US court at least, pretty much all evidence falls into one of these three categories. Circumstantial evidence can be misinterpreted, and it can even be faked, although that is comparatively rare. Direct evidence can include lies, misunderstandings, and particularly misperceptions.1 For example, a witness sees two people struggling, hears a shot and sees a flash, then one drops dead. This is direct evidence, not circumstantial. But does it prove murder, or even intentional killing? It need not; one person could have drawn a gun and the other struggled to seize it, and the gun fired in the struggle, killing the person who originally drew it, with no one intending that result. On the other hand, suppose a victim reports a rape. Semen is obtained from the victim's person. The victim shows bruises and injuries characteristic of rape. DNA tests match the accused, as do fingerprints in the victim's blood at the scene of the crime. That is all circumstantial, but taken together, there seems only one reasonable interpretation. Sources The definition of "circumstantial evidence" from Law.con's legal dictionary reads: evidence in a trial which is not directly from an eyewitness or participant and requires some reasoning to prove a fact. The page goes on to state: There is a public perception that such evidence is weak ("all they have is circumstantial evidence"), but the probable conclusion from the circumstances may be so strong that there can be little doubt as to a vital fact ("beyond a reasonable doubt" in a criminal case, and "a preponderance of the evidence" in a civil case). Particularly in criminal cases, "eyewitness" ("I saw Frankie shoot Johnny") type evidence is often lacking and may be unreliable, so circumstantial evidence becomes essential. Prior threats to the victim, fingerprints found at the scene of the crime, ownership of the murder weapon, and the accused being seen in the neighborhood, certainly point to the suspect as being the killer, but each bit of evidence is circumstantial. The Britannica article on "Circumstantial Evidence" defines the term as: circumstantial evidence, in law, evidence not drawn from direct observation of a fact in issue. The page goes on to state: If a witness testifies that he saw a defendant fire a bullet into the body of a person who then died, this is direct testimony of material facts in murder, and the only question is whether the witness is telling the truth. If, however, the witness is able to testify only that he heard the shot and that he arrived on the scene seconds later to see the accused standing over the corpse with a smoking pistol in his hand, the evidence is circumstantial; the accused may have been shooting at the escaping killer or merely have been a bystander who picked up the weapon after the killer had dropped it. Merriam-webster's definition is: evidence that tends to prove a fact by proving other events or circumstances which afford a basis for a reasonable inference of the occurrence of the fact at issue. Notes [1] See for example "Eyewitness identification: Effects of suggestion and bias in identification from photographs". In "Eyewitness Testimony (Scientific American, Dec 1974) Prof Robert Buckhout wrote: Although such testimony is frequently challenged, it is still widely assumed to be more reliable than other kinds of evidence. Numerous experiments show, however, that it is remarkably subject to error. See also https://www.scientificamerican.com/article/eyewitness-testimony/ See also "Eyewitness Identification: Should Psychologists be Permitted to Address the jury by Margaret J. Lane, 75 J. Crim. L. & Criminology 1321 (1984) where it is stated: The unreliability of eyewitness testimony' is inconsistent with the criminal justice system's reliance upon it. | Chain of custody and testimony in this regard. Say there is a murder victim, with DNA of the suspect under the fingernails and a knife with the suspect's bloody fingerprints stuck in the chest. There would be testimony what happened to the knife. If a paramedic removed it to attempt first aid, the paramedic would testify. So would the officer who bagged it, and the forensic analyst who took the fingerprints. A pathologist would testify if the knife was consistent with the stab wound (a careful pathologist could never swear that the knife was the cause of death, just that it matches). The pathologist would also testify how DNA was collected under the fingernails, and how it was sent to the lab. The defense may claim that the suspect also tried first aid, or that a corrupt cop forced the suspect to hold the knife. The court or jury then draw their conclusions from this and other testimony. Same here. A lifelike picture found on the web proves nothing. A witness who takes the stand to testify that he or she took a certain picture would be more credible. So would a forensic officer who testifies how she or he removed the data from a surveillance camera, checked for common signs of tampering, and then signed a copy of the data with a private key. (The signing shows no third-party tampering after collection, it is not evidence of integrity before that.) Years ago, in germany, there was the case of a bank robber who claimed that a fleeing suspect had handed him a bag of money in the forest and then vanished. "Prove it wasn't so," he demanded. "You can't. So there is reasonable doubt." Well, the court found that the statement merely created unreasonable doubt, and the sentence was upheld on appeal. | No. There is a clear distinction between: evidence (or testimony), which consists of statements of fact given by witnesses on oath (subject to prosecution for perjury), governed by the rules of evidence, and which the jury is required to consider but not accept (in the sense that a verdict which is not supported by the evidence can be set aside on appeal), submissions, which consist of argument by the lawyers for the parties, which the jury is not required to consider or accept, and directions, which consist of statements of law given by the judge, which the jury is required to accept. The jury is required by its oath to follow the law as stated by the judge, even if it is wrong. The remedy for erroneous trial directions (an appeal) is different to the remedy for erroneous evidence (a perjury prosecution in the case of deliberate lies; nothing in the case of innocent errors). Because the jury has the power, but not the right, to nullify a charge by disobeying the judge’s directions, there is a sense in which the jury is free to reject the judge’s directions just as it is free to reject evidence. However, this is completely inconsistent with the theory that defines the roles of judge and jury. There is no legal basis for viewing judicial directions as a kind of expert testimony. ‘The power, but not the right’ Obie 2.0 asked about this phrase. It coems from the Case of the Dean of St Asaph, which is reported at R v Shipley (1784) 4 Doug 73. The relevant passage is summarised in Lord Devlin's Trial by Jury (1956), at p 87: Jury’s Power of Acquittal There may well be cases in which the killing is not in doubt and the formal direction not to return a verdict of manslaughter is therefore tantamount to a direction to return a verdict of Guilty. Still, if the direction is ignored, the court must, I think, accept the verdict. There is no way in which a verdict of acquittal can be nullified. As Lord Chief Justice Mansfield put it in 1784: “It is the duty of the judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences.” Mr. Justice Willes said: “I admit the jury have the power of finding a verdict against the law and so they have of finding a verdict against evidence, but I deny they have the right to do so.” The Chief Justice of Australia held to similar effect in Gammage v The Queen (1969) 122 CLR 444, writing: [The jury] have no right, in my opinion, to return a verdict of manslaughter where they are satisfied of murder. But, as I have said, persistence by them in returning another verdict must ultimately result in the acceptance of that verdict. In that sense, but in no other sense, it is both within their power and, if you will, their privilege to return a wrong verdict. To answer Obie 2.0's question, the jury has the power to ignore the judge's directions, because – at least at the time Lord Devlin was writing in 1956 – a verdict of acquittal could not be nullified. However, the jury does not have the right to do so because the law requires it to follow the directions. As Ed999 observes, the law governing jury trials does vary between jurisdictions. In particular, some jurisdictions (which lack the United States' constitutional double jeopardy clause) now allow for a jury acquittal to be set aside on appeal. However, the fundamental distinction between a witness’s evidence and a judge’s directions was established in England centuries ago, and remains applicable throughout the common law world. It is worth specifically mentioning the United States because jury nullification remains a controversial topic in that jurisdiction. However, the basic principle that the jury is legally required to follow the judge’s directions was established in Sparf v. United States, 156 U.S. 51 (1895), and described by Ginsburg J (albeit in a dissenting judgment) as ‘conclusive’ in Honda Motor Co. v. Oberg, 512 U.S. 415, 447 (1994). In Sparf, the opinion of the court was: We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence. | This is a good question, which I am going to answer from a practical perspective, rather than a theoretical one, which would probably justify a law review article (applications of the takings clause to criminal justice fact patterns is actually one of my pet areas of legal scholarship, but a lot of it calls for dramatic changes in established practice and precedents reached from other perspectives, making it impractical to pursue in real life). I recently had a case along these lines in my office where my client's property was seized as evidence in a criminal case against a third-party. The crime involved a gun shop where all of the guns that were in the possession of the shop owner for repairs at the time of the bust (i.e. as bailments), including ours worth several thousand dollars in addition to having some sentimental value, were seized as evidence of charges against a shop owner who was fencing stolen goods, making sales to felons off the books, falsifying excise tax returns, etc. He seemed legitimate and had been in business for many years in what was not a fly by night operation. He had all of the proper licenses. Who knew we were dealing with a crook? In that case, we intervened on behalf of our client in the primary case to seek the physical return of the property (basically a replevin claim), as have others affected by the bust. It took a few months and some legal fees, but we prevailed without too much effort, as have the other intervenors. Generally speaking, to make a 5th Amendment claim, you would have to show a total taking and move into some legal gray areas in this context, while it is usually hard for authorities to show a continuing need for possession of third-party property in the face of a demand for its return, especially when photography and other scientific tools can document the evidence in great detail these days. In that case, showing that our client's particular gun was not involved in any illegitimate transaction also simultaneously made it less important as evidence, although that would not necessarily be true in general in these kinds of situations. There is a pending case in Colorado posing similar issues, where a suburban police department essentially destroyed a guy's home in order to catch a felon with no relation to the homeowner whatsoever, who had fled into it and taken refuge there. But, that case, as far as I know, has not yet been resolved on the merits. | This is very, very weird. I've never heard of a case like this one. Is there some context that could explain why anyone would refile a divorce someplace new twelve years after getting divorced the first time around? The logical thing to do if Canadian civil procedure is at all analogous to U.S. civil procedure on this point, would be to have a Canadian lawyer file a motion in the Canadian divorce case to set aside the judgment on the extraordinary grounds that you were not married any longer at the time that the 2015 divorce was filed, seeking to set aside the 2015 case ruling. In most U.S. jurisdictions with civil procedural rules modeled on the federal rules of civil procedure (California's are not), this would be a motion under Rule of Civil Procedure 60, but obviously, the Canadian rule numbering would probably be different. Alternatively, if the home is in California, you could bring an action for declaratory judgment declaring that the Canadian judgment is invalid because it was brought in a divorce action between people who were already divorced and probably also lacked jurisdiction over you and the property. I'm not sure what you mean by CPL in this context. Normally, in a real estate context, a CPL would mean a "closing protection letter", but in the context you are using it, it sounds like you are referring to something akin to a lis pendens or a lien. Perhaps you mean a "certificate of pending litigation" which is another name of a lis pendens in at least some Canadian jurisdictions (but is terminology rarely used in the U.S.). This sounds like slander of title, or "abuse of process" or the filing of what is known as a spurious lien, any of which are actionable, but without knowing what a CPL actually is, it is hard to know. | Yes. The jurisdiction I am familiar with is England and Wales. Conviction requires evidence (witness testimony is evidence) which proves the case "beyond reasonable doubt". It is open to the jury to find the witness so convincing that they find that they are sure the defendant committed the crime. In general of course, prosecutors prefer to have some supporting evidence (either additional witnesses, or circumstantial evidence - like DNA.) | A case can be "dismissed" at (most) any time (however, the further along in the process a case is, the less likely a judge will allow a case to be dismissed without very good reason). A case can be dismissed with or without "prejudice", which in this legal context means essentially "finality". A case dismissed with prejudice cannot be brought again, while a case dismissed without prejudice can be refiled. (Compare the criminal law concept of "double jeopardy", though as phoog correctly notes, "double jeopardy" only applies in criminal trials, while prejudice can be applied in both civil and criminal courts). Many cases are dismissed without looking at the evidence (or even having the evidence admitted to the record); this is called "summary judgement" or "judgement as a matter of law". There are generally three cases when this happens: First, if the prosecution or plaintiff (i.e. the party bringing accusations) has "failed to state a claim upon which relief may be granted", i.e. asked for something the court cannot grant. Second, is if the defendant can show, that even if everything alledged by the plaintiff is true, that the necessarily elements of the crime or offense have not been proven. Third, is if there are no facts in dispute, and only a disagreement on interpreting the law. | There is no absolute rule in such cases. It is often a matter of negotiation between the state and federal authorities, and failing agreement, a matter of which authority has the prisoner in custody. Often the question of which crime is more serious or carries a longer sentence is an issue in such negotiations. |
Can an expert refuse to give expert testimony? Can an expert be forced to give expert testimony with the use of a subpeona? Seeing as they are putting there reputation on the line it would not strike me as unfair to force a professional into forensic testimony? | united-states Yes and no, that is, the courts have extensive powers to compel testimony, but there are rules about doing so. This article addresses the question of expert testimony. Suppose you want an expert to testify, then Rule 26(a)(2)(B) applies, requiring disclosure of the information to be disclosed, along with a written report. It could be nearly impossible to provide the required information without the cooperation of the expert. Furthermore, under Rule 45(d)(3)(B)(ii), a subpoena can be quashed, which the article summarizes in terms of the objections that Testimony about an expert’s findings may impact or limit an expert’s ability to conduct research Testimony about an expert’s work may be unethical, if the work is not completed, peer reviewed, or otherwise in a “publishable” format The subpoena and resultant testimony could put the expert at a competitive disadvantage Work required to adequately prepare for such testimony is overly burdensome The subpoena and subsequent testimony may put the unwilling expert in a controversial or otherwise uncomfortable position In a specific instance of subpoenaing an involuntary witness, the court in In Re: World Trade Center Lower Manhattan Disaster Site Litigation addressed a motion to compel expert testimony. The opinion lays out various powers of the court to compel a "non-retained" expert witness, including the "substantial need for the testimony or material that cannot be otherwise met without undue hardship". There is a complex weighing of factors here, which is resolved at the finding that "Plaintiffs have failed to show that the Non-Retained Experts' testimony is unique" so the petition to compel testimony was denied, but the affiliated research center was compelled to disclose the underlying data. So it depends on the circumstances, see Kaufman v. Edelstein, 539 F.2d 811. | 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. | 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. | Even before the police have any idea who did it, Bob is guilty of whatever wrong he did. However, if you want this to be a legal question and not a moral one, we should assume that you really want to know "Can Bob be convicted of murder, if the evidence proves that he did do it?". Yes, he can. See Morris v. State, 214 S.W.3d 159. The critical question was whether the defendant understood the charges (he did) and whether he could assist in his defense (he could). The desideratum of being able to assist in your own defense only goes so far. On the other hand, maybe no, per Wilson v. US. A government expert witness "testified that appellant had permanent retrograde amnesia and would not be able to aid in his own defense in terms of remembering any of the acts alleged in the indictment". The crucial difference seems to be whether one just has loss of memory, vs. loss of memory connected with some other mental disorder. [Addendum] Per Dusky v. United States 362 U.S. 402, competence to stand trial depends on whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him. I am not aware of any exceptions e.g. whether this is not the case with strict liability crimes like statutory rape, and since it is generally held that "competency" is a requirement mandated by the due process clause, I don't think there could be an exception. | Yes, one should not publish evidence until a verdict is reached. This includes any possible appeals. In common law, doing so has long been one of the contempt of court offences called sub judice, or "publishing information that interferes with a fair trial". The main point is that the jury should not be influenced by any information other than what they hear in the courtroom. In New Zealand, the offence was recently codified. | The Fifth Amendment right against self-incrimination applies only in criminal trials, but it permits a witness to refuse to answer a question in either criminal or civil cases, including in a deposition. If he had committed crimes or thought that his answers might have incriminated him, he should have declined to answer. I'm not terribly familiar with this case, but it occurs to me that a lot of the allegations against Cosby go pretty far back; it could be that he was talking about something so far back that he wasn't exposed to any criminal liability. In a case like that, it may even be that a judge had already ordered him to answer the question. Assuming that he voluntarily answered the question, he has waived his right against self-incrimination and the testimony is generally admissible. | You give no jurisdiction but in general: First, police have no obligation to be honest. So, yes they can collect this without consent by e.g. taking hair from your hairbrush (with a warrant) or giving you a glass of water while interviewing you and getting it from your fingerprint oils (which may not actually be technically possible but never mind that). No, they can't take it by "force" by sticking a swab in your mouth. Yes, it will almost certainly go into a database. Of course, there are some jurisdictions where police are entitled to decide you are guilty based on the fact that you didn't pay them a bribe. | Your confessions, to anyone, can be used against you. If A admits to B that A stole the car, B can testify to what A said. In fact, if B accuses A of a crime and A says nothing (and C witnesses this), C can testify as to what B and A said (or didn't say) – this is known as an adoptive admission, and it is up to the jury to decide if they think the silence is significant. Recordings are likewise admissible. All evidence is in principle defeasible, so if there is a video of "you" committing a crime, you can make the case that it wasn't really you, and the jury will weigh the evidence to see if they are firmly convinced that you did commit the crime (at least in New Jersey... long story about 'burden of proof'). |
Is it legal to write software to convert data from a proprietary format? I have created a piece of software that converts a proprietary format from the database blob of a large, well known commercial software company into the equivalent open source data type. The large commercial software company states the following on their copyright and trademarks page "This work is protected under United States copyright law and other international copyright treaties and conventions." and links to the DMCA. I was able to create the software because most details of the format were published in a post on their support forums and the rest I reverse-engineered. I now wish to open-source my software so others can use it. My question has two parts: Can I open-source this at all without getting sued? Can I refer to the trademarked product the file format came from in my software and documentation? (I'm assuming I can't use it in the name of my software) I'm in the UK. The large software company is in the US. | The words "proprietary format" are important. Are you sure the format is proprietary? If it is, then it's likely protected in which case they might have grounds to sue (but that does not mean they would definetly win). If the format is not proprietary, and so long as you don't share data which is proprietary then I believe you fine. I'm not a lawyer - but I cite GIF files as an example. They were still protected by the US and some other countries until at least the late 90s and there were various threats to open source linux companies who shared code that used the file format. I'm not aware of anything other than threats and never heard of any company being sued, let alone winning or losing. Another example that comes to mind is the RedHat ISO format. My understanding is RedHat could not stop anyone from sharing open source, but they could prevent folks from sharing the format they assembled and shared the open source. Again, I am not sure if it was ever tested in any court of law anywhere. | If you want to implement this or a similar feature, you'd look up the patents, and either get a license (unlikely that Microsoft would give you a license), or figure out how to implement the feature without violating the patent. An example how a company I worked for worked around a patent: In order to compress data. in the best possible way, the idea was to try eight different methods to compress the data and pick the best compressed data. There was a patent for that (even though to me, this was quite obvious). Workaround: The software tried eight different methods and reported a number from 1 to 8 indicating which method gave the best result (unlike the patent, which actually gave the best result). Then the data was compressed once using the best method. No patent violation. You'd probably want a patent lawyer to check if your idea how to implement the feature violates the patent or not, and how to get around it. It takes a specific mindset that you and I don't have. And even good lawyers who are not patent lawyers might not be able to help you there. Commercial vs. open source/free software makes no difference, except that Microsoft might not bother suing you if there is no money to be made. Unless the intent is to prevent you from implementing the feature, in which case the would sue companies without money as well. | For cases where this occurred within the United States, with works created on or after January 1, 1978: (the OP has since clarified that their scenario occurred elsewhere) By default, the author (the actual creator) of a work is the owner of the copyright. However, this is not the case if the work is a "work made for hire" for an employer. In that case, the company is considered the author of the work, and owns the copyright. From US Copyright Office Circular 09: If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual. Works are considered to be made for hire in two situations, as described by that circular (emphasis added): a) a work prepared by an employee within the scope of his or her employment or b) a work specially ordered or commissioned...if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. If no written agreement was signed and no employment relationship existed, then ownership of the copyright to the software would go to the person who wrote it, and they would be able to do anything that a copyright holder could do with a work, including using it however they want or selling it. Do note that this would only apply to software or changes made by the person in this situation. They could not, for example, sell or distribute any other piece of the software written by other people without the copyright holder's permission, even if these pieces are necessary to use the software that this person created. | 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. | Your GPL example detracts from the question: see this recent answer. Setting aside GPL-specific conditions, the legal underpinning of software licensing is copyright law, whereby copying source code or an executable is only allowed with the permission of the copyright holder. There are two partial exceptions: "fair use" (generally not relevant to software), and a specific statutory permission to copy software in particular ways (making a backup, plus the act of executing software which requires copying from disk to memory). The latter permission only applies if you have legally acquired a copy of the software. Which explains why nobody sells copies of software, they sell a license to use software (a subtle, legalistic distinction, which is essential to modern software qua business). The terms of the license say what you may and may not do: if you violate the terms, you do not have permission to copy the software, and are liable for copyright infringement. One limit on the terms is that they cannot take away a right that you already have by copyright law (e.g. "fair use" cannot be negated by a license term). Another limit is that the terms have to be consistent with contract law, hence the license cannot include a human centipede obligation – or, "all your stuff belong to us". When a contract is ambiguous, the ambiguity is construed against the writer, and that is also so with software licenses. Also like the situation with contracts, the terms have to be legal, that is, cannot deny some right or requirement encoded in law. There is a legal requirement that disclaimers have to be "prominent", and that holds of license terms. As for "tricking" a person, that's not supposed to happen, with a proper license. If you put stuff out there and say nothing, nobody has been given permission to copy the item. You can make it available to a specific named person, but that is limited to one person, thus a license includes language allowing anyone to copy, but also requiring that the license be retained with any subsequent copies. Hence B copies from A, and sees the license; B may share with C (assuming a decent license) but must include that or substantially equivalent license; and so on. A problem arises if B redistributes without original license, substituting a bogus license. When C copies, that copying is not done with the permission (implied or express) of A, and C could be open to legal consequences. B is also clearly open to consequences, since re-distribution with the self-perpetuating license is a violation of the terms of A's condition grant of permission. Ignorance of the true ownership of copyright is no excuse, and there is no general innocent-infringement exception to copyright law in the US. However, the part of copyright law that talks about remedies for infringement, 17 USC 504(b)(2) lessens the burden on the innocent infringer: In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. Still, not zero. I don't see how adding some NOPs would make it impossible to prove that you have a copy of someone else's IP. Perhaps it's not a trivial, but still quite possible. | As @amon stated in a comment, copyright requires creativity. If the author of a tool wants to claim copyright on the output of that tool, then that output must contain something that required the creativity of the tool author. For a tool that just re-indents its input, the output is created from the input with a mechanical, non-creative, transformation and the output does not contain any creative content that wasn't already present in the input. For that reason, authors of such tools can't claim any copyright on the output. For a tool like bison, which was mentioned in the comments, the output contains a measurable amount of creative content that was not present in the input, but which was provided by the authors of bison. For that reason, the authors of 'bison' do have a copyright claim on the output of the tool (for which they give a broad permission to use). So, the basic question becomes, how much of the (creative) content of the output can be traced back to the tool itself and not to the input that the tool processed. For linters/formatters, that is likely to be very little. For code generators, it can be anywhere between very little and all of the output. The license restrictions on the code produced by the tool itself are by default the same as the license restrictions on the source of the tool, but the tool author can choose to apply any other license to the tool code that ends up in the output. If the output of the tool is, at least in part, dependent on an input file, then the authors of the input file also have a copyright claim on the tool output (as their creative work influenced the output), so the tool author can not claim exclusive ownership. The usual situation is that for tools that don't add creative content to the output, the author explicitly states that the don't have any copyright claims on the output. For tools that do add creative content, that content might be released under very permissive conditions (like, "you can use the output as a whole for any purpose, but you can only separate out the code that comes from the tool's codebase if you adhere to the <X> license") | Fair use is a four-factor test. Whether the use is commercial is part of just one of the four factors. Fair use is determined on a case by case basis, and it would be rather silly to assume that everything a user could post would be covered by fair use. Rather than just rely on the possibility of fair use, you may want to utilize the DMCA protections. Doing so can protect you from copyright liability for the user-generated content. You will have to register a DMCA agent, and expeditiously respond to takedown notices and counternotices. | 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. |
Legal Problems for streaming youtube live music I found a channel promoting music by live streaming in youtube. Why they don't have copyright problem? Can I also stream musics like that in youtube. | I see that channel offers playlists and "videos" of popular music by several artists. The one video I tried had the music with no accompanying video or images. The channel's about page says that then operator does not own the copyrights to the music and cannot grant others permission to play it. It is possible that the channel operator has obtained permission from the artists and is thus operating under a valid license. It is possible that the channel is committing copyright infringement, but the various copyright owners have not noticed the channel, or have noticed it but decided not to take action. There is no easy way for an outsider to tell which of these is correct. If the operator has not obtained proper permission, then it seems that this would be copyright infringement. If so, any copyright owner could send a takedown notice, use YouTube's own copyright complaint mechanism, or could file a copyright infringement suit. But nothing compels the owner to act if the owner chooses not to, it is entirely the owner's choice. I do not see that the US fair use or any other exception to copyright would be likely to apply here. If the owner brought suit and won (and a win seems likely to me, from what I can see), the operator would be liable for damages, which might be sizable, or mild. In the US at least the owner could also obtain a court order (injunction) requiring the operator to stop using the owner's copyrighted music. If the owner complained to YouTube, the site could add a "copyright strike" against the operator's account. After a few strikes (I think three) YouTube will cancel the account, according to its posted policies. Similar outcomes could face anyone else who posted or made available for streaming copyrighted content (such as music) without permission from the copyright owner. But again, everything depends on action by the copyright owner. If the owner chooses, for whatever reason, not to act, then nothing is likely to be done about the infringement. | You're talking about sites like Youtube, so I'll focus on that. That quote, which you bolded, was over-simplified. The actual law is 17 USC 512 (c) Information Residing on Systems or Networks At Direction of Users. (1) In general. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider (A) -- (I) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; -- (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or -- (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (C says and complies with a DMCA takedown notice). What you're talking about is membership fees (e.g. Youtube Premium)... or general advertisements that would be placed on any video without awareness of it being infringing. That does not violate Safe Harbor per se. At least not on a legitimate site which is dominated by legitimate content and makes an honest, credible effort to keep it that way. The important clause in (B) is "In a case..." Under (B), they lack the ability to control each activity (upload or view). Youtube's inability is due to receiving 500 hours (30,000 minutes) of uploaded video every minute, obviously requiring 30,000++ staff seats working 24x7 to curate. That would amount to about 200,000 staff - all of Google is around 50,000 right now. Even if a small site were able to moderate all content, they might still have a Safe Harbor defense if they could credibly say that they did not know the material was infringing. If someone created a "Juan Brown" username and uploaded blancolirio's videos from YouTube, they could say "we did not know that was not the real person". But if the video started with an HBO splash screen and tones, then heck no. But non-moderation is not an airtight defense. When sites are neglectful toward removal, they can soon develop a reputation as a haven for such infringing content - which the sites tend to embrace, since it brings many customers! This was the undoing of several music sharing sites in the 00's, since this awareness of their reputation, plus a lack of diligent removal, failed them on all three arms of 1(A) above. Remember that a competently run website that relies on user submissions is well aware of the DMCA and its case law, and has tailored its rules and enforcement to make it easy to defend a copyright claim. For instance, in the case of music, Youtube uses some human intervention but largely automated means to either take it down and give the uploader a copyright "strike" leading to a ban (which alienates their biggest contributors, especially when a popular Youtuber like blancolirio winds up with a distant car stereo in background noise, remember the detection is by "bot" and no human ever sanity-checks it). de-monetize the suspect video (uploader gets nothing, but, neither does YouTube). monetize it, but give the revenue stream to the rights holder due to an agreement with them. The last one is Youtube's preference with regards to music. As this was vastly easier, more practical and better for the community all-around, allowing whole classes of content to be created that would be prima-facie illegal otherwise. And it's content people are already creating and Youtube can't stop them, so it solves a big policing problem too. | when uploading videos to tiktok/youtube, as original content creators what copyright do we transfer to the platform, what is left to the creators? Most of these platforms provide that the creator retains all copyright but grants the platform a non-exclusive and irrevocable license to redistribute and reuse the content. Where can we learn more those "laws" on their platforms? They are found in the terms of service. Do we have any laws that transfer ownership completely, meaning that as soon as we use the platforms to upload content we agree to transfer the owner? Most platforms avoid this, probably because they do not want to alienate potential users. Most people would not upload their videos or other creations to a platform that would sue them for making subsequent use of the uploaded material. For example, from YouTube's terms of service: Rights you Grant You retain all of your ownership rights in your Content. In short, what belongs to you stays yours. However, we do require you to grant certain rights to YouTube and other users of the Service, as described below. Licence to YouTube By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, transferable, sublicensable licence to use that Content (including to reproduce, distribute, modify, display and perform it) for the purpose of operating, promoting, and improving the Service. Licence to Other Users You also grant each other user of the Service a worldwide, non-exclusive, royalty-free licence to access your Content through the Service, and to use that Content (including to reproduce, distribute, modify, display, and perform it) only as enabled by a feature of the Service. Duration of Licence The licences granted by you continue until the Content is removed as described below. Once removed, the licences will terminate, except where the operation of the Service, use of Content permitted before your removal, or the law requires otherwise. For example, removal of Content by you does not require YouTube to: (a) recall Content that is being used by other users within any limited offline viewing functionality of the Service; or (b) delete copies we reasonably need to keep for legal purposes. | Unless they have permission or pay the required royalty: yes. If they are playing it for personal entertainment or at a private function then they can make a fair use/dealing defence. | First of all, taking a video made by someone else, making alterations and then distributing the resulting work is probably already a copyright violation. There are exemptions like fair use (check the comments for an example), but just taking a whole video, mirroring it and reposting it without any own contribution very likely does not constitute fair use. The people who do that don't avoid copyright infingement. They just try to avoid getting caught by any automatic system YouTube has in place to detect copyright infringements. But avoiding automatic filters does not mean to avoid DMCA takedown notices, cease&desist letters or lawsuits from real humans who find a mirrored version of their video and feel that their copyright was violated. However, alterations to a creative work can be a creative work in itself. So regardless of the fact that one violated copyright in creating a derivative work, that derivative work might still be eligible for copyright in its own right. That means someone who reposts a video originally made by party A and then altered by party B would violate the copyright of both A and B at once and thus expose themselves to potential legal actions from either party. But the question is if simply mirroring a video constitutes the necessary threshold of originality to make the resulting work eligible for copyright. In most courts, it probably would not. | 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 | No, one cannot safely assume that because some people have done a thing without being sued, that it is OK to do a similar thing and no suit is possible. It is possible that people who upload a video, or a section of it, have permission. It is perhaps more likely that the copyright owner does not choose to sue, for whatever reason. But a different owner of a different video might make a different choice. Uploading a video, or even a section of a video, without permission, will be copyright infringement, unless an exception to copyright such as fair use or fair dealing applies. Such an infringement gives the copyright owner valid grounds to bring a suit. But the owner can choose whether or not to sue. An owner can sue in one case of infringement but not in another, for any reason or none. If the expected damages are small, it many not be worth the time, trouble, and costs to sue. In the US, one must register a copyright before bringing suit for infringement of that copyright, and there is a fee for registration. Some owners feel strongly about the use of their work, and will sue on any pretext. Some may prefer to tacitly support uses that they approve of by not bringing suit. One cannot tell the attitude of a particular owner unless that owner has stated what his or her view is. Short films are just as protected as full-length feature films, and suit can be filed for infringing the copyright on a short film. But the more expensive a film was to make, and the more money the owner expects it to earn, the more likely it is that the owner will choose to sue. Many people infringe by uploading short films or videos, gambling that the copyright owners will never learn of this, or will not trouble to sue. Sometimes such infringers are correct, and sometimes they get sued. I do not understand what the OP means by the part of the question that reads "There should be more detail and complex lines over here" What additional detail is wanted? Who does the OP expect to provide it? What sort of "lines" does this refer to? | Both the displayed site (including all text and images) and the html, css, javascript and other code that generates the display are protected by copyright. This is true in pretty much every country. You would not be able to reuse them lawfully without permission, unless an exception to copyright applies. If no exception applies, and you have not obtained permission, this is copyright infringement. In most cases copyright infringement is treated as a tort (a civil matter), not as a crime. This means that law enforcement generally will take no action and have no interest in such a situation. The copyright owner could sue for infringement, and possibly collect money damages. In the US, statutory damages can be as high as $30,000, or up to $150,000 for "wilful" infringement, or as low as $750 (per work infringed). Or actual damages can be collected instead. In other countries, actual damages plus costs of suit are more likely, but the rule can be different in each country. The possible exceptions to copyright vary significantly in different countries. In the US the major exception is Fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? and I have a question about copyright. What should I read before I ask it? for more information In general short snippets of code can probably be used under fair use, but substantial parts of the code or the displayed site are less likely to qualify as fair use. And if it is illegal then why are there so many legal open source or paid software and applications for cloning of website like httrack, cyotek, webcopy etc? Most of these tools have legitimate uses, including learning how a site is constructed without distributing copied content; and cloning or partial cloning of a site with permission. Even if the tools were mostly used for unlawful copying, that might well not be a high priority for law enforcement, and cross-border law enforcement (which this in many cases would involve) is often much harder for the police and other authorities. |
Can they legally falsify paternity on an obituary? My boyfriends daughter died. He is her legal father and by blood, he is on the birth certificate. As well as paternity established. Her mother did the obituary and listed her boyfriend the father/parent. Is this legal? I have read its illegal to post a false public document, is an obituary considered a public document? How can we have it changed and his name put on it. The funeral home knows she is lying. The director of said funeral home is dodging my boyfriend calls. What can he do? | My boyfriends daughter died. He is her legal father and by blood, he is on the birth certificate. As well as paternity established. Her mother did the obituary and listed her boyfriend the father/parent. Is this legal? Realistically, yes. It is probably legal. The majority rule is that one can't bring claims of defamation or intentional infliction of emotional distress/outrageous conduct, on behalf of the dead. In particular, in Ohio, the Ohio Revised Code § 2311.21 states that actions for libel and slander will end upon the death of the plaintiff. So, no legal relief may be sought on behalf of the deceased daughter. The mom's current boyfriend presumably consented. There is a fair reading of "father" that includes psychological or god-father figure as opposed to legal parent, under which the statement would not be false. Nothing is said about the true father so it isn't really an outright defamatory statement about him that harms his reputation. If the obituary were used as a basis for receiving some sort of economic death benefit, like a social security survivor's benefit or insurance proceeds, it might be a case of common law fraud or something similar, and would also probably constitute criminal fraud or theft. A false statement in a probate court filing would likewise be sanctionable, either by the presiding probate court judge, or in a criminal proceeding (although probably not in a separate civil lawsuit). Arguably, it might meet the standard of "outrageous conduct/intentional infliction of emotional distress" (whether something meets that threshold if all facts alleged are true is a question of law, rather than a jury question), but generally that would require a calculated intent to harm the true father as opposed to, for example, an intent to make that daughter's funeral go smoothly if she had many friends who assumed that the mother's boyfriend was the father, so probably not. Public policy generally favors not having the courts intervene in obituary omissions or inaccuracies. It is certainly not a crime. Not all untruths have legal remedies. I have read its illegal to post a false public document, is an obituary considered a public document? No. An obituary is just a private publication, it has no official status. I would agree with the following source that states that: There are no legal requirements tied to obituaries. They’re a way to tell the story of a deceased family member, and they only carry sentimental value. Obituaries are not a legal or financial obligation under any circumstances. (Source: Do You Legally Have to Have an Obituary or Death Notice?) How can we have it changed and his name put on it. You can't. The funeral home knows she is lying. The director of said funeral home is dodging my boyfriend calls. What can he do? Take out his own obituary in a newspaper or some other medium of his choosing setting forth the true facts. If the original was published in a newspaper, ask the newspaper for a correction or write a letter to the editor commenting upon it. Generally speaking, the First Amendment is designed to encourage responses by counter-speech, rather than by legal action. For example, in one notable case, the Texas Supreme Court's ruled upon whether the authors of an obituary about their son could sue for defamation when someone else accused them of including false statements of fact in the obituary. It held that the authors of the obituary could not successfully sue the people making the counter-statement to their obituary. The Dallas Morning News v. Tatum, Case No. 16-00984 (Tex. May 11, 2018) (affirming a summary judgment order dismissing the defamation lawsuit brought by the authors of the obituary). Footnote Most of the litigation and notable cases involving false obituaries relate to obituaries for people who aren't actually dead. | Either party can petition the appropriate court for an adjudication of paternity (if this has not already been established in connection with the issuance of the birth certificate), and for a parental responsibility and child support order, at any time, if no such order is in place (assuming that Pennsylvania is the "home state" of the child and venue is proper). Child custody and visitation rights are determined based upon the "best interests of the child" with very little other formal guidance from the statute or even case law which also affords a judge very broad, although not unlimited discretion in resolving the issue if the parents don't reach an agreement. Any parent who is not adjudicated to be "unfit" (whose parental rights would then be terminated), is entitled to some reasonable visitation under the circumstances at a minimum. In practice, courts tend to prefer to enter an order that preserves the pre-litigation status quo is one was established for any reasonable length of time. Once a custody and visitation schedule are established (logically, this is actually done contemporaneously), a child support award is also entered based upon the number of nights per year that the child spends with each parent, the income of each parent, and the extraordinary expenses, if any of the child, pursuant to guidelines that exist under state law but are federally mandated. Generally speaking, child support payments are quite small relative to the incomes of the parties. If a parent is willfully refusing to work or underemployed so as to reduce child support, in some circumstances, income that could have been earned is imputed to that parent for purposes of determining the appropriate amount of child support. There is a small body of civil procedure that goes to the nitty gritty of how this is handled after a petition is filed, but that really goes beyond the scope of the question. In the simplest case, only the two parents are involved in the litigation. But, there are circumstances in which there can be other parties. For example, if the child has been supported by welfare, a representative of the state is a party to make sure that child support is paid reducing the need for welfare payments or repaying welfare payments already made by the state. Guardians of an un-empancipated minor or disabled parent might participate. Grandparents can sometimes have standing to participate. A non-parent who has physical custody of the child would usually have standing to participate. This all gets a little technical, and since the question doesn't suggest any facts that would call for additional parties, I will leave it at that. In the event of a substantial change of circumstances after a statutory period after the last order was entered, a court may start over, more or less from scratch, and establish a modified child custody, visitation and child support order that reflects the changed circumstances. As a practical matter, for parents who are separated from shortly after the birth of a child and can't work things out between themselves, there will probably be several to half a dozen modification proceedings until the child is an adult. | That would require a change in the law. Names and salaries of public employees have been held to not be highly personal information exempt from the public records law. See Attorney General v. Collector of Lynn, 377 Mass. 151, Hastings & Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812. This is part of the "diminished expectation of privacy in matters relating to their public employment" attaching to public employment. | 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. | While the state, or a creditor, can initiate a probate if no one else does (if the state does so, the official in charge of this is called the "public administrator"), neither are required to do so. Also, sometimes a guardianship is converted to a probate, but this doesn't appear to have happened. This is a thankless job that probably doesn't make sense to bother with if estate liabilities exceed the assets of the estate, but most states have a "non-claim statute" that bars creditors claims, other than liens including property tax liens, after a certain amount of time after the death. So, even if the estate may have been insolvent at death, if enough time has elapsed, many of the potential claims may now be barred, making the estate solvent again. Siblings generally have priority for appointment over a nephew, so to be appointed yourself, you would ordinarily have to receive a renunciation of their right to serve as executor before applying to do so yourself, but some states disregard that priority if no one has taken action after a certain period of time. You would initiate probate by contacting an Alaska lawyer in the vicinity of the place he was domiciled at death. The lawyer can review the guardianship court file, determine if an executor was appointed, and determine if there are assets that could justify opening an estate relative to lien debts including Medicaid liens. If there are not, letting the assets be lost to a property tax lien may make more sense that spending money to transfer his property in an orderly fashion to his creditors with nothing in it for any of his family. | I'll give you the situation in Washington, which is probably similar to the situation elsewhere. RCW 68.50.130 say that you have to follow the law in disposing of a body. To perform a cremation, you need a license. The regulations established by the Department of Licensing say that cremations take place in a crematory, and the facility must be licensed. We turn to the definition of crematory, which is a building or area of a building that houses one or more cremation chambers, to be used for the cremation of human remains This applies to hydrolysis facilities as well, but not composting facilities (which can simply be "real property"). | There is a law requiring it (in Washington). Per RCW 29a.08.720, "current lists of registered voters are public records and must be made available for public inspection and copying under such reasonable rules and regulations as the county auditor or secretary of state may prescribe". As in all states, there is a law that requires disclosure of "public records", which is in this case limited to first and last name, age, county and zip code (there is no official party affiliation, and phone number or street address are excluded from public records). Ohio law is a bit different, so you can get a street address (in the Ohio section, it also includes putative data from other internet sources, which are often just guesses – it thinks my son lived in Texas). It does not include California, because voter lists are not mandatorily-disclosed public records in California. Under half of the states' records are available. | If you state, to a third person, that Joe has performed a criminal act then that is defamation and you can be sued. Unless it is true. However, if you are relying on the truth as a defence you will need to provide evidence that it is. At the moment you lack: a criminal conviction of Joe any physical evidence against Joe any personal knowledge that Joe has committed these acts. All you have, is second hand rumours that this has happened to 5 women, some of whom have reported it to you in person. This is called hearsay and it is not evidence. It may be true, it probably is true - you can't prove it's true and in court, that's all that matters. If you were sued your only possible defence is to call these women to give the evidence they are unwilling to give - are you willing to betray their confidence to that extent? |
Is it legal to say I live at another address to Medi-Cal? My wife and I got a house that we were told was still in the same county. Turns out only the mailbox is, but sone. Since the house is in another county we're being forced to change Medi-Cal plans, this change is extremely harmful to us. My in-laws live not far and if our address was there we'd be able to pick a better plan. I'd rather not move again so I was wondering if we could tell Medi-Cal that we lived with the in-laws and get the better plans without physically moving. | It is a false statement to claim to live in one county when you actually live in a different one. It becomes perjury (a crime) when you falsely swear to that statement on your status report, and you are required to report changes in "household situation" within 10 days. There isn't an exception allowing you to give a false address "in case it costs more to report truthfully". The only legal solutions are to report truthfully and pay more, or move again, report truthfully, and not pay more. | 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. | It is legal, unless the laws of that state say otherwise. Governments are allowed to charge different tuitions to residents vs. non-residents. They can also require proof of residence (not just your say-so). Being physically present in a state for a couple of years is not proof of being a resident. That doesn't mean that the interrogation that you are getting is allowed by law, but it's at least consistent with the general pattern of out of state tuition laws in the US. If you have contradictory elements of "proof" (voter registration in another state), they can demand more evidence. It really depends on what the state laws are, so you could name the state. Also, the full financial disclosure may in fact not be related to tuition rates but to financial aid, where they can demand all sorts of things by way of proof. | Not that I am aware of. A person who 'owns' a domain is entitled to utilize that domain including for the purposes of receiving emails. With physical mail, it is a crime in most countries to intentionally interfere with mail that is not addressed to you. For example - Australia. However, this is statute law and as such does not extend to emails - even if it did, if you own the domain then you are the person to whom it was addressed. I note that you seem to misunderstand "confidential" - this only arises in the context of a special relationship between the person transmitting the information and the person receiving it. Usually this is a contractual obligation between A and B but it can be imposed by law (e.g. doctor-patient, banker-client, lawyer-client, GDPR etc.). If A sends confidential (as between A & B) information to C, C is under no general obligation to keep it confidential if C has no relationship of confidentiality with A or B. If C discloses it and B suffers damage, B sues A for breach of confidence (or the government prosecutes A for breaking the law); B has no case against C. For your situation, where B has allowed A to send the information to an obsolete address then B has contributed to the breach to an extent that B would be extremely unlikely to succeed in a suit against A. | In California, all parties to a conversation (people being recorded) have to agree to a recording. There are no special rules pertaining to husbands and wives. It is sufficient that the parties are aware that the recording is being made and they continue to talk, knowing that fact. There are exceptions, under Cal. Penal 633.5, in that surreptitious recordings are allowed in order to gather evidence of "extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m". To be used as evidence, there are also "predicate rules" to the effect that you have to prove who the voices are from, that the recording hasn't been altered, and that the recording is reliable (e.g., there isn't a mysterious 18 minute gap). | It would be up to your HOA agreement. If you signed a contract agreeing to pay for services then yes. If not then no. An HOA agreement is just a contract like any other and you would have to abide by what you agreed to. Also, they may not have an actual contract for you to sign, but by moving to the community you would be agreeing to follow the by laws of the HOA. If you have a disagreement with them that can not be resolved, you can let a judge decide in court, but that could cost more than just getting the service. https://www.wishtv.com/news/local-news/indianapolis-man-battles-homeowners-association-over-solar-panels/ So to sum it up, you can refuse but they have the right to take you to court if they choose. I would assume a judge would rule in your favor since it's an issue of what goes on in your own home, but there is really no way for anyone to say what someone else will do. | There are nuisance lawsuits and constructive eviction arguments--you can check with your local attorneys and perhaps tenants' rights organizations for detailed information. Just because marijuana is legal under state law (if certain steps were followed) does not mean that your landlord or another tenant can interfere with your use and enjoyment of your home. Civil consequences--such as a court order to the smoker to stop smoking, money damages, or a partial abatement of your rent until the smoking stops--may be achievable. It is important to follow the rules for your jurisdiction closely when starting a legal action, so you should talk to an expert in your jurisdiction if you want to pursue legal action. But where possible, most people deal with this kind of thing by moving. | Close family members can stay as long as the tenant wants The tenant is entitled to "quiet enjoyment" of the property which includes living with their close relatives - spouse, de facto and children would all qualify; parents and siblings might as well. It doesn't matter if these people are children or adults. You cannot contract out of this as you are not allowed to discriminate in housing based on family situation. The tenant is also entitled to have non-relative house guests stay for as long as is reasonable. A month or so would be reasonable; longer than that and it starts to look like a sub-lease for which they would need your permission. There is generally a limit under texas law of 3 adults per bedroom but that doesn't seem to be an issue here. I also can't see where having a non-resident's mail delivered to the property is something you have a say about. I'd be very careful if I were you because it seems like you are on the wrong side of the law here. |
