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What happens if a refugee continues to be threatened in their host country? Suppose a person seeks asylum in a new country, like the US or in Europe. But after they get there they find that the people who were threatening them in their home country, for example as part of a gang, have members working in their asylum country. If they find out where this person is and start threatening them there too, I assume they would work with domestic law enforcement. But what if that law enforcement is known to be unfriendly to immigrants (perhaps for frequency of these kinds of situations) or if they are just as helpless in managing these people as the country they left? At that point is the precedent that they just make do, saying "at least this country doesn't let civilians own guns" (that can be moved across the border)? Or is there international law guiding the handling of asylum seekers and refugees that dictates they be transferred to a 3rd country? | A person threatened by a “gang” is not presumably a refugee A refugee is “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” A person who is fleeing a “gang” may genuinely be in danger, but they are not a refugee unless the threat is from one of the reasons above. Owing $50k to your crack dealer that you can’t pay back does not grant refugee status. Your asylum application will be denied and you will be returned to your home country. Or, if you refuse to go, be held indefinitely in immigration detention: there are many people around the world who have spent decades like this. However, that just begs the question. There is no law that requires a country to pass on asylum seekers to a 3rd country. Indeed the UN convention requires that the country where asylum is sought processes the applicant. This doesn’t always happen and there are countries that tacitly or actively “encourage” refugees to move along. Of course, a very unfortunate person could be a refugee from country A be granted asylum in country B and then become a refugee from that country and seek asylum in country C. | Legally, they cannot just nab you. The usual (?) option is that authorities in the US request extradition pursuant to the US-Mexico extradition treaty via the Department of Justice, and if the paperwork is in order, this can result in a Provisional Arrest Warrant (and arrest) in Mexico, which will be carried out by the Mexican federal police. This is true whether or not you go to the US consulate. After a hearing in the Mexican courts you might be extradited (or not, but DoJ presumably doesn't proceed with cases that they will lose). Extradition is not possible for every offense, so you would have to look at the offenses listed in the treaty, and whatever the Arizona warrant is about. You can't be extradited for parking tickets, you can be extradited for murder: whatever it is, it has to be a crime in both places, and has to be subject to a minimum one year imprisonment. Also, if you are a Mexican citizen as well, you cannot be extradited unless the Mexican authorities agree to (whereas there is no choice if you are only a US citizen). An alternative is deportation, which would overcome limitations related to extradition, but it's not clear what the requirements for deportation from Mexico are (typically illegal presence, unclear whether Mexican authorities can or would try an end-run around official extradition procedure). Although consulates enjoy a degree of immunity from local law, a consulate in Mexico is still Mexican territory, subject to Mexican law. If you are in the consulate, Mexican authorities cannot enter without permission to arrest you. They also cannot arrest you without a warrant (see Art. 16 of the Mexican constitution). Consular staff also cannot arrest you (if you are not caught flagrante delicto). Nor are they authorized to execute a US warrant in Mexico (thus they have to go through the process of judicial review to send you back to the US, and why a Mexican warrant is required). See this Q&A, relevant to the status of embassies: what is relevant to us is that both the US and Mexico operate under the rule of law, so the issues surrounding Syrian refugees in the Syrian embassy do not arise here. | There are problems with the claims. In summary: someone that in Sweden acts to defend themselves while "in peril" when subjected to — or are in imminent risk of — a criminal attack, will not the convicted, unless the act is "blatantly unjustifiable". Context We have a problem here in Sweden with people being ill-informed about the right to self-defence, and this is compounded by people with opinions spreading myths about it. Often these myths err on the side of claiming you have less rights than you really have. So, two things before we go on... The characters may have been unreliable. Do not ever assume that just because a character says something in a work of fiction, that the character is meant to know what they are talking about. And even if they are meant to know what they are talking about... The author may have been unreliable, and done their homework poorly. Keep this in mind... That said, the right to self-defence is not infinite. The law According to the Swedish Criminal Code (Brottsbalk, 1962:700), Chapter 3, §§ 1-2 and 6... If you intentionally