Could a phrase "Don't buy from X" with indirectly implied material be considered defamatory? Company A is doing an aggressive marketing strategy to undermine competition by saying they are better due to such and such factors. Below such a remark they said, "Don't buy from Company X" Company A obviously was smart enough not to make any false claims but anyone that reads the marketing material would indirectly have a false picture about company X. Could company X make a successful defamation lawsuit against company A? | Could a phrase "Don't buy from X" with indirectly implied material be considered defamatory? No. The phrase is only an order, wish, or instruction, which is different from making a direct or veiled statement of fact. Even in jurisdictions where a statement of opinion could be actionable, a stated wish of that sort cannot be construed as defamatory. anyone that reads the marketing material would indirectly have a false picture about company X. It depends on the contents of the marketing material, on which you did not elaborate. Persuading the customers on the basis of truthful representations as to why X's product is better than A's does not mean that people have a false image about X. The context and exact wording of someone's statements could amount to omitting and/or juxtaposing facts in a way that conveys some falsity, but your description gives no indications of that being the case here. | Presumably you mean "and make untrue accusations of wrong-doing". In the US, defamation involves statements about a legal person, and a place, government or government body, or industry is not a legal personal (a specific business can be, however). In the course of "defaming" a city, you might end up defaming a supposedly fictitious individual who bears a striking resemblance to a real person, for example a made-up New York real estate tycoon named Ronald Rump who runs for president. Or you could defame the "police department of Bug Tussle" which in fact is composed of only one person -- that is, you refer to a group but the group is so small that it actually refers to an identifiable individual. See this answer regarding defaming people in fiction. Okay, it's not actually true that a government can't be a legal person. The fact that in the US a government can't sue for defamation would be rooted in the First Amendment, and is surely embodied in case law that is lurking. In Canada, governments have had more power to pursue critic via defamation suits. In Ontario, Halton Hills (Town) v. Kerouac 80 O.R. (3d) 577 (2006) says that "a government may not sue in defamation". I expect that there is some such ruling in the history of US law. | It should be legal (though I can't find an analogous case where the court has ruled that it is). There is a regulation summarizing the government's position (thus, what will be enforced in 17 CFR 240.10b, which prohibits use of "manipulative or deceptive device or contrivance" in stock trading. Section 240.10b5-1 says: The “manipulative and deceptive devices” prohibited by Section 10(b) of the Act (15 U.S.C. 78j) and §240.10b-5 thereunder include, among other things, the purchase or sale of a security of any issuer, on the basis of material nonpublic information about that security or issuer, in breach of a duty of trust or confidence that is owed directly, indirectly, or derivatively, to the issuer of that security or the shareholders of that issuer, or to any other person who is the source of the material nonpublic information. The executives clearly have a direct duty of trust of confidence. Section 240.10b5-2 enumerates the following duties: (1) Whenever a person agrees to maintain information in confidence; (2) Whenever the person communicating the material nonpublic information and the person to whom it is communicated have a history, pattern, or practice of sharing confidences, such that the recipient of the information knows or reasonably should know that the person communicating the material nonpublic information expects that the recipient will maintain its confidentiality; or (3) Whenever a person receives or obtains material nonpublic information from his or her spouse, parent, child, or sibling; provided, however, that the person receiving or obtaining the information may demonstrate that no duty of trust or confidence existed with respect to the information, by establishing that he or she neither knew nor reasonably should have known that the person who was the source of the information expected that the person would keep the information confidential, because of the parties' history, pattern, or practice of sharing and maintaining confidences, and because there was no agreement or understanding to maintain the confidentiality of the information. In the hypothetical, (1) is plainly not applicable. (2) is predicated on having a relationship (which doesn't exist) and the information-having expecting you to keep the information secret (he doesn't know that you have overheard them). (3) is likewise not applicable. The basic rule is that you can't "misapproprate" information, but you can use information that falls into your lap (even from a person who has a duty to not disclose the information). This subsection starts saying "For purposes of this section, a “duty of trust or confidence” exists in the following circumstances, among others", which means they aren't necessarily giving you an exhaustive list. Still, there is currently no legal basis for prosecuting a person who overhears information from someone he has no relationship to, even if you are pretty confident that the information has not been made public. | The second statement is completely independent of the first. This is to certify that X is pursuing a Minor specialization in our department**.**[PERIOD] The courses offered by our department that have been taken by X are as follows:[...] As long as both of these statements are true, it is not deceptive, therefore not fraudulent. | Your question is essentially this: consider a defamation lawsuit in which A alleges that B falsely stated that A did X (and it is not contested that B made the statement) also consider that B has done X in the past is it of any relevance to A's defamation suit that B has done X in the past canada Evidence must be relevant to a live, material issue In order for evidence to be admissible it must be "relevant to a live, material issue in the case" (this is from a dissent, but there is no disagreement about this point). Stage 1: Did B make a defamatory statement about A that was published - no relevance to this issue Defamation is prima facie proven if B's statement was published and if it tended to lower the reputation of A. The fact that B has done X in the past is irrelevant to this aspect of the analysis, especially when the defendant is not alleging that they did not say "A did X." Stage 2: Defences - there is a very narrow path for relevance on this issue Once defamation is prima facie proven, the burden flips to the defendant to establish a defence. Of all the possible defences, the only one in which I could see B having done X in the past being relevant is the defence of fair comment: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. The fact the B has done X in the past could be relevant to this defence if B were to use that familiarity with the activity X as part of the commentary on why they believe that A has done X. It could also be relevant (not on its own, but along with much more context) for an allegation of malice on B's part. Conclusion: Evidence that B did X in the past would likely not be relevant I see it very unlikely that B having done X in the past would be relevant. It would likely be treated as a collateral issue, unless B's credibility somehow became absolutely central to the litigation and if the judge was convinced that such acts relate to credibility. On the facts as described, and even for a fair comment defence, I don't see that being the case. | must all interaction be through a lawyer after receiving the first letter? Consistent with others' answer, no, you don't need a lawyer. But your question in and of itself is indicative of the steep learning curve you would need to undergo in order to avoid "shooting yourself in the foot", as the saying goes. By this I am not encouraging you to get a lawyer (in fact, here on stackexchange and elsewhere I promote litigation in pro per). Instead, I encourage people to learn about the applicable statutes, procedural laws, how to conduct legal research, and to draft/present their arguments in court. Here are some suggestions regarding your response letter: Avoid sarcastic admissions such as "Right, for sure I am at fault for the employer's [fill_in_the_blanks]". If you ask for a clarification, clearly state that you expect reasonably sufficient detail as well as any and all records that substantiate the alleged damages. Although that won't strictly limit the allegations the employer can make in court proceedings, the attorney's reply might help evidencing the employer's vexatious approach later on. Avoid wording that may be misinterpreted as consciousness of guilt. Be assertive and truthful. Keep in mind the lawyer is gauging (1) how easily he can intimidate you, and (2) whether he can make additional claims to harass you via court proceedings. From now on, all your interactions with the attorney and the employer should be in writing (preferably email, given its reproducibility). When unethical individuals are aware that their position is devoid of merit, they are very tempted to indulge in false accusations (of threat, for example). Thus, communications in writing constitute objectively verifiable proof of who is acting unlawfully. Even if the attorney premises on your contract (or employment agreement/manual, or company's guidelines) the alleged damages, the clauses at issue might be illegal and therefore void. For instance, from 2007-2012 my former employer (an Indian IT intermediary) prohibited me --via contract-- to disclose my salary. The contract contained the typical lawyered babbling, but that doesn't mean that all of it was legal. In 2013 I realized that the prohibition violated Michigan law, and he had no option but to strike the entire clause. That being said, I didn't sue him for that, but for other more important matters which are currently pending review in the U.S. Supreme Court. Absent any further context in your inquiry, it is hard to make additional suggestions on how to proceed. | Defamation laws do not distinguish between charitable organizations and others: however, in the US there are special considerations for "public figures" (they are not afforded as much protection). The medium does not matter -- texting, blogging, letter-writing, whatever. The defamatory statement need not have been received by a wide audience – it suffices that the message was received by one person other than the person being defamed. A single defamatory act is all it takes: there is no requirement of there being an established and repeated practice of defaming. One way to defend against a charge of defamation is to show that the statement is true. An alternative is to show that the statement is incapable of being proven true or false (e.g. calling someone a "jerk" doesn't assert a factual proposition). A careful scrutiny of the actual statement, performed by an attorney specializing in such matters, is really the only way to know whether words like "may", "possibly" would make a statement an expression of opinion rather than a statement of fact. A person suing for defamation would have to have suffered a loss, but there is a category of false statements, per se defamation, considered to be so injurious that damage need not be proven. That included allegations of criminal activity and allegations of professional incompetence, either of which could be applicable in the context you are describing. The First Amendment provides much protection against such suits, which may not exist in other countries. Because of this, a law was recently passed in the US, 28 USC 111, which says that domestic courts will not enforce a foreign defamation judgment that is inconsistent with the First Amendment. [Addendum] This part is crucial: "The only people I've expressed my concerns to, aside from the organization itself, is my parents and my wife's parents. However, they have shared with a few friends...". If you alleged illegal behavior to your parents, that's a problem. If you only said e.g. "I have concerns", that's not a problem. It would also matter in what way you tried "to disclose to a U.S. based organization details of the foreign organization they are supporting that indicate it might not be on the up and up". | In the worst case if they shut shop, then how might I go about getting my money back? It is unlikely that you can. A SAFE is not a loan (and for that matter isn't even a share in the company) and doesn't create an enforceable contractual right to get your money back. If you make an equity investment and the company loses money and goes out of business, you lose everything you invested. If the promoter made false representations that induced you to invest, or actively concealed material facts about the investment, you might be able to sue the promoter for securities fraud under federal regulation 10b-5, or under a state securities law, or under a common law fraud theory. You could also sue to issuer of the investment (i.e. the company) but that would usually be futile because the company is broke and hence judgment proof. State or federal securities regulators or a local district attorney or state attorney-general might pursue the case in lieu of a private civil action by you, but getting them to take action is often quite difficult. But, if your investment wasn't induced by fraud and instead the management of the company simply made bad decisions that caused the company to fail, you have no remedy. The investment was for a SAFE (Simple Agreement for Future Equity). I have the signed SAFE with me. This is a very unusual way for a QoZ to be structured, which adds to the sense that this may have been a shady venture. |
What are the limits of ID requirements for a subject access request? When one makes a subject access request it is required that the data controller is required to ensure the identity of the requestor, to prevent unauthorised individuals accessing personal data of others. This is implemented by many organisations (eg. cifas) by requiring the subject to provide documents such as photo id (driving license or passport) and one from a list of documents of which I only have a bank statement. These documents contain a lot of personal information that I THINK the organisation does not have and I do not want to provide without good reason. This includes: Special category data Place and date of birth Facial photograph Nationality Data useful to fraudsters Which bank I use Bank account number Reoccurring payments (that are the usual security questions asked when I call my bank) Personally sensitive data Spending habits Driving restrictions/convictions It would seem appropriate to request from the data controller what data they hold about me, and redact any other information. However, as this is likely to be only name and address the redacted documents are likely to be mostly a black square with little boxes of text that would do a rather poor job of verifying my identity in that anyone who knows my name and address could probably generate them. What are the legal limits of what a data processor can require before providing the response to a SAR? What can a data subject do to prevent further distribution of PII when trying to access data from a potentially untrustworthy data controller? Is there actually a solution that both provides for data security for the subject and verification of identify to the data controller? | Overview The GDPR requires data controllers (DCs) to exercise reasonable care when responding to an access, modification, or deletion request, to ensure that it comes from the actual Data Subject (person whose data is involved, here a DS). The GDPR does not specify just what methods must or may be used to ensure that an access (or other) request comes from the DS. It does say, in Article 12, that "additional information" may be requested from the DS by the DC for this purpose that is "necessary to confirm the identity" of the DS. If a DC receives data for identification purposes, it must be used only for those purposes, and retained no longer than needed. Personal Data (PD) in general must be limited according to article 5, so that data is used only for the purposes it was collected for, retained for no longer than needed, adn appropriately secured against unauthorized use or access. The DC is responsible for adhering to these limitations. Recitals 57, 59, and 77 (quoted below) confirm this, and discuss identification. If a DC violates these restrictions, it is subject to the same enforcement as it would be for violating any other GDPR provision. If a DS thinks the data requested to support identification of the DS is excessive, the DS may first complain to the DC, and then to the relevant supervisory authority if the response from the DC is not acceptable (allow at least 1 month for a response). But perhaps knowing that the GDPR forbids the DC from distributing or using this data except for the purpose it was collected, that is, to identify the DS, and from retaining it longer than need be, might offer some reassurance. A DS could also ask the DC what is the minimum data needed for identification, and redact data beyond this. The DC might need more than name and address, but not all that is on a bank statement or other ID document. GDPR Sources Article 12 (section 6) of the GDPR reads: Without prejudice to Article 11, where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 15 to 21, the controller may request the provision of additional information necessary to confirm the identity of the data subject. That includes access requests. Paragraph 1 of Article 11 reads: If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation. Paragraph 1(b) of article 5 specifies that personal data shall be : collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; Paragraph 1(c) of art 5 specifies that such data shall be: limited to what is necessary in relation to the purposes for which they are processed ... Paragraph 1(e) of art 5 specifies that such data shall be; kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; [emphasis added] Paragraph 1(f) of art 5 further specifies that such data shall be: processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing Recital 59 reads: Modalities should be provided for facilitating the exercise of the data subject’s rights under this Regulation, including mechanisms to request and, if applicable, obtain, free of charge, in particular, access to and rectification or erasure of personal data and the exercise of the right to object. The controller should also provide means for requests to be made electronically, especially where personal data are processed by electronic means. The controller should be obliged to respond to requests from the data subject without undue delay and at the latest within one month and to give reasons where the controller does not intend to comply with any such requests. Recital 57 reads: If the personal data processed by a controller do not permit the controller to identify a natural person, the data controller should not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation. However, the controller should not refuse to take additional information provided by the data subject in order to support the exercise of his or her rights. 3Identification should include the digital identification of a data subject, for example through authentication mechanism such as the same credentials, used by the data subject to log-in to the on-line service offered by the data controller. Recital 77 reads: Guidance on the implementation of appropriate measures and on the demonstration of compliance by the controller or the processor, especially as regards the identification of the risk related to the processing, their assessment in terms of origin, nature, likelihood and severity, and the identification of best practices to mitigate the risk, could be provided in particular by means of approved codes of conduct, approved certifications, guidelines provided by the Board or indications provided by a data protection officer. The Board may also issue guidelines on processing operations that are considered to be unlikely to result in a high risk to the rights and freedoms of natural persons and indicate what measures may be sufficient in such cases to address such risk. | The site would combine the data in novel ways, which is processing the data. Processing personal data which is publicly available is still processing personal data. You would have to take GDPR into account. That does not mean the processing is forbidden, but you need a legal basis for doing it. In many ways, having the informed consent is the easiest legal basis, but there are others. The data subject would have the right to demand information about the data you hold, and to demand the correction of wrong data. There is not necessarily a right to demand deletion, but if consent is withdrawn and you have no other basis for data processing, you have to delete. Note also that the consent basis would mean you have to actively contact the people whose consent you seek before the processing starts, and document how you do it. That makes pay-per-request models difficult. But consider that the news media can process some data about some people without the consent of the subjects of their activities. They just need to balance privacy and other legitimate interests all the time. | Either approach can be GDPR-compliant. An issue to consider is that you as a data controller relying on consent “shall be able to demonstrate that the data subject has consented to processing of his or her personal data” (Art 7(1)). This might be simpler if a record of the consent is linked to a user account. On the other hand, the GDPR's data minimization principle would suggest that decentral, offline approaches are preferable. So you do have some flexibility here, as long as you feel comfortable demonstrating that your approach is compliant when investigated by a supervisory authority. In many cases, consent is not an appropriate legal basis to start with. It is one of several options in Art 6(1) GDPR. If a data processing activity is necessary for fulfilling a contract with the data subject, then Art 6(1)(b) is more appropriate. If the processing is necessary for a legitimate interest, then Art 6(1)(f) would work – after conducting a balancing test. Art 6(1)(a) consent is appropriate when the processing activity is not necessary, or when a legitimate interest balancing test doesn't go in your favor, or in some cases when required by law. For example, consent is required when processing special categories of data (such as biometrics), or when accessing or storing information on the end user's device, beyond what is necessary for a service explicitly requested by the user (the “cookie law”, but much more general than cookies). Consent also has heightened compliance requirements compared to other legal bases. The data subject must be able to make a free decision, without any coercion. You must not use dark patterns. You must leave the data subject a real choice. You must not make access to your app conditional on giving unrelated consent (like providing access to a game only when the user gives consent for personalized ads). The data subject must be able to easily withdraw consent later, without suffering detriment for this. The EDPB has issued relevant guidelines that might be helpful here: EDPB guidelines 05/2020 on consent EDPB guidelines 2/2019 on Article 6(1)(b) in the context of online services (also relevant for apps) TL;DR: what is “necessary” for performance of a contract is an objective question, and should generally be considered from the data subject's perspective. It is not possible to circumvent consent requirements by putting unrelated processing purposes like “analytics” into a services' terms of service. The main purpose of this document is to serve as a rebuttal of Facebook's GDPR compliance strategy. But it's perfectly fine to avoid asking for consent for those processing purposes that are actually necessary for the user. I've noticed that you mentioned various Google services like Analytics and Firebase. To the degree that your use of these services implies an international transfer of personal data into the US, it might be impossible to be GDPR-compliant. Be wary of claims that you're only transferring “anonymous” data, as the GDPR has a fairly broad concept of identifiability. | The obligation to notify the supervisory authority (CNIL in your case) no longer exists. It was part of the previous regulatory framework, but it is not part of GDPR (which takes affect tomorrow). If you use CCTV that may monitor employees (i.e. they sometimes enter the HQ to consult with the owner), your obligations under the GDPR is basically to inform the employees that the CCTV cameras are there. I.e. Data subjects are entitled to understand when their personal data is being processed, covering the transparency aspect of processing. The use of CCTV must be communicated via signage which indicates the areas covered and instructions for further information. | I'm pretty sure that under GDPR, you can indeed request them to send all data they have on you. If it's a complex request, they may charge you something like £10. If they have a lot of data on you, they may list the categories of data they have and ask you to pick one, rather than them having to collect and send everything. They should respond within one month, but iirc in the UK implementation, they can inform you (within that month) that they will respond within three months instead. For the rest, I only know current Dutch law. GDPR is not that different from what we already had (in general terms) and in many cases it even extends it. Under our law (WBP), you can also request a correction of the data in case it is incorrect, or deletion if they no longer need it for the purpose for which it was collected and stored. I don't really know how that works out in practice though, as Facebook can of course claim that "being able to connect you to your friends when you sign up for WhatsApp or Facebook with that number" is a legitimate purpose (in their eyes). They might also not have your full name and therefore not be able to connect your data to your request. Or, perhaps, they have only your full name (and there are probably more people with your name), so they'll have a hard time verifying that it's really your data which they would be handing over or deleting. The company is required to verify your identity before acting on your request. How they implement that is up to them. Under Dutch law, if I remember correctly, any data that can be connected to your person by any party is personally identifiable information (PII). While Facebook might not be able to find who's behind a phone number, your carrier most certainly can. Therefore, the data falls under PII protection laws and they will have to implement a way to verify you and get you your data. Finally, whether your local laws apply to Facebook, I don't know exactly. There's lots of information on this though, so you should be able to find it. Generally, countries say that if something happened within their territory (e.g. you signed up for WhatsApp while in the UK), their law applies. Companies, I've read, will instead try to claim that their main office is in SomeCountry and therefore SomeCountry's laws apply. But I'm pretty sure you'll be able to find a Facebook office somewhere where GDPR applies, so that's probably fine. While not an exact answer and while I am not sure about everything, I hope this gave you some pointers to go on! | 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. | There are no direct penalties per GDPR. The data controller must make sure that the person making the request is the data subject, or at least authorized by the data subject. If the controller has reasonable doubts about the identity, they should request additional information for identification purposes. The controller must find a middle ground between violating the GDPR by rejecting a potentially valid request and violating the GDPR by disclosing data to potentially unauthorized recipients. Having reasonable technical and organization measures that prevent unauthorized disclosure is part of the controller's responsibilities per Art 24. What the data controller can do is to block future requests from the alleged stalker. When a request is “manifestly unfounded or excessive, in particular because of their repetitive character”, then the controller can charge a reasonable fee or refuse to act on the request (Art 12(5) GDPR). But it's up to the controller to prove that the requests are unfounded or excessive, it is not possible to reject potentially valid requests on sight. Depending on what the alleged stalker does with the obtained data, they would fall within the scope of the GDPR themselves and would probably be violating it because there is no sufficient legal basis. Also, the alleged stalker, as a data controller, would be required to inform the data subject about subsequent processing of the data per Art 14 GDPR. Attempting to obtain another person's personal data through an access request would have to be punishable by other laws. For starters, such attempts would likely involve identity theft, and successfully obtaining the data would probably be a kind of fraud. | 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. |
Legal jeopardy for advocating assassination of an unspecified evil leader? Is there any legal jeopardy today in a Western democracy for saying that it would be right to assassinate an unspecified evil leader, for instance, one engaging in a genocide like the Holocaust? I live in a Western democracy, i.e., western Europe or North America. Whatever you think of particular leader here, we are not experiencing a literal Nazi-scale Holocaust. So nothing here implies harm to any Western nation or its leaders today. Furthermore, there are Western nations that pursue and assassinate leaders of terrorist organizations, using a "decaptitation strategy" to weaken them. Therefore, it would seem safe to agree with policies that one's own government is employing. But there could still be legal jeopardy through some channel that I am not aware of. That is my question. I see here a reference to a law which might bear on this, but the interpretations given there are are very broad, and free speech considerations might tip the scales in favor of permitting what I am suggesting. To clarify, I am not asking these things: I am not asking whether a truly evil leader or regime would tolerate such talk. Clearly they would not. Of course my nation's leadership could change, putting someone in jeopardy in the future. I am not asking whether assassination of an evil leader would be politically expedient. Historians and political scientists argue endlessly over whether removing Hitler would have allowed a more skilled military leader to assume power, whether it would have shortened WWII, etc., or whether the "decapitation strategy" works at all. I am not asking if assassination is ethical. My focus here is only on legal jeopardy in saying that truly evil leaders like Hitler or Stalin should be assassinated. | In the United States, at least, it's quite clear that merely arguing that the assassination of a leader would be a good policy decision is protected by the First Amendment. The United States Supreme Court addressed this question in Rankin v. McPherson, 483 U.S. 378 (1987). McPherson was a clerical employee in a sheriff's office when someone attempted to assassinate President Reagan. During a conversation about Reagan's attempts to cut food stamps and Medicaid, she told a co-worker, "If they go for him again, I hope they get him." The sheriff fired her for the remark, and she sued, alleging First Amendment retaliation. The trial court held that her remarks were not constitutionally protected, but the Supreme Court disagreed: The statement was made in the course of a conversation addressing the policies of the President's administration. It came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President. While a statement that amounted to a threat to kill the President would not be protected by the First Amendment, the District Court concluded, and we agree, that McPherson's statement did not amount to a threat punishable under 18 U.S.C. § 871(a) or 18 U.S.C. § 2385, or, indeed, that could properly be criminalized at all. ... The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. ... Debate on public issues should be uninhibited, robust, and wide-open, and may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. Note also that this case arose in the context of public-employee discipline, where First Amendment rights can be quite seriously curtailed. If the First Amendment protects the statements in that setting, imposing criminal penalties for the same speech is generally going to be out of the question. | Specifically, the threatened action is about stalking and implicit threats to his family. I'm not suggesting that there is a lot of merit to the claim, but that is how he is presenting the argument. The question would be where there is an intentional, repeated following of a person for the purpose of harassing the person with express or implied threats of violence or death. The jury would have to decide whether the implicit threat is credible (somebody plans to blow him or his family out of the sky), a decision would probably turn on the number of death threats he receives. | If you wrote for example "I had thoughts about taking the axe from my garage and decapitating my neighbour", and your neighbour read that, he would reasonably be worried and contact the police. I would take that as a death threat, and the death threat is by itself illegal. There would be some range where I could claim that you were making a death threat and making excuses to avoid legal responsibility. You can have all the thoughs you like, you can write them into your private diary where nobody can read them, but as soon as you publish it, it becomes "speech" and some speech is illegal. | He will be thrown out of office (the "except in case of impeachment" clause means the president cannot immunize a person against impeachment); because he was pardoned by POTUS, he will not be charged of the crime that he was pardoned for – the prosecution does not get a chance to argue anything. They might however prosecute him for some other offense not covered by the pardon (if POTUS forgets a sweeping statement like "any and all crimes related to X"). I don't think a prosecutor is likely to try to argue that the Constitution means "the president cannot pardon a person who has been impeached". | If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment? Probably. The matter of intent, in any event, is for a court to decide (if the prosecutor determines that the question should even be presented to a court). For example, someone seeking to rob a bank in a mask would probably fall afoul of this law, and it's not likely that using a mask of a political figure would enable a successful first-amendment defense. For a political protestor, it could be easy to show that the intent was to make a political statement and not to conceal identity, in which case it would not be necessary to consider the constitutional question, for a critical element of the crime would be missing. That is, if you say "I wasn't trying to hide my identity," and the court believes you, then you haven't violated the statute. That is a separate question from whether the statute is constitutional. For the law itself to be unconstitutional, it would have to be unconstitutional in every application, generally. If some applications of the law are unconstitutional, the law could stand, but prosecutions for the unconstitutional application would not succeed. | They never legally existed According to True West magazine, no government ever issued a wanted poster containing the phrase “dead or alive”. The iconic posters were promulgated by private organisations railroads, Wells Fargo, Pinkerton etc. No doubt, if challenged, those organisations would argue that they were simply stating the terms under which the reward would be paid, not encouraging or condoning unlawful killing. Pre-modern societies had the legal concept of the “outlaw” which meant someone who was outside the protection of the law - they had no rights and anyone could do literally anything to them without legal consequence. It was effectively a death sentence. The legal use of outlaw is different from the colloquial use meaning a criminal. However, it had disappeared from use under English law (even if it was still theoretically possible) before the split with America and the due process clause would likely prevent its return. It was reintroduced in the Australian colonies to deal with frontier bushrangers where a magistrate could issue a warrant requiring a person to present themselves by a stated date or be declared outlaw. Even so, in practice most outlaws were apprehended and tried rather than shot on sight. | One example is Sweden. Ebba Busch, the leader of the Christian Democrat party, accepted an order of summary punishment for writing in a Facebook post that the lawyer of her opponent in a real estate dispute has a criminal conviction, which is true. She said, "I admit having committed a crime, that I in my soul and heart consider myself innocent of. [...] But in Sweden, even the truth can be libel." A professor of civil law commented: "I'm a bit worried that there could be a campaign for true statements on social media always to be permitted, it would amount to terrible consequences and a negative development. In Sweden, libel law has been used to counteract spreading of revenge porn and sex videos of young women. Truth is not unimportant, it is taken into account in the libel process. It would be a negative development if it became allowed to spread everything that is true, in that case you'd need a more precise proposal about how you would permit certain actions and not others." | (I am not your lawyer. I am not here to help you. If you are reading this because someone has died, please stop and instead read the Scottish Courts and Tribunals guide to dealing with a deceased's estate in Scotland, or contact a solicitor.) Yes, in general. Section 1 of the Wills Act 1963, which is in force in Scotland, specifies that "[a] will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed." Furthermore, Section 4 states that "[t]he construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will." "Construction" here refers to interpreting the language and effect of the will. So if the will was validly executed in England, it should also be in force in Scotland, and a Scottish court will give it the same meaning it would have had under English law. Furthermore, the same rule of validity seems to apply in both England and Scotland: Wills Act 1837 section 9. There may be other Scottish laws affecting the disposition of the estate that differ from English law. Relevant statutes include Succession (Scotland) Act 1964, section 21A, which seems consistent with Wills Act 1963. (I am trained in U.S. rather than English or Scottish law; I'm trusting the accuracy of the UK's excellent online legislation archive for the proposition that the statutes cited are in force in Scotland. I haven't checked the case law for contrary interpretations.) |
Can I use internal components' logo on my product? I want to manufacture and sell an electronic device which I made using some TI components at home. Can I use TI's logo and other logos such as 'Burr-Brown audio' and their names on my product packaging? | You will need to obtain permission from the company whose logo you intend to use before using it. Just because you use a product from that company in your devices doesn't necessarily give you permission to use their logo. Many companies have co-marketing plans that you can apply to be a part of but generally you and your product must meet certain requirements in order to be a part of it. | You have misunderstood the MIT license. The MIT license requires you to include a copy of "the above copyright notice and this permission notice" in "all copies or substantial portions of the Software." However, this is not the same as requiring you to offer the Software under those terms, and in fact the MIT license explicitly permits you to sublicense the Software under different terms ("including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software"). If you had to offer the Software under the same terms, then the sublicense right would be extinguished, so that cannot be the correct reading of the license. Therefore, you can do exactly what you describe, releasing the software under the GPL. In other words, you have to include the permission notice, but you are expressly permitted to wrap it in terms that state "these permissions don't apply to you, dear end user, but only to people who go and download the original from the upstream source." That's what "sublicense" means. The Free Software Foundation, which publishes the GPL, agrees with this analysis (although they recommend avoiding the phrase "MIT License" because MIT has offered software under other licenses). | With the additional information in the comment, the approach most likely to give you a good outcome would be to present this as a dispute between the retailler and the manufacturer. Make a note of who said what and when, and try to obtain written confirmation from the retailler. It sounds like the retailler is currently on your side, which makes your position stronger as your legal contract is with them and they will have obligations under the Consumer Rights Act 2015 (I'm assuming you bought the item as a private individual and not as a business). Note that you may not have a right to replacement. Consumer protection legislation and warranty terms include several ways the supplier can provide redress (usually repair / refund / replace). Since the preference is replacement, you will not be able to argue an inherent design fault with the product. This may give the manufacturer the opportunity to assert that the retailler, or you, specified an incorrect fitting kit - or that it was incorrectly installed. If the fittings were supplied with the foil, you could argue that it was an issue with these that led to total loss of the rest of the foil. It looks like you currently have grounds to claim this against the retailler. If there's no satisfactory resolution, consulting the Citizens Advice bureau would be a good place to start. | While I agree that the license required for your use case isn't particularly obvious to me, the page you have linked to includes the following paragraph: Need help picking your license? Just shoot us an email at [email protected] and we’ll help you decide which license makes sense for your needs! So in this case, my recommendation would be to get in touch as described, that way you will know for sure that you are properly licensed. | No. A trademark is specific to an industry or type of products or services. And, while it is virtually impossible to get a new trade name with a three letter acronym because almost all of them are taken, three words that start with the same letters as a three letter acronym is not infringement on the acronym. You might very well be infringing if you used "I.B.M." to sell computer equipment. But, "Internal brilliance method", spelled out, would not infringe I.B.M., even in the computer equipment industry, and "I.B.M." in the food service industry, for example, would not be trademark infringement on the International Business Machines" trademark of "I.B.M." for good and services of the type that it offers. | You can licence your copyright under as many licences as you like to as many people as you like It's your copyright - you can do what you want with it. What you can't do is give someone an exclusive licence and then give licences to others - that would be a breach of contract with the exclusive licensee. How you let people know about the available licences is also up to you - your bio on Stack Exchange is fine. | If you develop a program yourself and it wasn't a work made for hire, then the program is yours to do with as you please. You hold the copyright to it. Many developers choose existing licencing arrangements or they can choose to create a license on their own, or using an attorney. And sometimes they choose to release their programs into the public domain. If you release it into the public domain, you are essentially giving up your copyright. The IDE (Integrated Development Environment) you used to develop your program does not dictate what licenses you can use. There are some existing licenses that others use (which you are free to use or NOT to use) give varying protections to you regarding what you are allowing others to do; right of others to copy, right of others to modify, right of others to distribute, rights to sub-licence, and so on. One of the licensing schemes is the GNU General Public License (GPL). But there are many others, too many to list here. | It's more likely a trademark problem than copyright but it's not easy to identify which legal theory the mark owner would use to enforce compliance with their rules. My first thought was initial interest confusion. But if a person sees the logo what are they going to confuse it with? It's not a typical case where an infringing competitor uses the other's trademark to confuse buyers into buying the infringer's goods. Perhaps if buyers are confused they might NOT click a link because they don't recognize it. In this case Facebook loses a click. But they don't have a right that click so that's a stretch also. The misuse they claim is probably dilution. If someone makes a particularly crappy modification it could be argued that this tarnishes the brand. No confusion is needed for dilution, all that is required is that the mark must be "famous" and used by the infringer in way that causes the dilution of the distinctive quality of the mark. This is known as tarnishment. Tarnishment occurs when the plaintiff's trademark is likened to products of low quality, or is portrayed in a negative context. Deere & Co. v. MTD Prods., 41 F.3d 39, 43 (2d Cir. 1994). See Louis Vuitton vs Chewy Vuiton where Louis Vittuon lost when Chewy Vuiton got summary judgment. ...the Federal Trademark Dilution Act (FTDA), 15 U.S.C. § 1125(c)... provides that the owner of a famous mark can enjoin "another person's commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark. But the Supreme Court has held that the dilution statute "unambiguously requires a showing of actual dilution, rather than a likelihood of dilution." Moseley v. Secret Catalogue, Inc., 537 U.S. 418, 433, 123 S. Ct. 1115, 155 L. Ed. 2d 1 (2003) So this requires that messing with logos actually diminishes a brand and that the company can prove it. I don't know of a case where any of these social media companies tried to enforce their rules. I came across a few blog posts about these rules indicating that the authors had contacted the companies, asking about enforcement theories; no social media company had replied to any of those bloggers. |
Are there laws, covering umbrella tip designs, or, eye injury hazards in public, to reduce the possibility of eye injuries in public? Are there laws, covering umbrella tip designs, or, eye injury hazards in public, to reduce the possibility of eye injuries in public ? In the European Union In the U.S. In the U.K. Usually, umbrella tip designs seem to vary from tiny metal balls on the tips, to slightly large plastic safety tips on the ends. I assume there are no umbrella tips which are actually spike shaped, however, I am not sure. - In my opinion, a legal requirement for slightly large rounded plastic safety tips on the ends (well fixed) would be an ideal law, although theoretically, any umbrella tip design could cause an eye injury at the right speed and angle. I think that maybe in previous eras like the 1960's, it may not have been totally rare for people to be admitted to emergency rooms for eye injuries caused by umbrella tips. However, my internet searching for current day statistics got me no results. What if someone makes or buys an umbrella which has 'very prominent' metal spikes on the tips, and blinds someone, are there any laws covering this. (Obviously, it is not just umbrellas that are noticeable eye injury hazards in public, there are a lot of things, however, on rainy days, for 'some' people, getting from point a to point b can take them more that double the time due to umbrellas. Stringent laws on umbrella tip designs, or, outlawing umbrellas in favor of shower jackets and rain hats and rain goggles could be given consideration, however, since I cannot find any statistics on eye injuries from umbrellas, I don't know what sort of validity this would have.) | european-union united-kingdom There are laws about consumer product safety that are not specific to umbrellas. In the EU, and including the UK for the time being unless its laws diverge, the framework is given in the General Product Safety Directive of 3 December 2001. Its preamble notes that It is very difficult to adopt Community legislation for every product which exists or which may be developed and so the Directive exists as a catch-all for products that aren't specifically covered elsewhere. As there is no Umbrella Tips Directive, here we are. The UK implementation was the General Product Safety Regulations 2005. Some children's umbrellas will be covered by the Toy Safety Directive of 2009 instead, and in the UK that is the Toys (Safety) Regulations 2011. The GPSD regime is quite general and its definition of a "safe product" is to be interpreted in the context of its marketing, likely uses, accompanying instructions, likelihood of degradation over time, and so forth. The TSD does have some more specific rules, such as that protruding points and edges of toys should be designed so as to reduce the likelihood of injury as much as possible. But this too is subject to contextual interpretation, and there is no direct rule saying how spiky the spikes can be, for example. Note that regarding umbrella safety, it's not just about the pointy bits. Ribs may be sharp, and catch fingers when the umbrella is being folded Spring-loaded mechanisms may cause the umbrella to unfold violently The fabric may be toxic If the handle is hard to grip, then it might blow out of my hands and injure somebody etc. If there are your proposed safety balls on the end of the ribs: They could fall off to leave an even sharper fixture than in conventional umbrellas They could be unscrewed and swallowed by a child They could shatter into little pieces when I accidentally whack the umbrella against a wall, and the little pieces might get in my eye etc What I mean to say is that it's not just about requiring a particular mechanism, but there are all sorts of things to think about in how the requirement is phrased. All of these are already implicitly dealt with by the current safety regime. Moreover, it can be adapted to changing technology and circumstances more easily than if it were fixed in primary legislation. So it is, with respect, not completely obvious that a law about umbrella tips would do the job better than the existing regulatory situation. | Your right to have your horse not be killed is not a consumer right. "Consumer rights" are rights that you only have because you are a consumer. The issue described in the question is not about consumer rights. The sign tells you that there are risks connected to using the car park (obviously because there are lots of cars driving around, there might even be car thieves), and you accepted these risks. It doesn't give the shop permission to do anything they like. Instead of a horse, imagine a shop worker walking around with a hammer and smashing windscreens of cars; that sign isn't going to protect them. But a shop worker collecting trolleys might accidentally bump into your car, and the sign might protect them in such a case. I'd say spraying chemicals strong enough to kill a horse shouldn't happen at all (I suppose these chemicals could also kill a human), and definitely not when there is actually a horse present. To me, it's closer to the employee with a hammer than to the employee with shopping trolleys, so a court should find the shop liable. | Normally, making a poison is not in and of itself a crime. If a third party took the poison from the person who manufactured it without their knowledge, the manufacturer would generally not have criminal liability, at least in the absence of "gross criminal negligence" such as leaving the poison manufacturing location totally unsecured and letting people know that there was poison there for the taking. In a civil case, someone might sue the poison manufacturer for negligently securing their facility, but again, that would be a real stretch if even ordinary precautions (e.g. standard locks on doors and cabinets) were in place, or if it was an inside job theft. In the same way, a gun store owner is not usually liable criminally or civilly if someone steals a gun from his store and shoots someone with it. The police could certainly charge Person A with capital murder mistakenly believing him to have intended to kill and did kill someone with the poison, which would make the critical factual point establishing that Person B gave it to someone without Person A's knowledge. Person A might still be guilty of attempted murder if he intended to kill someone (not necessarily the person who was killed) with the poison but had not fully carried out the plot when the poison was stolen. Some places probably require a permit of some kind to make poisons, and if Person A didn't have a permit, he could probably also be charged with making poisons without a permit. | england-and-wales s161 Penalties for causing certain kinds of danger or annoyance, Highways Act 1980 ... (3) If a person plays at football or any other game on a highway to the annoyance of a user of the highway he is guilty of an offence and liable to a fine not exceeding [F3 level 1 on the standard scale]. ... (See also the s137 offence of wilful obstruction.) Some places may also have their own related bylaws, e.g. No person shall on any land adjoining a street play any game in a manner likely to cause obstruction to any traffic or to cause danger to any person in such a street Made under s235 of the Local Government Act 1972, for the prevention and suppression of nuisances. Traveling further back in time, the Highway Act 1835 provided for penalties on persons who "play at Football or any other Game on any Part of the said Highways, to the Annoyance of any Passenger or Passengers" and, in London, the Metropolitan Police Act 1839 similarly made it an offence to "any Kite or play at any Game to the Annoyance of the Inhabitants or Passengers, or who shall make or use any Slide upon Ice or Snow in any Street or other Thoroughfare, to the common Danger of the Passengers." I find such a claim implausible, considering the large amount of my childhood that was spent playing in the street with no legal problems. It seems possible that the authorities turned a blind eye or your behaviour didn't come to their attention, or your street was designated as a 'play street' (introduced by the Street Playgrounds Act 1938, currently provided for by sections 29 to 31 of the Road Traffic Regulation Act 1984 as amended by the New Roads and Street Works Act 1991). Also, many alleged offenders might be younger than the criminal age of responsibility. According to TJ Miller MP (Colchester) in Hansard, speaking in 1860, in 1859 44 of London's children were sent to prison for playing games in the streets, and by April 1860 25 had been sent to prison - apparently Manchester had imprisoned none. In my youth we played in the street although we didn't put up basketball hoops, football goals or other such objects. These stories in the media seem to be rare and involve circumstances where the local authority received too many complaints, particularly when there is damage to homes, cars or flowerbeds - which may amount to criminal damage. Blackpool in 2006 Glenfield area of Leicester, 2007 Newark, Nottinghamshire, 2008 Manchester, 2010 - although this seems to be based on one complaint Hat-tip Pedestrian Liberation for the information about the older legislation and arrests of children. | Why would this be a concern? The adults have some duty in an elementary school setting to monitor the children in the restroom in any case. Separate restrooms are an employee perk, not a liability driven decision. | I think that the language In consideration of permission to use, ... Recreational Sports Department ... arising from, but not limited to, participation in activities, classes, observation, and use of facilities, premises, or equipment. would be read as limiting the waiver to cases in some way connected with the RSF. Even so limited it is rather broad, and may not be enforceable. In particular public facilities are not always allowed to obtain a waiver of otherwise valid negligence claims. If it were interpreted to mean "all claims on any matter, even ones having nothing at all to do with the RSF" then I think it would be so broad as to be unenforceable as unconscionable, and as misleading, so that there was no meeting of minds. | 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. | In the United States, different jurisdictions have different rules about what topics may be addressed in cross examination. In the federal courts, Fed. R. Evid. 611 generally discourages cross examination on matters not addressed in the direct examination, although it also permits questions on "matters affecting the witness’s credibility." So if a witness is asked on direct examination only about whether A stopped at the intersection before B crashed into him, the cross examination probably shouldn't go into questions about how severe the injuries were, what the weather conditions were, etc. But the court should allow cross-examination on whether the witness is the plaintiff's sister, or whether the witness was previously convicted of perjury. (Despite the rule, the court has a great deal of latitude as to how to handle these questions, practically speaking.) In the state courts, the rules may be different. In Ohio, for instance, Rule 611 is roughly identical, except that it generally allows questions on "all relevant matters." So now the questions about the weather and injuries are fair game, along with the questions about the witness's credibility. In any event, the questions will remain subject to the other rules of evidence, so questions about sexual history might be excluded by the rape shield, and questions about irrelevant matters should be prohibited, as well. |
Can we quote academics in our court applications and law suits to support our arguments? I was thinking of quoting Langdell and Williston in my response to a suit. Is it possible to do as such? | You can use academic sources when arguing in court if you like, but be aware of the following: Academic texts are not primary sources of law in Jamaica. What is in them may be persuasive but does not bind a court in the same way as statute law or case law. Sometimes, it's appropriate to cite works of legal scholarship to flesh out an argument. If the book contains a succinctly-phrased statement that matches what you want to prove, but prior case law isn't quite as neatly applicable, then you might cite both - subject to points below. Citing the book alone is weaker. At other times, when there is authority on both sides of a point, you might find academic argument tipping the balance, but again not to be used in isolation. Whether a text is persuasive may not be obvious, especially for older works. Sometimes, perhaps often, the law has changed since the book was published. Don't assume that an old book by a famous author will automatically be revered. You can check to see if newer books say something different from the older one, and in general start your search looking backwards from now in order to identify the current state of the law. It is more common these days to see references to current editions of textbooks than comparatively ancient authorities, no matter how illustrious the name of Blackstone might be. If a point of law is not actually contested, then there is no need to argue about it. It can form part of the background material that is agreed on between the parties. Basic principles of the way contracts work don't need elaboration or authority. Judges would prefer to have you limit the number and range of authorities you bring in, because they only have so much time in their day and they don't want to struggle through a lot of unnecessary background reading. In a skeleton argument, the strong preference is for only one principal authority to be mentioned in support of each point of law. You can mention a recent decisive case rather than reciting the entire history of case-law on the topic, and you don't need to include cases where a well-understood precedent was applied without difficulty. It may be that a textbook brings you to the relevant statute or judgement but then that is what you need to cite, not the textbook itself, especially if it simply quotes or restates what is found in the primary material. For filing court documents in general, pay close attention to the Civil Procedure Rules and the Practice Directions, including PD No. 8 of 2020 on the format of the judge's bundle. If the judge is annoyed enough about non-compliance with the court's rules about submissions, then various sanctions are available to them. For example, they can refuse costs on the legal research that led to the preparation of the submission. In correspondence, which I think you allude to, you can be more free than when dealing with the judge's bundle. In a letter to the opposing party you can certainly bring in additional references that you think would be helpful to you as a matter of rhetoric and argumentation. Do note that doesn't mean it is a good idea to make correspondence too aggressive or lengthy. For one thing, a judge can end up reviewing the correspondence and will notice whether or not you are making a good-faith effort to resolve the matter, or at least identify the salient issues to bring to the court. | The future prospects are negligible, and the present status of such influence is non-existent. In a few cases, you may find an appellate decision citing some statement from a reputable law review. Here is an article that addresses such influences on SCOTUS (which, the authors note, have decreased over time). However, you are describing a wingnut legal theory, and courts do not rely on wingnut legal theories, they rely on what the actual law is. | 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. | The legal system advances practitioners on a number of criteria, not all of which relate to their legal education. It's essentially the same for all professions - your schooling/education may or may not determine your success in the field. Also relevant would be the social circles you navigate, your achievements post-education, and so on. | "Mathematician" is not a legally regulated term, so there are no laws that would prohibit me from calling myself a mathematician (I am not one). I do know a tiny bit about number theory, set theory, formal language theory and logic, but mostly I know about African languages. If I have no shame, I can legally call myself a mathematician. My employing institution has no policy that regulates self-appellation. In fact it is very common for people to self-mislabel in the fashion that you describe. Many people claim to be "linguists" when they are actually "English teachers" or are "translators". However, if I were to claim to have a PhD from the Department of Mathematics at Yale University, that would be a false statement of fact, and potentially internally-actionable by the institution. My actual mathematician colleagues cannot sue me for damages (they have not been objectively harmed), but an institution could sack me for material misrepresentation of credentials (for which reason they might actually demand a copy of said credential). It is possible that a materially false statement of credential could be actionable as fraud, though I can't come up with a plausible scenario at the moment. | Yes, a judge may use the bible when making a decision. However, the usage nearly always takes the form of citation (in the form of scholarly texts) rather than precedent. That said, the lines get blurry sometimes. In Banks v. Maxwell, 171 S.E. 70 (N.C. 1933), the N.C. Supreme Court was tasked with resolving a dispute where the plaintiff had been gored by a bull. As a means of anchoring precedent and establishing a strict liability rule when a bull has previously gored, it stated "[t]he familiar rule of liability for injuries inflicted by cattle has remained approximately constant for more than 3,000 years. This rule of liability was expressed by Moses in the following words..." The court goes on to cite Exodus 21:28-30. | In Ohio, and in most common-law jurisdictions, this conduct is covered under the tort of defamation. It is a common law tort rather than a statutory tort, so there is no statute to consult. Case law requires a defamation plaintiff to prove: that a false statement of fact was made; that the statement was defamatory; that the statement was published; that the plaintiff suffered injury as a proximate result of the publication; and that the defendant acted with the requisite degree of fault in publishing the statement. Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, ¶ 77. In the United States, defamation is very rarely going to be a criminal matter in and of itself. Because of the First Amendment's robust protections for free speech, defamation cases are generally doomed to failure, even when the speech in question is demonstrably false. In British Columbia, the elements should be roughly the same, but I don't have a sense of how often these claims are successful or whether there are criminal sanctions for defamation. | The language "I therefore place you on notice that" in your proposed missive is superfluous and adds nothing that is legally relevant. Flourishes like that are common among former paralegals, court clerks, common law country notaries, and other non-lawyers who want to sound legalistic but don't really have the relevant legal knowledge. It is common to say "I put so and so on notice that" in a legal opinion or a summary of a case, but mildly uncommon and not necessary to put those magic words in the notice itself in a situation like this where there is no prescribed statutory language that must be used on a specific legal form. In this situation the important thing is that the person is actually made aware of the situation, not that you conform to a statutory form. Also does it add anything to have stated the effect if they do not do so ("This may be detrimental..."), if the matter proceeds to a court case? If they complain of a lack of an opportunity to inspect in a later court case, it allows you to say, "I told you so and I gave you a chance to do something about it" which might be fairly convincing to a judge and would probably overcome any arguments that you engaged in spoliation of evidence. |
Can I claim asylum after I land in New Zealand with visit visa? I'm having the following situation: My home country has been in civil unrest for about 7 years, you may guess the name.. And because of my age I am under the risk of being immediately take into forced military service upon my return. I am also known to the community around me of having my own opinions and thoughts about the authorities, some of my family members were killed/taken away because of that. Everyone who speak has a mark on his name to be 'dealt with' later (when I return to my home). Not to mention I lost my home there and have no assets or anything. The country I'm living in currently does not grant citizenship or permanent residency. I have to keep working to keep my residency visa through the sponsor. The sponsor will not keep you under his sponsorship for free or for not working for him. Currently the economy is failing badly and non-citizens are getting life harder. And if I leave my current job I'll not get another one, means sponsor will force me to leave him which cannot happen without another work, so it will end up for me to be deported by the request of the sponsor since I cannot work for him anymore or cannot find another sponsor because I was unable to find a new job... TLDR: no social/economic security or future in the current country I'm in right now... For the future of my family I have to leave and I am looking at New Zealand. I need a visa to be able to travel there... So my question is if I get a visit visa for me and my family and once we land in the airport we claim asylum, is my case going to be accepted? or I'll be deported back to the country I came from (to either my home or the second country)...? Thanks | New Zealand has ratified the Convention Relating to the Status of Refugees, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment and the International Covenant on Civil and Political Rights. You must submit a request in writing and the Refugee Status Branch processes the claim. While yopur claim is being processed, you will not be deported. A refugee and protection officer will attempt to resolve your claim within 140 days. Refugee is defined as one who is outside of her home country or country of habitual residence, faces a real chance of harm if returned ot that country, the harm faced is an ongoing breach of a fundamental human right or is based upon who she is or what she believes (race, religionm, nationality, political views, etc.), and needs and deserves protection in New Zealand. The process is roughly as follows: file your original claim (forms available on the website of the Ministry of Justice). One for each family member. Once referred to the Refugee Status Branch, you will need to submit a written statement explaining the experiences and circumstances that form the basis of your refugee status claim. About 4 weeks later, youll be invited to an interview with the Refugee and Protection Officer. You need correct documents as to your identity and under New Zealands Section 135 of its Refugee Act, you must provie all information and form your case as to why you deserve and need asylum. Examples of useful documents to bring include: passport, ID cards, birth certficates, marriage certificates, school and military ID cards. If documents are in another language, you will need certified translations of them. Within 3 weeks of this interview, youll be issued the Interview Report, written by the officer, and you will have three weeks to comment on that and submit more documentation, if necessary. The officer assesses whether your statemtents are truthful and credible and whether your claim meets the criteria contained in Article 1A(2) of the Refugee Convention or if you are eligible for protected person status (see below). If accepted, you will be able to apply for permanent resident status and remain in New Zealand. If you are unsuccessful, you are required to leave. Please visit https://www.immigration.govt.nz/audiences/supporting-refugees-and-asylum-seekers/asylum-seekers for more comprehensive information and requirements. Article 1A(2) of the Refugee Convention merely restates the definition of a refugee, roughly stating that if, due to race, religion, nationality, etc., are outside the country of your nationality and are unable to or, owing to such fear, are unwilling to avail yourself of the protection of that country. It does note that one will not be considered “lacking protection of the country of nationality if, without any valid reason based on well0founded fear, he has not availed himself of the protection of one of the countries of which he is a national.” Finally, should your circumstances not be fit for asylum, you may consider seeking protection uner the United Nations Convention Against Torture (http://www.nolo.com/legal-encyclopedia/how-apply-convention-against-torture-protection.html). The requirements to meet are higher than for asylum and the relief is more limited, but if you qualify, the country must admit you and certain things that would bar you from being granted asylum, wont bar you from being granted protected status. One example of a bar to refugee status is being “firmly resettled” in another country, for example. To quality for CAT protection, you have to show that it is “more likely than not” that you would be subjected to torture if returned to the country you are fleeing. The CAT defines torture as any “intentionanal unlawful infliction of severe (physical or mental) suffering or pain, with consent of a public official, for purposes such as punishment, obtaining a confession, intimidation, or discrimination.” Torture must be done by your government, or at the request of your government, or with permission of your government. Relevant items to show to prove your case under CAT are specific types of torture you fear you will suffer if forced to return, what types you have already suffered if you have, what types your family or friends have suffered if they have, and how the government has tortured other people similar to you, if they have. Keep in mind, while past torture may be a deciding factor for asylum, it is not for CAT. The CAT is forward-looking, therefore, you must demonstrate what you fear will happen to you if sent back, not what has already happened. | If the Attorney General has officially determined that you renounced US citizenship for the purpose of avoiding taxation, you have a lifetime ban under INA 212(a)(10)(E), and there is no immigrant waiver for this ban. See 9 FAM 302.12-6. I am not sure if the Attorney General has ever made such a determination about anyone. Otherwise, I don't see anything that would prevent you from immigrating to the US like any other foreigner. | When you breach a contract, you can get sued in local court, and if you don't show up to defend yourself, default judgment will be entered against you. Then the aggrieved party will have to collect, but the court in Washington (to invent a jurisdiction) can't enforce an order against a person in Norway (to invent another jurisdiction). So the aggrieved party would need to take enforcement of the judgment to the Norwegian courts. In the actual case of Norway, this is fairly simple, you just call an attorney in Norway to do the paperwork. It might be harder if the other jurisdiction is Belarus. If you return to the US, even if there is a money judgment against you for the rent owed, you will not be arrested for that debt. Depending on the state (about half of the states), you might be arrested for failing to comply with a court order to pay the debt. The difference lies in refusing to comply with a court order, versus simply having a debt. The State Department conveniently lists the reasons for denying a visa. Owing money or having an uncollected judgment against you is not one of the possible reasons, in fact even having been ordered by a court to pay, ignoring the order, and the court issuing an arrest warrant does not make you inadmissible. | Will UKVI allow a concession for this specific situation? Only your wife's UKVI caseworker can definitely answer this with any certainty, but as you say CR2.3 (b) does seem quite compelling but (c) less so - unless the medical records support her condition was "life-threatening" ...any period spent outside the UK will not count towards the 180-day limit if the absence was for any of the following reasons: [...] (b) travel disruption due to natural disaster, military conflict or pandemic; or (c) compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or life-threatening illness or death of a close family member; [...] | No. Both your country of origin and your new home country will only care of your name as in the documents issued by each of them respectively. Mind though that absence of obligation to synchronize your names does not mean that you can freely use both identities within one country. For example, opening a bank account in the US using your original passport/name when you are already officially using another name there would be a very grey area bordering with identify fraud as it would effectively enable you to operate two different identities to gain any benefits not otherwise available. | Any country is free to decide what actions are considered to be crimes, and what crimes are prosecuted depending on whether you perform the action in the country, outside the country, and depending on whether you are a citizen, a resident, both, or neither. They can also decide what are accepted defences in court and which are not. Any other country is free to decide under which circumstances they will ever extradite someone to that first country. Now you have to check the laws of the individual countries. | [C]an this decision really be used as legal precedent for birthright citizenship for tourists and illegal immigrants? Yes. If the case did not depend on the fact that they were lawfully resident in the US, then it would apply to those who are not lawfully present in the US. For the case to apply to some people but not others, there must be a distinguishing difference that is relevant to the analysis of the case. The question then is whether lawful residence is a distinguishing difference here, and it seems that no court has ruled on the question. Referring to current events, it would be possible for the executive branch to assert that the 14th amendment does not grant citizenship to one born in the US of parents who were not lawfully present. This would end up in court. For example, such a person could sue to compel the government to issue a passport, or, if the government sought to deport such a person, the person could assert US citizenship in deportation proceedings. At that point, the court would have to rule on the question, whereupon it would almost certainly rule that the 14th amendment does grant such citizenship. See, for example, Plyler v. Doe, in which the court ruled that illegal immigrants in a state are within its jurisdiction for the purpose of the equal protection clause. It would be odd indeed for the court to rule that the same word means something different in the previous sentence. Furthermore, in a footnote, the court writes [W]e have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ." ... [N]o plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. You ask: [H]ow is it that foreign diplomats' children born in United States do not have birthright to US citizenship because they are not "subject to the jurisdiction thereof" and children of tourists and illegal immigrants do have the birthright to US citizenship? Consider what happens when an illegal immigrant commits a crime in the territory of a US state: the person is subject to trial and punishment in the state's criminal justice system. A foreign diplomat who commits a crime, on the other hand, or indeed the child or other family member of a foreign diplomat, is immune from prosecution. That is what distinguishes diplomats from illegal aliens such that the first sentence of the 14th amendment applies to the latter, but not the former. | The territorial scope of the GDPR is defined in Article 3. It covers "personal data of data subjects who are in the Union", whether they are EU citizens or not. So to answer your questions: 1) are EU users, but moved to USA a few years ago, and signed-up on my website? They are not in the EU, so are not covered. You don't need to know if someone is an EU citizen, just if they are currently in the EU. 2) went for holidays in USA, signed-up on my website, and then came back to EU? (note - potentially skipped any Consent questions at sign-up, because IP was from USA) If someone moves into the EU while using your service then they fall under the GDPR for the time they are in the EU. If their home address is in the EU then that is covered, and monitoring of their behaviour while in the EU is also covered. Your other two questions are about VPNs. If a VPN is used to evade IP address geolocation and you have no other clue about where someone is then you can't be blamed for not knowing where they are (although I'm not aware of any actual case law on this topic). But if someone with a USA IP address gives a home address in the EU then you should probably treat them as being in the EU to be on the safe side. Basically, if you don’t know if they are in the EU or not, you should treat them as if they were. |
Can “being a woman” be grounds for a valid asylum claim? In many cultures around the world, women and girls are still completely subservient to men, to the point where forced marriage and pregnancy are still highly prevalent, and women can be divorced or killed on the mere word of a man. Can a woman from one of these cultures successfully claim asylum in a western (EU, US et al) nation on that basis? | Maybe To be a refugee (a necessary prerequisite to claiming asylum) you must meet the UN definition as incorporated in the host country’s domestic law: a person who: has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’; ‘is outside the country of [their] nationality’; and is unable or, owing to such fear, is unwilling to avail [themselves] of the protection of that country’. It is important to note that “gender” is not one of the 5 grounds enumerated. However, while the definition is from the UN, the “the right of asylum is a right of States, not of the individual” or the UN. That is, each state decides who does and does not fall within one of the 5 categories even if their home state might not decide that way. This article discusses that “woman” (or a subset of “woman” e.g. divorced woman, transitioned woman etc.) could fit one of the categories - usually the “social group” or “religion” or “race”. It also mentions that common law jurisdictions have divergent approaches: Australian courts have adopted a ‘social perception’ approach which examines whether a group shares a common characteristic which sets it apart from society at large. In contrast, the jurisprudence in Canada, United Kingdom and USA has emphasised the ‘protected characteristics’ approach, which considers whether a group is united by an immutable characteristic or by a characteristic so ‘fundamental to human dignity that a person should not be compelled to forsake it’. | From TransEquality.org: People who were assigned female at birth are not required to register with the Selective Service regardless of their current gender or transition status. When applying for federal financial aid, grants, and loans as a man, however, you may be asked to prove that you are exempt. To request a Status Information Letter (SIL) that shows you are exempt, you can either download an SIL request form from the Selective Service website (http://www.sss.gov/PDFs/SilForm_Instructions.pdf) or call them at 1-888-655-1825. This service is free and the exemption letter you will receive does not specify why you are exempt so it will not force you to out yourself in any other application process. The Selective Service does, however, require a copy of your birth certificate showing your birth-assigned sex. If the sex on your birth certificate has been changed, attach any documentation you have to that affect. Once you receive your Status Information Letter, keep it in your files. For those FTM people who transition before their eighteenth birthdays and change their birth certificates, it is also possible to register with the service. However, no one may register after their twenty-sixth birthday. Also, please note that although Selective Service materials refer to transgender people as “people who have had a sex change,” their policies apply to those who have transitioned regardless of surgical history. The referenced form has a section where you can declare your gender assigned at birth, and you must attach a copy of your birth certificate. It would appear that having your gender assigned as female at birth does in fact exempt you from the requirement to register with selective service, and as a result you should not be penalized for any purpose related to your not having registered. | I'm not sure a case of harassment could be made out (it would depend on the circumstances in which you purportedly did those things or threatened her, except for touching her. Sexual assault The Sexual Offences Act 2003 defines sexual assault as: (1) A person (A) commits an offence if— (a) he intentionally touches another person (B), (b) the touching is sexual, (c) B does not consent to the touching, and (d) A does not reasonably believe that B consents. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents. To your questions: What is the law on a 16 year-old doing the things listed above with a 14 year-old? Same as the above, except what would happen if it was made out that there was not consent? For sexual assault, it is presumed that if the person is between the ages of 13 and 16, they do not have the capacity to consent. That is - if there is no proof of consent, you are guilty of the offence, if the requisite mens rea - intent - to touch them can be proved. For everything else - it might amount to harassment but that is probably a stretch, I don't see the elements being made out. However, there are certain limits to what people can consent to - you can't consent to someone murdering you in most jurisdictions, for example. ... what would be the best way to go about disproving (in a court scenario) that I did all of these things? You do not have to disprove that you did these acts - it is the job of the prosecution to adduce evidence beyond reasonable doubt that you have done so. You can present evidence that satisfies an evidentiary burden that you did not do these acts, such as not being able to do so (by being in another place), or not intending to do the act. However, you would need to prove that you had consent and believed she was 16 or over to stand a reasonable chance of escaping conviction for the above crime, if prosecuted. As Martin has said - you need to get a lawyer for the right answer here. | Adding m/w/d in a job posting is not explicitly required by any German law. It is however the established way to implement the requirements of the AGG (~ general equal treatment act) which in turn implements various EU directives. Protected classes under the AGG are race, ethnic origin, gender, religion or belief system, disability, age, and sexual identity. Of these, only gender manifests itself in the German language, making workarounds necessary that indicate that no gender is preferred. Within certain bounds, the German language can use gender-neutral terms, for example a job called “Lehrer/-in” or “Lehrer*in” could also be called “Lehrkraft”. If you are able to use gender-neutral language in English but are still subject to German law, adding “m/f/d” is probably not necessary but still a very sensible idea as it corresponds to German best practices. If you fail to add some explicit note that applicants of all genders are welcome, nothing bad will happen automatically. However, a person with a not-explicitly listed gender may apply for the job, get denied, and then sue with the argument that they were denied because of their gender. The employer would have the obligation to prove that their job postings are non-discriminatory. | Is it gender-based discrimination against C and in favour of B and thus a constitutional right violation? Apparently not, according to this source LGBT rights in India, Wikipedia: Same-sex sexual activity was decriminalized in 2018. [India] has ... explicitly interpreted Article 15 of the Constitution to prohibit discrimination on the basis of sexual orientation and gender identity. But many legal protections have not been provided for, including same-sex marriage. ... Same-sex marriages are not legally recognised in India nor are same-sex couples offered limited rights such as a civil union or a domestic partnership. However, things appear to moving towards equality - albeit slowly: In 2011, a Haryana court granted legal recognition to a same-sex marriage involving two women. After marrying, the couple began to receive threats from friends and relatives in their village. The couple eventually won family approval. | The whole institution of marriage is subject to arbitrary interpretation/twisting within/by any sovereign jurisdiction. Countries are normally within their rights to recognise marriages subject to any conditions they like, or even completely repudiate the institution of marriage altogether. Is there an international law to protect his/her rights to marry to a person of his/her choice? No. what are the legal ways for this person to protect his/her rights to marry? A few options: Elect a politician/party that will change the law; or If you do not care whether the government recognises your marriage if done the way you want, just marry where/how you want and live with it; or If you need the government to recognise your marriage (e.g. for relationship property protection etc.), move to a country where your "rights to marry" will be protected the way you want. | This is a hard question, but a good question. The following relates to the issue from the perspective of the USA. You ask "...if the US wants to invade France, can they officially declare war by...", You have to make clear what you mean by "can". If you mean whether or not the US has the physical ability to do this, then of course they do. If you mean whether they are allowed, then this is another question. When you ask whether something is allowed, then you have to make reference to a moral code or a law that determines what is and what isn't allowed (legal). Normally each country will have laws that govern what is and what isn't legal for it's citizens to do. That hard part is how this applies to nations. There are two sides to the question. (1) What are the leaders allowed to do under their own laws, (the domestic laws) (2) what are countries as entities allowed to do? (the international laws) It sounds a bit like you are asking about the second thing. Here treaties govern what is and what isn't "legal". However, usually when someone breaks a law, other entities have the power to enforce that law and decide (judge) whether the person has broken the law. The question is: who decides whether a country has broken a treaty or an international law? And if a law is broken, what exactly can be done about it? This is hard to answer. Consider for example the conflict in Ukraine. Here many will argue that Russia has piratically invaded Ukraine. There should be war between the nations. But Russia denies this and other world powers have done little beyond imposing sanctions. This illustrates how hard it is to deal with this question. One question that comes up is what the purpose of international treaties are if a country can just violate them without much consequence. Pointing out two points about this. (1) If, for example, a president wants to convince his/her own congress that the country should engage in war, then it makes a stronger point if you can show how the country you want to engage has violated international trities. (2) After you have won a war, you might want to prosecute the leaders of the loosing power. Here you will stand stronger if you can make references to some international law that existed before the conflict started. This second point is illustrated in the Nuremberg principles. Here it was exactly stated that "Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." According to the US constitution "Congress shall have power to ... declare War". That means that historically Congress has the power to decide where to wage war. The War Powers Resolution says, for example, that "The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities ...". Note that this doesn't mean that the US has do formally declare war before going to war. Example: The Iraq War was authorized by Congress, but there never was a formal declaration of war. It is interesting that you ask about the timing for when the declaration should be given. The Japanese wanted to deliver their declaration of war just before the attack on Pearl Harbor. But because of issues with decrypting the message from Japan to the Japanese Embassy, the declaration wasn't delivered until after the attack. Remember also in all of this that the winning party to a conflict, usually decides what was and wasn't legal! One good reference for more on all of this is the report by the Congressional Research Service called "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications". Here you can see more on what I have tried (and failed?) to say above. | The answer is a clear maybe. See https://www.gov.uk/discrimination-your-rights/types-of-discrimination Discriminating on the basis of sex is illegal, however, applying different rules on uniforms is probably not discrimination under the law. To be discriminatory it must put the class of person at an unfair disadvantage, be harassment or victimisation. You would have to demonstrate that refusing to allow females to wear trousers puts them at an unfair disadvantage (and vice versa because these are separate discriminations) - victimisation is not an issue here, harassment might be but it would have to be actually happening. You should look at things like comfort, practicality, sports, play etc.; the problem is that the better your argument for girls the worse it is for boys.😓 The steps you can take are spelled out in the link, starting with communicating with the organisation. So marshal your arguments and write them a letter and then move on to mediation. At the very least you should get an insight into why they oppose your position. If you deal constructively with their concerns you may get what you want. |
Does judicial review of legislation in the US require a trial? When the state or national legislature passes a law that would seem to violate the constitution, is a plaintiff and a trial required to begin the process of judicial review? Are the steps of the process of judicial review spelled out anywhere? | Are the steps of the process of judicial review spelled out anywhere? Judicial review isn't a separate kind of legal proceeding. It is something that happens in the course of making legal rulings in an ordinary lawsuit, or in a criminal case, commenced in a court where there is trial court jurisdiction over the kind of case presented. Usually, the trial court is a U.S. District Court in the federal system, and the trial court of general jurisdiction in the state system. But, in principle, any judge of any trial court, even traffic court or small claims court has the authority and the obligation to rule on the constitutionality of any statutes challenged in a case before that judge. Also, some appellate courts, while primarily having appellate jurisdiction, have a small class of cases where they act as trial courts. For example, the U.S. Supreme Court has original trial court jurisdiction over lawsuits of one or more U.S. states against one or more other U.S. states and handles a few such cases each year in a typical year. Similarly, many state supreme courts have original trial court jurisdiction over ethical violation cases brought against attorneys in the state. The initial ruling on the constitutionality of a statute almost always takes place in the trial court, rather than in an appellate court, although appellate courts review the trial court's ruling on constitutionality on appeal, if there is an appeal. The only times an appellate court acting as an appellate court raises the issue of the constitutionality of a statute for the first time on appeal are (1) when that issue goes to the subject-matter jurisdiction of the trial court or appellate court over the case, (2) where the failure of the court to raise the issue that a statute was unconstitutional of its own accord amounted to "plain error" or "structural error" by the trial court, or (3) where the trial court ruled in favor of a party for a non-constitutionality related reason which the appellate court finds was incorrect but the appellate court affirms the trial court anyway on the basis of the unconstitutionality of a statute at issue in the case before it. While a legal ruling on the constitutionality of a statute happens in the trial court, however, the ruling is often made prior to an evidentiary trial on the merits of the case, for example, in a ruling on a motion to dismiss a claim (made based upon the allegations of the person brining the claim in court documents alone), in a ruling on a motion for summary judgment (which is similar but is supported by exhibits and affidavits from the parties to develop the factual context), or in a ruling on a pretrial matter (e.g. an evidence suppression hearing before a judge prior to a trial in a criminal case) that is subject to what is called an interlocutory appeal (i.e. an appeal to an appellate court before the entire case is concluded with a trial on the merits). Also, even when there is an evidentiary trial on the merits, the case may be one in which there is a bench trial, rather than a jury trial, since many constitutional questions involve issues that are not subject to the jury trial right. The constitutionality of legislation and also of policies and practices of governments carrying out their duties, is one issue, often one issue of many, that is ruled upon, in the context of litigation between a party that has suffered a particularized injury from the unconstitutional action (as opposed to one shared by all citizens or all taxpayers), against a party that causes or has the power to prevent that injury. So, for the most part, the constitutionality of legislation is decided either in the context of a civil lawsuit, which is governed by the ordinary rules of civil procedure (see, e.g., In re A.C.B., 2022CA3 (Colorado Supreme Court January 6, 2022), holding that an indigent defendant in a civil contempt proceeding potentially resulting in incarceration had a right to counsel and vacating the contempt of court ruling entered when he was pro se as a result), or in the context of a criminal case against a criminal defendant subject to the ordinary rules of criminal procedure (see, e.g., U.S. v. Hansen, Case No. 17-10548 (9th Cir. February 10, 2020) reversing on direct appeal from a criminal conviction the trial court's conclusion that 8 U.S.C. § 1324(a)(1)(A)(iv) was constitutional as applied to the fact pattern of Mr. Hansen's case). There is a slight nuance in federal civil and criminal cases where the issue of constitutionality of legislation is raised, and also in most state courts. This is the court rule requirement that the attorney-general (the state attorney-general in the case of state court litigation and in the case of federal court litigation over the constitutionality of a state law, and the federal attorney-general in the case of federal court litigation) be joined as a party to the case in order to present an opportunity for the state or federal government, or both, as the case may be, to chime in on the constitutionality issue that affects far more people than the actual parties to the case. See, e.g., Federal Rule of Civil Procedure 5.1. But otherwise, there are no special court rules or procedures that apply to cases in which judicial review of legislation is sought. Also, in the event that one party makes a novel challenge to the constitutionality of legislation, and the government doesn't object because the government agrees with the person challenging the constitutionality of the law, it is common practice for the court to recruit an amicus counsel to argue on behalf of the constitutionality of the law, although this practice isn't uniform and is discretionary. This is a function of case law and custom, rather than being a statutory or court rule requirement, however. | Be careful: from the Wikipedia article, it appears that there is a state criminal trial and there will be a federal criminal trial. In addition, there is a federal civil suit which incorporates some stats law claims. The defense in each trial may be different. Have you read the complaint in the civil case? As an example, count 1 alleges, in paragraph 214, that the defendants' actions were "without legal cause." An obvious defense is to show that the actions were actually justified under the law. The law under which they would have been justified would be state law. It's still possible that the state law justification isn't sufficient, but that is another point to be argued in court. If they can't prevail in showing that state law did authorize their actions then the act was certainly unlawful under both state and federal law. Do defendants have standing to invoke self-defense given the context or did they give this up at some point in time? Standing is a threshold that plaintiffs must meet. But defendants can certainly argue self defense. Whether they can prevail on that argument depends on the facts of the case as determined by the court, in particular by the "finder of fact," which is the jury in a jury trial and the judge in a bench trial. The facts that I'm aware of in the public record suggest that the defendants would not prevail on such an argument, but that doesn't deprive them of the right to advance it in court. If someone claims that Arbery was grabbing for the shotgun then the defendants have a right to introduce any evidence of that fact that they may have. It is for the finder of fact to judge the credibility of the evidence. | How deterministic is the legal system? It depends. And less than we might wish. It depends on the case. How complex is the fact pattern? How strong is the evidence? How clear is the law? How compelling are the legal precedents? Questions of that nature. The only generalization I might make would be that "lower level" cases seem more deterministic than "higher level" cases. By higher level, I mean those heard by a supreme court making constitutional decisions. Here is a web site that has created a prediction market out of supreme court cases. Many have written on this topic. Read this answer. It is an excellent treatise on the subjectivity of the legal system. Written by a real attorney. Read this answer too. My advice: If you seek a deterministic system, don't look to the legal one. | No Any such law would violate the US First Amendment as an improper restriction of speech and of the press. If done by the court rather thiygh a law, it would also conflict with 17 USC 105 which says that: Copyright protection under this title is not available for any work of the United States Government Courts have restricted video and still photography of court proceedings, on the ground that the presence of cameras would disturb court sessions and distract witnesses and jurors. But that would not apply to the proceedings of an appellate court. | In most US states such rules are set by the state's highest court, often but not always known as the State Supreme Court. The legislature could set such rules, but normally does not. It may authorize the court to do so. Mote that the Oregon rules (on a page easy to reach for the one linked above) say: Proposed changes to the Uniform Trial Court Rules (UTCR) and Supplementary Local Rules (SLR) are reviewed annually by the UTCR Committee. The committee makes recommendations to approve, disapprove or modify these proposals. After considering these recommendations, the Chief Justice or the entire Supreme Court, reaches a final decision on whether to approve or disapprove a proposed change. The Georgia rules state: **Rule 1. PREAMBLE **- Pursuant to the inherent powers of the Court and Article VI, Section IX, Paragraph I of the Georgia Constitution of 1983, and in order to provide for the speedy, efficient and inexpensive resolution of disputes and prosecutions, these rules are promulgated. Rule 1.6 The Council of Superior Court Judges shall have a permanent committee to recommend to the Supreme Court such changes and additions to these rules as may from time to time appear necessary or desirable. [Emphasis added] Many other states have somewhat similar procedures. Others including NY and California, set more of the rules by statute. On the Federal level, the various Federal Rules of Procedure (Civil, Criminal, and Supreme Court, perhaps others) are set by the Supreme Court, although they are usually drafted by an ABA committee Court appointed advisory committee and submitted to the Court for approval, I understand. Many (but not all) state rules closely imitate the Federal rules, down to the numbering and wording in many cases. | The courts do not supersede your constitutional rights, although you may believe that you have a constitutional right that isn't actually there. This article discusses the position that "due process forbids convicting an individual of a crime unless the government proves the elements of the charged offense beyond a reasonable doubt". This standard is actually not stated anywhere in the US Constitution, but it has been assumed as an implicit meaning of "due process". It sounds like you were charged with a crime, and there is most likely an applicable statute in your state that is analogous to RCW 26.50.110 in Washington. So you have the right to a trial and the prosecution would have the obligation to prove all of the elements of the crime beyond a reasonable doubt. It also appears that you did violate the applicable law and you were willing to plead guilty, as urged by your attorney. You are correct that you don't technically have to prove your innocence, but there is a practical problem that if the prosecution provides some weak evidence that you violated the law, then the jury might decide that your failure to refute the evidence means that there is no reasonable doubt. The problem is that there is a tendency for jurors to think that the defendant has to create a doubt. States differ somewhat in how they explain the burden of proof to jurors, and you might fare better in a state where the instruction is that "you must be firmly convinced". Since the attorney seems to have said that "the constitution doesn't apply to this", this is a puzzle. I would not assume (though it is possible) that the attorney was incompetent. It is possible that he was speaking of a non-criminal matter, and it is possible that you were talking at cross purposes. There is no legal situation where "the constitution doesn't apply to this", but perhaps "that constitutional limitation doesn't apply to this specific situation". Regardless of what the attorney said, your attorney doesn't violate your rights, even if he gives you bad advice. The actual court might, and then you would have a cause for an appeal. Similarly, if the district attorney reasonably believes that you are a danger to society and is prosecuting you, that is not a violation of your constitutional rights. An improper conviction would be a violation of those rights, although it might take an appeal to get the court to recognize that fact. | This probably isn't a ground for an appeal. While a party arguing to reverse a trial court's decision must show that the argument that they are making on appeal was "preserved" by that party at trial by making that argument in the trial court, the converse is not true. Indeed, one of the rules of appellate practice is that a trial court's ruling will be upheld for any reason supported by the evidence even if it wasn't made by any party at trial. Generally speaking, a trial court isn't supposed to try a pro se party's case for them, but once the evidence is in, the court is free to do original legal research and come to a conclusions contrary to the arguments made by either of the parties. A judge is supposed to correctly apply the actual law to the facts notwithstanding the efforts of the parties to lead it astray. This doesn't systemically happen in favor of one party or the other in my experience, but is more common when one or both parties is relatively inexperienced in the relevant legal field. Appellate courts also come to conclusions about the law not advanced by either party on a regular basis. If anything, this is even more common in the area of administrative law, where the judge is likely to be a subject area specialist, than in ordinary civil litigation. It is also more common in administrative law because a judge in that context is more focused on the institutional implications of a bad precedent than trial court judges in ordinary courts. (PS is there a technical term for the rules concerning the "role" of the judge in a court, what they supposed to do, and not supposed to do?) Probably, but there isn't any term that comes readily to mind. If I can think of one, I will update this answer. | In the USA, could a clause (article, proposition) of a State Constitution be held unconstitutional, with respect to the USA Constitution, by the Supreme Court? Yes. The supremacy clause in the US Constitution means that State law is supervened by Federal law. This includes State constitutions. If it could, has it ever happened? Yes. Here is a list of all SCOTUS cases that have overturned state law. For state constitutional provisions see nos 37, 49, 50, 51, 54, 74, 75, 139, 140, 151, 182, 188, 202, 207, 224, etc. (there’s nearly 1,000 in the list, you can go through them yourself). Also, could a decision by a State Supreme Court be reversed by the USA Supreme Court? Most of those cases will have gone through the State Supreme Court first. Except where SCOTUS has original jurisdiction (those involving disputes between the states or disputes arising among ambassadors and other high-ranking ministers) the state courts must have ruled to enliven its appellate jurisdiction. |
Do you need a driver's license to travel in the U.S.? In the U.S., the law that governs motor vehicles is the National Traffic and Motor Vehicle Safety Act. But according to the Constitution; Freedom of movement under United States law is governed primarily by the Privileges and Immunities Clause of the United States Constitution which states, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. Case #1: "The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived." Chicago Motor Coach v. Chicago, 169 NE 221. Case #2: "The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common law right which he has under the right to life, liberty, and the pursuit of happiness." Thompson v. Smith, 154 SE 579. Case #3: "The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendment." Kent v. Dulles, 357 US 116, 125. Case #4: "The right to travel is a well-established common right that does not owe its existence to the federal government. It is recognized by the courts as a natural right." Shachtman v. Dulles 96 App DC 287, 225 F2d 938, at 941. So, are you allowed to travel in a motor vehicle in the U.S. without a driver's license? | There is no basis for the view that requiring a driver's license is unconstitutional. First, it's critical to realize that a right to travel has nothing whatsoever to do with licensing drivers. A right to travel does not in any way mean there's a right to travel in a particular way. Likewise, using a car does not mean you're traveling. Schactman is about the right to obtain a passport, which is a requirement to travel overseas. Kent is likewise about international travel. Freedom of movement means the government cannot, without good cause (like being on parole), prevent you from traveling within the US, living where you choose, or working where you choose. Likewise, there's a right to international travel that means that without good cause, the government can't stop you from leaving the US or re-entering if you're a citizen. Requiring a drivers license to use public roads doesn't stop you from doing that -- there are other ways to travel. The Thompson v. Smith decision explicitly supports the idea that requiring drivers licenses is allowed. To quote a more representative section from the case: STREETS AND HIGHWAYS -- Right of Citizen of Travel and Transport Property -- Use of Ordinary Vehicles. -- The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day. This right is not a mere privilege which a city may permit or prohibit at will. STREETS AND HIGHWAYS -- Right of Citizen to Travel and Transport Property -- Use of Ordinary Vehicles -- Police Power. -- The right of a citizen to travel and transport property and to use the ordinary and usual conveyances of the day may, under the police power, be regulated by the city in the interest of public safety and welfare; but the city may not arbitrarily or unreasonably prohibit or restrict it, nor may it permit one to exercise it and refuse to permit another of like qualifications, under like conditions and circumstances, to exercise it. AUTOMOBILES -- Drivers' Permits -- Arbitrary Revocation. -- The regulation of the exercise of the right to drive a private automobile on the streets of the city may be accomplished in part by the city by granting, refusing, and revoking under rules of general application permits to drive an automobile on its streets; but such permits may not be arbitrarily refused or revoked, or permitted to be held by some and refused to others of like qualifications, under like circumstances and conditions. While Chicago Motor Coach doesn't seem to be available online, searching it finds other sites stating that the real issue was a commercial operator licensed by the State of Illinois, and whether Chicago, as a municipality within Illinois, could require them to also be permitted by the city. Another line from it seems to be "Even the Legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience." To quote more recent precedent, Miller v. Reed from the 9th Circuit (a federal court of appeals, not a state court) states that The plaintiff's argument that the right to operate a motor vehicle is fundamental because of its relation to the fundamental right of interstate travel is utterly frivolous. The plaintiff is not being prevented from traveling interstate by public transportation, by common carrier, or in a motor vehicle driven by someone with a license to drive it. What is at issue here is not his right to travel interstate, but his right to operate a motor vehicle on the public highways, and we have no hesitation in holding that this is not a fundamental right. (incidentally: Drivers licenses are not required by federal law. They are required by state laws.) | The fourth amendment does apply to traffic stops. In general, they are a violation of the fourth amendment in the absence of reasonable suspicion or probable cause. Even then, there are some circumstances in which suspicionless stops are acceptable to the Supreme Court, most notably in roadblock-style checkpoints for enforcing sobriety or immigration. See, for example: Michigan Department of State Police v. Sitz (on Wikipedia) United States v. Martinez-Fuerte (on Wikipedia) Most traffic stops, however, occur after an officer observes a traffic violation. This gives the officer the necessary justification to detain the motorist. Wikipedia says: A brief, non-custodial traffic stop is considered a "seizure" for the purposes of the 4th Amendment and must therefore be supported by reasonable suspicion or probable cause. (Source: https://en.wikipedia.org/wiki/Reasonable_suspicion#Traffic_stops) Also: In constitutional law in the United States, a traffic stop is considered to be a subset of the Terry stop; the standard set by the United States Supreme Court in Terry v. Ohio regarding temporary detentions requires only reasonable suspicion that a crime has occurred or is about to occur. (Source: https://en.wikipedia.org/wiki/Traffic_stop#United_States) You can also read more about Terry v. Ohio on Wikipedia. You may disagree with the Supreme Court on the question of whether suspicionless sobriety or immigration checkpoints should be allowed under the fourth amendment, but the way the system works, such stops are allowed under the fourth amendment simply because the Supreme Court has said so. | The 14th amendment guarantees equal protection under the law for all citizens of the US. It's my understanding that this means from the Federal Government, and doesn't exactly apply when it's a "states' rights" kind of issue. Your understanding is incorrect. The primary original purpose of the 14th amendment was to prevent states from passing laws that treated former slaves differently from other citizens, and indeed to clearly declare that they were in fact citizens, thus reversing the decision in Dred Scot v Sandford 60 U.S. (19 How.) 393 (1857). That decision held that black people could not be US citizens and had no rights granted to citizens under the US Federal Constitution. Of course the amendment is applied in a much wider scope than merely granting citizenship to the former slaves freed by the 13th amendment. The Equal Protection Clause** generally requires that laws not make arbitrary and unjustified distinctions between people, nor treat different people in the same legal situation differently. The clause does not, however, prevent laws from treating who are in some significant legal sense in different positions differently. What is and is not a violation of the clause has been the subject of many legal cases and much debate. The clause requires "state action" to be invoked. and is generally only applies to state and local governments, and those in their employ or acting on their behalf. However, the US Supreme Court held in Bolling v. Sharpe, 347 U.S. 497 (1954) that the 5th amendment imposes a similar requirement of equal protection on the Federal government. The amendment, and the equal protection clause, do not guarantee any particular outcome in judicial cases. It is not clear from the question what equal protection issue, if any, might be at issue in the particular matter described. If the issue is one of treatment under the laws of a country other than the US, even though the people involved are US citizens, the US constitution, including the amendment will not apply. | united-states Speed limits can be enforced by any means (except photo-radar) in most U.S. jurisdictions without notice that it is being used. Those laws are close to being uniform in the U.S. due to federal coordination on federally funded roads, even though state and local laws are what governs them directly. Some U.S. jurisdictions prohibit the issuance of photo-radar speeding tickets without notice before entering the photo-radar picture taking zone. I'd have to research further to see if New York City does. The purpose of the language on the sign is to make drivers more fearful of being caught in circumstances where they don't see someone trying to enforce the law, not to have greater legal effect. | I just put in for a transfer to another location my company has there and will transfer back to my original location when we move back. I don't believe I should have to go and change my state of residency, drivers license, car registration/plates, insurance etc) since I consider where I am now my permanent home. It's just a temporary relocation. While this arguably works for the common law concept of domicile, as a practical matter, if you live someplace for the majority of a year, and often more than 30 days, you are considered to reside there. You should change your driver's license, car registration/plates, insurance, voter's registration, etc., unless there is an extremely compelling reason to do otherwise, and not just different tax rates and more bureaucratic inconvenience. A planned three year stay doesn't cut it, especially, if you don't own a home or have a residential lease on a residence in the state you want to claim as your residence. The main exceptions would be someone who is in an institutional setting, such as attending college residentially for nine months a year while supported by their parents, in a prison, or in military service, where different conventions sometimes apply. Legally, could I leave everything as is since the apartment "technically?" isn't mine (I'd just be staying there with her? No. Residency and who owns or leases the place where you are living are two entirely different things. The many people who don't have a lease or own a home are still residents of the places where they live. For that matter, even if you are not a citizen of the U.S., you can still be a resident of a particular state or locality. I'd be filing my taxes as someone that commutes out of state to work and residing in their current home state etc. Nope. For state income tax purposes, you reside in the state where you sleep a majority of the nights in a year. There are sometimes more complicated rules that apply to apportion income between states, but that is the strong general rule. Is there anything I'm missing/not aware of that would make this a bad idea? Or is this a normal thing people do commonly and I'm overthinking it. This is a bad idea and not a normal thing that people do commonly. At a minimum, it will leave you with bureaucratic tangles and at risk of serious state tax audits (which, reading between the lines, seems like the most plausible reason you are thinking about this approach). At worst, you could be exposed to liability for having improper tax payments and car insurance in place, and potential criminal liability for misrepresenting your residence. It might not end up coming to a head and being a problem, but the probability that it will is significant. | Apparently, people are citing these cases for the proposition that there is a right to drive a car without a license (several facebook accounts making this claim have been shut down and a document making this argument is signed with the Biblical name of God). This is frivolous poppycock reserved for conspiracy theory crackpots that also never works. A lawyer who tried to make an argument like this in court would probably be sanctioned by the trial court judge for making a frivolous argument, and might even risk suspension of his license to practice law, unless he made clear that he was arguing for a change in the law that is not supported by any current law. Like all rights, the right to travel, including the right to travel by motor vehicle, is subject to reasonable restrictions which include the requirement that one have a driver's license that is currently valid. No court has ever held that having a traffic code regulating the use of motor vehicles on public roads is unconstitutional, nor has any court every held that the government may not obstruct public roads in a reasonable manner for purposes such as maintenance, parades, and the like. The question in People v. Horton (the correct citation to which is 14 Cal.App.3d 930, 92 Cal.Rptr. 666 and not the one cited that conflates two separate citations in different reporters to the same case), entered by an intermediate appellate court in California on January 29, 1971, is whether a search of an occupant of a motor vehicle requires probable cause under the 4th Amendment as incorporated by the 14th Amendment to apply to the states, and under parallel California constitutional provisions, and it hold that even occupants of motor vehicles have a 4th Amendment expectation of privacy despite the exigent circumstances associated with a motor vehicle. A more complete quotation from the case states: Applying these principles to the instant case, we are impelled to conclude that Officer Winfrey did not have legal cause to stop appellant's automobile. Appellant was driving within the legal speed limits, not erratically, and there were no visible operational defects on the vehicle. Furthermore, although the officer observed two young passengers in the vehicle, he saw no furtive or suspicious movements and he had no information that the youths were being kidnaped, detained or molested in any manner. In fact, the only reason given by Winfrey for stopping appellant was that appellant was driving a vehicle along the streets of Modesto at 1:15 in the morning with two young passengers and that he did not look old enough to be their parent or guardian. Clearly, even if we should assume that what the officer observed constituted unusual activity, and it is difficult to make such an assumption in this modern age, the activity alone did not suggest that it was related to criminality. The Attorney General argues that Officer Winfrey had reasonable cause to stop appellant's vehicle on suspicion that appellant was aiding and abetting his two young passengers to loiter in violation of the municipal ordinance of the City of Modesto. However, driving along city streets, even at 1:15 in the morning, is not “loitering.” (In re Cregler, 56 Cal.2d 308, 312 [14 Cal.Rptr. 289, 363 P.2d 305]; In re Hoffman, 67 Cal.2d 845, 853 [64 Cal.Rptr. 97, 434 P.2d 353].) For all that Officer Winfrey knew, appellant could have been driving his two young passengers home from a theater or other authorized place of amusement. We are not insensitive to the numerous problems which face police officers on patrol in a mechanized nation. As we stated in Bramlette v. Superior Court, 273 Cal.App.2d 799, 804 [78 Cal.Rptr. 532], “[t]he use *934 of the automobile in criminal activity has vastly increased the possibility of unlawful conduct, and the likelihood of escape by criminals from the scene of their crimes.” Moreover, we are cognizant of the fact that the great majority of police officers assume the grave responsibility which our society has foisted upon them in a courageous and conscientious manner. Nonetheless, the right of the citizen to drive on a public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality, is a fundamental constitutional right which must be protected by the courts. Consequently, while we do not censure Officer Winfrey or question his motives, the fact remains that he stopped appellant's vehicle solely because it was occupied by young people. Were we to condone the stopping of vehicles for this reason alone, no matter how altruistic the officer's motive might be, we would lend our approval to the creation of a second class citizenry; we would also contribute to an already deteriorating relationship between the youth of America and law enforcement officials; in a free nation this relationship must be based on mutual confidence and respect. Having decided that Officer Winfrey did not have probable cause to stop appellant's vehicle in the first instance, it follows that the subsequent search was unlawful, even though consented to by appellant, and that all evidence adduced therefrom was the product of an unlawful search. As our Supreme Court said in People v. Haven, 59 Cal.2d 713, 718, 719 [31 Cal.Rptr. 47, 381, P.2d 927]: “A search or seizure made pursuant to a valid consent before any illegal police conduct occurs is obviously not a product of illegal conduct. A search and seizure made pursuant to consent secured immediately following an illegal entry or arrest, however, is inextricably bound up with the illegal conduct and cannot be segregated therefrom.” The case of People v. Franklin, 261 Cal.App.2d 703 [68 Cal.Rptr. 231], is squarely in point. There, as here, the officer stopped the defendant's vehicle without probable cause, and afterward defendant consented to the search which ultimately uncovered marijuana. The court in reversing the conviction, at page 707 of the opinion, had this to say: “The stop having been illegal, the search, though by consent of the vehicle owner, does not breathe legality into the resultant find by the officers.” A later California case before the same intermediate appellate court a few years later, also distinguished People v. Horton, holding that while driving in a car as a juvenile as 1:15 a.m. was not "loitering" that similar conduct did violate a municipal curfew ordinance for minors which was validly enacted and not unconstitutional. In re Francis W., 117 Cal. Rptr. 277 (Cal. App. 5th Dist. 1974). The claim that People v. Horton recognizes a constitutional right to drive without a license was analyzed and rejected in the case of Newman v. Garcia, 2016 WL 8939133, Case No. 3:16-cv-137-J-PDB (M.D. Fl. September 26, 2016) in which a federal trial court ruled on a motion to dismiss a civil rights claim brought by a man alleging that his constitutional rights were violated because he was arrested for driving with a suspended driver's license in which he sought $28 million of damages. The judge in that case held in pages 3-5 of the Slip Opinion that dismissed this claim that: Right to Travel Newman primarily argues Officer Garcia violated his constitutional right to travel by issuing him a citation for driving with a suspended license and stopping him from driving his car. See generally Doc. 2, Doc. 12. He contends he has a protected liberty interest in driving on public highways, he does not need a license to drive, and a driver's license is a contract between the state and a person that is cancelled when the state suspends a license. Doc. 12 at 3–4, 7. In Kent v. Dulles, the United States Supreme Court explained the right to travel—the freedom to move “across frontiers in either direction, and inside frontiers as well”—is “part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law.” Kent v. Dulles, 357 U.S. 116, 125 (1958). It has long been recognized as a basic constitutional right. Att'y Gen. of New York v. Soto-Lopez, 476 U.S. 898, 901 (1986). “A state law implicates the right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right.” Id. at 903 (internal citations and quotation marks omitted). A restriction on one method of travel does not violate a person's constitutional rights. Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir. 1999). There is no constitutional right to the “most convenient form of travel.” City of Houston v. FAA, 679 F.2d 1184, 1198 (5th Cir. 1982). *4 The constitutional right to travel does not include a fundamental right to drive a motor vehicle. Duncan v. Cone, 2000 WL 1828089, at *2 (6th Cir. 2000) (unpublished); Miller, 176 F.3d at 1206 (9th Cir. 1999). The Supreme Court has recognized a state's power to “prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles.” Hendrick v. Maryland, 235 U.S. 610, 622 (1915). That includes passing legislation requiring drivers to have licenses. Id. Such a regulation is “but an exercise of the police power uniformly recognized as belonging to the states and essential to the preservation of the health, safety, and comfort of their citizens.” Id. Newman cites many state-court cases he contends support his argument he has a right to drive without a license. See Doc. 12 at 3–4. They do not. See People v. Horton, 92 Cal. Rptr. 666, 668 (Cal. Ct. App. 1971) (addressing legality of traffic stop and search; observing, “The right of the citizen to drive on a public street with freedom from police interference, unless he is engaged in suspicious conduct associated in some manner with criminality, is a fundamental constitutional right which must be protected by the courts” (emphasis added)); Schecter v. Killingsworth, 380 P.2d 136, 137–38 (Ariz. 1963) (addressing state law suspending license of uninsured motorist involved in an accident who does not post sufficient security); Berberian v. Lussier, 139 A.2d 869, 871, 872 (R.I. 1958) (addressing state law suspending license for failure to deposit security with the registrar; observing, “[T]he right to use the public highways for travel by motor vehicles is one which properly can be regulated by the legislature in the valid exercise of the police power of the state”); Payne v. Massey, 196 S.W.2d 493, 495–96 (Tex. 1946) (addressing ordinance regulating operation of taxicabs); Teche Lines, Inc., v. Danforth, 12 So. 2d 784, 785, 787 (Miss. 1943) (addressing state law regulating stopping on certain portion of highway; observing right to travel “may be reasonably regulated by legislative act in pursuance of the police power of the State”); Thompson v. Smith, 154 S.E. 579, 583 (Va. 1930) (addressing contention city could not change ordinance to permit revocation of license; observing, “regulation of the exercise of the right to drive a private automobile on the streets of the city may be accomplished in part ... by granting, refusing, and revoking ... permits to drive an automobile on its streets”); Swift v. City of Topeka, 23 P. 1075 (Kan. 1890) (addressing ordinance restricting use of bicycles on sidewalks and a bridge).4 Newman does not cite authority to support his contention a driver's license is a contract with the state that is cancelled when the license is suspended, and he does not explain how the existence of a cancelled contract would support his argument that Officer Garcia violated his constitutional rights. See generally Doc. 12. Other courts have rejected similar arguments as meritless or frivolous. See Oliver v. Long, No. CV-06-2429-PCT-LOA, 2007 WL 1098527, at *5 (D. Ariz. Apr. 12, 2007) (unpublished) (argument that by cancelling all contracts with California Department of Motor Vehicles plaintiff could violate traffic laws with impunity “frivolous,” “specious,” and “nonsensical”); North Carolina v. Ellison, 471 S.E. 2d 130, 131 (N.C. Ct. App. 1996) (argument that by cutting up license and returning it to Division of Motor Vehicles plaintiff had rescinded contract with state and could drive without complying with statutory requirements “without merit”). Absent authority to support the argument that a suspended driver's license is a cancelled contract with the state, and in light of states' authority to regulate the operation of motor vehicles on their roads, the argument is meritless. *5 Though Newman enjoys a constitutional right to travel, he has no fundamental right to drive. A state may regulate the operation of vehicles on its roads, including requiring a license. Officer Garcia informed him of the suspension and informed him of the consequences of driving with a suspended license but did not restrict his right to travel by other means of transportation. The complaint does not plausibly allege Officer Garcia violated Newman's right to travel The other two cases cited, in addition to the flaws noted below, also predate the U.S. Supreme Court's conclusion that a state has the power to “prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles.” Hendrick v. Maryland, 235 U.S. 610, 622 (1915), including passing legislation requiring drivers to have licenses. Id. Simeone v. Lindsay, 65 Atl. 778, 779 is an opinion from a Delaware state trial court entered on February 27, 1907 (111 years ago as I write this). It held that at the time, in Delaware, on the public highway in question, both cars and pedestrians had an equal right to use the road and both had a duty of care in the contexts of a lawsuit against the car owner for causing an accident through negligence. It did not reference any fundamental or constitutional right and has no precedential value and has in any case been superseded by statute. Hannigan v. Wright, 63 Atl. 234, 236 is an opinion from a Delaware state trial court entered on December 13, 1905 also involving liability for an automobile accident. It says in the pertinent part: A traveler on foot has the same right to the use of the public streets of a city as a vehicle of any kind. In using any parts of the streets all persons are bound to the exercise of, reasonable care to prevent collisions and accidents. Such care must be in proportion to the danger or the peculiar risks in each case. It is the duty of a person operating an automobile, or any other vehicle, upon the public streets of a city, to use ordinary care in its operation, to move it at a reasonable rate of speed, and cause it to slow up or stop if need be, where danger is imminent, and could, by the exercise of reasonable care, be seen or known in time to avoid accident. Greater caution is required at street crossings and in the more thronged streets of a city than in the less obstructed streets in the open or suburban parts. Like Simeone, it predates the adoption of a statutory traffic code in the state of Delaware, has no precedential effect, is no longer good law, and does not purport to establish any fundamental or constitutional right. It merely enunciates the default rules governing the use of public highways by cars and pedestrians in the absence of other laws or regulations. | People can take their personal cars through the Channel Tunnel from Great Britain to France. They don't actually drive their cars through the tunnel, but going by car is a perfectly normal way to travel between those two countries. That's probably the most well-known place where drivers will switch from driving on one side of the road to the other, but there are many more . If driving with a car with the wheel on the "wrong" side were forbidden, these options would not exist, because at least one direction of travel would not work. Now, of course, that doesn't mean a country like Belgium, which does not have to direct way to Britain, couldn't forbid cars with the steering wheel on the right. But at least for EU states, that seems to be forbidden, as Poland and Lithuania learned when they tried to require cars that were to be registered there to have the steering wheel repositioned to the left Consequently, the Court holds that the position of the driver’s seat, an integral part of the steering equipment of a vehicle, comes within the harmonisation established by Directives 2007/46 and 70/311, so that, in the context of the registration of a new vehicle in their territory, the Member States may not require, for reasons of safety, that the driver’s seat of that vehicle be moved to the side opposite the direction of the traffic. It notes in that regard that the legislation at issue provides for exceptions with regard to the use of vehicles equipped with a steering-wheel on the right by people who reside in other Member States, and travel to Poland and Lithuania for a limited period (for example, tourists). That fact shows, according to the Court, that the contested legislation tolerates the risk involved in such use. So even those countries that tried to ensure that registered cars had the steering wheel on the "right" side made provisions for cars that were just traveling through. And the EU does not consider it a valid law to require wheels to be repositioned. | You have the right to withhold this information; they have the right to withhold a passport. You do not have a right to a passport; it is a privilege and that privilege may be withdrawn at the discretion of the State Department for all sorts of reasons. As a US citizen you have a right to travel within the US; you don't need any papers for this. However, if you wish to cross an international border then both the country you are departing and the country you are arriving in will decide the circumstances under which you can. |
Is there any legal action I can take after my company discouraged me from calling 911 after a workplace injury? I fell at work causing me to have 6 compound femur fractures. I begged my boss to call 911 because my leg was broken . They laughed at me saying there's no way it was broken and that I was exaggerating. A nurse at the nurse's station said there is nothing wrong with my leg and advised me to take myself to the hospital or call someone other than 911. I called a family member who took me to the hospital where it was determined that I had six compound femur fractures and emergency surgery was performed What legal actions do I have? | You are asking the wrong question: it is up to you to decide how to deal with your injury. The employer's role, if any, is limited to after-the-fact compensation. In Texas, workman's compensation coverage is not mandatory, so that is a variable affecting the details. If the employer has workman's comp, they are protected from various legal actions against time, but they also don't get a "vote" in compensation, which is provided by the insurance company. Assuming that the employer is a non-subscriber (as they are called), then the question of employer liability is resolved either by negotiation or lawsuit. You can read a breakdown of the legal essentials here. When you go to court, you would have to prove that the employer was at fault. Let's assume that you've proven that, then the remaining question is whether that loss is reasonably related to the injury that the employer was responsible for. There are multiple kinds of medical transportation available, ranging from patient self-transportation on the bus to calling 911. The laws regarding 911 calls are a matter of local jurisdiction, but the general rule is that you only call 911 for genuine emergencies. However, there isn't a clear, practical standard that distinguishes between an emergency vs. "something that you need to deal with eventually". Given your description of the injury, I will work on the assumption that this qualifies as a true medical emergency in your town. Now, typically, 911 EMTs make a professional judgment whether you need ordinary ambulance transportation vs. "Medic One" style transportation – this isn't decided by the employer. The one area where an employer could have a say in the matter is in accessing his personal or work phone, in order to call 911. Your description of the circumstances is not exactly clear: do you have a phone, or access to a phone? You do not have to have employer permission to make an emergency call on your phone. So to continue looking for ways to make this a problem for the employer, I will assume that you had no access to a phone of your own or any other employee, and the employer refused to let you use his personal phone or company phone to call 911, but would let you use his phone to call home (this is an entirely rhetorical assumption, but I have no evidence that the situation is otherwise). Now the question is whether the employer has a legal obligation to provide access to a work or personal phone in order to make an emergency call. Now we have a specific Texas law, Penal Code §42.062 which says in part that it is a crime when one knowingly prevents or interferes with another individual's ability to place an emergency call or to request assistance, including a request for assistance using an electronic communications device, in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals Here is a lawyer's talk-through of this law, which does not address to $64,000 question whether the law creates a "duty to assist" rather than a "duty to not interfere". The answer is tied to the basic lawsuit question of whether the employer is at fault. Under the common law, if a party has created a harmful situation, they have a duty to assist in mitigating that situation. So if you were horsing around on the job and you're at fault for the injury, then the employer is not liable and you have to shoulder the burden for treatment. If they are at fault, they also have to assist you in seeking emergency medical treatment. I doubt that the courts would find it to be a crime to refuse to call 911, but the employer could be civilly liable. | None The contractual chain is you <-> warranty company <-> (potentially others you don’t know about) <-> service provider. Should something go wrong, you would sue your warranty company who might (it is up to them) then sue the service provider. Notwithstanding, it’s likely the service company owes you a duty of care and would be directly liable to you for a negligence claim. | Employees of an employer aren't governed by a fault based liability regime in the United States (subject to some usually quite narrow exceptions that vary from state to state, which sometimes also limit tort liability). Instead, employers are required to have worker's compensation insurance policies in place, in exchange for not having any tort liability whatsoever to employees. (An employer who doesn't have worker's compensation in place is strictly liable to the worker for all injuries suffered by an employee whatsoever at work, without the prohibition of a worker's compensation insurance policy plan on paying things like pain and suffering damages as well.) Worker's compensation insurance provides coverage (in principle) for all medical costs incurred, all lost wages, and in the event of a death support for dependents if any and a modest death benefit sufficient to provide a funeral if there are no dependents. Often, in practice, worker's compensation insurance payments tend to be rather stingy. One of the most common big worker's compensation claims these days, especially in office and retail workplaces, is for employees who are seriously injured or killed in crimes at work. Often, a worker's compensation insurer will give an employer a discount if they have a "gun free" zone, because, statistically, doing so greatly reduces the average amount of harm experienced by employees at work. The presence of employees with guns in the workplace, as an actuarial matter, greatly increases the insurance company's risk of having to pay claims. | could they make a realistic claim that I had voluntarily terminated my contract before the year was over? The employer's act would forfeit its entitlement to reimbursement of bonus. The clause clearly indicates that the triggering event is termination, not the anticipatory notification thereof. Furthermore, the employer's act would be a breach of the [contract law] covenant of good faith and fair dealing. That would be in stark contrast with your compliance with, and/or kindness in, giving a two-week notice. The employer's termination of your employment seems improper in equity insofar as it was aware of your notice and thus took advantage thereof. | It may not be libel, but it may violate other statutes and may support a judgement against the person publishing this information as long as there is an injury-in-fact ("an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical"). A recent case, Spokeo, Inc. v. Robins 578 U.S. ___ (2016) considered the case where a company created a profile for a person. That profile stated "that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree". The plaintiff asserted that all of this was incorrect. The plaintiff made a claim under the Fair Credit Reporting Act because the information was false. However, mere violation of statute is not sufficient to meet the "injury-in-fact" requirement for standing. Congress can't create standing via statute. Injury-in-fact still requires a "concrete" injury. This does not need to be a physical, tangible injury. But, it does need to be concrete. On its own, publication of false information, even when statute prohibits it, does not create standing. There must be an injury-in-fact. | 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. | The fact that the employer has vicarious liability for acts of its employees "within the scope of employment" does not mean the employees are not also liable for their own acts. In reality, however, the employer is more likely to have insurance for such "acts or omissions" of employees. The plaintiffs can "sue everyone in sight" and let them figure out who actually pays when they are found liable. That way, when the employee's actions are (for instance) ruled a "personal frolic" or otherwise outside the scope of the employer's liability (in tort or contract), the case doesn't get dismissed for failure to name all the proper parties. One policy goal is to place financial liability as close as possible to the person most likely to have been able to avoid the harm, thus discouraging such risks, without placing the entire burden on individuals employed in hazardous occupations and without artificially limiting potential sources of compensation. | All employees in Australia are covered by state-based Worker’s Compensation insurance. This is the workers’ guide for NSW. In theory, your loss of income and medical expenses should be claimable. However, as it seems that you did not follow the required procedures, in practice, you may find it a bureaucratic nightmare. First, you needed to have been seen by a registered Australian doctor and receive a Workers Compensation certificate to get the ball rolling. Do you have evidence that the injury occurred at work? Second, benefits are suspended if you leave the country. There may be exemptions for temporary workers but I am unaware of them. Contact the authority responsible for workers compensation in the state you were injured. |
Is there a general duty to avoid creating unsafe situations when driving (Belgium)? As I understand it (and please correct me if I'm wrong), in aviation and in maritime traffic, there is an overriding obligation to operate safely and avoid accidents/damage. E.g.: Alice and Bob are both cargo ship captains. Alice is bringing her ship into port, in perfect accordance with all relevant laws and guidelines. Bob's ship, close by, starts behaving erratically (either due to technical problems or human error on Bob's part). There is a risk of collision. Alice's ship has ample opportunity to change course and eliminate the risk, but Alice refuses to do so because "Hey, I followed all the rules - this isn't my problem." A collision ends up occurring, resulting in material damage, huge delays & opportunity costs, and perhaps even loss of life. My understanding (again, please correct me if I'm mistaken) is that in the above situation, Alice would have been expected to take action to avoid the collision, and bears some degree of (criminal or civil) liability for failing to do so, even though all she did was 'follow the rules'. My question is whether any similar principle exists for road users. An example: Carol and Dave are driving their cars across a level crossing, with Carol ahead and Dave following. Just after clearing the crossing, Carol's car halts (or slows down to a crawl), leaving Dave with insufficient space and trapping him on the tracks. The bells ring and the barriers begin to descend, indicating that a train is on the way. Of course, Dave should have known better than to cross a level crossing when there isn't already sufficient space on the other side. But now that the situation has occurred, and Carol is able to easily resolve it, is she under any legal obligation to do so? If she does not, is she civilly liable to Dave (or possibly to the engineer & passengers on the train)? Has she committed a criminal offence? Does it matter whether Carol has a generally valid reason for stopping (e.g. she's letting a passenger disembark onto the sidewalk, perhaps completely unaware of Dave's predicament) or not (e.g. she's a bully who spontaneously decides she'd find it hilarious to terrify the driver behind her, maybe kill him, and possibly derail a train - and is later caught admitting as much in a brag to friends)? Say Dave, after a fruitless ten seconds of frantic klaxoning with the train barreling down, decides to floor it and physically push Carol's car with his own so that he can get off the tracks. Is Dave then liable for the damage he's caused to Carol's car? Has Dave committed a criminal offence by driving into her car? Is Carol possibly on the hook for the damage this maneuver caused to Dave's car? I live in Belgium so that's the answer I'm most interested in, but I also welcome insights from other jurisdictions. I imagine this is an area of law that could easily vary quite a bit. | There are multiple questions on different areas of law, but I will answer purely on any criminal liability arising by the drivers concerned and leave the question(s) on civil liability to others. The general rule to avoid creating unsafe situations appears to be in the Royal Decree of 1 December 1975, at Article 7, which states (via English translation): 7.2 Users must behave on public roads in such a way that they do not cause any inconvenience or danger to other users, including the staff working for the maintenance of the road and the equipment bordering it, the surveillance services and priority vehicles. Here are some specific regulations/offences relating to the railway crossing incident: Under Article 4 of the 30 September 2005 Decree: It is forbidden to stop or park a vehicle on level crossings. Carol may have committed an offence under Chapter 2, Article 2 of the 1975 Decree: It is forbidden to stop a vehicle or park it in any place where it is obviously likely to constitute a danger for other road users or to obstruct them unnecessarily... Dave may have committed an offence under Article 20 of the 1975 Decree: 20.2. The user approaching a level crossing must be extra careful to avoid any accident: when the level crossing is not equipped with barriers or traffic light signals or when these signals do not work, the user can only enter it after making sure that no vehicle on rails is approaching. ... 20.4. The driver cannot enter a level crossing if the traffic congestion is such that he would in all likelihood be immobilized on this crossing. | There is, in most countries at least, no law requiring a business to treat a customer fairly. In general, a business may refuse to serve a would-be customer for any reason or none, provided that the reason is not membership in a protected class (racial, religious, ethnic, or sexual bias, mostly). Exactly which classes are protected depends on the local law (in the US, there can be such laws at all of federal, state, and municipal levels). If a customer is asked to leave and does not do so, s/he could be charged with defiant trespass (or local equivalent). More likely, security, or the police, could simply escort the customer out of the business, using as much force as is reasonably needed for that purpose. Unless there are grounds for action not mentioned, I see no basis for a successful suit by the customer. | There are numerous what-ifs. Society’s moral values and thus laws may change. Or the unlikely death of your wife makes this question moot. (Let’s hope not.) Yes, failure to render assistance is punishable under § 323c Ⅰ StGB. Everyone can commit this crime (Allgemeindelikt). However, this section concerns accidents, contingencies or other unplanned adverse events. In your specific case there is no element of “surprise” though, quite the contrary. Your wife does not even need to be aware of the circumstances; the assessment “is there an accident” is made objectively. Having said that, unfortunately there’s a difference of opinion how courts judge (case law) and how “legal scientists” (at law school) think. Ultimately it depends on what evidence investigators find. Frankly, § 323c Ⅰ StGB is a “minor issue” here. You can get at most “just” a one-year-sentence. And there’s the option to consider one’s own spouse’s death as poena naturalis, thus refrain from imposing any penalty because the grieving widow “won’t learn anything” from that, § 60 1 StGB←§ 153b StPO. I’d worry more about §§ 211 ff. (murder, manslaughter, etc.): To kill someone means, a) any short‑term shortening of lifetime through action, or b) in the case of § 13 StGB, any failure to potentially prolong the lifetime. § 13 StGB, Garantenstellung, also applies to spouses, cf. § 1353 Ⅰ 2 BGB. It could be argued that failure to take, say, a loaded firearm away from you constitutes manslaughter. Or, worse, maybe you’re particularly wealthy and she’ll inherit your assets. This could be construed as greed, an aggravating circumstance. At any rate it’s necessary that the omitted action makes a difference, i. e. prevents or at least inhibits the crime’s success (your death). At some point, with terminally-ill patients, you might say “he’ll die tomorrow anyway”. Then your wife could attend your suicide. Finally, for a legally airtight plan I’d seriously consider to change the jurisdiction though, e. g. by going to Switzerland. Everything happening here is subject to German criminal law, § 3 StGB. PS: Marriage can be viewed as a kind of contract. In principle you are completely free in formulating its terms. However, you cannot make provisions concerning termination of life (nichtdisponibles Rechtsgut). | In the US, there is no general legal duty to aid. Certain states (Wisconsin, Minnesota, Washington – about 10 states) have imposed such a duty. Otherwise, duty arises only because you have caused the peril, or because you have certain pre-existing relations with the person. Pennsylvania does have a duty to assist law, applicable to drivers of vehicles involved in an accident that results in injury or death (involved in, not just caused). PA also has a Good Samaritan law which relieves a person of liability for a good faith rendering of assistance, which does not otherwise impose a positive duty on individuals. | Do flight attendants have an unlimited leeway of forcing the passengers to listen to their gibberish that are completely unrelated to their duties? Pretty much, I'd say. It may not be a good customer experience, but the flight attendant certainly isn't doing anything illegal. You don't have a legal right not to hear speeches that offend your IP sensibilities. I don't think it's legally any different than if they were showing an in-flight movie that you didn't like. If you try to forcibly stop him, you are likely to be found in violation of 49 USC 46504, which prohibits "assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties". Even if making speeches about Mickey Mouse is not part of his duties, anything physical you did to try to stop him would likely tend to also lessen his ability to perform his actual duties. Violation of 49 USC 46504 is a felony and carries a prison term of up to 20 years. If you try to shout him down, you might be charged with disorderly conduct under state or local law, like this guy. You could probably push your call button to summon another flight attendant, and politely state that you object to the loquacious crew member's behavior, and could they please ask him to stop. Alternatively, you can put on your noise-cancelling headphones and turn up the volume on your music. Anything beyond that and you're in a bad legal position. Of course, you can certainly file a complaint with the airline after the fact. There's a fair chance you'll get an apology, maybe some extra air miles, and the flight attendant might be disciplined or fired. But that's an internal customer service or personnel matter; nothing to do with law. | There is no basis for the view that requiring a driver's license is unconstitutional. First, it's critical to realize that a right to travel has nothing whatsoever to do with licensing drivers. A right to travel does not in any way mean there's a right to travel in a particular way. Likewise, using a car does not mean you're traveling. Schactman is about the right to obtain a passport, which is a requirement to travel overseas. Kent is likewise about international travel. Freedom of movement means the government cannot, without good cause (like being on parole), prevent you from traveling within the US, living where you choose, or working where you choose. Likewise, there's a right to international travel that means that without good cause, the government can't stop you from leaving the US or re-entering if you're a citizen. Requiring a drivers license to use public roads doesn't stop you from doing that -- there are other ways to travel. The Thompson v. Smith decision explicitly supports the idea that requiring drivers licenses is allowed. To quote a more representative section from the case: STREETS AND HIGHWAYS -- Right of Citizen of Travel and Transport Property -- Use of Ordinary Vehicles. -- The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day. This right is not a mere privilege which a city may permit or prohibit at will. STREETS AND HIGHWAYS -- Right of Citizen to Travel and Transport Property -- Use of Ordinary Vehicles -- Police Power. -- The right of a citizen to travel and transport property and to use the ordinary and usual conveyances of the day may, under the police power, be regulated by the city in the interest of public safety and welfare; but the city may not arbitrarily or unreasonably prohibit or restrict it, nor may it permit one to exercise it and refuse to permit another of like qualifications, under like conditions and circumstances, to exercise it. AUTOMOBILES -- Drivers' Permits -- Arbitrary Revocation. -- The regulation of the exercise of the right to drive a private automobile on the streets of the city may be accomplished in part by the city by granting, refusing, and revoking under rules of general application permits to drive an automobile on its streets; but such permits may not be arbitrarily refused or revoked, or permitted to be held by some and refused to others of like qualifications, under like circumstances and conditions. While Chicago Motor Coach doesn't seem to be available online, searching it finds other sites stating that the real issue was a commercial operator licensed by the State of Illinois, and whether Chicago, as a municipality within Illinois, could require them to also be permitted by the city. Another line from it seems to be "Even the Legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience." To quote more recent precedent, Miller v. Reed from the 9th Circuit (a federal court of appeals, not a state court) states that The plaintiff's argument that the right to operate a motor vehicle is fundamental because of its relation to the fundamental right of interstate travel is utterly frivolous. The plaintiff is not being prevented from traveling interstate by public transportation, by common carrier, or in a motor vehicle driven by someone with a license to drive it. What is at issue here is not his right to travel interstate, but his right to operate a motor vehicle on the public highways, and we have no hesitation in holding that this is not a fundamental right. (incidentally: Drivers licenses are not required by federal law. They are required by state laws.) | They don't treat right-of-way persistence at all You are required to follow the car ahead at a distance that is reasonable and prudent, having regard for both speeds, traffic generally, and road condition (i.e. curves, rain). CVC 21703. This would apply to the other driver. You must only shift lanes left or right when possible with reasonable safety and only after signaling. CVC 22107. That applies to you. If you "cut them off" such that they must make adjustments to re-acquire a distance that is reasonable and prudent, then you are guilty of 22107. If you changed lanes properly, then it is immediately and continuously THEIR duty under 21703 to maintain safe distance despite whichever lawful maneuvering you may need to do. Note that 22109 forbids you to stop or suddenly decrease speed without first giving an appropriate signal, unless there is no opportunity to give that signal. 22109 is a civil infraction that assumes accidental or negligent braking. (i.e. me going for the clutch and not remembering the car is an automatic). Intentionally brake-checking someone is a crime with risk of jail and other more serious consequences than "fine and points". | The person who is changing lanes has the responsibility to make sure that they have space to move into. Suppose there was a person in front of you in the destination lane who hit the brakes suddenly - if you change lanes and rear-end them, that's your fault, because you failed to leave enough distance. I don't see how it's any different in this case, where the person is behind you and accelerates suddenly. A turn signal doesn't give you the right to change lanes at will, you are responsible for making the maneuver safely. It's poor driving etiquette for the other guy to cut you off like that, but it's up to you to ensure there's space as you move over. From your description of the incident, it sounds like your actions initiated the sequence of events, and it was also your actions that prevented the accident. From that, it seems highly likely you'd be found at fault if the accident had happened - in that scenario, your actions would have created the situation, and you also would have failed to take action to avoid the accident. |
Meaning of the word "person" and "individual" under U.S. law How does the U.S. define the word "person" in the statutory sense? I know the Dictionary Act defines it as an "individual" or a corporation, corporate body, but that leaves open the question, what is an "individual" under U.S. law? There is the Black's Law Dictionary, which defines "person" as a "human being." I am also aware that the word "individual" is distinguished from corporations by the distinct jurisprudential definitions for "natural person" and "legal person," or "artificial person." "Natural person" is defined as a human being who is born alive by Black's Law Dictionary. So is "individual" in the Dictionary Act equivalent to a "natural person," and thus, a "human being"? | Caveat Keep in mind that words do not have uniform definitions for all times and places and contexts. Words can have different meanings in particular contexts and can be defined in a contract or statute to have a meaning different from the common meaning. "Person" Usually Includes Entities Of Any Kind This said, usually the term "person" in the law refers to any human being and any trust, estate or entity that is capable of suing and being sued and entering into contracts. An "entity" in this sense would often include partnerships, limited liability companies, corporations, non-profit associations (whether or not incorporated), business trusts, joint ventures, local governments, states, the federal government and foreign governments. (I break out trusts and estates separately because there is divided authority in different jurisdictions over whether trusts and estates are entities, or are simply a special hat that the trustee or executor wears that are not entities, which can be relevant in some highly technical situations.) Agency Situations The term "person" is also often used in the sense that it refers to the principal and not the agent, when an agent is taking action on behalf of the principal. Thus, if there is a law that says "a person who enters into a real estate contract must disclose that person's taxpayer identification number", and someone with a power of attorney from you signs a real estate contract on your behalf, the power of attorney agent should disclosure your taxpayer identification number and not theirs. Why Is The Term "Person" Defined So Broadly? One important reason for using the term "person" to apply to entities as well as human beings, is that it allows for statutes and contract terms or case law legal rules to be stated in very general terms without being wordy in a way that accurately reflects how those legal rules or contract terms should apply to entities. For example, a statute using the word "person" might say: A person who is engaged in business in this state must register with the department of business licenses. By using the word "person" in this way, the statute wouldn't have to say instead (probably less accurately and less comprehensibly): Any individual, partnership, limited liability company, corporation, business trust, non-business trust, estate, governmental entity, or other entity, including the principal of any agent acting on behalf of the principal, engaged in business in this state, must register with the department of business licenses. The phrasing without the word "person" would be more likely to create loopholes because some kind of entity is omitted, and would be prone to ambiguity because one would have to decide which words that define the kind of persons and entities that are covered modify which other words in the sentence. Thus, using the word "person" is often makes entities more rather than less accountable to the law, by making legal language more clear and more general (and hence containing fewer loopholes). "Individual" or "Natural Person" Usually the term "individual" or "natural person" would mean a human being, although, of course, there are other senses of the word "individual" such as "an individual Widget" referring to exactly one Widget in particular, as opposed to Widgets in general. Alternative Definitions Of "Person" There are isolated times when the word "person" would not include minors and incapacitated people who are incapable of suing or entering into contracts in their own name due to lack of legal capacity. It isn't uncommon to have a definition of "person" in a statute or contract that omits governmental entities, that omits all kinds of entities, or that omits particular kinds of entities (e.g. foreign entities or corporations). For example, a tax statute might define "person" in a way that includes natural persons and entities, but excludes governments. Some of the definitions of terms like these in the bankruptcy code are particularly non-intuitive. | The answer is going to depend on what jurisdiction you're talking about. But I can give you some general principles that apply, in most cases, in the U.S. at least. "Homicide" is a general term for the killing of one person by another. If someone died, and another person caused it, it's homicide. "Murder" and "manslaughter" are specific crimes, usually now defined by state criminal statutes. The specifics are going to differ from state to state, but in general, murder is the more serious crime and carries a more serious punishment. So if a person dies at another person's hand, it is a homicide, and it may also be murder or manslaughter. The way the law distinguishes between murder and manslaughter usually has to do with the killer's mental state. For example, a state with three homicide offenses might break them down like this: Murder: "I killed him because I wanted to steal his wallet." Voluntary manslaughter: "I killed him because I just found out he was sleeping with my wife." Involuntary manslaughter/negligent homicide: "I didn't mean to kill him, but I was drunk and didn't see the stop sign." These homicide offenses will then be further subdivided into degrees based on aggravating or mitigating factors. For instance, in some states there is a very limited definition for first degree murder, which may be the only offense that allows the death penalty (example: murder of a police officer, murder while serving a life sentence). | I don't believe there is a single "standard" dictionary that judges use. Presumably any well regarded and common one will do as long as it can be cited. You can see from Justice Alito's opinion in Intel Investment Policy Comm vs Sulyma that he references several dictionaries. Although ERISA does not define the phrase “actual knowledge,” its meaning is plain. Dictionaries are hardly necessary to confirm the point, but they do. When Congress passed ERISA, the word “actual” meant what it means to-day: “existing in fact or reality.” Webster’s Seventh New Collegiate Dictionary 10 (1967); accord, Merriam-Webster’s Collegiate Dictionary 13 (11th ed. 2005) (same); see also American Heritage Dictionary 14 (1973) (“In existence;real; factual”); id., at 18 (5th ed. 2011) (“Existing in reality and not potential, possible, simulated, or false”). So did the word “knowledge,” which meant and still means “the fact or condition of being aware of something.” Webster’s Seventh New Collegiate Dictionary 469 (1967); accord, Merriam-Webster’s Collegiate Dictionary 691 (2005) (same); see also American Heritage Dictionary 725 (1973) (“Familiarity, awareness, or understanding gained through experience or study”); id., at 973 (2011) (same). Thus, to have “actual knowledge” of a piece of information, one must in fact be aware of it. Legal dictionaries give “actual knowledge” the same meaning: “[r]eal knowledge as distinguished from presumed knowledge or knowledge imputed to one.” Ballentine’s Law Dictionary 24 (3d ed. 1969); accord, Black’s Law Dictionary 1043 (11th ed. 2019) (defining “actual knowledge” as “[d]irect and clear knowledge, as distinguished from constructive knowledge”). | Identifying someone as a criminal without charging them and thereby giving them an opportunity to clear their names has due process implications, largely because of the associated reputational damage. DOJ policy therefore advises against naming unindicted co-conspirators: Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment in order to fulfill any legitimate prosecutorial interest or duty. For purposes of indictment itself, it is sufficient, for example, to allege that the defendant conspired with "another person or persons known." In any indictment where an allegation that the defendant conspired with "another person or persons known" is insufficient, some other generic reference should be used, such as "Employee 1" or "Company 2". The use of non-generic descriptors, like a person's actual initials, is usually an unnecessarily-specific description and should not be used. The policy comes from a case where they did identify two unindicted (alleged) co-conspirators, and the Fifth Circuit ordered the expungement of the portions of the indictment that named them, agreeing with their claim that they had a right a due process right "to protect their reputations ... against the opprobrium resulting from being publicly and officially charged by an investigatory body of high dignity with having committed serious crimes." U.S. v. Briggs, 514 F.2d 794 (5th Cir. 1975). At first blush, the description does seem to fall into the "unnecessarily specific" category, but note that the language doesn't actually say "Individual 1 became President in 2017," it says that Cohen's conduct occurred "in or about January 2017," and that Individual-1 had become President "at that point." So if the conduct occurred before noon on January 20, 2017, we'd be talking about President Obama. That's obviously hyper-technical, but we are talking about the Department of Justice here. Another possibility is that the success of the campaign/conspiracy may be necessary information for sentencing purposes. I'm not all that familiar with the Federal Sentencing Guidelines, but my understanding is that a sentence may be reduced if a defendant had withdrawn from a conspiracy in time to prevent its fulfillment. Because that did not happen here, Cohen would not be entitled to that reduction. | In the US, Congress may pass an act, and this creates one kind of law (if it is promulgated: signed, ignored, or re-passed with a super-majority). Some of those acts direct the executive branch to do things, and pursuant to that act, a regulation is promulgated. Together with case law, the whole thing is "law". A bill (in the House, or the Senate) may result in an act being passed by both houses. It may go through a number of drafts between the point when it is first introduced and the time it becomes an act. | The term "illegal" is also often used for actions that the law prohibits, but that give rise to civil liability, rather than criminal prosecution. We see such use a lot in questions on Law.SE. One also says that a person "is liable" when there are grounds for a civil suit against that person. One might also say that such a person "has commited a tort" or "has civil liability" or "could be held liable". In the specific cases of copyright, trademark, and patent law, one says that a violator "his infringed" or has committed infringement" and that an act contrary to those laws "is an infringement". | This distinguishes you as a business user as opposed to a consumer. The specific wording comes from EU consumer rights law. Consumers - ordinary members of the public who buy products and services - have certain legal rights that businesses don't. The theory is that what's going on when you buy a TV for your house is different from what's going on when you buy 1000 TVs for your hotel chain. The appropriate remedies and processes if you're dissatisfied are different. By asking you to identify yourself as not a consumer, the idea is that you wouldn't be able to use consumer rights law in the event you find Google's services to be defective, too expensive, not matching the advertising, etc. In the UK's transposition of EU law, the onus is on the trader (Google) to prove that you are not a consumer, in any legal proceedings. If they can point to you ticking a box saying that you are not a consumer, the argument is much easier for them to make. EU legislation using this phrase, or nearly, includes - Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, Article 2 ‘consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession; ‘seller or supplier’ means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned. Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises, Article 2 ‘consumer’ means a natural person who, in transactions covered by this Directive, is acting for purposes which can be regarded as outside his trade or profession; ‘trader’ means a natural or legal person who, for the transaction in question, acts in his commercial or professional capacity, and anyone acting in the name or on behalf of a trader. Directive 2011/83/EU on consumer rights, the main current directive on this topic, Article 2 ‘consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession; ‘trader’ means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive Directive 2019/770 of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services, specially relevant to the Google service, makes the same definitions as in the Directive of 2011. National legislation implementing these directives uses the same phrases in English. For example: the UK's Consumer Rights Act 2015, s.2 has "trade, business, craft, or profession" in Ireland, the Consumer Rights Act 2007, s.2 uses "trade, business or profession"; and the draft Consumer Rights Bill currently before the Oireachtas uses "trade, business, craft, or profession", reflecting the most recent EU wording. in Malta, Chapter 378 of the consolidated laws also reflects the EU terminology. | The law on the web page is not current: as of the beginning of the year, RCW 23.86.030(1) reads (you'll find this under Sec. 9103) "The name of any association subject to this chapter must comply with part I, Article 3 of this act" and is otherwise unchanged. In Article 3, sec. 1301 governs names, giving the sec'y some discretion to deem a name to not be distinguishable from another, saying in (3) "A name may not be considered distinguishable on the records of the secretary of state from the name of another entity by virtue of...variation in the words, phrases, or abbreviations indicating the type of entity, such as "corporation," "corp.," "incorporated," "Inc.,". It does not list "co-op", but there is no legal requirement that the list be exhaustive. This discretion is, however, related to distinguishability. However, (4) then says An entity name may not contain language stating or implying that the entity is organized for a purpose other than those permitted by the entity's public organic record. and I think that means "no". Note that LLCs, LPs, LLPs, business corporations, nonprofit corporations and cooperative associations all have name requirements of the type "must contain" and "may not contain" (a cooperative association, oddly, has no "must contain" requirements). I would say that we have to conclude that "legislative intent" was to more closely align names and legal status, and the new "purpose-implication" language isn't brilliantly clear, but that is what the intent of the law is. This is one of those issues that could easily work its way to the Supreme Court, if someone wanted to make a state case of it. |
Type of contracts I have been trying to understand what type of contracts a Contract Lifecycle Management platform should actually model. I am a software engineer and I do not know so much about law... Looking online, it seems to me that these platforms always talk about "Buy Side" and "Sell Side" contracts like if they were the only types. Aren't there also other contracts that do not involve buying or selling? To be honest, I haven't been able to come up with good examples, but I do not know if this is because they do not exist or because I am ignorant. Just to give some context... I am thinking to interview for a job as software engineer in a company that has a contract lifecycle management suite and I would like to know a bit more about contracts just to show that I am not completely ignorant and that I tried to be prepared for the interview. | Because a contract is simply an agreement between two parties to exchange anything of value, there are many, many more types of contracts. If the company hires you, you would have an employment contract. If you agree to pick up a shift this week for someone who will pick up a shift for you next week, you have a contract. If the company lays you off, you may end up with a severance agreement. If you sue them for race discrimination you may enter into a contract to settle the case for a million dollars. If you want to protect that money from your fiance, you might enter into a prenuptial agreement. If you get divorced anyway, you might split up custody of your children in a shared parenting agreement. All of these agreements would constitute contracts. | Jurisdiction has not been provided, so I've written a general answer: Not necessarily; often, such provisions clauses will have their own expiration dates, for example "for five years after signing, X", with X still being valid after cancellation up to 5 years(so if you cancel after 3 years, X is still valid for 2 more years), or "for two years after cancellations, Y"(especially common with non-compete clauses) where the time-limit of Y starts when the contract is cancelled. Other clauses are meant to indeed be enforced forever, such as some non-disclosure, non-disparagement, or indemnity clauses. For example, an indemnity clause in a contract that prevents a party from suing the counter-party for work done under the contract would be pointless if it could be bypassed by a party terminating the agreement. There are lots of legal limits, based on the terms of the provision, and its nature, all governed by the contract law of the jurisdiction under which the contract was drafted under and/or is governed by (this is generally obvious, except for some cross-border contracts, which generally will have a declaration as to whose laws apply). It is not inherently abusive, but can certainly be abused. What is considered abusive often varies from jurisdiction to jurisdiction (not only on this issue, but on legal issues in general). It depends on the jurisdiction, and generally on the terms of the provision itself. If the court asked to enforce the terms of the agreement feels that the provision is illegal or abusive, they won't be enforced (and possibly the entire document declared null and void, depending on the central-ness of the illegal or abusive provision; some provisions specifically state that invaliding the provision doesn't invalidate the whole contract to try to prevent this). If they don't feel the provision is illegal or abusive, they will generally enforce it. | does the individual have a legal case against the company? Unfortunately, no. Some details and terms you use are unclear (e.g., "phantom" equity, "manifest" core technology, and so forth), but your overall description reflects that the individual sabotaged himself by signing a contract that does not mention the promise of equity through which he was persuaded to engage. A written contract usually supersedes any prior agreement --regarding the subject matter of that contract-- between the parties. That superseding effect means that the contract formalizes or overrides, accordingly, said agreements or promises. Since the initial promises of equity are not reflected in the "interim" contract, the investor's subsequent silence upon individual's reproach/reminders is from a legal standpoint irrelevant. At that point only the terms of the contract matter. The individual might consider alleging mistake in the sense of Restatement (Second) of Contracts at § 151-154 such that would make the contract voidable and perhaps "make room" for other theories of law. However, that seems futile unless the interim contract contains language that (1) provides specific conditions for its expiration, or (2) reflects the company's [mis-]representations that induced the individual to sign it. Neither seems to have occurred in the situation you describe. There is always a possibility that the contract might favor the individual's position and he just has not noticed it. But the only way to ascertain that is by reading the contract itself. | Preface and Caveats The question doesn't specify where this happened. I am providing an outline of the way that most U.S. states would handle this situation, if the fats are as they are much more likely to be and not as claimed in the question probably due to a misunderstanding of the underlying transaction. I identify areas where state laws most often vary and don't describe those areas of the law in detail since that is impossible without knowing where this happens. This is a matter of state law and varies from state to state, although most U.S. states are quite similar until you get to the fine details. Atypical language in the contract between the contractor and the client could also lead to a different conclusion. I don't know how this would be resolved in a non-U.S. jurisdiction. Background: The Structure Of A Typical Construction Loan Financed Construction Project In business and contractual disputes you can only understand the answer if you understand the underlying business transaction, which the question itself doesn't spell out very fully. The fact pattern identified in the question is so unusual that I strongly suspect that there is a misunderstanding of the facts, or an inadvertent misstatement in the language used in the question due to sloppy writing that flows from not appreciating the importance of some key facts. The transaction was almost surely structures more or less as follows (for background, I'm presenting a more general very of this kind of transaction rather than the simple one with no subcontractors or material suppliers involved, because this context helps someone understand why the laws are written the way that they are written.) Usually, the client owns real property, takes out a construction loan from a bank secured by the real estate, and hires a general contractor. The client will usually make some down payment to the general contractor who will take care of paying the subcontractors and material suppliers, and will pay the balance of the amount due to the general contractor through proceeds of the construction loan disbursed by the bank which are drawn as the work is done and payment is earned. Typically, each drawn cycle, which is often monthly for a smaller project and weekly, biweekly or semimonthly in a larger project, materials suppliers and subcontractors submit invoices and lien waivers to the general contractor based upon the work done. If the work is complete, a complete lien waiver is submitted, if he work in only partially finished, a partial lien waiver is submitted. The general contractor substantively reviews the invoices based upon a physical review of the construction site and a review of the subcontract. If there are problems it is rejected and must be resubmitted by the material supplier or subcontractor. If it is approved, the general contractor attaches that invoice as a supporting document to a draw request for the draw cycle summarizing all validly submitted invoices from material suppliers, subcontractors and itself, and also attaching a partial lien waiver from the general contractor. Then, the general contractor submits that draw request to a bank officer handling the construction loan as an agent of the property owner-client, and also a client representative for approval. The bank officer and client representative make a much less probing review of the draw request, looking only for obvious irregularities or suspicious amounts, and if everything is in order, they approve the request. Then, the bank write a check in the draw amount approved to the general contractor. The general contractor then disburses the invoiced amounts to the materials materials suppliers and subcontractors and pays itself the amounts that it has earned. Sometimes, however, the general contractor gets a valid invoice from a material supplier or subcontractor, and receives funds from the client in the form of a downpayment or a loan draw, but doesn't pay the subcontractor or material supplier with those funds. Also, sometimes, the general contractor does work that it is entitled to be paid for or incurs an obligation to a material supplier or subcontractor, but the client doesn't pay or the bank doesn't disburse the funds requested even though the request is valid. When a general contractor, material supplier or subcontractor doesn't get paid for work that is actually done at a particular piece of real estate, the law gives the firm that wasn't paid for its work on that particular piece of real estate what is called a mechanic's lien encumbering that piece of real estate. The details of how a firm with a mechanic's lien gives notice to the world of its rights, the priorities of lien's vis-a-vis each other, and the way that mechanic's liens are enforced varies significantly from state to state. But typically the notice must be given very promptly and not long after notice of non-payment is given, a lawsuit to foreclose on the real estate encumbered by the lien is commenced. An unpaid material supplier or subcontractor, in addition to its lien rights, can also sue the general contractor for breach of contract, and sometimes also for misappropriation of disbursements from the client or the bank. An unpaid general contractor, in addition to its lien rights, can also sue the owner of the property for breach of contract. The Facts In The Question and Analysis The first paragraph of the question tells us what went wrong. The client paid an employee of the general contractor (probably a project manager) instead of the firm the employee worked for (basically embezzling the money by deceiving the client into thinking that the employee was authorized to receive a payment to the employee's firm on its behalf when that wasn't the case), and the firm of the employee who was paid now wants to get paid. This happens and lawsuits usually follows when it does. But exactly what happens next depends upon the facts in the next to paragraphs. The next two paragraphs of the question, however, are probably confused and incorrect. The next two paragraphs say: Two weeks later, the client received a letter from the contractor's lender asking the client for money owed to the contractor, saying that if it was not paid, the client could be double charged. Does the client owe the contractor's lender? What probably actually happened is that the finance office of the contractor submitted a draw request to the bank officer in charge of the client's construction loan with the bank, and also gave a notice of the draw request to the client. The client tells the bank officer not to approve the draw request because the client has already paid the draw request directly to the employee of the contractor (probably the project manager) without the knowledge of the firm the employee worked for. What Happens Next If The Facts Are As I Believe Them To Be? When this happens, the finance officer at the contractor firm talks to the client figures out what happens and then talks to the employee to whom the payment was made. If the employee promptly turns over the funds the the contractor firm, the finance officers at the contractor firm scolds the employee for screwing up the system and the client for making a payment to the wrong person and there is no harm, no foul, and the matter is over. But if the employee who took the client's money doesn't turn over the money which the client can prove to the contractor firm that he paid to the employee, several things are likely to happen. Non-Lawsuit Actions: The client will direct the bank not to pay the draw request. The employee who took the money from the client is fired (no big deal, he was probably long gone). The contractor firm and/or the client will often, but not always, report to the police that the employee embezzled the funds from the client, and if the police find it credible, will issue an arrest warrant. The main reason not to do so is that the facts are uncertain enough that the police and prosecutor don't want to touch it (e.g. the client paid the employee in cash and didn't get a receipt, or the employee when asked says that the payment was made but was a "tip" or was payment for something unrelated), or the client and/or the contractor firm don't want to harm their reputations by making public the fact that there was a theft on this job. Three lawsuits could be brought, although, in practice, these might be consolidated as claims against different parties and cross-claims between defendants, in a lawsuit brought by the contractor, or in some other configuration. The contractor firm sues the employee who took the money for converting money from a client intended for it (probably both as a tort and as a breach of fiduciary duty by an agent of the construction firm). The contractor firm sues the client for breach of contract. The question is about the liability of the client in this second lawsuit. The client might also bring a counterclaim against the contractor for negligent supervision of its employee if the employee did indeed abscond with the money and the facts support that counterclaim. If the client prevailed on that counterclaim, the judgment on the counterclaim for negligent supervision (e.g. if the contractor knew that the employee had a history of doing things like this and didn't warn the client) would be setoff against the breach of contract judgment, rather than being a defense to the breach of contract claim. The client sues the employee for fraud, conversion or theft. What Are The Rights Of The Parties In These Lawsuits? In the second lawsuit, the client has breached the contract. The contract said to pay the firm, the client paid someone else, and so the obligation under the contract was not satisfied. The disputes in the lawsuit between the contracting firm and the client will be over whether the employee had apparent authority to accept the funds as an agent of he contracting firm, over whether the payment that the client says was made to the employee was made at all, and over the purpose of the payment if a payment was made to the employee but the employee claims that it was a "tip" or a payment for something else (e.g. the employee also had a catering side hustle and the employee says it was for catering services). The issue of whether the client made the payment at all may be hard to prove if the payment was made in cash and the employee didn't provide a receipt and will come down to the credibility of the client and employee's testimony at trial. if the payment was made with a check or credit card, bank records will make it an open and shut case on that issue that will probably not be disputed at trial. If the facts reveal that the employee had apparent authority to accept the funds from the client for the contractor firm and that the payment was for work on the project and not something else, then the the payment made by the client to the employee satisfies the client's duty under the contract even if the employee wasn't actually authorized to receive the funds for the contractor firm. So, the client wins and the contractor firm's sole remedy is to sue its employee for misappropriating the client's funds. On the the other hand, if the employee did not have apparent authority to accept the funds from the client, or the payment was for something other than work on the project, or the client fails to prove that the payment was ever made, then the client owes the money to the contracting firm and must pay the contracting firm for the amount due (plus interest, litigation costs and possibly attorneys' fees depending on the terms of the contract). The client may pay that obligation out of separate funds of the client's own, or may authorize a the bank officer to make a draw on the construction loan to pay the amount owed. The construction loan bank of the client wouldn't sue the client or demand payment from the client for the amount that should have been paid to the contractor firm but was instead paid to the employee. It didn't pay money to someone it shouldn't have paid it to unless the client authorized the bank to do so. And, the bank won't pay the contractor without the client/borrower's say so. If the client authorized a draw payment from the construction loan to the employee rather than the contractor firm, the client still owes the bank for what it paid to the employee at the direction of the client (in addition to all other draws on the project), although the client may have a suit against the bank officer for negligence in administering the loan by failing to flag that the payee was wrong (which might lose but isn't a sure loss). The amount owed to the contractor firm proceeds under the analysis set forth above. What If The Facts Are Right? If, improbably, the facts as stating in the question are actually what happened, the client will owe or not owe the contractor money under the same analysis as above. But the client will not have liability to any company that the contractor got a loan from (which would not encumber the client's real estate), since the client has no contractual relationship with the contractor's lender. Post-Script On Double Payment Prevention Laws The question hinges on the unfairness of the client having to possibly pay twice for the same construction work. In some situations, where the general contractor firm is at fault for causing the double payment to happen, the law protects the client from double payment, even though those laws don't apply here. I explain why these laws don't apply below. Basically, the client has to eat the double payment when the double payment occurs because the client screwed up though no fault of the general contractor and the general contractor doesn't benefit from the double payment. Some states have laws designed to prevent property owners, often only residential property owners having work performed on their own residences, from having to double pay for work done in some circumstances. But these laws usually only apply when the client pays the general contractor firm as the client is supposed to, satisfying his contractual obligation, and the general contractor doesn't pay the subcontractor, causing the subcontractor to sue the general contractor for breach of contract and the owner to enforce the subcontractor's mechanic's lien. In those situations, the double payment prevention law eliminates the subcontractor's mechanic's lien rights when the client pays the general contractor in full, and the subcontractor is left only with a lawsuit against the general contractor who didn't pass on the client's or the client's bank's payment to the general contractor for the subcontractor's share of work to the subcontractor. In this case, the double payment laws usually wouldn't apply because the legal issue here is whether the client paid the contractor, or was deceived by the employee into paying someone other than the contractor in an act of conversion/embezzlement/fraud. | It should contain one of the following two clauses: A clause that explicitly lists all of the side projects you are working on at the point of employment, that will not be transferred to the employer's ownership under Section 11 of the Copyright, Designs and Patent Act 1998 ("the Act") which states (1) The author of a work is the first owner of any copyright in it, subject to the following provisions. (2) Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary. (3) This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 and 165) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations). This would mean that your existing side projects are protected, but any future side projects would transfer to your employer under S11(2). This might be fine if you don't intend on doing any more side projects during your employment and simply want to protect your existing work. A clause that explicitly rejects S11(2) of the Act in relation to work undertaken outside of your employment and not on company resources, that is specifically defined as "side projects" (including a non-exhaustive list of examples) and the rebuttable presumption that any such work is outside S11(2) unless proven to the civil standard in a court of law. This provides balance to both sides: the employee is free to pursue their side projects outside of work, but in the event that they work on them in company time and on company resources (e.g. a laptop) the employer is free to rebut that presumption in court and have the work transferred to them. Generally, the second clause seems to be what most employees would want in a contract to protect their side projects. Whether it can successfully be inserted depends on the negotiation between both sides. Most reasonable employers would not refuse it. The leading case on the matter of S11(2) is Penhallurick v MD5 Ltd [2021] EWCA Civ 1770 (02 December 2021) which future courts of first instance are presently bound to follow, unless the Supreme Court issues a different decision. What does "in the course of employment" mean? Per Penhallurick mentioned above, "in the course of employment" is generally held to mean doing things that you are paid for as part of your employment. For example, if you are a baker and you write a novel in your free time, it is clear that has nothing to do with your employment: you are not being paid by the bakery to write novels. However, if you were to write a baking cookbook that incorporated recipes that you developed at the bakery, that could be held to be done "in the course of employment" because the bakery could argue that you are paid to develop new recipes for them. The development of side projects in relation to software development is fraught with peril. A lot of employers will try and advance the argument that, although you did not develop the work using company resources and time, your work is still "connected" to the area they operate in. Well known examples of this include Google asserting ownership of software development side projects that, on the surface of it, aren't done on company time and resources and don't appear to have been done "in the course of employment" as you are not being paid specifically to work on, e.g. game development when you are employed as a website backend engineer. If the employer can present enough evidence that what you are/were working on is "connected" to their business in some fashion, that is (at present, in England and Wales) sufficient for ownership to transfer to them under S11(2) even if the work wasn't done in company time and/or using company resources. An example of a clause that seeks to protect side projects Both Parties agree that Section 11(2) of the Copyright, Designs and Patent Act 1988 ("the Act") does not apply to any and all Side Projects started prior to the commencement of employment. Both Parties also agree that S11(2) of the Act does not apply to any and all Side Projects started after the commencement of employment, specifically where said Side Projects are unrelated to the Employer's business of area of business. For the avoidance of doubt, "unrelated" has the ordinary meaning that a reasonable person would assign to it. For example, since the Employer operates in area of business, a Side Project regarding the development of an online video game is clearly unrelated to the Employer's business. This ex post presumption is rebuttable on the provision of clear and compelling evidence presented in a competent and validly constituted court of law in England and Wales that the Side Project was developed on company time and/or using company resources (e.g. a laptop) or that it validly infringes upon a business domain the Employer operates in. Both Parties agree that it will not be sufficient to adduce that the Employer "could" seek to operate in the Side Project's domain. For ownership to transfer under S11(2) of the Act, the Employer must demonstrate that they operated in that domain prior to the creation of the Side Project or that the Side Project has taken advantage of company resources that were not legitimately available outside of the company. For example, confidential company know-how that is specific to the Employer and not an industry standard or widely known thing. For the avoidance of doubt, use of open-source software (used in compliance with the licence and regardless of whether that software was created, released, or maintained by the Employer or someone else) does not constitute taking advantage of company resources. The Employer agrees to pay the Employee a sum of special damages assessed and awarded appropriately by a court of law in England and Wales for any attempt to subvert this clause or sue the Employee for a Side Project contrary to this clause. In the alternative, at the Employee's absolute discretion, a permanent injunction enforcing this clause may be awarded against the Employer. | Can anybody create their own license? That is to say, can I for example create my own license under which I can license software? Yep. It's just a contract granting rights to use a copyrighted work. You can write your own contracts, so you can write your own software license. It's just often recommended that you don't, because common licenses are more well-understood, and inexperienced drafters may make errors that could result in problems, such as unintended restrictions, failing to restrict things that were intended to be restricted, or creating provisions that aren't enforceable in some/all jurisdictions. Can you mandate how a software will be released? Yes. Many software licenses, including GPL, do. The restrictions you describe in your example sound similar to CC BY-NC-SA. Also, would the following clause even be legal? Using this software you agree that any work and intellectual property based on or created with this software will be under the [INSERT_NAME_LICENSE] license, even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up I'm not entirely certain, but "even after any and all code from this software is removed in a future update, or even if the work is rebuilt from the ground up" seems, in my opinion, unlikely to be enforceable—especially "even if the work is rebuilt from the ground up." How would you differentiate a complete rebuild from a totally new piece of software? More broadly, once your copyrighted code is no longer in the product, there's nothing for them to license from you. It's hard to imagine how you'd be able to claim that you're harmed by someone releasing a new version of a product that used to contain your code under a different license. Without harm to you, there's nothing for a court to redress. | The contract between you and the company is for the supply of the goods. How they get them to you is irrelevant; they may have them in stock, or they may order them and ship them on, or they may send an order to the factory to ship them directly to you. There is nothing saying that they have to be in stock anywhere. The law you refer to says that they must ship within 30 days unless they provide a specific date. In effect "shipped within 30 days" is an implicit term in the contract. If after 30 days they have not shipped the goods then you are entitled to rescind the contract (i.e. get your money back). Where things get interesting is if they took your money knowing that they would not be able to ship within 30 days, or at least being reckless (i.e. not caring) about it. It does rather sound like this may be the case. If so then it may rise to the level of fraud, and the FTC or state authorities may take action. Try writing to the FTC. A single event won't get any action, but if they get lots of complaints then they might. | Yes Written contracts do not have to be written in any particular language or character set. Purely visual contracts are used and are legally binding. If a pictorial term is ambiguous it is resolved by the court the same way as a textual term would be. |
Are you vicariously liable to someone you hired to carry out a negligent act? Vicarious liability holds that when an employee is negligent and causes damage in the course of work, the employer is held liable. What if the "work" itself is negligent, and the damage brought about by negligence harms the very person hired for the negligent act? Example Case For example, let's assume that Fred hires Barney to stage a fake attack during a self-defense class so that Fred can demonstrate a self-defense technique. Barney is therefore paid to act as Fred's attacker, and they have agreed on a safe plan to conduct this training session. None of the students are informed of this and it hasn't happened in the class before. In the next lesson, Barney storms in through the open door and attempts to attack Fred with a training knife. One of the students, Uriah, intervenes and severely injures Barney due to thinking the sudden attack without warning is real. Fred neither injures nor is himself injured. My thoughts While I don't think Uriah would be liable (as a reasonable person would think Barney is a real attacker), would Fred be liable to Barney? Would the fact that Fred and Barney were both involved in a negligent plan be a factor? Note: The United States is the jurisdiction, but various jurisdictions within the United States would factor in contributory negligence vs. compensatory negligence. I would be interested in hearing how both philosophies would play into the above scenario. | Under U.S. law, when you hire someone and they are injured while doing work for which you hired them, the ordinary tort law regime does not apply. Instead, you are in the worker's compensation regime, under which the employer is strictly liable for the injury. Whether the employee or the employer was at fault in any way (negligent, grossly negligent, reckless, or intentional) is largely irrelevant (except that worker's compensation insurance does not cover the employer's intentional harm to workers which is the employer's responsibility to pay on an uninsured basis). This applies to all injuries on the job, whether or not they are related to the work, and whether or not anyone involved with the employer actually did anything wrong. For example, an employer has strict liability for the injuries of a convenience store clerk sustained by the clerk in an armed robbery of the convenience store where the clerk is working undertaken by felon who escaped from prison hours before due to the carelessness of the prison guards. Usually, that injury is fully insured if the employer has the legally required worker's compensation insurance in place, but the penalty for not having it in place is most commonly that the employer has liability to the full extent, if not greater, than the employer's worker's compensation insurance would have if it was in place. Worker's compensation recoveries are limited to actual economic damages like lost wages and medical expenses, without regard to non-economic harms like pain and suffering and worker's compensation plans also have a very limited death benefit when the worker has no dependents. But these limitations on damages don't always apply when the employer fails to have worker's compensation insurance in place. Worker's compensation liability varies from place to place, but in most states it applies to independent contractors who have not put in place worker's compensation insurance for themselves as well. In your example, Fred has full liability for Barney's injuries. Uriah does not have liability for Barney's injuries due to his good faith belief that he was acting in self-defense or defense of others. But note that Fred's strict liability for Barney's injuries does not preclude a third-party from having liability as well, both to Barney (for damages for which there is not employer liability under the worker's compensation regime such as pain and suffering, and/or in the case of an intentional tort like the armed robbery of the convenience store, punitive damages), and to the employer/worker's compensation insurer for a subrogation claim to recover the amounts paid to Barney as a result of the third-party's negligence or intentional acts. | The officers could incur liability under 28 U.S.C. 2680 (h) with jurisdiction under 28 U.S.C. 1346 (b). This would probably be considered "loss of property" or a "wrongful act". It is very rare for cases to go forward for this because of the costs of litigation against an officer. "[I]t is well recognized that ‘officers executing search warrants on occasion must damage property in order to perform their duty.’" Cody v. Mello, 59 F.3d 13, 16 (2d Cir. 1995) (quoting Dalia v. United States, 441 U.S. 238, 258 (1979)). “Before any due process liability can be imposed for property damage occurring in a lawful search, it must be established that the police acted unreasonably or maliciously in bringing about the damage.” Cody, 59 F.3d at 16. That actually means that the burden of proof is on the victim to show unreasonableness / maliciousness. It would probably be easier if the thing destroyed could not possibly have contained the item looked for. For instance, if they are looking for a 65" LED TV, they can't even look in a 64" dresser (or something smaller than the object that could not physically hold the object). This issue becomes moot when dealing with drugs. | Both outcomes are possible. A's insurance company would resist full replacement, so B would probably have to sue and prove that full replacement was necessary. Since the basic idea behind compensation is making the person whole after having been harmed, and what is the harm in a more limited repair job? The jury would contemplate all of the details regarding B's apartment. Then it matters just how crisp the floor was originally, and how aesthetically offensive a mere 99% match would be. It would not hinge solely on B's self-serving statement that he would not accept less than 100% match. But the award would not be limited to "the cheapest possible repair". | Liability of a Person LLC means "Limited Liability Company"; in the absence of such an entity (or equivalent) there is no "Limited Liability". A partnership, which is what you are describing, or an individual has unlimited liability. What this means is: An individual (operating alone or as a member of a partnership) is liable for their actions. They are responsible for the debts the business incurs (including those arising from legal liability) and must pay for them from their personal assets. A company is liable for its actions, however, the members of that company are liable only to the extent of the money that they have invested. Contractual protection A person (which includes individuals and companies) can attempt to limit liability by contract, however, there are limitations to this: Your liability is only limited against people who are bound by the contract; third parties (like an aggrieved copyright holder) are not Most jurisdictions restrict limits to liability that can be made in consumer contracts and some B2B arrangements You can't contract outside the law: if the law says you are liable then your contract that says otherwise is not worth a pinch of s***. You are only liable for what you are liable for To have a liability, you have to have done (or not done) something that created a liability under statute, tort or contract. There are legal means in many jurisdictions that protect content hosts from copyright claims: but you have to do what the law says you have to do to avail yourself of them. "we" or "us" will refer to ... ... has to be the person(s) that are running the business - if that is Bob and Terry Jones then that's what you write, if it is ExampleWorks LLC, write that. It cant be "example.org" because that is a domain name; not a legal person. It can't be "ExamplePedia" because wtf is that anyway? Get real advice You are running a business and exposing yourselves to liabilities and losses that you know about and probably a bunch that you don't know about. When you learnt to drive a car, or ski, or play soccer you got instruction from people who knew how to do what you wanted to do: running a business is exactly the same: get proper advice from people who know what they're taking about and pay for it if you have to. | 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. | In New Zealand, employers have a duty to take all practicable steps to ensure their workplace is safe for employees and for others who come onto the premises (Health and Safety in Employment Act s6). So if there was a wasp nest and they didn't do anything about it, presumably they would be liable. If it was a random bee, I doubt they would be liable, because they couldn't practicably prevent a bee flying in if, say, someone opened the door. The state would have to charge the company as HSEA is a criminal provisions act. If the plaintiff brought a claim based on the tort of negligence, they would have to prove that the company had a duty of care, breached that duty, the breach caused damage, and the damage was not too remote from the breach. The company does have a duty of care to their patrons. The standard for this is what a reasonable person would have done in the circumstances. If they didn't remove a wasp nest they may have breached their duty of care. The breach will have caused damage (a wasp sting). It wouldn't have been too remote since had they removed the wasp nest, the person wouldn't have been stung. However if a random bee flew in, the company probably wouldn't have breached their duty of care, and if the court found that they had, the damage would probably be too remote or not have been caused by them directly. | If the act and the evidence is sufficient, they will all be convicted. It would not be necessary, for example, to prove that it was Brutus's stab that killed the victim. It is not guaranteed that all of the participants committed the act knowed as 1st degree homicide (picking Washington law), some may be guilty of conspiracy to murder. Liability for a crime can extend to others besides the person who "did it": (3) A person is an accomplice of another person in the commission of a crime if: (a) With knowledge that it will promote or facilitate the commission of the crime, he or she: (i) Solicits, commands, encourages, or requests such other person to commit it; or (ii) Aids or agrees to aid such other person in planning or committing it | This effectively comes under duty of care. Firstly, in England and Wales there is no obligation to be a Good Samaritan - in other words, there is no obligation to be a rescuer. Until you intervene to try and rescue someone, you do not owe that person a duty. As soon as you do intervene, however, you do owe them a duty. Specifically, you owe them a duty not to make the situation worse (Horsey and Rackley, Tort Law, 3rd ed., OUP 2013, p. 75). The specific situation Horsey and Rackley give is that of resuscitating a drowning child and breaking a rib as you do so: this may be 'making the situation worse' (Horsey and Rackley, pp. 75-76). Does this mean that you'll be liable if you give someone first aid and in doing so, you make the situation worse? Not necessarily, because, as Horsey and Rackley point out, duty is different to liability. Using the drowning child example again, they state: So, for example, while someone who intervenes may owe a duty not to make the situation worse, their actions would still be judged against those of a 'reasonable person' in the circumstances (and so if a reasonable person would have tried to resuscitate the child in the same way, there will be no breach of their duty and therefore no liability to pay compensation.) (p.76) The 'reasonable person' standard corresponds to what you mentioned in the question about lack of expertise. If a doctor intervenes in such a situation, the standard of care they'd be expected to give would be higher than, say, for someone who's simply done a basic first aid course. The question is whether or not you've acted as the reasonable person in your situation would have done. On that basis, then, your tutor is pretty much correct: so long as you take such care as is reasonable based on your expertise, or lack thereof, then under English and Welsh law, you're unlikely to be liable. |
Does the IP logging + user data apply to GDPR? I read a lot about logging IP addresses, and it applies to GDPR: Do default Apache logs violate the GDPR? How to satisfy GDPR's consent requirement for IP logging? My question is slightly different. If I log a line like the following: TIMESTAMP | IP 123.123.123.123 | USER 42 | Serivice /country/list In this case, I would be able to relate the IP address to a single user by ID, so do I need to ask for an agreement before doing it? | IP addresses are personal data. That means you need a legal basis to process them, but not necessarily consent from the user. That IP addresses should be treated as personal data in most contexts is clear, regardless of whether you can associate the IP address with a user ID. That you make such an association affirms that both the IP address and user ID are personal data in your context though. As the answers in the questions you linked indicate, there are alternative legal bases to consent. The GDPR offers a choice of six legal bases (Art 6(1) lit a–f). In most cases, you would instead rely on a “legitimate interest” for logging. But it's not enough to claim that you have a legitimate interest. You must have a clear purpose for which such logs would be necessary, and you would then have to weigh this legitimate interest against the interests, rights, and freedoms of the affected data subjects. If such logs are necessary for security and anti-abuse purposes, your legitimate interest test is likely to prevail. However, you must limit retention of the logged data and the included information to what is actually necessary. For example, keeping user IDs in there might not be necessary. If the association of IP addresses and user IDs is not necessary for a legitimate interest, then you would indeed need consent. Discussion on why IP addresses are personal data. You see many answers and opinions that IP addresses might not be personal data. Some of these are technically correct, but most are misinformed or outdated. I know only a single well-informed person that still disagrees. For everyone else such as the EU Commission, IP addresses are clearly personal data. Under the GDPR, personal data is any information that relates to an (indirectly) identifiable natural person. In the context of log files we can assume that the entries usually “relate” to a person, namely the person making the request. The exception would be requests triggered by automated systems. The more interesting question is whether the person to which the log entry relates is identifiable. While the GDPR does provide further guidance on the concept of identification in Recital 26, it does not provide clear unambiguous criteria. Thus, there is lots of debate about what that precisely means. One approach is to sidestep that debate and and notice that the GDPR's definition of personal data explicitly notes that a person might be identified “in particular by reference to an identifier such as a name, an identification number, location data, an online identifier” (Art 4(1)). Another but otherwise unrelated part of the GDPR mentions “internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags” as examples of online identifiers (Recital 30). We can also look more deeply into Recital 26 and see that “singling out” already counts as identification. We can use the IP address to single out one person's log entries from the set of log entries, so this could be interpreted as meaning that any stable user ID renders the data personal data – and an IP address is sufficiently stable in this context. Another part of Recital 26 says that we must consider “all the means reasonably likely to be used” for identification, even if this involves additional information from third parties. This phrasing is virtually identical to the GDPR's predecessor, the EU Data Protection Directive. On the basis of that DPD, the EU's top court (ECJ/CJEU) was asked to rule on the question whether dynamic IP addresses are personal data (the Breyer case, C‑582/14, judgement from 2016-10-19). It said yes. “It did not say yes”, some people will object. And they are technically correct. When someone rents an internet connection from an ISP, the ISP will have logs that connect the user's real-world identity to the IP address they were assigned at a time. You don't have access to the ISP's logs. But, if that user violated your rights (e.g. a cyberattack or copyright infringement), then you could (depending on civil vs criminal matters) report this to the appropriate authorities or to petition the court and they would have the right to order the ISP to disclose this information. The CJEU said that if this chain (you → authorities → ISP → user identity) is grounded in law, then the IP address would be identifiable. But whether there are suitable laws to compel the ISP to disclose this data would be up to national laws, and the CJEU doesn't concern itself with that. Spoiler: such laws are pretty common. To summarize typical objections: The IP address doesn't relate to a person: Can be a valid objection, but is not typically the case for user-facing web services. The Recital 30 argument is not valid because it's about profiling, not identification, and it only says that IP addresses may be used for profiling, not that they are always identifying: Technically correct, but I think that Recital 30 merely expresses the implied understanding that of course an IP address is an online identifier and permits identification by itself. “Singling out” does not apply because SOME_REASON: Indeed, this is an ill-defined term with no case law to guide us. However, regulators such as the EDPB and their predecessor WP29 routinely use “singling out” to mean being able to distinguish one person's data from other people's data. An IP address lets us do that. The Breyer judgement is not applicable because the defendant in that case was the German state, and the state has other legal means than ordinary website operators: Nothing in that case was specific to the website operator being a state or other authority. If the website operator can contact the appropriate authority and if they have the right to order the ISP to disclose the relevant data, then the IP address is identifiable. The CJEU didn't say “yes” in Breyer, it said “if”. So I'll take that as a “no”: The CJEU concerns itself with the interpretation of EU law, not with national laws. Specifically in the Breyer case, lower courts confirmed that German law has the necessary means. In other EU member states, further checks would be necessary but it would surprise me if there wouldn't be equivalent subpoena powers. If the ISP doesn't have the data, then the IP addresses are anonymous: Indeed, the CJEU scenario collapses if there is no additional data to be linked with the IP address. However: The CJEU used this scenario as an example to show that IP addresses can be identifiable. If that particular scenario fails, there could be other scenarios that still allow identification. The question of whether IP addresses are identifiable had of course been the subject of wider debate at the time. That the GDPR explicitly mentions IP addresses can be seen as a reaction to this debate. Thus, in a sense, the Breyer case is moot. It is still useful as an explanation of how broad “reasonably likely means” must be interpreted. | Keeping logs of chats would not necessarily be against the GDPR as you have suggested. For the IRC service provider/operator: these chats/logs would be within scope if EU-based users are involved and this means the data controller/processors would have legal obligations to comply with GDPR. The IRC service provider/operator would be the data controller and would be held ultimately responsible for the data stored/processed through the IRC service, including backups and logs kept etc, and this would mean any sub-processors they select (such as hosting provider) would also have to be GDPR compliant. Due to the nature of IRC chats being entirely public in the same way forum board posts and comments are public, the contract terms between the IRC service provider and the IRC users would need to be very clear that this is the case, and the IRC users would need to give consent for this processing (this is more complicated for children, see Article 8 regarding consent from the holder of parental responsibility). For IRC users (personal use): If you wish to keep the chat records for personal use only (i.e. not in connection with a business or your employment at a business), then an exemption applies: This Regulation does not apply to the processing of personal data: ... (c) by a natural person in the course of a purely personal or household activity; ... (GDPR, Article 2: Material Scope, Paragraph 2(c), p.32) For IRC users (commercial/business use): In this case I don't think you would have any legal basis to store/process these chats/logs if they contain personal data without a legal agreement with the data controller which would require you to put in place the same protections they have to under GDPR but then allow your business to access the data for specific purposes. While the information may be published or considered to be in the 'public domain', for you to take a copy of it without permission and use it for a purpose they haven't consented to would not be allowed under GDPR. Additionally, to go through the process of removing personal data from the chats/logs would in itself be considered 'processing' under GDPR and therefore would be unauthorised without a legal agreement with the data controller. Practically therefore, your best options under this circumstance would be if: The IRC service provider implemented a 'favourites' feature to save within their own system the chat conversations you wish to retain and refer back to in future. Since they hold the data and you already have a user agreement with them there is no further complications (this is probably the best option); The IRC service provider implemented a feature to download an anonymized copy of a chat conversation (not ideal as there are no guaruntees a user will not include personal data in their messages, though the user agreement could state that message content will be considered to exclude personal data, in a similar way to how StackExchange do for this website, see the paragraph titled "Information You Choose to Display Publicly on the Network" on the StackExchange Privacy Policy). Your business considered an alternative communications solution, such as hosting its own real-time chat system or forum boards system, in which case your business would be the data controller, and while subject to GDPR you could then define the purposes for which the data will be used in your own user agreement. | Don't collect or process personal data Many (though of course not all) websites can easily be run without collecting or otherwise processing any personal data. The position of GDPR is that if you are not able to fulfil the basic, simplest core conditions for processing personal data (understanding what you're processing and why and why it's allowed, describing it in a privacy policy, having a non-underage person who's responsible for that) then you are not allowed to process personal data of other people. So don't. Build your website so that any personal data are not collected. | There are a number of misconceptions in this question. Firstly, the regulatory environment did not drastically change when the GDPR came into force in 2018. Previously, each EU member state had its own laws implementing the 95/46/EC Data Protection Directive. The GDPR harmonizes these laws, and replaces them with a single EU-wide law. However, the GDPR is largely identical with the DPD. In particular, both laws have the same definition of a controller. Secondly, the data controller is not a position to be designated, like a Data Protection Officer would be. A controller is whoever – alone or jointly with others – determines the purposes and means of processing of personal data. Whether someone can decide the purposes of processing is a matter of fact, not a matter of formalities. There can be more than one controller. Most likely, the institution hosting the research group is the controller. For individual researchers, the important aspect would be to demonstrate that they've fully complied with their institution's procedures at all times – that they acted as agents of the controller, not as controllers of their own. The institution might have a more difficult time mounting the defense if its technical and organizational measures were inadequate. For example, keeping an unattended server running for five years without security updates borders on gross negligence – so there should have been a procedure so that each system has a clear point of contact who is responsible for administrating the system. The controller should also have inventoried its systems and processing activities at the latest in preparation of GDPR, e.g. for an Art 30 record of processing activities. Your question suggests that no one could be at fault because no one did anything, but inaction and failure to fulfil responsibilities can also be a violation of law. If the institution wasn't convinced that this server was GDPR-compliant, the correct approach would have been to shut the server down, not to continue the processing of personal data. Of course, the controller may be able to demonstrate that this breach of GDPR was very minor, for example because the personal data was pseudonymized and because other technical measures (like firewalls) would have prevented unauthorized access. | 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. | The GDPR actually does require you to follow DNT in Article 21: In the context of the use of information society services, and notwithstanding Directive 2002/58/EC, the data subject may exercise his or her right to object by automated means using technical specifications. I think this is quite explicit. | Article 32 of the GDPR requires companies to adequately secure their data when handling data belonging to EU citizens. This also applies to cross border scenarios where data is transferred between countries. Technically speaking, the GDPR doesn't set a standard for security: you don't have to encrypt your data, use AES or RSA encryption, or hash and salt passwords. It is your choice on how to secure your data, though the GDPR does mandate specific ways to secure data. However, not doing so opens yourself up to two consequences: The European data protection supervisor is tasked with the enforcement of regulations. A company can be forced to increase their level security if a valid complaint alleging that inadequate security measures are in place is made There is a significant amount of security risk, and if a data breach occurs, the GDPR allows authorities to levy heavy fines. Especially heavy fines may occur if it is found that the data was not securely stored. So the answer is: A complaint to relevant authorities can force the company to take action, or they will lose access to the European market. | It seems clear that this is personal information under the GDPR. If you are subject to the GDPR, you need to have a "lawful basis" to store or process such information. (You are subject to the GDPR if you are locates in the EU, or if your users are. My understanding is that it is location at the time the app is accessed that matters, not a user's citizenship. I am not totally sure about that, however. Unless your app is limited to non-EU access, it it probably safest to comply with the GDPR) The degree of precision of your location data will not matter -- a specific city is quite enough to make it personal data if it can be tied to a specific person. There are various lawful bases that may be relied on for processing and storage, but explicit consent is probably the one with the widest applicability. To use consent as the lawful basis, you must present an OPT-IN decision to the user, and record the results. If the user does nothing, the result must record lack of consent. You may not use a pre-checked consent box or another mechanism that has the effect of an opt-out choice. You should be clear about what information will be stored, and how it will or might be used. You will also need to consider how your app will function for those who do not consent, and how to handle requests to withdraw consent. So if an app obtains user consent to store location data in a manner that complies with the GDPR, it may store user location data. The consent should make the possible uses of the data clear. If the data is to be shared, the consent should make the possible extent of sharing clear. Some previous questions and answers here on law.se dealing with GDPR consent that seem possibly relevant: User consent required under GDPR What provisions should I make regarding GDPR consent when users do not sign themselves up? GDPR - Withdrawn user consent Opt Out Consent under GDPR |
Is it legal to buy raw gold in South africa? Is it legal to buy raw gold in South Africa? I see someone is selling it on Facebook and I want to make a ring for myself. | If you have a license, it is legal. See the Precious Metals Act, 2005 in particular §4 which says that no person may acquire, possess or dispose of, either as principal or as agent, any unwrought precious metal, unless (a) he or she is the holder of a refining licence and acts in accordance with the terms and conditions of his or her licence; (b) he or she is an authorised dealer; (c) he or she is a producer who has won or recovered such unwrought precious metal; (4 he or she has obtained a certificate from the Regulator authorising him or her to acquire or to dispose of such unwrought precious metal; (e) such unwrought precious metal does not exceed a prescribed mass and is acquired in accordance with a special permit issued by the Regulator for scientific or beneficiation purposes or to make jewellery; or he or she is the holder of a precious metal beneficiation licence and acts in accordance with the terms and conditions of his or her licence Subsection (e) still requires a permit or license. | There is nothing illegal about selling used bikes online. Importing goods is subject to legal regulation such as customs duties. These goods might even be subject to punitive steel and aluminum tariffs since bike metal could easily be converted to metal for other purposes. And, if the bikes have fake trademarks, they might be interdicted, although the "first sale rule" makes import of bikes with real trademarks legal. There is nothing remotely related to copyright at issue in your proposal. | If only the tip is left in such "fake" money, it would not be theft as there is no legal obligation to leave a tip at all (except in those establishments that add a tip or "service charge' to the bill.) If the "money" is not an attempt to imitate real cash, it wouldn't be counterfeiting (leaving monopoly money for example would not be counterfeiting). The server would be understandably angry. The restaurant might refuse to seat the people who left the "fake" another time, if the servers identified them to the manager, but nothing would require them to do so. This is all on a US basis, I have no idea if tips might be legally required in other countries. | There is nothing illegal with doing this (absent specific contractual terms or industry regulations to the contrary in particular cases, e.g. in the case of export controlled high technology products). This is called operating a wholesale business or operating as a broker. Lots of legitimate legal businesses have this business model. | Let’s say I go to a cash machine, ask for £100, and the machine gives me £10,000. I use my banking app and see that £100 left my account, not £10,000. At this point I haven’t done anything illegal. If I asked for another £100 and got £10,000 again, that might be illegal. But the extra £9,900 are not mine. They are the bank’s money. If I try to keep it, that is simply theft. | On what grounds would you sue? Contract Well, I think that you would struggle to find the necessary elements (see What is a contract and what is required for them to be valid?) In particular, you would struggle to prove that there was intention to create legal relations on their part and possibly on yours. Are you able to identify in your "back & forth" a clear, unequivocal offer and acceptance? Without knowing the details of the "back & forth": I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works appears on the face of it to be a request for a gift; not an offer to treat. Promissory Estoppel If you don't have a contract then it is possible (IMO unlikely) that they induced you by your actions to commit resources (your time in writing) in anticipation of a reward (them publishing what you wrote). To be estopped they would have to have known that you were writing the article in the expectation that it would have your organisation's name in it, that they did not intend for that to happen and that they allowed you to invest those resources notwithstanding. If you can prove all of that then you can require them to do what they promised. The big difficulty I see in this is did you tell them that a) you were writing the article, b) it would have your name in it and c) you expected it to be published in that form. Copyright If they publish the work or a derivative work without your permission you can sue for breach of copyright. As it stands, they probably have an implied licence to publish and you would need to explicitly revoke that. Options There are two reasons to go to court: Money Principle If you are going to court for money then this is at best a risky investment and at worst a gamble: balance your risk and reward carefully. If you are going to court for a principle then I simultaneously admire your principles and think you're an idiot. Make a deal Explain that the reason that you wrote the article was a) to support their fine publication and the fantastic work it does (even if you don't) and b) to garner good publicity for your organisation. You understand and admire their strong editorial stance (especially if you don't) but the article involved a considerable amount of work and could they see their way clear to give you a significant discount (~80%) on a full page ad facing the article. | Do you have an explicit permission by the artist? Does the artist give a blanket permission to anyone which covers this kind of use of their work (a license)? If no, then you commit a copyright violation when you use their work for your blog. This applies to practically any country which signed the Berne convention which is almost everywhere in the world. Having no commercial interest is usually not an excuse to violate copyright. Regarding which jurisdiction applies when you, your website and the copyright holder are in different countries: I opened a new question about this. | I see that this would put me under heavy US regulation, and I'd like to avoid that, since it would require huge funding to hire lawyers to do something like that. There are many reasons for financial and banking industry regulations; namely, fraud protection, corruption and money laundering preventions, use of crypto to avoid taxes and records, etc. If you're serious about a startup that involves financial transaction, one of the first things you do is find a law firm to advise you on the legal plausibility of an idea. And be prepared to spend thousands and thousands of dollars in legal fees for regulatory approval. Would doing something like this solve my problem? You're really going to trust randos on the web for legal advice? |
Who can stop a member of the public from peacefully protesting a private club who rents their space? Assume a private club located in a shopping plaza in Austin, Texas and they rent their space from the plaza's owner. Also assume a member of the public, let's call him Larry, intends to stand outside, X feet from the club's doors, and hand fliers to their members as they leave. What would be the required parameters, such as how many feet from the entrance could Larry lawfully stand? i.e. How much of the side walk is their premises? Larry expects the club's staff to "sic" their security guards on him and try to "unlawfully(?)" and potentially forcefully remove him from the premises, but assuming he remains peaceful and does not intrude on their immediate entrance space, who in this situation would have the right to ask him to leave? The club, the owner of the shopping plaza or the police? | The club renting space from the shopping center makes no difference; the difference is public vs. private land. The legal controller of the land you are on - whether the shopping center, the club or private land around the shopping center - can ask you to leave at any time for any reason. There is no wiggle room. A controller is not necessarily the owner - a tenant is a controller as is an emergency service executing legitimate control. The police are law enforcement; if you don't leave private land by request, their duty is to remove you at the request of the land owner. Private security also has the same function, though their jurisdiction is more limited off their property, as they are private hired by the shopping center or club. Either would ask you to leave, and if you refuse, you could be arrested for trespassing. If arrested, the local district or county attorney would have some discretion on prosecuting you for trespassing. | 'Is it legal?' could mean one of two things. Does it break the criminal law; could I be arrested? There is no law criminalising photography or filming in a private place (assuming you're not doing something amounting to harrassment, or making something inherently illegal like child pornography). The act of filming per se is therefore not illegal in a criminal sense. However, the proprietor of a private place can ask you to stop filming or demand that you leave; if you fail to comply then you will be trespassing. Trespass is not a criminal offence (although the police will undoubtedly remove you if called). However, if your intent was to intimidate, obstruct or disrupt activity within the premises, you could be charged with Aggravated Trespass under s68 Criminal Justice and Public Order Act 1994. Could the owner, or someone else, have a civil claim against me? This is more difficult to answer. Trespass is a tort, so the owner could in theory have a claim against you if you were filming against his wishes. However, he would have to prove some measurable amount of damage, and this is why few trespass cases come to court. The occupants of the premises may be able to sue if you breach their right to privacy (Article 8 ECHR, incorporated into UK law by the Human Rights Act 1998); however, a court will balance this against your Article 10 right to freedom of expression. A court will consider all circumstances: for example, if you were filming in the toilets of a nightclub, the occupants' right to privacy may well outweigh your right to freedom of expression. A copyright owner may have a claim against you if you include their work in your film; for example, if you film inside a nightclub and substantial parts of songs are captured on your film, this may give rise to a claim. I am not a lawyer. Don't rely on free advice from strangers on the Internet. | There is pretty much never a right to retaliate against harm to oneself, even blatantly unlawful harm. There is a right to defend oneself and others. One can use force to stop someone from inflicting unlawful or unjustified harm, or to prevent someone from inflicting such harm when the harm is imminent. One is not permitted to use more force than is "reasonably required" under the actual circumstances. This is true in pretty much every jurisdiction that i know of. The details on how much force will be considered "reasonable" will vary. In some jurisdictions there is, under some circumstances, a s"duty to retreat". This generally means that if a person attacked can avoid the harm by fleeing with reasonable safety, that person must do so rather than using force in self-defense. In some jurisdictions this "duty to retreat" applies id the victim is attacked in public, but not in the victim's own home. The right to self defense does not apply when the "attacker" is an agent of the state acting lawfully. For example, a prison guard taking a condemned prisoner to a death sentence cannot be attacked on the grounds that the prisoner is engaging in self defense. In theory a police officer engaging an excessive force, particularly unjustified deadly force, may be resisted in self-defense. But courts are quite reluctant to find such resistance justified in practice. There generally must be very clear evidence of egregious misconduct for the court to rule for the non-police person in such a case. Note that "self" defense can equally be defense of another person. Pretty much all the same rules apply. Self defense applies no matter who the attacker is, but that force is reasonable may vary depending on the attacker. Only such force as is reasonably required to stop or prevent the harm may be used with a justification of self-defense. | 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. | It depends on the location and the nature of the structure. In Seattle, for example, it requires a permit. Usually, any such structure does require a building permit, which means that the government has to approve the plans w.r.t. offset requirement, height requirements and so on. There may be a view ordinance, or not; you may have a view easement, or not. Whatever the case may be, you should not assume that the government agency in charge will vigorously work to protect your interests over the neighbor's interest. You own attorney is the one who will vigorously and professionally defend exclusively your interests (likewise, the neighbor's attorney). Your description doesn't explain how this would "invite residents to congregate directly in front of my living room windows", which seems unlikely for a dwelling. If for instance this is really a bar and not a dwelling, then zoning issues about businesses arise. | Yes they can You are approaching this from the wrong direction. Their right to enforce what you can and can't do doesn't come from radio-spectrum law; it comes from property and contract law. You are on their property subject to a license that they give you to be there. One of the terms of that license is that you won't set up or operate a wireless network. No doubt there are other things you are not permitted to do; for example, you may not be able to sell goods and services. If you breach the terms of the license then you are trespassing and they are within their rights to have you removed. In addition, if you are a student (or staff), this is probably one of the terms of your contract with the university. If you breach it, they can terminate your candidature (employment). Contracts can impose obligations on you that goes beyond what the law obliges you to do. Indeed, there is no contract if it only requires what is already required. | In the scenario you described, you were both right: Police have no authority to demand that you leave a public space because you are photographing, nor does the government have the right to prevent you from photographing anything that is visible from a public space, including government facilities or employees. However, the police would likely have followed through on their threat to arrest you. In that event, any vindication for wrongful arrest and violation of your civil rights would only come (if ever) at the end of protracted and expensive litigation in the courts. (A plethora of examples is accumulated by watchdog groups like the ACLU and Photography Is Not A Crime.) | Let's look at the Ur-example of a free-speech law, and the most wide-ranging, the First Amendment to the Constitution of the United States of America. It says (my emphasis): Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This limitation applies only to the government. Indeed, it has been argued that this limitation only applies to the legislative branch of government and not to the executive (except when exercising legislatively delegated power) or judicial branches. Certainly, the courts have held that it is within their power to issue "gag" restraining orders. Notwithstanding, it imposes no restrictions on how non-government actors can limit your free speech. The owner of a shopping centre can require you not to evangelise, the owner of a stadium can require you not to use offensive language and the owner of a social media platform can restrict your speech in any way they wish. You have a right to talk - they have a right not to give you a platform. |
Applying Bayes' Theorem to law and forensic evidence I realise that every scenario is unique, but are there are guiding principles forensics investigators use to estimate the prior probability of guilt of a person (P(G)) when using Bayes' Theorem to estimate the probability of guilt after taking evidence into account? Are there any widely accepted resources that list the hit rate (P(E|G)) and false alarm rate (P(E|I)) for different types of evidence? | You have to deconstruct the question on a country by country basis. In the US legal system, the question presupposes something incorrect, that there are "investigators" who play a rule in legal system, and their job is to determine guilt vs. innocence. That is something determined by the "finder of fact", typically the jury (it could be a judge, when you have a bench trial). The finder of fact may take into consideration testimony provided by a witness, and it is possible that a witness is an expert in some relevant area, who might attest to the significance of a claimed piece of evidence. The expert cannot testify on the question of guilt. For example, a DNA sample might be admitted as evidence that the defendant was present in certain circumstances, which could reasonably lead the finders of fact to conclude that the defendant did strike the victim. A DNA sample cannot testify, therefore some expert must testify about the significance of the sample, specifically whether the sample "might have" come from the defendant, or "definitely came from" the defendant. Others will testify as to the circumstances surrounding the collection of the sample. It is then up to the finder of fact to evaluate all of the evidence plus understand the instructions regarding the criteria for finding the defendant "guilty". Theoretically, Bayes Law could enter into an expert witness's (scientific) testimony, and likewise an opposing witness could contradict the putative relevance of BL in terms of reaching a scientific conclusion. BL could enter into the discussion at the level of the bottom line "definitely/possibly does come from the defendent". The only practical way that I can see BL entering into the courtroom at least non-gratuitously would be if there is a dispute over the reliability of a certain test, thus should the testimony be allowed in the first place (it might be excluded as being unreliable). There is a genre of research (for example this) that addresses the problem of sketchy statistic inferences, pointing to a role for BL. I would say that the prospects are dim, not bright. | There are all manner of reasons that evidence can be excluded at a trial, most of which are set forth in rules of evidence. If the evidence was not admitted on the grounds of relevance and the charge was speeding, I presume that the reason that it was found not be to relevant was that it was not possible from a video to determine how fast someone was driving and there was no dispute in the case over who was driving. If the defendant could have articulated some reason that the video was relevant to those points, perhaps it could have been admitted. But, as if often the case, pro se defendants are usually not articulate enough to set forth a legally relevant reason that evidence should be admitted. Unless the defendant could show that the video showed something allowing a jury to determine whether or not the law was violated, it probably wouldn't be relevant and I can't easily imagine how it would be relevant, but perhaps there was some special facts or circumstances that might show, for example, that the speed gun was actually picking up another vehicle. | It is hard to measure accuracy in absolute terms because figuring out the truth is the problem that trials seek to solve in the first place. This is especially true of cases that go to trial. Cases that are almost sure to be resolved one way or the other by any tier of fact generally plea bargain (in criminal cases) or settle prior to trial (in civil cases). The plea bargaining rate is 90%-95% in criminal cases and less than 5% of civil cases go to trial. For better or for worse, civil jury trial have become much less common in the last half century, while criminal jury trial rates have been comparatively much more stable (criminal jury trials have become increasingly less common in federal trial courts, however, where the rate at which criminal cases go to trial is about half that of state courts). The good news is that this suggests that the accuracy of the entire process acting in the shadow of trial in most cases, is much greater than the accuracy of trials themselves, which tend to involve the hardest and closest cases. The bad news is that to the extent that trial outcomes are unpredictable, even those who are innocent or not at fault in a civil case, will sometimes reach an unfair agreed plea bargain or settlement. As a 1992 law review article comparing outcomes in civil cases between judges and juries notes, "The empirical results prove resistant to simple explanations." Some key studies summarized here concluded that: The judge and jury in the Kalven-Zeisel survey of 3,500 criminal cases agreed in 78% of the cases on whether or not to convict. When they disagreed, the judge would have convicted when the jury acquitted in 19% of the cases, and the jury convicted when the judge would have acquitted in 3% of the cases—a net leniency rate of 16%. Disagreement rates were no higher when the judge characterized the evidence as difficult than when the judge characterized it as easy, suggesting that the disagreements were not produced by the jury’s inability to understand the evidence. Disagreement rates did rise when the judge characterized the evidence as close rather than clear, indicating that disagreement cases were, at least in the judge’s view, more likely to be those cases that were susceptible to more than one defensible verdict. Primary explanations offered for the overall differences were differences in judgments about the credibility of witnesses and a different threshold of reasonable doubt. Two smaller, more recent studies using the Kalven-Zeisel method have shown remarkably similar patterns in criminal cases, obtaining 74% to 75% agreement, with a greater leniency of 13% to 20% from the jury. Studies outside the United States have shown similarly high levels of agreement between professionals and juries or lay judges in criminal cases. For the 4,000 civil trials in their judicial survey, Kalven and Zeisel obtained the same agreement rate of 78% on liability, but disagreement was almost equally divided, so that in 12% of the cases, the jury found for the plaintiff, while the judge favored the defense and in 10% of the cases, the jury found for the defense, while the judge would have made an award. Awards by juries were 20% higher on average than awards by judges. Several smaller, recent studies of civil jury cases in several locations have indicated agreement rates on liability between 63% and 77%, but it is unclear whether any overall change has occurred over time because no national study comparable with the Kalven and Zeisel study has been conducted. Because punitive damages are awarded so rarely (in roughly 3% of contract and tort cases), researchers conducting case-specific judicial surveys have not been able to compare judge and jury decisions on punitive damages. While the discrepancy between judges and juries in criminal cases (one in six cases) is quite large, this suggests that no more than 1-1.5% of criminal defendants charged with felonies in the system as a whole are inappropriately acquitted by juries, and that no more than about 0.16% of criminal defendants charged with felonies are wrongfully convicted by judges (since only about 10% of criminal trials in the U.S. are bench trials). Moreover, as discussed below, the "inappropriate acquittal" by juries rate as a share of system-wide felony cases is probably lower because there are good reasons to think that the higher conviction rate in bench trials than in jury trials has more to do with the biases of judges than with more accurate fact finding by judges. A 2010 empirical study looking at the impact of the racial composition of juries on the likelihood of convictions in felony cases in a Florida county found that statistically, a similar number of felony cases (82%) that go to trial are "easy" cases in which any finder of fact would reach the same result, but that the acquittal rate in other cases varied dramatically based upon the racial composition of the jury. This study provides further support for the hypothesis that close cases are more strongly influenced by the implicit biases of the fact finders than by their capacity to assess the facts accurately. Incidentally, this higher conviction rate is not particular to the United States, it has also been true historically in Japan during periods when it had a jury trial system, even though its legal codes use German legal codes as a starting point. I have personally had discussions with several South Korean and Japanese judges (while I was in law school and they were pursuing graduate law degrees in the U.S. while on sabbatical from their judicial positions) who say that they have a policy of alway believing the prosecutors in criminal cases and assuming as a starting point, at least, that any defense testimony that contradicts the prosecution's case is a result of lies by the defense witnesses, which doesn't speak highly for the accuracy of bench trials in criminal cases in those countries. An experienced judge argued in a law review article in the late 1980s based upon his lengthy career presiding over jury trials, that juries were more accurate. Probably the strongest argument he makes is that judges are prone to bias, in part, though what many people would now call the process of regulatory capture. Other experienced trial judges echo this positive assessment of juries as noted in a 2012 article, for example, noting that juries are often better grounded in the reality of everyday life and in community standards than judges. A 2007 study (full text here) reached a conclusion on the accuracy of jury trials in criminal cases based upon the a priori assumption that judges are at least as accurate as juries, which isn't helpful at resolving your question because it assumes the answer rather than proving it, but does shed some light on the minimum extent to which one or the other triers of fact would have reached the wrong conclusion: A new Northwestern University study shows that juries in criminal cases are reaching incorrect verdicts. The study, which looked at 271 cases in four areas of Illinois, found that as many as one in eight juries is making the wrong decision – by convicting an innocent person or acquitting a guilty one. In each case, while the jury deliberated, the judge filled out a questionnaire detailing what his or her verdict would have been had it been a bench trial. The verdicts only matched in 77 percent of cases. The study assumed that judges are at least as likely as a jury to make a correct verdict, leading to the conclusion that juries are only correct 87 percent of the time or less. The study was conducted by Bruce Spencer, a Northwestern statistics professor, and will be published in the July issue of the Journal of Empirical Legal Studies. Spencer said in a statement that it would take a much larger study to truly predict the accuracy of jury verdicts nationwide in all cases. The same 2007 study is also critically analyzed here, and notes that judges again are more likely to convict than juries in cases where defendants opt for jury trials (which they do about 90% of the time in criminal cases in state courts). A different 2007 study used evidence mostly derived from DNA based exonerations in capital rape-murder cases from the 1980s to conclude that the wrongful conviction rate in those cases following jury trials is 3.3% to 5%. Given that judges are much less likely to acquit than juries, this strongly suggests that the wrongful conviction rate for bench trials in serious criminal cases would be much higher than it is in jury trials. The methodology of the study doesn't make it possible to estimate the wrongful acquittal rate in jury trials which is further muddied by the question of the extent to which jury nullification, in the form of an acquittal of someone who is actually guilty beyond a reasonable doubt, is a legitimate exercise of mercy or is problematic - something also influenced by perceptions of where jury nullification is most common (e.g. this may disproportionately benefit police tried for crimes allegedly committed while carrying out their duties). It is worth noting, however, that juries in capital cases (i.e. those where the death penalty is a potential sentence) are systemically less pro-defendant than other juries because they are "death qualified" which is to say that people opposed to the death penalty are systemically removed for cause from the jury pool, which makes juries in capital cases more likely to convict than juries in other cases. This means that it is also probably likely that wrongful conviction rates are higher in capital cases than in other cases. Indeed, one reason that prosecutors choose to bring death penalty charges in a case is to increase the odds that a defendant will plea bargain to avoid the risk of the death penalty, and to increase the odds that the defendant will be convicted at trial, in a criminal prosecution where the evidence is factually weak compared to a typical felony case that prosecutors would bring. Yet another 2007 study concluded that: Drawing on a sample of 798 Ohio criminal justice professionals (police, prosecutors, defense attorneys, judges), the authors examine respondents’ perceptions regarding the frequency of system errors (i.e., professional error and misconduct suggested by previous research to be associated with wrongful conviction), and wrongful felony conviction. Results indicate that respondents perceive system errors to occur more than infrequently but less than moderately frequent. Respondents also perceive that wrongful felony conviction occurs in their own jurisdictions in .5% to 1% of all felony cases, and in the United States in 1% to 3% of all felony cases. Respondents, however, specify an acceptable rate of wrongful conviction to be less than .5%. A replication of this study with a survey of comparable Michigan officials published in 2008 gave rise to almost identical results. The review of literature in the 2007 paper surveying Ohio officials also notes the notable fact that 7% of convicted felons whose convictions are reversed on appeal and who are then retried before a new jury are acquitted (I don't have data breaking out the retrial results for capital convictions that are reversed on appeal and retried easily at hand right now), which provides another order of magnitude estimate of the reliability of jury trials (although, of course, cases reversed on appeal are by definition cases whose verdicts are not reliable for some specified reason, relative to cases in which convictions are not appealed or are affirmed on appeal). About 40% of criminal convictions following a trial are appealed (the appeal rate is very nearly 100% in death penalty cases). This is much higher than the rate of appeals of civil jury verdicts, in part, because convicted criminal defendants who cannot afford a lawyer are entitled to a direct appeal at state expense (although it can be pointless to do so if you already have a felony criminal record, you are likely to be released before the appeal is ruled upon after considering your sentence and time served, and your prospects of success on appeal are poor, which is the case in many minor felonies). About 8% of cases appealed in criminal cases result in a reversal of at least part of a trial court decision (although the figure is about 19% in death penalty cases). So, the odds of a criminal conviction following a trial being appealed, reversed on appeal, and then retried resulting in a conviction is roughly 0.2% (one in five hundred). There is also considerable evidence to support the hypothesis that certain facts patterns are much more prone to producing wrongful convictions than others. For example, excessive faith in eye witness identification of defendants (especially in cases of white witnesses identifying black defendants who are strangers to the witness) and scientifically unsound forms of expert testimony are particularly common causes of wrongful convictions. A 2010 review article examining 100 years of research on the question of wrongful conviction notes that "traditional sources of error (eyewitness misidentification, false confessions, perjured testimony, forensic error, tunnel vision, prosecutorial misconduct, ineffective assistance of counsel, etc.) are contributing sources, not exclusive causes, of wrongful convictions." A 1998 law review article looks at a small sample of convictions allegedly obtained with false confessions and also examines the tricky question of what "innocence" and a "wrongful conviction" really mean. For example, suppose that someone falsely confesses to facts that would make him guilty of first degree murder when in fact he was actually an accessory to manslaughter. He isn't truly "innocent" of any crime related to the death in question, but is likely to be convicted of a crime much more serious than the crime of which he is actually guilty. A 2006 law review article examining a single case in detail in the context of broader research finings comes to similar conclusions about high risk fact patterns, but throws in another - clusters of mass wrongful convictions driven by one or many deeply corrupt police officers in a single department who routinely lie and falsify evidence to obtain large numbers of wrongful convictions. A Wall Street Journal blog post from July 16, 2017 cites a Journal of Empirical Legal Research article in support of the proposition that juries get about one in six criminal cases wrong and that judges do only slightly better. Some studies have looked at indications that judges are not better than juries at accurately reaching correct outcomes that don't look at the actual outcomes themselves: In study after study, researchers have found more similarities than differences (see Robbennolt, 2006; Rowland, et al., 2010). For example: Retired judges were no better than college sophomores, teachers and other novices at spotting witness mendacity. Retired judges were no better than mock jurors at ignoring inadmissible evidence. Retired judges evince no greater understanding of the scientific principles underlying Daubert standards than do mock jurors. Moreover, social science research makes it very clear that many decisions by trial judges, federal and state, are affected by extra-legal political influences. For example: The decisions of Federal district judges, usually thought to be better trained and less susceptible to extra-legal influences than are their state counterparts, can for many case types (e.g., abortion) be predicted at a high rate of accuracy simply by knowing the judge’s appointing president. Elected state judges’ sentencing decisions change in tandem with the proximity of elections A comprehensive review of prior studies in a 2005 article reiterates almost all of the conclusions from various kinds of data reached above - i.e. juries are more lenient but their skills at assessing facts are similar to those of judges. Arguments For And Against The Jury System Unrelated To Their Accuracy A 2011 law review article reiterates that judges are far more likely to convict that juries, on average, which it argues is good even if it comes at the expense of lower accuracy. This article does not squarely address the real money question of whether judges or juries are more accurate in their decisions to convict or acquit defendants. The author argues that certainty of punishment is more important to deterring bad conduct than sentence length or the accuracy of the process. A 1981 article by John Langbein, one of the leading scholars in the field of comparing the European legal system (where serious criminal trials often involve "mixed courts" with a judge and lay judges serving together in a capacity that isn't quite a true American style jury) to the American legal system concluded that: The conclusion is that the mixed court serves the jury policies well, though not fully; and that it is a superior alternative to the indigenous nontrial devices-plea bargaining and bench trial-that have displaced the jury from routine American practice. It is also worth noting that one of the important justifications for using jury trials rather than bench trials or mixed trials, is that it enhances the institutional legitimacy of the judiciary, regardless of its accuracy, in a system where both triers of fact sometimes make mistakes. This is because in a jury trial system, an outcome that is perceived as incorrect can be blamed on the diffuse and effectively anonymous jury who cannot be held accountable, deflecting blame from judges who could be held accountable or whose bad decisions would reflect poorly on the judiciary, or the judge in question at least. It is easier to support the legitimacy of the judicial system if judges are rarely blamed for reaching the hard verdict in high stakes cases. Also, since juries deliver only a verdict, and not a detailed justification for their ruling as a judge in a bench trial must, the jury verdict, while less transparent, does allow people who might potentially agree with the result even if they wouldn't have agreed with the means by which that particular jury actually reached its decision, to give the jury the benefit of the doubt, again increasing popular acceptance of the result. | Are defendants legally obliged to provide all culpatory evidence to prosecution? The question here is whether or not all evidence requested by prosecution must be provided by the defense? If the defense plans on only using the evidence of the prosecution, does the prosecution get to demand evidence the defense would rather not release? No. Usually only specific kinds of evidence related to specific kinds of claims such as alibi evidence, an insanity claim, or expert testimony must be disclosed prior to trial by a defendant in a criminal case. A defendant in a criminal case does not have to disclose evidence harmful to the defendant's case prior to trial as a general rule. Sometimes there is a requirement to disclose witnesses anticipated to be called, or exhibits to be possibly used very shortly prior to trial, but that is more the exception than the rule. Does the answer depend on the whether or not the case is criminal or civil? Yes. A plaintiff in a civil case can compel disclosure prior to trial of all evidence in the custody, control, or possession of the defendant that is relevant or is reasonably calculated to be relevant to a disputed issue identified in the complaint, answer, and other pleadings (e.g. counterclaims, replies to counterclaims, third-party complaints, cross-claims, etc.). The scope of discovery is slightly different in jurisdictions that don't follow the federal model. This can include pre-trial depositions of the parties, although a defendant can claim the 5th Amendment at the risk of being exposed to an adverse inference communicated to the jury at trial if the defendant does so. Furthermore, most jurisdictions require the pre-trial disclosure of expert testimony that will be used at trial, of exhibits that will or may be used at trial, of witnesses who will or may be called a trial, of all documents that are relevant to a disputed issue identified in the complaint, answer, and other pleadings, of all insurance coverage that could cover the claim, of all persons with knowledge of the disputed facts, and of an expected damages calculation. In the federal system, however, one need pro-actively disclose only witnesses and documents that support your case without being asked. Is there consistency on this or is it at the discretion of the judge? The rules of procedure applicable to a case govern the scope of discovery, but judges have considerable discretion to determine that requests are excessive relative to what is at stake in the case, are irrelevant, or unduly burden some other legitimate interest of the person subject to discovery. Is there punishment for non-compliance? Yes. First of all, a failure to disclose when there is a duty to do so is a ground to exclude presentation of that evidence at trial. Secondly, in civil cases, attorney fees incurred to obtain the discovery can be awarded, facts that might have been disclosed can be declared to be true as a matter of judicial sanction where there is not disclosure, claims can be dismissed, etc. The main relevant federal rule in civil cases is Federal Rule of Civil Procedure 37. It is an unlawful request that must nonetheless be followed with only a hypothetical remedy left to the defendant as is the case in most of these united states to comply with an obviously unlawful arrest that doesn't present an immediate threat to life? I don't understand this long and convoluted sentence. The part about an unlawful arrest seems divorced from the issues in the rest of the the question. It isn't clear what kind of unlawful request is involved either. | There is virtually no chance this would be admissible. When a defendant argues that abuse at the hands of third party led to a mental defect that excuses her from culpability, the prosecution is free to rebut that argument. However, the prosecution's evidence must be relevant, i.e., it must have a tendency to make a fact of consequence more or less likely to be true. Here, none of the proffered evidence has any real bearing on any fact of consequence: The fact that the defendant is taller than the alleged abuser does not make it less likely that the defendant was abused. The fact that the defendant's "fake" voice (what does that even mean?) is deeper than the alleged abuser's does not make it less likely that the defendant was abused. The fact that young white women have more Tinder matches than middle-aged Indian men does not make it less likely that the defendant was abused. Even if you could find some thin reed on which to hang the relevance of these racial and gender stereotypes, the evidence would likely still be excluded under Rule 403, as the probative value would be so trivial that it would be outweighed by the likelihood of unfair prejudice or misleading the jury. | Prosecutions for falsely reporting rape are at least as common as perjury convictions (and usually don't count as perjury since the initial report is rarely made under oath), and even when charges are brought by prosecutors involving false statements made under oath, prosecutors tend to favor lesser misdemeanor false reporting charges over perjury charges. See, e.g., cases with news reports of such cases in Colorado and Wyoming on May 24, 2021, September 11, 2015, August 29, 2014, and March 18, 2008. This isn't to say that these cases are terribly common although they tend to generate headlines when they are brought. The State of Colorado commenced 1,801 felony sex offense cases in the 2021 fiscal year, for example, which was not atypical, and false reporting of sex offense cases are brought in Colorado maybe once every year or two. The conviction rate in sex offense cases that are prosecuted isn't 100%, but something on the order of 90%-95% of sex offense cases result in a guilty plea, and well over half of the remaining cases result in convictions at trial. As an order of magnitude estimate, perhaps one in fifty to one in two hundred cases where sex offense charges are pursued, but there is not a conviction, gives rise to false reporting charges against the alleged victim. Many acquittals and dismissals of charges that do occur are best characterized as cases where there is a reasonable doubt because jurors believe that it is reasonably possible that there may have been a good faith witness misidentification, or because charges were dismissed because a confession or evidence obtained in a search was unlawfully obtained and had to be suppressed. It would be very rare for a defendant to be acquitted (after a judge in a preliminary hearing found that probable cause was present) because the jury believed that the testimony of a victim was believed to be intentionally false, and there is no way to tell from the verdict itself that the jury reached this conclusion. The problematic aspect of charges of false reporting of sex offenses is the there have been famous instances of women being convicted for falsely reporting rape (see also here focusing on a different case), only to subsequently have the allegations for which the victims were punished confirmed to be true with DNA and other evidence. The number of cases where true allegations of sex offenses are made but not pursued because law enforcement finds the allegations to not be credible, almost surely greatly exceeds the number of cases where false reports of sex offenses are made to police, although this ratio varies greatly from one police department to another based upon the institutional culture of the police department in question. | There actually is a practical effect to a "not proven" v. "not guilty" verdict in Scotland, but it is mostly sociological or social in nature rather than legal. If your question is, are there future legal concerns, than no. Not proven is, to be sure, an acquittal. However, it is an acquittal that the tells the public something important: that the trier(s) of fact thought the person likely guilty. That's a fairly substantial distinction. In Scotland, a criminal case may be decided either "in solemn procedure", which is simply the Scot term for a jury trial v. "in summary" or in "summary procedure" which is the U.S. equivalent of a bench trial. The difference between the two (and the divergence from the U.S. procedural vehicle) is that for lesser crimes the accused doesn't have an automatic right of a jury trial for any criminal matter. In some ways this lesser included makes up for the fact that the Scottish accused is without absolute right to choose jury or bench trial, which in the U.S. can be very meaningful from a tactical perspective. Think of how important the make-up and emotional proclivities of juries are to both convictions and acquittals. A bench trial can be beneficial to the truly unlikable defendant, or in especially brutal crimes, where juries may convict out of fear or sympathy for the victim, even if the case is weak. At the same time, they may nullify the conviction for the sympathetic defendant. Juries are notoriously emotional and bias driven. Being able to choose a bench trial where the judge will follow the evidence and avoid the emotional response of a jury can be invaluable. Just as a sympathetic defendant can appeal to the emotions of the jury for acquittal or jury nullification, on the opposite spectrum. In Scotland, lesser crimes are always (with limited exclusions) tried by a judge, while more serious allegations always (again w/ limited exclusions) get a jury trial, automatically. The defendant does not choose the type of trial he is afforded. Hence, a defense or a prosecution cannot fiddle with the balance of proof based on emotion or lack there of. They get what they get. There are various rules procedurally that differ in comparison, but since this isn't the question that is the general rule and should suffice for background. Also hugely important is the fact that in Scotland, jurors decide a case by majority vote (like a civil trial in the U.S.); hence, there are no hung juries and they don't need a consensus. So, one way or another the verdict will be given in a Scottish criminal action. Scots also get comparatively huge juries to any other country (15 jurors) and they only need 8 in agreement to reach a verdict. Tactically, the "not proven" is a lesser included verdict (like U.S. uses lesser included charges in cases that are weaker for the prosecution). This lesser included finding can be used by choice when the Prosecution has a sympathetic defendant or when the defendant is probably guilty or unlikable. If the jury thinks the defendant (called "accused") probably did the crime, but the prosecution has failed to prove the elements, they can/will issue a "not proven" verdict. This sends a big message. This, again, is typically only reserved for those cases when there is strong but not conclusive proof that someone committed a crime. They don't want to profess their innocence with a not guilty verdict, so they are still acquitted, but with he stigma of the "not proven" verdict attached. Some estimates have from 1/5 to a full 1/3 of all acquittal verdicts by Scottish juries as "not proven" as opposed to "not guilty". Not proven can also be used by judges in the bench trial (summary procedure), however it's much less common. The proportion of 'not proven" acquittals in general is higher in the more severe cases; but so then are the proportion of acquittals versus convictions. These would likely be hung juries in the U.S.. Both in the "solemn" and the "summary" acquittals, not proven is interpreted as indicating that the jury or judge, respectively, is not convinced of the innocence of the accused; in fact, they may be morally or even factually convinced that the accused is guilty, but do not find the proofs sufficient for a conviction under the elements of the crime on the jury instruction/verdict form. I look at this as similar to the adage oft used in the U.S., which is an acquittal, despite the fact that the verdict is termed "not guilty" does by no means indicate the person is in fact "not guilty", it just means the prosecution couldn't prove its case. Sociologists in the U.S., as well as legal scholars, have studied the phenomenon, and it appears that most not guilty verdicts in fact let go a guilty person. This can be intuited by the evidence the jury never saw, either by suppression from bad searches, by the exclusion of witness testimony due to procedural rules like hearsay, privilege, etc., and other forms of keeping relevant evidence from the jury to protect the rights of the accused. But in the U.S. the person can go forth and say, "Hey, I was proven not guilty!" Scotland also has another interesting rule of criminal procedure, whereby a criminal can't be convicted without corroborated evidence. What this means is that if all the prosecution has is the victim witness, by way of proof, testifying, and no physical or corroboration testimony, Scottish law requires acquittal, but often will be so by the verdict "not proven". This is huge, if you think about it. Use, for example, a rape trial. A woman testifies, saying that Joe Schmoe climbed through her window and raped her. She knows Joe - he's her neighbor. Nobody saw him climb in. But she knows it's him. He leaves no physical evidence, having shaved his entire body and used appropriate protection (gloves, condemn, etc.). She has a rape kit done. Rape is obvious, but the only proof is her testimony. Joe goes free. But in Scotland, he goes free with a stigma attached. He's found "not proven" rather than "not guilty". I think this corroboration rule has a lot to do with why this verdict system still exists. In the U.S. the trier of fact would weigh the testimony and decide if one person was substantially more believable than the other, and a verdict would issue. That is a substantial difference, procedurally. Since Scotland doesn't have the hung jury because there is no consensus required they use the "not proven" in the same way a U.S. jury uses the hung jury when one or more jurors thinks the prosecution didn't prove their case but it's fairly clear the defendant is, in fact guilty. Then, you will often get a "hold out" juror, and since the U.S. requires a unanimous verdict, the hold out hangs the jury. It's sort of the opposite of jury nullification. The person knows that the evidence fell short, but their conscience can't reconcile letting the person go free, so they will vote guilty to hang the jury, almost ensuring the prosecution gets another shot. There has been a lot of debate about this three verdict system in comparative law circles, with many legal scholars saying it's antiquated. But I think it serves an important purpose. It carries the stigma of likely guilt for those people who probably committed the crime but got off. Further, the hung jury cost tax payers millions of dollars in the U.S., and this is often the side effect of people not wanting there to be absolutely no recognition of the fact that the accused probably committed (especially serious) crime(s). The Scots, on the other hand, have found away to accomplish this without the cost and emotional toll multiple trials takes on all the players involved, from witnesses and victims, their families, the accused, and even the lawyers and the prosecutions, who have to put in all the work of a trial just to start anew. Here is a really good scholarly article that deals with this interesting phenomenon not seen in (I don't believe) any other country: https://journals.iupui.edu/index.php/iiclr/article/viewFile/17848/18019 | Focusing on the part of the question where you say But my question relates to "evidence." That is, does "admissible evidence" have to be of the same or different standard in a civil versus criminal case there can be (are) some differences in admissibility between civil and criminal cases. Looking at the Federal Rules of Evidence, FRE 412, one cannot introduce "evidence offered to prove that a victim engaged in other sexual behavior; or evidence offered to prove a victim’s sexual predisposition", but distinct criminal vs. civil exceptions exist. For criminal cases, The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant’s constitutional rights. but in civil cases, In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy. Also, under FRE 601, Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision. which introduces an asymmetry between the two kinds of cases. There are also standards of admissibility that only apply to criminal cases and not civil ones (FRE 413, FRE 414) or only in civil cases (FRE 415) |
Who has jurisdiction on an International flight in international airspace in a sexual assault case? This question relates to a recent sexual assault case of a passenger on an airline from Newark, NJ to London, England as published at the Daily Mail. No details are available in this article as to the exact time or location of the airplane while the crime occurred, but based on the fact that allegedly the other passengers were as sleep, it is safe to assume that it occurred deep into the travel, and much earlier than the flight having reached the air of Ireland or the UK. What law would apply in the scenario when this occurs in international air space? Would U.S. and/or New Jersey law apply or international law or charges could be brought on each of these? Is it different if it flies under the flag of the UK? Or if it reached British airspace? | It depends Law in international airspace over international waters is the law of the country the plane is registered in - just like a ship is considered land of the registered/owner's country while in international waters. This is, according to the Britannica, also called the quasi-territorial Jurisdiction. So if this were a Lufthansa Flight, technically everything there happens in Germany under the Tokyo Convention and German Law (StGB §4) and the case can be held in Germany. For United Airlines it means, that the act happened in the US and if it was an Air Japan flight, it would be Japan, no matter in which airspace it happens. However, other laws might also make the law of other countries apply and put the people into the jurisdiction by virtue of law applying globally: if the perpetrator or victim were US citizens, any felony that happens between the two on that flight can also be prosecuted in the US, as they claim jurisdiction in those cases. Similarly, the UK and Germany have similar laws, in the latter case for only a subset of crimes (StGB §5, 6-11a). This is the principle of personal jurisdiction. But technically, the quasi-territorial jurisdiction can override that. And that again is overridden once the plane lands and enters the territorial jurisdiction of the harboring country. All involved countries can elect to prosecute or not, and there is no double jeopardy problem as we have separate sovereigns. Who is most likely to prosecute? Depends on the case, but in the least, the country of registration has Jurisdiction and will usually get the first crack at the case. However, extradition treaties and other treaties between two countries can give preference to the country of the nationals. BTW: we had pretty much the same question for murder on a plane. | Laws are different around the world and you didn't bother to state your location, but typically no- this is not how the system works. What would be the point? There's no defendant. You, the plaintiff would argue against thin air and then what? The court rules in your favour, declares this illegal, and nothing happens because there's no defendant. Is it so you can use this ruling if you find out later? Pretty sneaky. Let's look into how this would actually work. You bring up a case- Jackson vs a mannequin or something. You make your arguments. The defense makes literally no defense. The judge rules in your favour, with a result of nothing as there is no defendent. Next, you find the culprit and bring a case against them. You point out that this is illegal because we came to that decision last week. What's that defendant? An argument against it being illegal? Too bad, the decision has been made. When I posted this answer, it was before the "Nyah, I was ranting about government spying but was deliberately vague- aren't I clever?" comment and I assumed it was against, say, a neighbour but it doesn't really matter. You cannot have a system that makes a judgement without a defendant so it can be applied later. | There are some statutes that have a section that says "any violation of this action is punishable by . . . ." but the INA is not one of them. Generally speaking, the way it would be imposed would be: (1) to deny entry on a departing commercial airplane flight or ship (which is enforced by the private enterprises involved pursuant to Transportation Department regulations that the private enterprises may be sanctioned for not obeying) and (2) to set up presumptions about the reasonableness of, for example, laws requiring someone to have brought a passport to secure embassy access. One of the reasons that no penalty is stated is because the constitutionality of this statute is doubtful. Geographical restrictions on travel in some cases have been upheld as constitutional with regard to specific countries and in war time, but are even then strictly construed. But, no case has upheld the restriction as applied to travel to a country to which geographical restrictions do not apply. Likewise, I doubt that the provision denying entry to U.S. citizens without a passport, even during times of war, would be upheld today. For example, 215(b) was given a narrow construction (disallowing criminal prosecutions when someone went to Cuba and returned via a third-country while holding a valid U.S. passport) in part out of concern for the constitutional right to travel. U.S. v. Laub, 385 U.S. 475, 481 (1967). See also See L. Tribe, AMERICAN CONSTITUTIONAL LAW § 15-15, at 957 n.22 (1978) (arguing that ‘the power approved in Zemel must be limited to the most extraordinary situations'). For background see, e.g. Right to Travel Abroad, 98 Harv. L. Rev. 184, 195 (1984) (student note published anonymously) and Thomas E. Laursen, Constitutional Protection of Foreign Travel, 81 Colum. L. Rev. 902 (1981). The fundamental right of a citizen is to enter his own country so that he is not stateless with no place he can lawfully be, and that analysis has been developed more in the law now than it had been in 1967. Alternatively, could a judge impose a penalty without a statutory basis (beyond the designation of the act as unlawful)? Historically, some U.S. states provided this authority which was called the power to impose punishment for "common law crimes", and there are some that still do and there are others, such as Michigan that don't define key crimes that were crimes at common law, such as murder, other than in case law and simply set punishments by statute for these otherwise undefined crimes. As recently as 1947, a majority of U.S. states had at least some common law crimes. Many states codified their criminal laws in the wake of the Model Penal Code in the 1960s even though all states adapted it to their local needs and only a minority of states adopted a penal code close based upon it. The Model Penal Code made it easier to think of what had previous been an ill defined and massive legislative task into a more manageable and finite project for ambitious reformist legislators (an attitude and approach that was common in the U.S. in state legislatures in the late 1960s and early 1970s). But, the federal judiciary has never had this authority (as formally determined by the U.S. Supreme Court in 1812, just 23 years after the current constitution was adopted), in part, because the federal government does not have plenary legislative authority on all matters and federal courts are likewise courts of limited jurisdiction (while all or almost all states have at least one court of general jurisdiction that can handle any matter that no other court has jurisdiction to handle). From Wikipedia: The notion that common law offenses could be enforced in federal courts was found to be unconstitutional by the U.S. Supreme Court in United States v. Hudson and Goodwin, 11 U.S. 32 (1812). Some have argued that they are inconsistent with the prohibition of ex post facto laws. At the state level, the situation varies. Some states, such as New Jersey, have abolished common law crimes (see State v. Palendrano), while others have chosen to continue to recognize them. In some states, the elements of many crimes are defined mostly or entirely by common law, i.e., by prior judicial decisions. For instance, Michigan's penal code does not define the crime of murder: while the penalties for murder are laid out in statute, the actual elements of murder, and their meaning, is entirely set out in case law. | So, in England and Wales your son assaulted Mario. (From Wikipedia: "Assault is committed if one intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence". I expect Mario expected your son was going to thump him, and that would certainly be unlawful.) You were both trespassers on the property; however it sounds like there was nobody there who could require you to leave, so that probably doesn't matter. Both of these would be true whatever the age of your daughter. Finally, in England and Wales, if you had forced your 16-year old daughter to come with you against her will, you would both have been guilty of kidnapping. (16 is the age at which children become independent in terms of deciding where to go.) She can choose to leave home and live with her boyfriend, and there is nothing you can do to stop her. Edit: The question did not originally mention a jurisdiction. This is an area where the legal situation is likely to be very jurisdiction dependent. | The Vatican City State did this between 1929 and 1984, indeed for all aircraft. The Lateran Treaty of 1929, between the Holy See and the Kingdom of Italy, said (Article 7, paragraph 3): In conformità alle norme del diritto internazionale, è vietato agli aeromobili di qualsiasi specie di trasvolare sul territorio del Vaticano. In accordance with the provisions of International Law, it is forbidden for aircraft of any kind whatsoever to fly over the territory of the Vatican. The revision of 1984 did not preserve this provision (see its Article 13(1)). The present situation is that Vatican airspace, managed by the Italian national authorities, is subject to flight restrictions preventing low-flying aircraft and drones. So you cannot legally buzz St Peter's Basilica in your helicopter, but you could fly at a higher altitude in the normal way. (The restrictions are for anything below 3500 feet, and for comparison St Peter's is about 450 feet tall.) There are obvious exceptions for papal or other official travel, and Popes have used their own helicopters to travel in and out of the Vatican since 1976. Since 2015, the helipad has also been made available for emergency use by medical helicopters from a nearby children's hospital. That demonstrates the extent to which it is not available for routine travel. Therefore, I think that "flying there for business purposes, flying domestically, or leaving the country by helicopter" are all forbidden, unless you are the Pope or have his permission. You also cannot land or take off in a fixed-wing aircraft, but that's largely a matter of geography, not law: there is no runway. | Turkish airlines states its cancellation policies here – this is what appears to a person in the US, content in Nepal or elsewhere is anyone's guess. The possibility and cost of cancellation depends on whether the ticket is domestic or international, and what the fare class is. For example no cancellation with refund is possible under the international economy promotional fare. There are various charges associated with other fares. So, it is legal for them to refuse to refund a cancelled ticket, depending on the facts. Or there could be some charge for rebooking. An airline does not use force to compel a customers to do things, but they can legally make it inconvenient for you to obtain a refund or rebooking. There is no law requiring that transactions with an airline be concluded by phone call within some number of minutes, or online, or by going into an office. They also provide information on changing someone else's ticket here. Can I travel using a ticket issued in someone else’s name? Topic: Reservations and bookings Last modified: July 03, 2015 No, only the person whose name and surname is written on the ticket can use it to travel or make changes to the booking and route. For this reason, you can only travel using tickets issued in your own name. For more detailed information please visit our booking page. Although you may have paid for the ticket, it is not your ticket. This page also addresses buying tickets on behalf of a third party: I want to buy a ticket for someone living in a different city. Will they be able to collect the ticket in the city where they live? Topic: Reservations and bookings Last modified: July 03, 2015 The person you buy the ticket for can collect the ticket from their nearest Turkish Airlines sales office. This process can also be simplified by using an e-ticket. You can purchase an e-ticket in the other person’s name either online or from our call center. For more detailed information please visit our reservations page. The question about changing logs doesn't have an obvious answer, since said "log" is probably a company-internal record and not a governmentally-regulated record. It would not be legal to falsify evidence in a legal proceeding. In case of legal dispute, you can present whatever evidence you have that tends to support your side of the story, and the court will decide whose version of the story is most credible. | The details published in The Guardian today offer a little (but not much) hope that Competition & Markets Authority will force airlines to refund you. I live in a tier 4 area but was due to fly to Scotland on Wednesday. Can I get a refund? The airlines are only obliged to refund customers if they cancel the flight. The fact you cannot travel by law makes no difference as key workers will still expect to travel and therefore flights are still available. Ryanair is offering those in lockdown and unable to travel between now and Christmas Eve a fee-free switch to a new flight – but only until 15 March 2021. British Airways is offering vouchers to those who decide they no longer wish to travel. EasyJet customers are being offered refunds if the new restrictions mean it would be illegal to take a flight. However, if your airline is refusing a refund, rebooking option or voucher, it is worth notifying the airline that you cannot travel because of the restrictions and that you would like a refund or voucher. This is because the Competition and Markets Authority is investigating whether airlines should be forced to reimburse those in this position. You could find you receive a payout later. | AA "requests" that you remove batteries from checked laptops and put them in carry-on luggage. You must, per their contract of carriage, "comply with airline safety rules", and they say that they can deny you boarding if you do not comply, which includes "Are uncooperative, abusive, harassing, or show the potential to be while on board". You might then hope to sue them because you didn't violate any safety policy of theirs but they denied you your seat, but there's nothing in the contract that states "The following is a complete list of policies". You should discuss this in more detail with your lawyer, but on the face of it there is no legal recourse, except of course a refund. |
Who is liable for repairs upon death of landlord? My father passed away recently and he was the landlord of a commercial property. I am his only son and will inherit the property. However he did not leave a will and I have to apply for letters of administration. I have informed the tenant and have advised that in the interim rent should be paid to my account. Meanwhile the tenant is complaining about repairs that need be done. Am I liable for these? I have no idea if these problems really are new or existing prior to renting. | Your father's probate estate is responsible for the repairs (assuming that your father owned the property outright and not through an entity, in which case the entity would be responsible). To the extent you accept rent, you are effectively acting as an agent of your father's estate in anticipation of being appointed to administer his estate. As his likely successor in the intestate estate, you have an interest in making the repairs, if urgent and if this mitigates the long term cost of the repairs and of the liability to the tenant for not making repairs promptly, that you would ultimately end up bearing. Often, it is possible to get appointed fairly quickly, at least on an emergency or temporary basis pending a formal permanent appointment to administer his estate. Doing so, if you could, would take you out of the shadows of acting in reliance on your future authority to act on behalf of your father's estate that you have not yet been granted. If you accept rents and make repairs and then someone else ends up being appointed to administer your father's estate (e.g. because a will you didn't know about is discovered and appoints someone else) and if the person ultimately appointed is displeased with the actions you took without formal authority to do so, rather than ratifying those actions, you are in a bit of a pickle and could incur some legal liability to your father's estate that could reduce your inheritance if there are also other heirs. You also have the option of simply walking away from his estate, not trying to be appointed to administer it, and not trying to claim an inheritance. If you do that, you have no personal liability to your father's tenants at all. If the situation that your father left behind is a truly troublesome mess and his estate is probably insolvent, it may even make rational sense for you to do that. You can't be held responsible for inaction in any way other than the depletion of your inheritance that arises naturally from your inaction. If this is the case, however, you should not accept rents from the tenants or have any other involvement in the management of your father's assets. | A lease of land is not the same as a residential lease, the latter being strongly regulated by special laws. So caveat emptor is the default rule for land leases (see this article). You have to look at the laws of your state, but let's take Washington as an example. This is not a residential tenancy which is subject to different laws, it's just leasing land, similar to leasing a chainsaw or a car. Your implied warranty would be that the land is fit for the ordinary purposes for which land is used, and that is all. It might be worth wondering about whether building a cabin on the land changes your property tax liability. | The landlord might be able to sue the tenant for actual damages arising from the double occupancy, if utilities are paid by the landlord. Two people tend to use more water than one person. Establishing that there has been any loss would be tricky, but let's assume that there is evidence pointing to some dollar figure. Then the landlord might sue the tenant for causing this damage. | Your contract is between you and your landlord. Separately, the landlord has a contract between himself and the agency. Your obligation to pay rent is owed to your landlord, not to his agent. Ask your landlord to send you an email (if you don't already have one) which requests you to pay rent from X date onwards to him directly. Then pay him the rent in the way he has requested. Barring some unusual terms of the contract (which you haven't provided a copy of), the agent will not have any grounds to sue you. | Regular maintenance does not include repairs for being broken – I have a contract with a company that (for a monthly payment) provides regular maintenance on the furnace, which does not cover the situation where the motor wears out, or whatever. In the worst case scenario of an oil line breech, the tenant would not be liable for the tens of thousands of dollars of cleanup that would be required. Under Pennsylvania law, there is an implied warranty of habilitability, for example the landlord warrants that it doesn't rain inside the house, there is hot and cold running water, and so on. Safe heat is an example of something that is included in a place being habitable. This warranty is not waivable by lease provision (Fair v. Negley, 390 A.2d 240). However, the subjective recommendation of a repair guy has little legal cash value: what is needed is an arms-length evaluation of the safety and functionality of the system. If the recommendation is based on inefficient fuel use and long-term likelihood of eventual system failure, that is probably not sufficient to compel a repair. Excess CO on the other hand is a clear danger. The repairman should be able to at least explain the specifics of the improper setup and the consequences of doing nothing. Documentation of actions taken is a good idea. | This guide from Shelter lists the steps you should take. It can be summarised as: if the landlord fails to arrange the repairs, contact your local council. If they can't help, you can arrange the repairs yourself and request that the landlord reimburse you. If the landlord still refuses to co-operate, then you can pursue legal action. It's important that you document everything you're doing, and keep the landlord fully informed at every step. The guide states that you can deduct the cost from future rent. But it also says: You do not have the right to withhold your rent if your landlord refuses to do repairs. If you don't pay rent, the landlord could take steps to evict you. ...so you may want to get expert advice before going any further. | Jurisdiction: england-and-wales Preliminary issues Firstly, as some of the comments have highlighted, this could be a scam. I have personally come across such a scam on two occassions. The scammer rents a property short term (e.g. 2-3 weeks) on AirBnB. They then pose as a landlord or letting agent and advertise the same property as a long term let. They collect a deposit and rent from any person who wants to be a tenant. They may even copy the keys and give each "tenant" a set. On move in day, you arrive at the property to find that you are not the only person trying to move boxes in. It has always struck me that landlords are generally very careful to vet their tenants by checking ID, proof of address, obtaining references, and running credit checks. Yet tenants rarely do any vetting at all of their landlords. A very basic and easy check you can do is to purchase the title register (not title plan) for the property from the Land Registry. This costs £3 and will give you the name of the person who owns the property. If the property is an apartment then you will generally want the leasehold title register (not the freehold). Once you have the name, you can then ask your landlord to provide proof that they are that person. Secondly, you've tagged the question united-kingdom, but the UK is actually comprised of multiple legal jurisdictions and housing law varies among them (particularly in Scotland). I'm answering this on the basis of england-and-wales. Third, questions asking for legal advice on real situations are off-topic here. My answer will just address the general issues and shouldn't be taken as advice for your situation. Contract and due dates There is nothing in contract law which prevents obligations from arising before the date that the contract is agreed. It is not unusual for parties to draft contracts which govern past behaviour. In that sense, it is perfectly acceptable to agree a contract on 12 August which requires rent to have been paid on 8 August (albeit it would be inadvisable to agree such a contract as you would immediately be in breach if you had not already paid). On the other hand, a contract which purports to have been agreed on a date which is earlier than when it was actually agreed, can amount to fraud. I would be wary of a subsequent email which purports to allow a later due date which contradicts the contract. Unless there is a clause in the contract allowing for the landlord to postpone due dates, the email is unenforceable and your real due date is still 8 August. The attempt to change the due date is effectively a variation of the contract, and a variation which is not permitted in the contract itself needs to be executed as a second contract. That means you need all the elements of a contract: offer/acceptance, intention to be bound, and consideration. The problem here is the latter. The landlord is providing consideration (a later due date) but you are offering nothing in return. Holding the room "The agent told me they cannot hold my room too long due to the high volume of interest in booking the rooms." "Once you have signed this agreement you will be liable for the full rent set out in the agreement unless released from your tenancy by the Landlord or Management Company." These two positions are contradictory. If you agreed a tenancy (as implied by the second quote), then you have a contract which is legally binding on both parties. The first quote is incorrect - there is nothing to "hold" because the room is already yours. On the other hand, it may be that what you agreed was a holding deposit agreement (rather than a tenancy agreement) which is merely a commitment on the part of the tenant to forfeit a sum of money (which by law cannot exceed 1 week's rent) in the event that the tenant (as opposed to the landlord) decides not to proceed with the tenancy. The wording from the second quote (liability for full rent) implies that it is a tenancy agreement rather than a holding deposit agreement. Or, in the alternative, that it is an illegal holding deposit agreement which asks for more money to be forfeited than is lawful. You'll need to read your full contract to understand what it is. If it's a tenancy agreement, it will be obvious from the wording that you have actually rented the property. Obligation to pay rent "My question is do I have any legal responsibility to pay for the entire rent by the new due date (25 August) for APT1?" Unfortunately, if you have signed a tenancy agreement, then you are legally bound to fulfill your obligations under it (provided such obligations do not break the law). If it contains a clause stating that you must pay 51 weeks's rent, then that is what you must do. "If they told me they cannot hold my booking any longer, do I need them to confirm in writing that I'm released from the agreement?" As a general rule of contract law, nothing needs to be in writing unless (a) the law requires it to be in writing or (b) the contract requires it to be in writing. You agree non-written contracts all the time when you go shopping, use the bus, etc. The same applies to taking actions which are governed by a pre-existing contract e.g. giving your taxi driver verbal directions once you are en-route. The phrase "unless released from your tenancy by the Landlord or Management Company" says nothing about the release needing to be in writing; therefore it can be verbal (provided that there isn't another clause somewhere else in the contract which requires it to be in writing). Be aware however that verbal statements can be difficult to prove. | We don't want this issue to adversely affect our credit and got legal consulting which suggested we should pay the debt collector to protect our credit score, and then sue the landlord for the money back in small claims court. I'm a little worried about this strategy since it requires to hand away the money first, and am trying to get second opinions. The debt collector is probably either the owner of the claim against you, if it is an assignee of the claim, or an agent of the landlord for purposes of collection. Thus, payment to the debt collector is equivalent to payment of the landlord. The law varies from jurisdiction to jurisdiction regarding whether payment constitutes of waiver of a right to sue over the debt. Sometimes it is necessary to designate the payment "under protests" or "reserving all rights", but that is not a uniform rule of law that applies in all jurisdictions, and I do not have the time and familiarity with that state's law to research Massachusetts case law on that point accurately. |
How long have prisons (in the USA?) had this "open" concept? I remember this American TV show called "Oz". It was (or so I thought) about this fictional, experimental new kind of prison where basically the inmates live together and have large open spaces where they can walk around freely most of the time and interact with each other, and their cells are wide open for anyone to walk into except during certain "lockdowns"/sleep time. After watching some reality prison TV series in recent years, it seems like this is now a thing in reality. Now I wonder: Is this unique to the USA, or now common elsewhere? How long has this been done, as opposed to keeping all the inmates constantly locked in their own cells and only seeing each other when eating in a dedicated eating place or when brought outdoors once a day for an hour or so? If you get sent to such a prison, can you choose to get a normal cell if you don't want anything to do with these violent, crazy people? Or are you forced to endure that living nightmare and constantly be on guard? Even though it would be terrible to blocked in a little cell all my life, with possibly one other guy at worst, I'd definitely pick it over having to interact with all those scumbags all day, every day. What a true Hell... | Is this unique to the USA, or now common elsewhere? No. It is common throughout the developed world. How long has this been done, as opposed to keeping all the inmates constantly locked in their own cells and only seeing each other when eating in a dedicated eating place or when brought outdoors once a day for an hour or so? Before the late 18th century, imprisonment was not a punishment - it was a place where you were held while awaiting trial or punishment: execution, corporal punishment, humiliation or transportation. However, it was not uncommon for prisoners who had been acquitted to still be held because they couldn't pay the cost of their pre-trial imprisonment. The 1779 Penitentiary Act introduced solitary confinement, religious instruction, and a labour regime. These types of prisons were not actually built until the 19th century and saw increasing use as the death penalty became applicable to fewer and fewer crimes. These types of prisons spread across the western world and it is this 100+-year-old image that you are thinking of. However, for some reason, solitary confinement and individual prayer seemed to cause no improvement in the moral state of prisoners. Therefore, since the early 20th (yes, 20th) century most prisons had communal mess halls and recreation yards for use on the weekend. In most, prisoners worked during the week, around the prison or outside in things like quarries and road construction. Starting in the late 20th century "hard labour" was largely done away with and prisoners were offered work or education opportunities. They were confined to their cells at night in medium-security and higher-level prisons but low-security prisons often work on an honour system and cells are not locked. Developments such as day-release and weekend detention have influenced prisons. Many northern European countries have literally open prisons where you are free to come and go so long as you spend the nights there. Only the worst of the worst are kept in super-max prisons and only the worst of them are kept to their cells and isolated from the rest of the prison population. Those are the people who get 1 hours recreation only. That said, prisoners have rights and their physical and psychological well-being are the responsibility of the State. Doctors and psychologists examine prisoners and balance risks to society against the rights of the prisoner. I've worked inside super-max prisons as a contractor and they are bleak and scary places but most inmates are free to roam around the grounds and other common spaces. I've also worked in low-security prisons and they are very different - still not nice places but spartanly comfortable. If you get sent to such a prison, can you choose to get a normal cell if you don't want anything to do with these violent, crazy people? Or are you forced to endure that living nightmare and constantly be on guard? You're a prisoner. One of your punishments is having your freedom of choice taken away from you. The system will tell you where you sleep, where you eat, where you can go and when you can go there. If you are a "violent, crazy" person then you will be in a super-max prison with other "violent, crazy people". If you are a white-collar criminal, you won't be. | Even if unlimited resources were available, in order to have a fair trial, the prosecution and defense both need time to prepare their cases, research the law, conduct investigations, gather evidence, interview witnesses, seek out experts, order forensic tests, etc, etc. And there will be pretrial motions that have to be prepared, argued, and judged. You have to figure out what's going to happen to the defendant during that time, be it detention, release, bail, or some other alternative. Shortages of personnel obviously exacerbate the delays, but even without that issue, it's not like the courts could try every defendant on the spot. That would be something like the Wild West, or the Dark Ages; certainly not what the modern world considers justice. | Q: Why don't US prosecutors press for imprisonment for crime in the banking industry? Q. Why aren't US prosecutors (and UK prosecutors for that matter) not pressing for imprisonment in such cases? Is this because there are no such laws under bankers can be so indicted (notably, in the case reported on above, there is the additional complication of extradition) . . . ? Prosecutors have the legal authority to prosecute bankers for crimes, and not infrequently do press charge bankers with crimes and press for imprisonment for crimes in the banking industry, and have obtained many very long prison sentences in cases like these. For example, "following the savings-and-loan crisis of the 1980s, more than 1,000 bankers of all stripes were jailed for their transgressions." And, in 2008, the laws involved were, if anything, easier to prosecute and had stricter penalties than they did in the 1980s. There were 35 bankers convicted and sent to prison in the financial crisis, although arguably only one of them was really a senior official. This said, the real question is not why they don't do this at all, but why prosecutors exercise their discretion to refrain from seeking imprisonment or lengthy imprisonment, in cases where they either have a conviction or could easily secure a conviction. A former justice department prosecutor (in the Enron case) argues in an Atlantic article that it is harder than it looks. But, he ignores the fact that a lot of people looking at the very Enron case he prosecuted after the fact has concluded that the criminal prosecution may have done more harm than good, leading to significant harm to innocent people (for example by destroying the careers and wealth of Arthur Anderson accountants who had no involvement with the case, due to a conviction that was ultimately overturned on appeal). This changed the pro-prosecution of corporations attitude that had prevailed before then (corporations are easier to prosecute than individuals since you don't have to figure out exactly who in the corporation committed the wrong). This time, regulators and securities law enforcers sought mostly civil fines against entities with some success: 49 financial institutions have paid various government entities and private plaintiffs nearly $190 billion in fines and settlements, according to an analysis by the investment bank Keefe, Bruyette & Woods. That may seem like a big number, but the money has come from shareholders, not individual bankers. (Settlements were levied on corporations, not specific employees, and paid out as corporate expenses—in some cases, tax-deductible ones.) The same link also points out the two very early criminal prosecutions against individuals resulted in acquittals by juries at trial, for reasons that may have been very specific to those trials, undermining the willingness of prosecutors to press even strong cases for almost three years and undermining the credibility of their threat to prosecute criminally. Also, this is not a universal rule. For example, China routinely executes people who are convicted in summary trials of banking law violations and corruption charges. Q. Is this due to the principle of limited liability? No. Banking officials in a limited liability entity (and all banks are limited liability entities) can have criminal liability for acts in violation of banking and fraud laws, notwithstanding limited liability. Is this because . . . powerful vested interests prevents the actual execution of the law as it is intended? If so - how exactly are they prevented? This does happen but not often. Sometimes this happens, but not very often. The corruption angle is a popular narrative on the political very progressive left of American politics, but as I explain below (as you note "Chomsky, the formation of Western capitalism was in large part by due to "radical judicial activism".", and Chomsky is a very left wing social and economic historian almost to the point of Marxist analysis), this visceral narrative isn't really accurate most of the time. First, for what it is worth, the prosecutors play a much larger role in this than "activist" judges do. Secondly, the decision making process is more nuanced and less blatantly corrupt and self-interested than his attempt at "legal realist" analysis would suggest. There are legitimate reasons for someone in a prosecutor's shoes to focus less on these cases, even if in the end analysis you think that they have made the wrong choices in these cases. The case for prosecuting banking fraud severely is basically a utilitarian one, but criminal prosecution is guided by norms beyond utilitarian norms. There are certainly cases where an elected prosecutor or high level elected official is persuaded not to bring criminal charges or to be lenient due to pressure from powerful vested interest. When this is done, a white collar criminal defense attorney, or a "fixer" who deals with political sensitive cases (sometimes on an elected official's staff and sometimes not), or an elected official or political party official contacts the prosecutor or the prosecutor's boss or is the prosecutor's boss, and based upon the plea from the powerful interests (direct or indirect) urges the prosecutor to back off and the prosecutor complies. At the most extreme level, a Governor or President or parole board can pardon someone facing prison for banking crimes, which has happened, but is extremely rare. But, this sort of direct intervention in an individual case is not terribly common. My guess would be that 1% to 10% of banking prosecutions are affected by this kind of influence particular to a given case. This is far too small a number of cases to reflect the reluctance of prosecutors to bring criminal bank fraud cases that we observe. More Often Policy Decisions Are Involved Budgets And Institutional Case Prioritization Much more common would be for the elected prosecutor or the administration that employs an appointed prosecutor to decide to deprioritize a particular kind of case and/or to reduce funding (both at the law enforcement/regulatory agency level and at the subdepartment of the prosecuting attorney's organization level) for prosecution of these kinds of cases as a matter of broad policy. Every prosecutor's office and law enforcement office on the planet has more crimes that it could prosecute and pursue than it has resources to do so, so it is always necessary to have some kind of priorities to decide which of those cases will be pursued. For example, perhaps the Justice Department funds a white collar crime enforcement office with the resources to prosecute only 750 cases a year, and there are 7,500 strong cases that the offices could prosecute. The white collar crime prosecution office has to then prioritize which of the 7,500 strong cases is chooses to pursue. It might, for example, in good faith, decide the focus on white collar crime cases that harm "widows and orphans" and other large groups of people who can't afford to hire their own lawyers to bring civil cases to sue the wrongdoers themselves to mitigate the harm that they suffer. More specifically, a policy set in place by Deputy Attorney General Eric Holder in the Justice Department in 1999 was followed: The so-called Holder Doctrine, a June 1999 memorandum written by the then–deputy attorney general warning of the dangers of prosecuting big banks—a variant of the “too big to fail” argument that has since become so familiar. Holder’s memo asserted that “collateral consequences” from prosecutions—including corporate instability or collapse—should be taken into account when deciding whether to prosecute a big financial institution. That sentiment was echoed as late as 2012 by Lanny Breuer, then the head of the Justice Department’s criminal division, who said in a speech at the New York City Bar Association that he felt it was his duty to consider the health of the company, the industry, and the markets in deciding whether or not to file charges. This was a top level policy choice made a decade before the Financial Crisis arose, not an individualized act of corrupt interference. Advocacy From Representatives Of Victims Another common voice for leniency are lawyers on behalf of victims of white collar crimes (I've been in this spot myself on behalf of clients). Why? Mostly for two reasons: People in prison don't make future income to compensate the victims out of. People prosecuted criminally pay fines and court costs that don't go to the victims and reduce the pool of available funds for the victims. The private lawyers representing victims recognize that not prosecuting a white collar criminal leaves that person at large to commit future economic crimes (white collar criminals are rarely a physical threat to the people in the community around them or to anyone who doesn't do business with them) and that it fails to strongly discourage others from doing the same thing in the future. Institutional victims of banking crimes and other white collar crimes may also urge prosecutors not to prosecute the crimes that victimized them, because they fear that the publicity would harm them more than the criminal penalties for the offender (whom they have ample means to sue in a civil action) would benefit them. The fact that victims seek leniency more often in white collar crime cases than in almost any kind of case (other than domestic violence cases, where victims also often urge leniency out of love and as a result of their economic dependency on the perpetrator), often causes prosecutors to determine that criminal prosecutions seeking long prison sentences are not a priority for the victims of these crimes and to prioritize their case loads accordingly. To get the $190 billion of settlement money that was paid from individuals would have required convictions of 1900 people capable of paying $100,000,000 each in 1900 very hard fought individual criminal cases, instead of 49 civil cases. This may or may not have been possible, as the most culpable figures were often in upper management, while the most affluent potential defendants were in top management and would have been harder to pin with personal criminal liability. Many top managers are relatively hands off in their management style and didn't get into the culpable criminal details. There are plenty of very influential and powerful bankers who were highly culpable who would have had less than $10,000,000 of net worth, much of which wasn't tainted with improper conduct, which isn't to say that prosecutors couldn't have seized it from them for fines and restitution, but it does make the moral case for doing so less clearly compelling. Evaluating Priorities For Limited And Expensive Prison Resources Prosecutors sometimes reason in white collar crime cases that keeping a white collar criminal in prison is very expensive to the state (up to $70,000 per person per year), and doesn't change the risk of physical harm to the general public, and that a felony conviction itself and fines and publicity and probation conditions are often sufficient to mitigate the risk that the convicted person will reoffend and to discourage others from doing the same thing in the future. Parole boards, in systems that have them, often release white collar criminals as early as possible, applying the same reasoning. Also, white collar criminals tend to be model prisoners. An incarcerated white collar defendant is also depriving the public of tax revenues on income that person would otherwise receive if out of prison. A long prison sentence can victimize the public economically in amounts comparable to a moderate magnitude economic crime. Crudely speaking, prosecutors reason: "Why spend huge amounts of scarce prison money to lock someone up when we have murders and rapists and people who steal things at gun point and violent criminals who seriously injure people without justification who really need to be our priority to get off the streets? The devious and dishonest banker doesn't present the same sort of risk to the general public and his conviction and probation conditions should suffice to prevent him from having the ability to do this in the future." Social Class Bias Yet another reason is that often prosecutors and the people who set policy for prosecutors don't see white collar crimes as culpable in the same way that they do blue collar crimes. Most prosecutors spend the vast majority of their careers prosecuting blue collar criminals, terrorists and the like. These are people from a different social class, who live lives very unlike their own, and the people who are victimized by these crimes tend to be middle class or more affluent people and businesses. Banks, for example, are routinely victims of armed robberies which prosecutors prosecute, and of embezzlement by low level employees, which prosecutors prosecute. Bankers socio-economically and culturally are a lot like the prosecutors themselves (who are lawyers), their peers, and the victims they usually defend, and are rarely like the people that they usually prosecute (lower class, often minority people, who have never worked in an office, failed in school, are quick to anger and hurt others, etc.). At an individual case level, a white collar criminal defense lawyer can often marshal very impressive character witnesses to say that the defendant is basically a good guy who messed up once, while this is frequently very difficult for blue collar criminal defendants to do in a way that really reaches prosecutors and judges. The bottom line is that prosecutors (and judges, many of whom are former prosecutors) sympathize with, understand and relate to white collar criminals far more than they do with ordinary blue collar criminals. And, this colors their judgments about what kinds of punishments (criminal or non-criminal) are appropriate for the kind of conduct that these people commit. Their instinct is that a crime that might be committed by someone like me is probably not as serious as a crime that a judge or prosecutor would never dream of committing like an armed robbery of a bank, even though economically, the banking fraud crime may have caused $500,000,000 of harm while the armed bank robbery may have caused only $5,000 of harm. | Maybe. There are two questions presented. The first is whether someone who is in prison for a felony may be admitted to the practice of law. There is not a categorical prohibition on doing so. Instead, a character and fitness committee in each state to which an applicant seeks admission (even if it is a reciprocal admission) considers an applicant on a case by case basis. Usually, people with a felony conviction that is being served or is recent are not admitted to the practice of law, but it is not a blanket prohibition, so that could happen, although it would be highly unusual. The second question is whether someone admitted to the practice of law in good standing who is incarcerated in prison would be allowed to do so by prison officials. The work the inmates are allowed to do is largely in the discretion of the prison warden at a particular institution. It isn't inconceivable that a prison warden could allow an inmate to do this subject to significant limitations on scope of practice, but again, it would be highly unusual. Some factors that might encourage a prison warden to allow it would be that: (1) the state has to pay another lawyer to represent inmates in some kinds of cases if the fellow inmate does not at greater expense per hour to the state, (2) it might promote rehabilitation and garner good press, and (3) the prison warden might reasonably guess that an inmate represented by a fellow inmate is less likely to prevail on the merits than an inmate represented by another lawyer and might prefer that outcome. The leading treatise on the subject of lawyering by inmates, with and without full or limited admission to the practice of law, is the Jailhouse Lawyer's Manual. | 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. | The Fifth Amendment only protects you against being compelled to testify by the government. So unless Wonder Woman is acting on behalf of the government, information obtained through the use of the Golden Lasso is admissible. The question about whether she has been "deputized," is not the right one. Rather, the question is whether she is a "state actor." The answer to such a question is not always clear, as courts may ask a variety of questions to reach it: Is the actor paid by the government? Directed by the government? Assisted by the government? Acting under some power established by law? Also, is it "fair" to attribute that actor's actions to the government? Lugar v. Edmondson Oil Co., 457 U. S. 936 (1982). Undoubtedly, there are occasions in Wonder Woman's history where she has worked closely enough with the police that a Golden Lasso confession would be inadmissible. And there are many times where she was working so independently that a Golden Lasso confession would be plainly admissible. I don't remember the exact circumstances of the confessions you're talking about, but if they were from the "small group of reactionary terrorists" I remember from the beginning of the film, I can't think of any basis for excluding their confessions. Wonder Woman came on scene independently, took control and subdued the suspects without any police direction or assistance. Unless the police later asked her to assist with the interrogations, those confessions could not be "fairly attributed" to the government. (All of this is of course ignoring the fact that the crime and confessions occurred outside of the United States and are therefore not covered by the Fifth Amendment.) | united-states He'd be looking at ~6+ more years in prison in the second scenario In the United States, this would be attempted murder in both cases, though in the case of actual physical harm, the prosecutor could charge related offenses such as battery, which is "an intentional offensive or harmful touching of another person that is done without his or her consent." Note that though most attempted murders would likely be state crimes, I'm going to answer the rest of this from the perspective of a federal prosecution for attempted murder. The result would likely be similar for states, though the exact mechanism would be different. Sentencing for people convicted of serious federal crimes is guided by the United States Federal Sentencing Guidelines. An "offense level" is determined, then combined with the offender's criminal history and checked against the sentencing table to determine a suggested sentencing range for the judge. Specifically, for Assault with Intent to Commit Murder; Attempted Murder, §2A2.1. states that: (a) Base Offense Level: (1) 33, if the object of the offense would have constituted first degree murder; or (2) 27, otherwise. (b) Specific Offense Characteristics (1) If (A) the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) the victim sustained serious bodily injury, increase by 2 levels; or (C) the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels. (2) If the offense involved the offer or the receipt of anything of pecuniary value for undertaking the murder, increase by 4 levels. So in this case, it sounds like Joe suffered a life-threatening injury in the scenario where he got shot. Let's assume that this is Bob's first offense, and that it would have constituted first degree murder. If Bob missed, he'd be looking at 135-168 months (11.25-14 years) in prison. If he shot Joe successfully, he'd be instead looking at 210-262 months (17.5-21.83 years) in prison. | If I were a federal prosecutor (which I'm emphatically not), I might try to charge you under 18 USC § 32 (a) (5): a) Whoever willfully— [...] (5) interferes with or disables, with intent to endanger the safety of any person or with a reckless disregard for the safety of human life, anyone engaged in the authorized operation of such aircraft or any air navigation facility aiding in the navigation of any such aircraft; [...] shall be fined under this title or imprisoned not more than twenty years or both. Since you clearly know, or believe, that this has the potential to interfere with piloting, which would obviously be a serious danger to people on board the aircraft, I'd argue you would be acting with "reckless disregard for the safety of human life." If your conduct results in anybody's death, then life imprisonment and/or the death penalty are also on the table, under 18 USC § 34. |
Can I frame my app business as a nonprofit if users can choose the amount to pay to download my app? This question is inspired by the website https://elementary.io where you can set the amount you want to pay to download the product, which is by default set to $20, and you can even set it to $0 in which case, if you look closely, the button to the right will change from "Purchase elementary OS" to "Download elementary OS". This makes it confusing to me, if I set up a similar business model, are users really "purchasing" my product? Or can I say in my About page that we are a nonprofit who users can donate to if they want, but it's not required to download our app? I don't want donations to be a separate element or page because... if it's more streamlined, maybe one or two more users will consider donating. | Being a "non-profit" organization, in the US at least, does not mean you don't make a profit. There are plenty of for-profit companies that don't make a profit. What it means is that you have filled out the paperwork with the IRS and other interested parties in your city, county, or state, that says your organization is a non-profit. That invokes certain rules as to where and how the funds you receive must be spent. It also relates to your purpose as an organization. If it's to "sell some software" then you likely don't qualify as a non-profit. If it's to reduce illiteracy in your community, that likely does. If you intend to pursue becoming a non-profit, you should consult a local attorney who is experienced in these matter so that you do it properly. I also caution you about using the term "non-profit" or "not-for-profit" or any variation of this as you may run afoul of various laws governing such organizations. Presenting yourself or your company as something that it's not is likely to cost you dearly. What you are describing is more commonly known as "shareware" where users pay for the product, usually software, if they want to. In some cases paid users get more functionality. How much users pay also falls into this category. | No You are limited to “your ... use only”. You are not given permission to make this available for 3rd parties either commercially or for free. | Making a profit does not make the act illegal: it is illegal without there being any profit. The act of copying without permission is what makes the act illegal. Profit might maybe enter into the matter if you are talking about the "fair use" defense, since certain kinds of works can be partially copied for certain purposes. You could quote a few lines from a novel in a review, for instance. The judgment of whether a given act of copying without permission is allowed under fair use is complex and involves a balancing act. Profit becomes relevant in that a non-profit use favors fair use and a for-profit use disfavors it. Wholesale copying of works of art as you describe is illegal (is infringement). However... "illegal" is a pretty broad concept. If you infringe on my intellectual property, you almost certainly will not suffer any consequences unless I sue you. Taking "illegal" to mean "in violation of the law", infringing copyright is illegal because it violates the law, but I have to make a federal case out of your infringement – I have to sue you. As it happens, it can also be a crime to infringe copyright, and in that case, the government and not the copyright holder pursues the matter. If a person knowingly infringes copyright, he might be prosecuted, thus the Megaupload case which in the US is realized in the indictment US v. Dotcom. Moreover, profit motive is a required element for criminal infringement. (Also note that you don't have to actually make a profit for the profit element to be present). You cannot sue a person unless they have harmed you, so if you know that Smith copied Jones' work you can't sue Smith for harming Jones. (This is what they call "standing"). You might sue Smith, but not for infringement itself. If they sold you an illegal infringing copy, then you could sue. Or, their infringement could diminish the value of your legal copy. This website gives a multi-nation overview of criminal copyright infringement laws. | You are making an argument along the lines of promissory estoppel, but this requires reliance on a promise (roughly). From Google's Developer Distribution Agreement: Google reserves the right to suspend and/or bar any Developer from the Store at its sole discretion. From Apple's iOS Developer Program Agreement: You understand and agree that Apple may, in its sole discretion, reject Your Application for distribution for any reason Apple and its licensors reserve the right to change, suspend, remove, or disable access to any services at any time. Neither company makes any representation or promise that a developer will have the right to distribute their product through these official stores. It is irrelevant that an app happens to not violate any terms of the agreement. Even if you demonstrated this, distribution of an app through the official stores is at the sole discretion of Apple and Google. | StackExchange probably has no obligation to continue to provide the content, however StackExchange probably cannot stop copies from continuing to be used, reproduced, etc. from the Terms of Service (click on Legal below): You agree that all Subscriber Content that You contribute to the Network is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license. Bold added by me. The content is licensed to SE, unlike some sites where you transfer ownership of content to the site. SE can continue to use your data, but you still own the copyright. They can't limit your use of your own content, because you remain the owner. SE cannot use your content in a way that violates the Creative Commons Share Alike License, but I don't see any limitations on how SE makes your work available, including to a limited audience. They could, for example, probably move to a paid model because there are no commercial exclusions (unlike the Creative Commons non-commercial variations of the license). You could post a copy of SE content elsewhere, as long as you adhere to the requirements: In the event that You post or otherwise use Subscriber Content outside of the Network or Services, with the exception of content entirely created by You, You agree that You will follow the attribution rules of the Creative Commons Attribution Share Alike license as follows: You will ensure that any such use of Subscriber Content visually displays or otherwise indicates the source of the Subscriber Content as coming from the Stack Exchange Network. This requirement is satisfied with a discreet text blurb, or some other unobtrusive but clear visual indication. You will ensure that any such Internet use of Subscriber Content includes a hyperlink directly to the original question on the source site on the Network (e.g., https://stackoverflow.com/questions/12345) You will ensure that any such use of Subscriber Content visually display or otherwise clearly indicate the author names for every question and answer so used. You will ensure that any such Internet use of Subscriber Content Hyperlink each author name directly back to his or her user profile page on the source site on the Network (e.g., https://stackoverflow.com/users/12345/username), directly to the Stack Exchange domain, in standard HTML (i.e. not through a Tinyurl or other such indirect hyperlink, form of obfuscation or redirection), without any “nofollow” command or any other such means of avoiding detection by search engines, and visible even with JavaScript disabled. Making a complete copy of SE would seem to be within the terms of the license, as long as all the requirements for attributing, linking, etc are met, so you could mitigate the risk of the SE material going away in that manner. | If the blog author holds the copyright on the ebook, they can distribute the ebook anyway they choose, either via download from Github or elsewhere, or sell it in an online store. They hold the copyright, they alone can decide how to distribute it. If they also sell the ebook in the Microsoft press Store, they may have an agreement with the store to also allow their own free downloads; it's hard to say without knowing the agreement. If there are ebooks on Githb available for viewing or download, the owner of the Github page should hold copyright of the ebook, both 1) for their own protection against copyright infringement, and 2) to not break GitHub's TOS against copright infringement: https://help.github.com/articles/github-terms-of-service/#f-copyright-infringement-and-dmca-policy | You're misreading the law. You need to keep reading the section you referenced (emphasis added): The disclosure...shall be made in writing and delivered through the consumer’s account with the business, if the consumer maintains an account with the business, or by mail or electronically at the consumer’s option if the consumer does not maintain an account with the business Thus, the option to have the disclosure sent by mail only applies to consumers who do not have an account with the business. Since presumably a large number of sites only maintain personal information for users with accounts, such sites need not provide a mail option. Further, it doesn't say there needs to be a button: you just need the ability to say you'd like it mailed to you in the request somehow, and then they need to comply when you do. | There is no contract between you (the licensee) and the licensor of the software. The creator of the open source software just says "here's the software, you may use it if you like, as long as you fulfil some conditions. ". No contract, no liability. I think the developer would only be liable if they intentionally created software that causes damage. (Which has happened, some open source browser plugins have recently been modified to run bitcoin mining software, or worse. I suppose the miscreants could follow all the GPL rules or whatever license is used). |
Stealing my own property back? I have a guitar that I let my friend Joe borrow on the consensus that he would return it in a couple of days. Joe is a mutual friend of my ex Bob. Bob stole the guitar from Joe once he found out it was mine, and is now not allowing either me or Joe to get it back. Since I know Bob's family, they would gladly allow me inside their house. If I were to go to Bob's house while he was at work (for my own safety as Bob is aggressive,) knock on their door and ask his family if they would allow me to retrieve my guitar. Would there be anything illegal about that situation? I wouldn't be breaking and entering, and from what I have read there are no laws against taking your own property back as long as you do not commit another crime such as trespassing/breaking and entering while doing so. | No. This would not be illegal. You are not trespassing or breaking and entering since you have permission to be on the premises, and you are the rightful owner of the guitar so you are not depriving him of property that belongs to him. If you did this with the assistance of a law enforcement officer, rather than Bob's family, without a court order describing the property to be retrieved, this would be called a "civil assist". If the guitar were collateral for a loan, it would be a self-help "repossession" (a.k.a. "repo") authorized by the Uniform Commercial Code if it could be accomplished without a breach of the peace, and it would not require a court order. If you did this pursuant to a court order the case you brought to retrieve the guitar would be called a "replevin action" and you would also need to obtain a "writ of assistance" to authorize a trespass in the presence of law enforcement to retrieve the guitar. Also, Bob would still be be guilty of the crime of theft of the guitar, even though you got it back, because he took it with an intent to permanently deprive you, its owner, of the property that belongs to you. You could also probably sue him for conversion or "civil theft" in some jurisdictions, but your damages would be nominal except for punitive or statutory damages under a civil theft statute, because you ultimately got the guitar back, and so you suffered only minimal economic harm. | 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). | Both the police and the courts are likely to look at the situation as a whole, rather than adopting any policy specifically in relation to drivers or owners. For example, it's unusual for people to rent cars to their friends for months on end. That might suggest there is something untoward about the arrangement. Is there evidence of the commercial arrangement, or is the owner pretending to have rented the car out for months, when in reality they had stashed the drugs then let a friend borrow the car for a day? It would also be unlikely for a drug dealer to stash a large amount of drugs in a car then lend the car out on a long-term basis, so if the car is out of the owner's hands, that would tend to suggest the drugs belong to the person in possession of the car (and not the owner). But if the amount of drugs were small, typical of personal use, then it becomes more credible to imagine they could be forgotten by the car owner before lending the car to a friend. Police intelligence might also have a bearing. Does one party or the other have known links to the drugs trade? Also, is the lifestyle of one or the other, in particular, inconsistent with known sources of legitimate income? My point with all these questions is to highlight how sensitive the issue is to the fine details of the circumstances, and that it's impossible to give a strictly general answer. | An officer is allowed to pull you over for speeding and then decline to give you a ticket for speeding. So the lack of a ticket has nothing to do with it (unless you actually weren't speeding, not even 1 MPH over.) Simply having past felonies, however, is not a reason for an officer to be able to search the car. Without a warrant, he'd need probable cause, consent, or some other exception to the warrant requirement. It's impossible for me to say what happened here. Maybe your husband had an outstanding arrest warrant? Maybe the officer saw the gun from outside the car? Maybe one of you said "OK" when he asked to search the car? Or maybe the search was illegal after all? | I am unfamiliar with specifically US laws on this but under common law (which US law is derived from) there is the crime of "Theft by Finding", however, because you turned it over to the authorities who, after the required time period were unable to find the rightful owner, the money becomes yours. However, you still have to pay your taxes on it: http://www.foxbusiness.com/personal-finance/2014/07/03/found-money-is-awesomebut-must-pay-uncle-sam/ As far as I can see, income is income whether it comes as cash, diamonds or long lost antiques. As far as the money laundering aspect, that is something the authorities would need to prove - as opposed to you just being lucky. | Maybe, Hence the Lawsuits In the absence of clear statute law these all circle around tort law. For the scooter companies, trespass to chattels, and for the affected landowners (who hire the removalists) trespass to land and nuisance seem applicable. In essence, I can’t take your stuff (trespass to chattels) but you can’t leave your stuff on my property (trespass to land) or impeding access to it (nuisance). If you do, I am entitled to the reasonable costs of dealing with it. Note that, as owner, you remain responsible for you stuff even if you rented it to someone else. Both sides are pushing hard into unexplored areas of law so we await the judgement with interest. Then we’ll know. | As far as I can tell, that would be a criminal act. Georgia law § 16-8-2 - Theft by taking says: A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated. Georgia law § 16-7-21. Criminal trespass says: A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person. If you know the store is refusing to sell you a product, and you eat that product anyway, that is theft. If you don't eat the food but just open it, that's still criminal trespass. Even if you're leaving them money, you're still taking and/or damaging their property without their consent. Additionally, if they told you to leave, and you refused and instead started opening food items, you might be guilty of trespassing in the more traditional sense: A person commits the offense of criminal trespass when he or she knowingly and without authority... Remains upon the land or premises of another person... after receiving notice from the owner, rightful occupant, or, upon proper identification, an authorized representative of the owner or rightful occupant to depart. As to whether it was legal to give the candy to your daughter before the disagreement and refusal of service, that may depend on what the standard practice is. It seems to me that in most clothing stores you're supposed to pay before consuming the product - this isn't a sit-down restaurant. But if there's nothing else going on, I think the average store would refrain from calling the police if the person did not try to hide the evidence (for example, by stuffing the empty box on a shelf) and if the merchandise was paid for before the person attempted to leave the store, regardless of whether it's technically illegal. | 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). |
What is the origin of this legal quote? "... In Barnsley, m'lud, they speak of little else." In legal circles this quote, in one form or another, has passed into legend: Judge: Your client is no doubt aware that Vigilantibus, et not dormientibus, jura subveniunt? Lawyer: In Barnsley, m'lud, they speak of little else. What is the origin of this quote? Or is it entirely apocryphal? | This is not a quote, per se, rather, it is a meme. It is attributed to Gilbert Gray, and according to The Independent Saturday 7 March 1998 was originally: "I take it, Mr Gray, that your client is familiar with the maxim: Quis custodiet ipsos custodes?" "Indeed my lord, responded the QC drily. "In Barnsley they speak of little else." However, according to the Fortune Newsletter two years later, it was attributed to a different barrister, Charles Gray, who is reported to have recounted a story about a barrister in Reading who was asked by the judge whether his client was aware of the principle of Res ipsa loquitur (the thing speaks for itself), to which the barrister replied: "In the Irish village from which my client comes, M'Lud, they speak of little else". It is also attributed in 2005 to some unnamed judge referring to sic utere tuo ut alienum non laedas. As Tim Lymington notes, the Irish res ipsa loquitur version is attributed to Marshal Hall apparently was on the air in the BBC production The Trials of Marshall Hall originally from 1996, and is cited in a recent book review. The book review and Wiki versions of that statement differ slightly in the wording of the text, to wit Wiki: "Is your client not familiar with the maxim res ipsa loquitur?” replied, "My lord, on the remote hillside in County Donegal where my client hails from they talk of little else." vs. book review Judge: “Mr Marshall Hall, is your client familiar with the doctrine res ipsa loquitur? Marshall: “My Lord, in the remote hills of County Donegal from where my client hails they speak of little else.” Without a copy of the book, I can't say whether the reviewer mis-copied the quote, but at least we can believe that the linked quote represents the review author's wording. There is a much earlier work on the life of Marshall Hall, Marjoribanks, Edward For the Defence. The Life of Sir Edward Marshall Hall K.C. (The MacMillan Company, New York, 1929), which might contain the quote in question. At this point, I am inclined to take the Hall res ipsa loquitur quote as being original and the others as being derivative works. | For Mr. Petersen, the questions in general should have been elementary. The fact he did not know them is actually quite deplorable. To your questions specifically: Should Mr. Petersen, as a Juris Doctor, know of those things in his sleep? This is the wrong question. The question is: should an individual who has accepted a nomination to serve as a federal judge on the U.S. District Court know of those things in his/her sleep? The answer is unequivocally yes. One could almost argue - one would likely be scoffed at, but one could - that an appointment to a higher court, the U.S. Circuit, could get away not knowing those things 'in his/her sleep,' because appeals courts would not deal with, e.g., abstention doctrines or whether to admit expert scientific testimony, as often as a trial court does. Simply put, lawyers should at least have heard of those things (he looked/sounded absolutely dumbfounded at the words that were being said to him), litigators should know them, and federal trial court judges absolutely need to know those things to do the job. Is his excuse valid when he says that he has no background in the field(s) (he mentioned litigation once) the terms are corresponding to? If he was just some lawyer talking to some guy at a bar, sure, totally valid. If someone is a corporate M&A or project finance attorney, sure, don't expect him to win any trial court vocabulary contests. However, when sitting before a panel of U.S. Senators carrying out their Constitutional duties of "advice and consent" on presidential appointments, not knowing those things can, should, and indeed did end in complete humiliation for the person ignorant enough to try and go through with that. I'm sure his hearing was scheduled some time in advance. The fact he obviously made zero attempt to know anything is actually insulting to everyone involved. For context, I wrote a motion in limine at my first internship. If I live to be 1,000 and never step foot in a court room, I'll still be able to say more about a motion in limine than "I would probably not be able to give you a good definition right here at the table." | The earliest mention of the principle that I can find is in Rolston v Secretary of State for Northern Ireland [1975] NI 195, where the matter of compensation for the widow of a police officer murdered in Northern Ireland arose. I am sure there are earlier cases that express the same principle in different terms, however. It is a broad principle that applies to most areas of civil law, and I cannot find an original source for it. I imagine that it is simply "received wisdom" that has been repeated long enough to become a cornerstone of the law of restitution in England and Wales. There is currently no statutory basis for the principle so I cannot cite any relevant Acts of Parliament either. | The use of the word counsel for barristers has a long history. It was used in England before the modern legal profession developed. Baker, Counsellors and barristers: an historical study (1969) traces homo consiliarius back to the 13th century plea rolls: The sum of [a pleader or counsellor's] functions may be termed "counselling" in its widest sense, and the subject of the present study must be what the plea rolls call homo consiliarius, the counsellor. Even this compendious name can mislead. It eventually became synonymous with "barrister," in the sense of "jurisconsult," while some of the counselling came in fact to be done by attorneys and solicitors. Sense 8(a) of counsel (n.) in the OED ("A body of legal advisers, engaged in the direction or conduct of a cause") is dated back to the Confessio Amantis (1393): Help, that I hadde counseil here Upon the trouthe of my matere. Sense 8(b) ("A single legal adviser; a counsellor-at-law, advocate, or barrister") is first quoted in 1709, but seems also to cover sense 8(a)'s quotation of Greene's coney-catching pamphlets (1591), by distinguishing between counsel and attorney: [He] hath his mind so full of cares to see his counsell and to plie his Atorney. As barristers came to replace the serjeants at law, the association of counsel with barristers may have become entrenched with the appointment of Sir Francis Bacon as the first King's Counsel (1603). According to Holdsworth, A history of English law (1924), vol 6, p 472: It soon became clear that the king's attorney and solicitor could not by themselves do all the work which their office imposed upon them. It is to this cause that we must ascribe the rise of a body of "king's learned counsel," who are the ancestors of our modern king's counsel. It would seem from D'Ewes that a body of persons so designated was known at the very beginning of Elizabeth's reign [1558 – 1603]. | I think you should take "the whole truth" as simply short for "all the truth known to the witness, within the limits of the rules of evidence as applied by the judge." and take "nothing but the truth" to mean "no intentionally false statements included". I cannot be sure, but I suspect the response in the question would not be accepted, and if persisted in, might well lead to your being found in contempt of court. I would add that legal proceedings are absolutely full of symbolic or metaphorical things which are not to be taken literally, but as symbols for truths, or as historical vestiges of earlier realities. For example, in the US, criminal cases are normally known by a name such as "the people of the State of Franklin vs R. Roe", and in the UK as "The crown against R. Roe" or 'Regina v R. Roe". Now neither the whole mass of the people nor the UK monarch has approved or brought any such case. It is has been brought on their behalf by the prosecutor. The defense may not argue that the people in general, or the Queen, would not have approved the case. (Nor can the people or the Queen object with any effect.) A US Judge is addressed as "Your Honor". No one assess or argues whether a particular judge is in fact honorable, although in some cases it might be doubted. (When Justice Chase was impeached, his trial was presided over by then-vice President Aaron Burr. A sarcastic newspaper article commented "It is usual to arraign the murderer before the Judge. In this case the reverse procedure was followed." A reference to Burr's having killed Alexander Hamilton in a duel.) The vary names "Roe" and "Doe", commonly used for unknown legal parties, are a remnant of a piece of legal fiction once known as "common recovery". When a person wanted a quick trial of ownership of a plot of land, he filed a trespass action, alleging that he had rented the land to John Doe, but that Richard Roe, claiming under a lease from the other actual party, had ejected Doe with "force and arms". The defendant was not allowed to contest the existence of Doe or Roe, or the use of "force and arms", but only the actual land ownership. Until fairly recently affidavits often began "Now Comes J Smith, who deposes and says...", this being a remnant of the long-ago time when Smith would have actually come before a court to give his testimony. Much of the formal ceremonial of court procedures is not meant to be taken too literally, but as a symbol or metaphor. | There's no law as such; it's just an age-old mark of respect that a visiting Royal not sit on your throne. The Queen has encountered other royal families so it makes sense that she'd know this tradition, and was likely just being humorous on the Game of Thrones set. That or she decided the Iron Throne didn't look very comfy! | The saying "non omne quod licet honestum est" refers to dishonesty that is not punishable by law. Laws purportedly prohibits or penalizes only the dishonesty which tends to --or does-- disrupt peace and order. An example of legally harmless dishonesty is a scenario where you tell your neighbor his story is entertaining even though you think it is boring. By contrast, perjury is an example of harmful and punishable dishonesty because it tends to hinder the ascertainment of the truth and consequently the administration of justice. The meaning of "Male nostro iure uti non debemus" is that one should refrain from abusing his rights. Strictly speaking, the expression contradicts itself since abuse and right have opposite connotations: One's exercise of his right implies that he has not exceeded the scope thereof, whence it cannot be said that the person abused his right. In reality the expression refers to a person's acts or conduct which knowingly depart from the purpose for which the right was devised. The element of "knowingly" implies person's dishonesty insofar as he made an illegitimate use of his right. Note that two or more of the phrases you list have misspellings or are incomplete, which might be preventing you from finding their meaning. For instance, "uti" is missing in your post. Also the first phrase should read generationes, not generations. | This is one of the things Martha Stewart was convicted of. 18 USC 1001 is the US federal law requiring truthfulness. That statute forbids you to falsify, conceal, or cover up a material fact. One limitation on how broad this law is, is that it has to be a matter "within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States". If your neighbor is an FBI agent and he asks if you're the one who broke his window, and you lie, that's not a federal matter. Another limitation is that the lying has to be material. The essential part of the law is subsection (a). Subsection (b) then states an exception: (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding. Then you also owe a lesser duty of truthfulness to the legislature. Taking note of US. v. Yermian, it is not required that the person you lie to be a federal officer. Yermian lied to his employer, who was a defense contractor, and the fact that the relevant form was submitted to the government for scrutiny is what made it a matter in federal jurisdiction. Comparing the wording of 1001 to the perjury statute, the operative expression for perjury involves statements "which he does not believe to be true", we can see that the perjury statute requires telling the literal truth (see Bronston v. US), which allows so-called lies of omission (of a particular subtype: much more could be said about that). In contrast the lying statute forbids both literally false statements and concealing of the truth. I don't have cases at my fingertips that indicate how broad your truthful answers have to be, for example if you think the FBI is trying to put away a friend and ask you about what he did on June 14, and you know that he did a bad thing on June 13, would it be lying in the relevant sense to conceal that fact which they didn't ask about. [ADDENDUM] A session of perusing cases has led to a tiny bit of further information. A literal reading of the statute says that you are in violation of the law if you falsify a fact (sloppy epistemology, unless it refers just to altering records and evidence), or conceal a fact, and the courts recognise this as a fundamental division. As for falsifying, the way that has been applied is to refer to cases where the accused makes a statement which asserts something that he knows to be untrue. Thus, saying "No" to a question when the truth is "Yes" is a violation. A propos concealment, in US v. Diogo 320 F.2d 898 the court states that False representations, like common law perjury, require proof of actual falsity; concealment requires proof of wilful nondisclosure by means of a 'trick, scheme or device.' This case is pre-Bronston so there is mixing of concepts from perjury law and lying law, which would not happen now, but we can steering clear of their perjury citations. The crucial fact is that accused(s) were technically married in New York, for immigration purposes, and they were accused of a 1001 violation for having indicated that they were married. Part of the government's case was that such a marriage is not valid, and the court rejected that conclusion. The government's second prong was to maintain that the court "should affirm appellant's convictions on a theory of concealment", and this too the court rejected, saying "proof of their ulterior motives in marriage would not be tantamount to proof of willful and knowing concealment of these material facts". What they said on the forms was literally true, and they did not have a duty to volunteer information that they probably knew the government was interested in. Contrarily in a later case, US v. Zalman 870 F.2d 1047 we are told that the underlying purpose of a marriage is a material fact which bears upon the validity of the marriage, and that any false or fraudulent misrepresentation regarding the actual purpose of a marriage in order to gain status as a resident of the United States can be punished under 18 U.S.C.A. § 1001 so you have to be more truthful than the literal truth standard. There are also circumstances where there is an independent duty to give information, such as reporting income to the IRS. In US v. Hernando Ospina 798 F.2d 1570 the court maintained It is clear that in order to support a section 1001 concealment conviction there must be a legal duty to disclose the facts the defendant was convicted of concealing citing US v. Tobon-Builes 706 F.2d 1092, where again there was a legal duty to report "existence, origin, and transfer of approximately $185,200 in cash". In other words, it is not clear what information you are allowed to not volunteer when asked a question in a federal matter. |
Do lawyers send demand letters to a client who owes them money or do they just sue? If a lawyer has a deadbeat client, do they just immediately file a complaint against them and seek judgement, or do they send a demand letter first threatening to sue them? I am not asking about when they are do debt recovery for someone else professionally. I am asking what lawyers do when one of their own clients owes them money and shows no signs of paying voluntarily. The reason why I ask is that I trying to determine to what extent demand letters are just efforts to generate billable hours, or whether they have a legitimate purpose. If lawyers never bother to send demand letters when they collect their own debts, then obviously the letters are just a revenue-generation method. | Demand letters are often used to collect debts from one's own clients, most prominently, because filing a lawsuit against a client often triggers a counterclaim for malpractice or an ethical grievance, even if it is not justified on the merits. Demanding payment without suing rarely has these consequences and often isn't even enough to trigger an urge to post an unjustified (or justified) bad review of the lawyer online. Demand letters are not just efforts to generate billable hours. Lawyers want to generate billable hours for clients who pay them reliably, rather than devoting time to work collecting from a client who has a significant likelihood of not paying. One reason to send demand letters is that sometimes, the reason that clients don't pay is not that they are unwilling to pay, or dispute the bill, but that they are currently unable to pay. A demand letter keeps the debt fresh in the client's mind when an ability to pay is restored. Quite a bit of hourly charge legal work is de facto contingent fee work because the client almost by definition won't have the ability to pay for it promptly if the outcome is a bad one (often for reasons beyond the lawyer's control). Demand letters are cheap, can often be drafted by administrative staff for attorney review, and because they are cheap, don't have to have a high success rate to be worth the effort. Even a 5%-10% payment rate for unpaid fees that are sought in demand letters makes them worth it. A second reason to send a demand letter can also trigger a written response acknowledging that the debt is owed and apologizing for not paying, and/or paying a token amount like $25, each of which extends the statute of limitations to collect the entire amount of the debt for unpaid fees. A third reason to send a demand letter is that it helps the lawyer to keep current on the client's address, if the client moves, while a mail forwarding order is still in place. A fourth reason to send a demand letter is that it discourages the client from trying to get the lawyer to do additional work on existing or new matters that the client can't afford to pay for (especially in non-litigation representations) because it reminds them that they already owe money to the firm. Typically, a lawyer sues when (1) the client is known to be collectible now, (2) there is not credible basis for a malpractice lawsuit and there was not a bad outcome, and (3) the statute of limitations is approaching or the client has a serious chance of not being collectible later. The Business Model Context In a typical small and medium sized practice with a mix of litigation work done on an hourly basis and transactional work involving negotiations that are not flat fee, maybe 10% of unpaid bills are ever the subject of a collection lawsuit brought by the law firm that wasn't paid. A firm like that often ultimately writes off as much as 20%-30% or more of all the fees it bills to its clients on an hourly basis (with substantial variation from year to year), and typically receives maybe a third of all the fees that it is ultimately paid more than 90 days after the due date for the invoiced fees. A pattern of a client not paying for several months and then making a big lump sum payment for reasons that may or may not be related to the representation is fairly common. For reasons like this (and the timing of contingency fee payouts) solo practice and small firm lawyers with non-criminal practices typically have incomes that vary wildly from year to year, even though the amount of work actually done each year as measured by billable hours is quite consistent. Large law firms are actually quite similar to this business model as well, although they charge higher rates and bill more hours on cases, and the law of averages keeps their monthly fee collections a little more consistent. Many large firms pay all of their expenses from a line of credit so that they don't have to worry about the timing of their collections to pay their monthly expenses, and then settle up with their bank at the end of the year. Certain kinds of firms (e.g. criminal defense) require all anticipated fees to be in a retainer before work is started. Other kinds of work (e.g. probate administration and flat fee transactional work and contingent fee work) usually is paid promptly and reliably when due. In the insurance defense counsel business model, invoices are almost always paid so demand letters aren't needed, but are usually paid very slowly (90-180 days from invoice), the hourly rates are below average, and the insurance company routinely nitpicks bills to reduce hourly charges in any given month by 5%-10% or so. | The solicitor is allowed not to accept a case. If your ex-wife asked him to prepare papers, and he feels that she is getting ripped off, it is absolutely understandable that he won't prepare these papers for her, because he doesn't want to be sued or badmouthed when the deal goes wrong. "We would also reserve the right to take our own professional advice as to our efforts on your behalf." means simply he is not specialised in some subject, and will prefer to ask someone who is. Like a medical doctor asking for a second opinion before going ahead and cutting your leg off. Now I would have preferred if the solicitor had said concretely what exactly is wrong with the contract. Also, it would be obvious that you would be very comfortable with anything that he would advice her against. If he thinks that it is a good deal for you but not for her, he should advice against it. (Your comment to another question seems to indicate that she should be paid a lot more than you offered, so her solicitor seems to have been perfectly right). | From https://oag.ca.gov/consumers/general/collection_agencies10: If you are not the person the debt collector is looking for – for example, if your name is the same as the person who owes the bill – explain the mistake in writing as soon as possible. You may be asked to provide a drivers’ license or other proof of identification to show that you are wrong person. Perhaps you should send them a copy of your phone bill, showing the number and your name. When you do this, consider asking them to stop calling you, or to stop communicating with you altogether: You may also ask a debt collector to contact you only by mail. Make your request in writing, send it by certified mail, and keep a copy for your records. You also have the right to ask a debt collector to stop contacting you entirely. The request must be in writing, and you should send it by certified mail and keep a copy for your records. If you make this request, the debt collector can only contact you to confirm it will stop contacting you and to notify you that it may take action against you. (15 United States Code section 1692c.) Remember, though, that if you request no contact at all, the debt collector may take you to court and may still report your debt to credit reporting agencies. Then, if they continue to call (the hyperlinks are in the source): If you believe that a debt collector has violated the law, you can file a complaint with the Attorney General's Public Inquiry Unit. Consumer complaints are valuable to the Attorney General’s Office because they alert us to debt collection issues and other issues that California consumers face. We may forward a copy of your complaint to the debt collector; however, please be aware that the Attorney General’s Office cannot represent individuals or give legal advice. You may also wish to file a complaint with the Federal Trade Commission (FTC). This agency enforces the federal Fair Debt Collection Practices Act. The FTC may be contacted by mail at Consumer Response Center, Washington, DC 20580-0001, or by telephone at 1(877)-FTC-HELP, or at FTC Complaint Assistant. | 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)) | There is no significance to using the words "I" or "we", nor does it matter that you didn't sign the surrender paper (after al, you did not have possession of the vehicle and it is not yours to surrender). You will have gotten a notice, at the beginning of this process (when the loan was taken out) that provides information like this, in particular The creditor can collect this debt from you without first trying to collect from the borrower. The creditor can use the same collection methods against you that can be used against the borrower, including suing you or garnishing your wages. If this debt is ever in default, that fact may become a part of your credit record. When you are a loan co-signer, that means the creditor can go after you and you alone to get the money. Since it seems the creditors are pursuing you both, that beats the alternative that you have to sue her to get anything. Since there is no question that money is owed, the point of the trial is to decide who pays it: it will be one or both of you, and it won't be that the bank has to take a loss. Your attorney's job is to argue that it should not be you (her attorney's job is to argue that it should be you). Your concern should be that it's too difficult to get the money from her, and easy to get the money from you, which is why you need to hire a good attorney. | The creditor must prove the debt with evidence In order to collect a debt, either: the debtor has to agree the debt is owed - straight up or after some sort of non-binding ADR, like mediation. the debtor has to prove the debt in a binding forum - either a court or binding arbitration Details vary by jurisdiction but a court case: starts with a statement of claim where the plaintiff (debtor) sets out their case against the defendant (creditor) the defendant can: ignore the claim - in which case the plaintiff seeks a default judgement and, providing they have a prima facie case, they will get it. They can then recover the debt. admit the claim and pay the debt raise a defence - in which they set out why the don’t owe the money in part or in whole. each side provides evidence to support their position the court considers the evidence and arguments and decides if the plaintiff has proved their case on the balance of probabilities if they have, they receive judgement which the can enforce (subject to appeals) if they haven’t there is no debt (subject to appeals) | This is a rather elaborate version of receiving stolen property. It is a crime because you know that the property is not yours and you know who it belongs to. The fact that funds were returned mitigates the punishment that might be imposed, but disgorgement of profits as well as principal would be a typical criminal restitution in such a case. A prosecutor could decline to press charges (and often would decline to do so), but would have the authority to do so. An analogous case that comes up more frequently is when an attorney takes client funds out of his trust account (either accidentally or intentionally) and then uses the funds in a way that produces a profit or avoids, for example, a late payment penalty, and then returns the funds improperly withdrawn from the trust account. This is still conduct for which attorneys are routinely disbarred and prosecuted criminally. Even if the person didn't know that the money belonged to someone else when it was used, the true owner of the money could sue for unjust enrichment for both the funds and the proceeds from the funds. For example, if funds were accidentally deposited in your bank account rather than the correct one due to a transposition of numbers in the account number, and you didn't notice this error, you would have liability to return not just the accidentally deposited funds, but also the profits from those funds, because both would be unjust enrichment. But, in an accidental case where there was no knowledge that the funds were wrongfully placed in your account, you could deduct from the amount to be returned any banking charges you incurred with respect to the transactions and it would not be a crime. | A warrant is never automatically issued. A warrant (I assume you mean arrest warrant) can be issued under court orders, if there is probable cause to believe that a crime has been committed. If a court orders A to pay money to B and A does not, A can be arrested. A court will not sua sponte make such an order without some petition by a harmed party. So B could sue A for the amount owed, and the burden is on B. There are criminal laws that pertain to check bouncing, for example in Washington under RCW 9a.56.060 it is a crime, but not every check-bouncing is a crime. You have to have "intent to defraud", "knowing at the time..that he or she has not sufficient funds". If convicted you will be fined, and may be imprisoned. Even in the case of a fraudulent intent, there is no automatic warrant (the police do not know what has come to pass). B does not "press charges", but they can complain to the police who may investigate and find that there is evidence of fraudulent intent (which can lead to an arrest warrant). They may also conclude that the evidence of fraud is insufficient. |
What needs to be done if I'm inheriting a gun? My grandfather recently died and I was asked by my dad and his siblings if I wanted my grandfather's .22 rifle. I agreed, but have no idea what to do to legally take possession of the gun. My assumption is that it's registered with the state of Florida (where my grandfather lived) and I will need to get it registered in Virginia (where I currently live). Are there any other steps I need to take to ensure it's legally in my possession? | Conventional guns are not generally "registered" in America. (Only a few jurisdictions like NYC, DC, and maybe still Chicago, have laws requiring licensing of gun owners and registration of firearms.) The interstate transfer of guns between individuals/owners is regulated by federal law and must be conducted by Federal Firearm Licensees (FFLs). Many states also regulate certain intrastate transfer of guns (e.g., handguns, or transfers to individuals who are not immediate family members). For a fee any FFL local to you can ensure that any transfer is compliant with local, state, and federal law. In general inheritance and transfer between family members is not restricted, so long as the receiver is not a "prohibited person" ineligible to possess firearms. 18 USC §922(a)(3)(A) explicitly allows for the interstate transportation of firearms acquired "by bequest or intestate succession." In the situation described, if you are not a prohibited person, you could "inherit" the gun in Florida without any paperwork and simply mail it to yourself in Virginia (ref ATF FAQ #6). If you are uncertain or want to ensure that no laws are broken in that process, have the gun mailed to an FFL local to where you live, and pay the FFL to "transfer" it to you. | Transfer of Personal Property The question is: are you still the owner of the guitar or is your friend now the owner. If you gifted them the guitar, they are the owner. A gift requires: intention to transfer title (you had this), delivery of the property (this happened), acceptance of the delivery by the recipient (he took it). At first glance, the guitar is now his. The concept of a conditional gift is irrelevant once the transfer has taken place - it relates to the promise to gift in the future if some condition is met and, unlike a contract, is not binding. If you have a conditional gift you can decide not to give the gift up until you make the transfer - after that, the item is no longer yours. You are now trying to make out that the transfer was by operation of a contract. This seems unlikely - see What is a contract and what is required for them to be valid? In particular I doubt that there was an intention to create legal relations or that the agreement was sufficiently detailed - was he required to attend the class? complete the class? enroll in the class? something else? You may have been clear in your mind that the guitar was for the class - was he? Or did the conversation go like "I'm taking a guitar class.", "Cool, I have a guitar I can give you." Even if there was a contract and he broke it, you are not entitled to the guitar back. You are entitled to the damage that you suffered by him not completing the class. Presumably, this would be the cost of hiring a competent amateur guitarist to play for you a few times. | I know this is not what you've asked (I will get to that too), but I figured I would take the opportunity to state that the owner of the well cannot send you an invoice for the water unless you agreed to a price and entered into a binding agreement. They cannot just decide their water is worth X and then tell you that the amount is due. Just as you cannot send them a bill, in the same amount, for the use and maintenance of the pump. While the well may be located on one parcel of land, with the pump on the other, chances are, the properties were linked at one point and that is why there is a separation of the two (unless you bought it as one and divided it yourselves). This should have been dealt with on the deed, with easements appurtenant to the neighboring land regarding water rights. A contractual agreement could have been attached by reference that dictated the land with the well would maintain the well, while the landowner with the pump would maintain the equipment (or whatever you both agreed to regarding upkeep and the like). Depending on the state you live in, the property itself may not even "own" the well. For instance, in Colorado, water rights typically come by way of 100 or 200 year leases, as the native american tribes of the area "own" the water rights. Other states have laws that declare that nobody owns the water table, hence land is only owned as far down as the water table and then it is owned by the county, or state, with easements running with the deed. Other states, (I'm wondering if this is your issue) the water runs in veins and does belong only to the property that it is below – as there is no water table, so to speak. Regardless, I would talk to your title insurance policy company and ask why this easement was not addressed in the deed. I'm assuming that you did not divide the land yourselves, post purchase, and the land with the pump cannot access the water table without going onto the land of the other. Otherwise, it would be very easily solved by drilling your own well (and much cheaper), whereby you already own all of the equipment to run the water to the dwelling. You just divert your equipment to the running of your own well. It's only a few dollars a foot to drill a well, unless you live in the Granite State! Likewise, you should check with your land assessor's office, or registry of deeds, and see how the title ran back regarding water. Again, depending on jurisdiction, you may be able to drill down and over. You cannot divert, but you can access, in most jurisdictions. I say to contact your title insurance company, because the water issue should have been dealt with at title examination, and further, if your land is inaccessible to any water, it would not be sub-dividable for dwelling purposes under almost any zoning law I have ever heard of. A property that is land locked, or utility inaccessible, cannot be zoned for dwellings, without irrevocable easements or rights of ways, respectively. Just because you purchased near family doesn't have anything to do with any of this analysis. They could be anyone, or you could end up at odds, the water cannot be relationship dependent and you cannot be held hostage over natural resources. If so, I would sue the title insurance policy for a refund of the purchase price or the negotiation of the purchase price of an easement to the well/water table, assuming you have none under your land and have no existing right to it. If you just happen to have the pump, and they have the well, you own the pump and they own the well. Simple as that. You do not have to allow the pump to be used for their well. Assuming you can drill your own well, but may not want to, you can just rent them the use of the pump at the same rate they are charging you for the water. You can agree to split the cost of maintenance of each, since you've invested in the upgrade of the pump. | What would be the best course of action now? It has been six months with no communication from him or his estate lawyer, and no will has been filed with the court. Since it's not entering probate, is there any guarantee that he has to faithfully execute the conditions of the will at all or notify any of the beneficiaries? Without probate, can he simply choose to not execute the will? A will has no effect or validity until it is admitted to probate. You can't do anything with a will outside a probate proceeding. Usually state law requires that a will that is in someone's possession be lodged with the court, whether or not they plan on opening up a probate estate, but this requirement is widely ignored. Unlike a will, a trust can be administered without court supervision, without being admitted to probate, although usually, the trust is required to file a notice of its existence with the court if it has become irrevocable (a requirement that is also widely ignored). The trustee of a trust has a fiduciary duty to administer the trust in accordance with its terms and to keep the beneficiaries of the trust reasonably informed about it. Again, sometimes the notice to the beneficiaries is overlooked. Also, it wouldn't be unusual for someone to inaccurately say that a will provided that a certain thing happen, when, in fact, that was a provision in a trust. People are sloppy in ordinary conversation about the distinctions between wills and trusts. If a trust was drafted to avoid probate, the will is probably just a "pour over will" which states that if there is any property that is not in the trust as her death that it is hereby transferred to the trust. Normally, a person would not have both a trust designed to avoid probate and a will with substantive provisions at the same time. If you suspect that you know who the trustee is, the first step would be to write a formal letter that you can prove was sent and received (e.g. via certified mail or FedEx), asking if there is a trust, and if there is one, if you are a beneficiary of that trust, and asking for the trust agreement (or at least the parts of it pertinent to you status as beneficiary). If the person that you suspect is trustee is a trustee, he has a legal duty to let you know these things (which doesn't mean that he necessarily will do so). If you fail to receive cooperation or a response after this initial inquiry, you may need to hire counsel to attempt to obtain this information through the courts. | You own it In general, if you own an object, you can do what you like with it if you otherwise comply with the law. It is possible that a particular object may be protected under heritage or similar law, but if it isn’t, and you comply with environmental and safety law, you grind that thing into dust if you want to. Of course, if it did, you would never be able to delete a voicemail, email, or throw out used notepaper - they’re all copyright. | The United States even allows private ownership of tanks and howitzers with only fairly modest regulation, although the demand is small and some sort of license is required. Most U.S. regulations would be at the state and local level. It is rare for state governments to place regulatory barriers on the ownership of what is basically an armored car, although detailing it in a manner that misleadingly conveys the impression that it is a law enforcement vehicle is usually prohibited. Security companies handling deliveries of cash and executive transportation services currently use equivalent vehicles on a regular basis. Some armaments might be regulated at a local, state or federal level in the U.S., to the same extent that they would be if they were freestanding. Even if the company declined to sell one to you, you could probably buy one in an auction of police department or military equipment that the selling government no longer needs. Such auctions are held on a semi-regular basis. | The 2nd Amendment does not grant a right not to bear arms. This is its text: 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. Read D.C. v Heller for the reasons the 2nd Amendment stands for an individual's right to bear arms. Most relevant to this question is what the phrase "keep and bear arms" means (internal citations removed): We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” ... “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else. ... At the time of the founding, as now, to “bear” meant to “carry.” When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’” If there is a constitutional argument against mandatory gun ownership laws, it does not stem from the 2nd Amendment. | The documents do not belong to you or your granddad: they belong to his former employer. Contact them and ask what they want them do with them. |
HOA shredded our Money Order. Is Money Order an Official Record? Are there other Records we can request? Per our state's rule on HOAs: (4) OFFICIAL RECORDS.—The association shall maintain each of the following items, when applicable, which constitute the official records of the association: [...] (j) The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include: [...] 4. Any other records that identify, measure, record, or communicate financial information. This makes a money order (MO) an official record. We recently had a situation where we used an older money order (1+ year) to take care of a bill paid on time to our association. This was done a few months ago. Recently we found out that they couldn't cash the money order and the balance was not settled. We still owe money for that month and they recorded a NSF (Insufficient Funds) Fee for that MO. An MO is a guaranteed form of money and can be used like cash but I suppose if there is an issue with the age of the MO, that could have caused an issue even though the issuer told us that they don't expire. We asked for the MO to be returned to us so we can resolve the issue with the issuer but the HOA later told us that they shredded the MO and they no longer have it in their possession. We are beyond fuming at their lack of communication, nature of aggressive language regarding to recover association fees, their NSF fee and also the destruction of our MO. We need proof of what was wrong with the MO (it's a guaranteed form of payment) and we have no evidence of why they claim NSF fee on us. Can we request the MO back as an official record per 4.j.4 as we have no way of knowing what happened once we handed the MO over to them? Can we request receipts? How do we know what they did? | Check rules apply here, including Check21 This is a bit complicated because of "old school" check rules and the Check21 changes. First, a money order is basically a "bearer document" much like cash. After all, but for your copies, you would have had no data from which to establish its existence. In fact, that's why WU has their $1.50 holding fees. It allows them to seize and extinguish small-value money orders, so they don't have to keep records of them for 50 years. A $50 money order 3 years old is entirely forfeit. Note that the Post Office does not do that. The fraud here works like this: A) you pay the payee by a money order. B) a blackguard employee takes the money order but claims to have lost it (bonus points, some sniveling excuse to let them blame-shift this onto you, like "it bounced"). D) you reissue payment to the payee. E) the payee will cash and credit the second payment. F) the blackguard cashes the first money order, stealing that value from you. In the checking system, the defense against that fraud is that the pwhen your check or money order bounces, the bank will return to the payee that check or money order with a bunch of codes and markings which document the steps the check passed through the clearinghouse system. Then, the payee returns that check/MO back to you, with the markings proving that it bounced. So they must return the instrument to you. That is the payee's proof to you that the fraud did not and will not happen. It's not optional unless they trick you. Check21 changes the process, but only somewhat. At any step in the process, the bank may take a high resolution digital scan of the check/MO. For instance, if you deposit into an ATM machine, all those whirrs and clicks might be the ATM machine scanning and uploading the check image to the server, at which point the server authenticates the image as "looking like a cheque" and tells the ATM to route the cheque into the "shred" bin. (Or shreds it on the spot). In fact you are doing that very process when you deposit checks with your phone camera. How are returned checks handled? Check21 provides for a mechanism for a bank to turn the digitized check back into paper, by issuing a certified copy of the check. This will include both sides and all relevant notations from its journey through the clearinghouse system. This is the certified copy that MUST be returned to you if the HOA intends to claim your check bounced. And yes, this costs money, but that is what bounced-check fees are for. They are paying for things like that certified copy. So there isn't a second fee to get that certified copy; that's included in the fee they are trying to charge you, and the fee the bank is supposedly charging them. Produce that certified copy! So if your HOA is dealing honestly, the "shredding" they spoke of may have been done by the bank, as part of the Check21 process. And that's fine; if they are not lying they can produce a certified copy in lieu of the original. If THEY DO produce that certified copy, then you need to make good on it plus their bounced payment fee. You take the certified copy back to the issuer and say "WTH" and work it out with them. If THEY DON'T produce that copy, then they blew it. You get to teach them an expensive lesson, e.g. by claiming that one of their staffers probably stole it. They must credit the payment to your account. They can threaten to lien your house, but tell them they can't make it stick. In court, the judge will say "produce the bounced check". If they try to say they shredded it, it will sound like "the dog ate it". That will put them on their back foot, and make their lawyer nervous and tell them to work with you. It won't actually work. Since you do have enough data to recover your money from WU, you must do so, because of the duty to mitigate damages. You also have the duty to turn over all data, so they'll know it. But it's a fun intimidation position. So really, you have access to a spectrum of returning their jerkishness: force them to credit your account with the schadenfreude of knowing they probably didn't get paid, at very small risk of losing in court. go to WU and retrieve most of your funds, point out how they mishandled it, and meet them at some halfway point (e.g. waive the penalty fee if you make good the amount) retrieve funds from WU, suck up and pay them everything they ask for. ...although I must say, I don't quite understand the value of cheating an HOA. The HOA is you. They pay you back in the value they bring to your development, of which you are an equal beneficiary. Those commons-area roads and lawns don't pave and mow themselves. | Bill and Jane are free to enter into a contract where, among other things, each provides valuable consideration; in this case Bill provides valuable lawn mowing services and Jane provides valuable money. In week No 1 they have negotiated the terms and the contract is complete when Bill mows the lawn and Jane pays the money. If Bill turns up next week without Jane's instruction then there is no contract and Jane does not have to pay anything; I don't think this is what you are asking but I include it for completeness. If it is understood that this arrangement continue week after week then either there is an ongoing contract or, more likely, a series of independent contracts. If there is an ongoing contract, then it can be renegotiated but it cannot be changed unilaterally by Bill. That is, he cannot unilaterally increase the price to $2. If there is a series of contracts then the terms of each of those contracts will be the same based on the course of dealing. Basically, the parties have accepted over a long period of time that the rate for a mow is $1 and Bill would have to get Jane to accept the revised rate before he mows the lawn. For your example, Jane owes Bill $1 but if she wants him back next week she will have to agree to Bill's rate. | We don't want this issue to adversely affect our credit and got legal consulting which suggested we should pay the debt collector to protect our credit score, and then sue the landlord for the money back in small claims court. I'm a little worried about this strategy since it requires to hand away the money first, and am trying to get second opinions. The debt collector is probably either the owner of the claim against you, if it is an assignee of the claim, or an agent of the landlord for purposes of collection. Thus, payment to the debt collector is equivalent to payment of the landlord. The law varies from jurisdiction to jurisdiction regarding whether payment constitutes of waiver of a right to sue over the debt. Sometimes it is necessary to designate the payment "under protests" or "reserving all rights", but that is not a uniform rule of law that applies in all jurisdictions, and I do not have the time and familiarity with that state's law to research Massachusetts case law on that point accurately. | A Last Will and Testament can be very complex. The longest and most complex one that I have drafted runs to about eighty pages. I've seen some in probate proceedings that run to about 120 pages, with additional exhibits of numerous pages containing legal descriptions for real property and serial numbers and account numbers for other assests. How many resources will be expended to execute it? Is this process self-funding? The fiduciaries appointed to carry out with implementing a Last Will and Testament in a probate proceeding spend whatever they need to spend to carry it out, to the extent that funds are available in the estate. The assets of the estate pay for these costs of estate administration. Say, if it prescribes that assets should be disseminated only upon a condition, possibly many years in the future, can I be sure it will happen exactly as described? You can't. You're dead. You nominate fiduciaries such as executives, personal representatives, administrators, guardians, conservators, trustees, custodians, and trust protectors to carry it out. They have fiduciary duties to faithfully carry out your instructions which interested persons, such as creditors and beneficiaries of the estate and trust protectors, can sue to enforce. In the case of charitable trusts, there is also a government official (in the United States, usually the state attorney general of the state in which the estate is administered) that has standing to enforce will and trust provisions for the benefit of a charity. There are certain legal doctrines that exist to discourage you from exercising "dead hand" control for too long. One of this is a very complicated rule known as the "Rule Against Perpetuities" which differs from jurisdiction to jurisdiction. Another (in the U.S.) is a tax known as the Generation Skipping Transfer Tax. There are also legal doctrines that allow interested persons to apply to a court to modify or reform the terms of a probated will or trust, doctrines such as the cy pres doctrine to deal with cases where transfers to entities or persons that no longer exist are present, doctrines that invalidate certain dead hand directions (e.g. related to race or to marriage) as a matter of public policy, statutes that invalidate certain kinds of real estate ownership with remote possibilities of reversion to a remote relative (e.g. fee tail), and doctrines that allow will and trust provisions to be reformed because it is impracticable to carry the out the terms even if it isn't strictly speaking impossible to do so. For example, can I award my legacy to someone who solves a certain equation (where the verification of this might be complex, and costly in time and money)? Subject to the doctrines set forth above, yes, this is possible. The typical way to do this would be to establish a foundation to oversee this part of the legacy and to name someone such as the current holder of an endowed professorship, or the chair of a university department or scientific institute, as an arbitrator of the question of whether the condition was met (typically with instructions to pay for that service as an administrative cost or instructions that it be self-funded by the recipient of an endowment gift to an institution as a condition of receiving an endowment gift). If an arbitrator was not appointed, a court would typically appoint an expert known as a "special master" to investigate the question (as the expense of the parties seeking to be paid and the estate) to determine if the condition was met in the event that this was disputed, or to ratify that the condition was met, in the event that this was not disputed. The "special master" would then investigate the matter and issue a report after receiving input from all parties and any independent investigation that was authorized by the order appointing the special master, and the report to the court would recommend a resolution. The parties could tell the court whether they disputed the special master's finding, and if so why, and the court would almost always adopt the special master's recommendation on the basis of that report. I have seen this process used in cases involving complex tax questions in probate court. Another common way to do this would be to establish a donor advised fund in a "community foundation" which is a foundation shared by many donors with a common administrative staff and investment pool that administers foundation-like funds from particular donors according to the substantive terms of the fund. There are examples of things similar to this (such as the Nobel Prize) being done. When I was in law school, there was a popular urban legend, I don't know if it was true or not, but it could have been true, that the dining hall in the law school (at the University of Michigan where I took my meals for my first year in law school) was endowed on the condition that steak be served every Friday. True or not, the steak was always there on Fridays. | It would be up to your HOA agreement. If you signed a contract agreeing to pay for services then yes. If not then no. An HOA agreement is just a contract like any other and you would have to abide by what you agreed to. Also, they may not have an actual contract for you to sign, but by moving to the community you would be agreeing to follow the by laws of the HOA. If you have a disagreement with them that can not be resolved, you can let a judge decide in court, but that could cost more than just getting the service. https://www.wishtv.com/news/local-news/indianapolis-man-battles-homeowners-association-over-solar-panels/ So to sum it up, you can refuse but they have the right to take you to court if they choose. I would assume a judge would rule in your favor since it's an issue of what goes on in your own home, but there is really no way for anyone to say what someone else will do. | If you had an agreement that amounts to a contract, it is binding even if it was informal. However, if your agreement was not in writing, it might be hard to prove. You can easily prove that you transferred money to the other party. But can you prove that it was a loan an not a gift? And even if it is agreed to be a loan, if no repayment time was specified, what says that the debt is due now? Was the agreement really for a loan repayable on demand? The court would have to determine what your real contract was, or what contract can be implied from the actions of the parties. Also, if you are in a common-law jurisdiction, there could be a question of what consideration there was for the loan. Without consideration, there is no valid contract in such a jurisdiction. Perhaps a promise to repay could be treated as sufficient consideration. Small-claims courts do deal with unclear verbal contracts on a regular basis, but the outcome will depend on the facts of the case, and on the details of local law. It might be wise to consult a local lawyer with small-claims experience. A single consultation should not be too expensive. In response to comment If the "written binding agreements" include a statement from the other person that this is a loan, and a promise to repay it, you are in a stronger position than I had thought from the original question. The question for the court would be, since there was no due date agreed, what is a reasonable date to impose. The court might treat it as a loan repayable on demand, or specify some particular date for repayment. | In principle, the data subject's right to access involves a copy of all personal data the controller holds on them. There are no time limits by default. Of course, the controller can ask a data subject to clarify their request, e.g. to focus on a particular time frame. There is an implied time limit though: personal data may only be processed/stored for as long as the data is necessary to achieve the purposes for which it was collected. Afterwards, it must be deleted. A controller with good data management will be able to limit their effort by having as short retention periods as possible for their different records. Furthermore, a lot of data is not personal data, or falls out of scope of the GDPR because it is not processed with automated means or forms part of a filing system. For example, if thousands of old invoices were archived in paper form in boxes that are only sorted by year, there might be an argument that this isn't a filing system in the sense of the GDPR and that a DSAR would not have to involve looking through all the archived invoices (compare also Art 11). In your scenario, there is a clear retention period of six years. You are asking for records about how that data might have been used further in the past. To the degree that such data is actually available, that could reasonably be personal data and should be included in a response to a DSAR. E.g. they might have information like this: “File #1234 was included in a data set that was sold to EvilCorp in 2007. The entries in File #1234 that are older than 2014 have been purged, so we do not know which entries were included in the data set. The current name on File #1234 is Dave.” This information about the sale would be personal data because it relates to you, and you are identifiable. Of course, the controller might not be set up to perform this search unless specifically asked. However, more unspecific information might not be personal data. For example: “About 70% of our files were included in a data set that was sold to EvilCorp in 2007. We no longer have records indicating whether your file was included.” Since there is no link between the sale and your personal data, I don't think it would have to be included in a DSAR response. The primary reason why you should be told about sales of personal data is that per Art 15(1)(c), you should be informed about “the recipients or categories of recipient to whom the personal data have been or will be disclosed” in a DSAR response. So when making a data subject access request, it could make sense to explicitly referencing this paragraph. So you would be interested in receiving a copy of your personal data as per Art 15 GDPR, and in particular any available information per Art 15(1)(c) GDPR about the recipients or categories of recipients to whom your personal data has been or may have been disclosed in the past. Quite likely the response will be underwhelming, e.g. by just giving a broad category such as “potential creditors who are contractually obligated to use the data only in accordance with our policies”. Whether such responses are compliant (I don't necessarily think so) will not be clear until there's a good precedent, and that would require that someone sorts this out in court. | Colorado HOAs are required to make many kinds of documents available to HOA members. The Colorado Common Interest Ownership Act (CCIOA) includes the following language in section 38-33.3-209.4. Public disclosures required It is the intent of this section to allow the association the widest possible latitude in methods and means of disclosure, while requiring that the information be readily available at no cost to unit owners at their convenience. Disclosure shall be accomplished by one of the following means: posting on an internet web page with accompanying notice of the web address via first-class mail or e-mail; the maintenance of a literature table or binder at the association’s principal place of business; or mail or personal delivery. The cost of such distribution shall be accounted for as a common expense liability. If the distribution includes information the HOA is bound to share to you, and this service is at no cost to you, it would appear on the surface of this law that the HOA is afforded the "widest possible latitude in methods and means" of disclosure, and that they have exactly performed "posting on an internet web page with accompanying notice of the web address via ... e-mail" |
Intellectual property while employed (UK/USA) I work for a USA based company but I live and work in the UK. I'm a software engineer and I was curious about the wording around intellectual property on my contract. Lets say the company I work for operates in any random sector (for example automotive vehicles or banking). I work on their apps/websites as my day job. In my spare time, I'm trying to build an app related to travel/exercise which I intend to launch on monetize (somehow). Is my assumption correct that because I'm not creating intellectual property related to the company's domain, it wont be theirs if I were to launch my own app? Or at least they're very unlikely to try to claim it. Also worth pointing out, the app I'm building was my spouse's idea. However all the code and design have been done by me. Not sure if that changes things. They also have a non-compete clause which also wouldn't be breached as the subject matter and market is completely different. The company has a "10% time" perk which means that for 10% of my time there, I can work on personal development. So I can learn stuff, or build stuff etc etc. This means though that I have occasionally used company equipment to work on this side project. The exact wording on that perk in my perks document is: Personal development ... 10% time allows our Product Development teams to get real time to develop ideas that fall outside of the daily norms. ... I am going to ask HR soon, but didn't want to sound any alarm bells so i thought I'd ask the community first :) Thanks! Intellectual property contract clause wording below: Clause 12.3 is particularly concerning... 12. Intellectual Property & Moral Rights 12.1 All or any Intellectual Property Rights (as defined below) created by you in the course of your employment with the Company will be and automatically become the exclusive property of the Company and you will at the request and expense of the Company execute all such documents and do or refrain from doing such things as may be required by the Company in order to vest the right, title and interest in and to the Intellectual Property Rights in the Company and you hereby irrevocably appoint any representative for the time being of the Company to be your authorised attorney to do all such things and to execute all such documents in your name and on your behalf as may be reasonably necessary to secure that the full benefit of the Intellectual Property Rights is obtained by the Company. A certificate in writing signed by any director or the company secretary of the Company that any instrument or act falls within the authority hereby conferred shall be conclusive evidence that such is the case so far as any third party is concerned. 12.2 If at any time during the course of your employment you (whether alone or with any other person or persons) make any invention which relates to the business of the Company, you shall promptly disclose to the Company full details, including drawings and models, of such invention to enable the Company to determine whether or not it is a Company Invention (as defined below). Decisions as to the patenting and exploitation of any Company Invention shall be at the sole discretion of the Company. If the invention is not a Company Invention, the Company shall treat all information disclosed to it by you pursuant to this Clause as your confidential property. 12.3 “Intellectual Property Rights” means any and all intellectual property or industrial rights of any description anywhere in the world (whether registered, unregistered to cover registerable or not and any applications or rights to apply for registration of any of the enclosed) including but not limited to any patents, trademarks, the domain names, registered designs, copyright, product names and logos, inventions, databases, discoveries, specifications, formulae, process, know how, trade secrets, confidential information and any analogous or similar right in any jurisdiction. 12.4 “Company Invention” means any improvement, invention or discovery made by the Employee which applying the provisions of Section 39 of the Patents Act 1977 (as amended) in the determination of ownership is, as between you and the Company, the property of the Company. 12.5 The provisions of this Clause 13 will remain in full force and effect notwithstanding that after any relevant Intellectual Property Rights or Company Invention has been made or originated by you, your employment with the Company may have terminated for any reason. 12.6 You irrevocably and unconditionally waive in favour of the Company any and all moral rights conferred on you to the fullest extent permitted by law (by chapter IV of Part I of the Copyright Designs and Patents Act 1988 (as amended)) (e.g. the right to be identified as the author) for all work that you create during the course of your employment. | Be careful of the 10% time “perk”. It is not your own time. It is work time where you are self-directed. Any project unrelated to your work should be on your actual own time not dork time that is free of specific assignment. Fortunately the section 39 of the UK patent law is short and relatively straightforward. It is focused on “the course of your usual duties” not on whose time you were on or whose equipment you were using. It belongs to them if - (a) it was made in the course of the normal duties of the employee or in the course of duties falling outside his normal duties, but specifically assigned to him, and the circumstances in either case were such that an invention might reasonably be expected to result from the carrying out of his duties; or (b) the invention was made in the course of the duties of the employee and, at the time of making the invention, because of the nature of his duties and the particular responsibilities arising from the nature of his duties he had a special obligation to further the interests of the employer’s undertaking. Otherwise it’s yours. See https://www.gov.uk/guidance/the-patent-act-1977/section-39-employees-inventions-right-to-employees-inventions | Yes, this violates the GDPR if the user is in Europe. Data which is tied to a personal device can be tied to the person who owns it. From "What Is Personal Data" by the UK Information Commissioner's Office (ICO) (emphasis added): Personal data is information that relates to an identified or identifiable individual. What identifies an individual could be as simple as a name or a number or could include other identifiers such as an IP address or a cookie identifier, or other factors. If it is possible to identify an individual directly from the information you are processing, then that information may be personal data. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual. The bit about "all means reasonably likely" in the last bullet includes the kind of de-anonymisation tactics described in the NYT article. There are 6 lawful bases for data processing in the GDPR, and all processing must fall under at least one of them. (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.) Selling data isn't covered by any of the others, so consent must be obtained. Permission must be clear and positive, and you cannot predicate delivery of a service on the processing of data that isn't necessary for that service. So for instance you cannot say "You can use this service as long as we are allowed to collect and sell your data" because selling the data isn't necessary to the provision of the service. From "Consent" by the ICO: Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of default consent. Explicit consent requires a very clear and specific statement of consent. Keep your consent requests separate from other terms and conditions. Be specific and ‘granular’ so that you get separate consent for separate things. Vague or blanket consent is not enough. [...] Avoid making consent to processing a precondition of a service. This applies to any processing of data about individuals within the EU, so just being an American company doesn't get you a free pass to ignore the GDPR if your app gets used by Europeans. The "Legitimate interests" basis is more problematic, in that the company collecting the data has to conduct a vague "balancing test" to determine if this basis applies. For direct marketing the ICO has written this, which says that direct marketing may be a legitimate interest, especially if you can show that the user has expressed interest in such adverts. For instance a location service which promises to tell you about nearby special offers would fall into this category. Against this, the impact on the user's privacy has to be considered, and location data is "special category data" because it can reveal medical information (e.g. hospital attendance) or religious affiliation (e.g. which church you go to). So unless the relationship between the recorded location data and the service is very direct its not going to pass the balancing test. The company would also need to distinguish between knowing the current location and keeping a record of historical locations; the two need separate justification. And of course nothing about this covers the sale of the data; this is considering a company which sells advertising space in it's app, not one that sells the data itself. | "Reasonableness" is meant to be vague, because what is reasonable in one case or contract or industry is not always reasonable in another. Generally, though, you'll probably find courts interpreting it to take into account normal practices in your geographic area, in your industry, and between you and the other party. If one party looks like they're trying to unjustly enrich themselves or is asking for something that people just don't agree to in the real world, it's probably going to be unreasonable. If people are asking for the fair value of their work on terms that are normally agreed to when they're the subject of negotiations, it's probably reasonable. Dropping the reasonableness language would probably leave the assigning party in a bad position, as they're not required to make the assignment, with no qualifications as to the terms. The assignee could argue that they're free to take the IP on any terms whatsoever, though courts often read in a reasonableness requirement anyway. This answer is based on U.S. law, but there will be probably be pretty strong parallels if you're in a common law jurisdiction. | The software is "work for hire" and the copyright is owned by the client, not you. This is the default rule when copyrightable work is done on this basis in the absence of an agreement to the contrary. To not be "work for hire" you would have had to have a written agreement to the contrary or would have had to written the software before you were engaged by the client and then sold it to the client as an off the shelf finished product. [After further research I have determined that the language above is not accurate.] While you didn't have a written agreement, you did have an agreement reached without committing it to a final written form signed by both parties that is sufficient to cover all of the material terms of the contract and that is a binding and fully performed agreement. UPDATE: The "work for hire" issue is a bit more complex than I initially stated. Here is an American Bar Association summary of the issue in the independent contractor context (there is also a plausible argument that while the parties characterized you as an independent contractor for tax purposes that you were in fact of de facto temporary employee in which case it would automatically be work for hire, but I'll put that issue aside and take it at face value): Under the Copyright Act (17 U.S.C. §§ 101 et seq.), a work is a “work made for hire” only if: (1) it is prepared by an employee within the scope of his employment; or (2) it is specially ordered or commissioned from an independent contractor pursuant to a written agreement and the work falls within one of nine statutorily defined categories. . . . For works created by independent contractors, only the following types of works are eligible to be “works made for hire”: a contribution to a “collective work” (a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole); a part of a motion picture or other audiovisual work; a translation; a “supplementary work” (a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes); a “compilation” (a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship); an “instructional text” (a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities); a test; answer material for a test; or an atlas. This software is clearly specially ordered or commissioned from an independent contractor. I suspect that if you looked at the course of dealings including the client's specification of what work needed to be done (probably in part by email or in some other written form) that it would meet the requirement of a written agreement even though there wasn't a document called a contract signed by both parties. But, this still begs the question of whether it falls in one of the nine statutory categories. This American Bar Association source says that custom software doesn't qualify. The list above does not include many types of works that businesses frequently hire outside personnel to create, such as websites, logos, advertisements, photography, and custom software. For works that do fall within the defined categories, the business must have a written agreement from the author expressly stating that the work is made for hire for it to qualify as such. Although the agreement and course of dealings between a business and an independent contractor may give rise to an implied license for the business to use the works created by the contractor, it is highly preferable to avoid relying on an implied license. Any business that engages a non-employee to create a work and intends to own the copyright to such work should have a written agreement with the author expressly stating that the work is made for hire (if it falls within one of the eligible categories). If the work is not eligible to be a work made for hire, and for good measure even if it is, the written agreement should include a provision assigning the copyrights to the business. An example of such a provision is: “To the extent that the Work Product is not recognized as a ‘work made for hire’ as a matter of law, the Contractor hereby assigns to the Company any and all copyrights in and to the Work Product.” By including such a copyright assignment clause, a business will be able to obtain the copyrights it expects, even if the work does not qualify as a “work made for hire.” The copyright office's official publication on the subject provides a statutory citation (17 USC 101), and doesn't contradict the ABA presentation, although it is less detailed and specific on the legal issues. This section of the United States Code is a series of definitions. The relevant one states: A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the words added by that amendment— (A) shall be considered or otherwise given any legal significance, or (B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination, by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made for Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations. | The legal issues are too black and white to have any meaningful impact on an ethics discussion. The IP belongs to A and B can't use it. A's not planning to build a product around the patent is irrelevant to the law and I do not see it bring up any ethical issue, but some people who do not understand patent law might. There might be ethics issues if A hired Josh with the specific plan to fire him as soon as the application was filed and intentionally misled him about these plans. Another issue might be Josh's duty to not disclose A's confidential information (the application does not become public right away), and Josh's duty to not draw B into developing an infringing product. | Is a text message legally binding? Yes, but the terms of the message need to be clear enough to ascertain the parties' intent at the formation of that contract or agreement. A contract does not even need to be in writing. There are also oral contracts and implied contracts, the latter referring to contracts which are inferred from the parties' conduct. A contract such as the agreement you describe here is binding regardless of its form. It is just easier to prove the existence of a contract if it is in writing. You did not specify your jurisdiction. If it is in the US, the price tag --rather than the downpayment-- of the object of the contract (i.e., the puppy you intend to buy) determines whether your complaint would need to be filed in Small Claims court. Generally speaking, parties to a dispute in Small Claims court have to represent themselves. Two remarks are pertinent. First, developing writing skills is utmost important not only for litigating a dispute, but also during the process of formulating the terms and conditions of a contract/agreement. Your post indicates that you seriously need to work on that. Second, the end of your post reflects that one of your managers violated labor law(s), which to most of us would be more worrisome than the controversy about the puppy. Legislation in most or all jurisdictions outlaws the act of withholding an employee's compensation regardless of its form (salary, commissions, and so forth). You might want to gain acquaintance with the labor laws of your jurisdiction so you can assess whether or how to proceed (does legislation require the employee to "exhaust administrative remedies" prior to filing in court? are administrative remedies optional? do these exist at all?), even if only to ascertain whether the deadline for filing the corresponding claim has elapsed. | No. (Therefore no). Not necessarily. Yes. Is there a fair use for patents? No. "Fair use" is a affirmative defense for copyright infringement. The issue is that patents cover an design, idea or methodology, while copyright covers an "artistic" work. For example, if he were alive and working today, van Gogh would have copyright over his collection of paintings. If he developed a special paintbrush to make his distinctive style, he could patent the design for that brush. There is no obligation to make a patent available, much less at a "fair rate". And there is no obligation for a patent holder to make their patent available (so yes, they can block you directly or indirectly). There are various rationales for this. One is that a patent holder's historical reward for producing a new invention, a furtherance of common knowledge, is that that individual would receive an exclusive monopoly on the manufacture and sale of that invention. Often, this would serve as a way to recoup investment in new development and an incentive to experiment and expand the knowledge base of a country. This arrangement in the modern day is most closely represented by the exclusive license agreement, in which the licensor (in this case the patent holder) agrees to not only give the licensee the legal right to use the patent holder the legal ability to use their patent, but also agrees to limitations in what other people are granted that legal ability, in exchange for compensation. | Unless you have a legally valid IP right related to the specification that statement is meaningless. When a software license is granted it is based on the copyright of the code. The copyright of the spec. just stops people from copying the spec - it does not protect the information in it. You can restrict copying of the spec. under copyright, you can make up a name for the spec (like USB or Bluetooth) and get a trademark and only allow the trademark use in limited cases(doesn’t stop implementation of the spec), or get a patent that would be necessarily infringed if something complying with the spec was created and used, sold, made, etc. or you can keep it secret and only show it to people who contractually agreed with your terms. |
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