kill someone, you get convicted of "murder" If you intentionally kill someone, but there were mitigating circumstances, you get convicted of "manslaughter" If you act in reckless disregard for the risk your actions are causing, and this leads to the death of someone, you get convicted of "causing the death of another", or what we here can call "reckless killing" And Swedish Criminal Code (Brottsbalk, 1962:700), Chapter 24, § 1 states that an act performed in "peril" shall only lead to a conviction if the act was "blatantly unjustifiable". "Peril" is enumerated to exist in cases of... A commenced or imminent criminal attack on person or property A person has gained or trying to gain unauthorized access to a room, house, yard or ship A person refuses to leave a domicile after being told to If — when caught red-handed — a person uses violence or threats of violence to resist stolen property from being retaken When judging whether an act is "blatantly unjustifiable", the prosecutor must look at... the nature of the attack that caused the peril the significance of that which the attack was aimed at (such as a human life) other significant circumstances That last bit is interesting because it takes human psychology into consideration, and let the defendant's assessment of the peril be the standard by which the act is judged. The claim Let us start with the easy bit first... "if she killed the intruder, under Swedish law, she could very well be charged with manslaughter, and possibly murder if it could be proved that she placed the golf clubs around the house ahead of time." Murder? No. According to the Swedish Criminal Code (Brottsbalk, 1962:700), Chapter 3, §§ 1-2, a person that kills an intruder in their home could at the most be charged with manslaughter, because there are mitigating circumstances, i.e. the person felt threatened and there was a home invasion in progress. In order for this to become murder, she would more or less have to have invited the assailant or in any other way drawn them in with the intent to kill them. Yes, she prepared to defend herself or a potential intrusion, but without knowing for certain that the assailant would come at certain time or at least a certain day, any kind of premeditation towards killing is more or less impossible to prove. With this, murder is off the table. That claim is simply wrong. Whether it is the author or the character that is erring, I cannot say. So, manslaughter then, or the even lesser degree, called "causing the death of another", or reckless killing. Manslaughter would come up of she — when whacking them with the club — did so with the intent of killing them. The operative word here being intent. The prosecutor has to prove that intent. Sure, we can dream up scenarios where this is the case; the classic reason for why people do get convicted even acting in peril is when they keep harming the assailant after the danger has passed. But — again — just preparing for a potential intrusion is not enough to prove that intent. Finally, reckless killing. This is where such cases usually ends up. And — again — this usually happens because the defendant did something when the danger has obviously passed; the criminal attack was no longer imminent but passed. Conclusion Unless the protagonist in question had set up lethal traps; unless they had foreknowledge of an attack; unless they invited the assailant in with the intent to kill them; unless they fend off the attack and gets themselves into a perfectly safe situation and then proceeds to beat the assailant to death; and unless all of this can be proved, then it cannot become murder. Manslaughter or reckless killing, yes, there will be an investigation for that, but from the description of the situation — the protagonist fearing the assailant is dangerous and means them harm — preparing a home defence with strategically placed golf clubs does not in any way preclude the prosecution being dismissed as justifiable self-defence. Only(!) if the home invasion was obviously harmless, and/or the protagonist keeps harming the assailant after the home invasion has been staved off / neutralised, can a conviction for manslaughter or reckless killing become a possibility. Summary Yes, in Sweden a prosecutor will look at the case when you kill someone. But — no — in the situation described, a home invasion by someone perceived as wanting to cause harm, this is very unlikely to become "murder", for lack of premeditation. The remaining possible charges — manslaughter or reckless killing — will only result in a conviction if the situation was obviously and provably harmless in the eyes of the defendant, and they still killed the assailant. | The question starts with a wrong statement, that international law does not allow the use of force against unarmed border violators. It does. There are human rights involved, and any one border policy may be against international law and conventions, but generally speaking the use of (lethal) force may be allowed. When a person dies, the proper disposition of the body is governed by the laws of the country where the body rests. This can become problematic when the body rests on a border fence, possibly inaccessible from the side on whose territory it is. Once the body is recovered, there may or may not be an autopsy, again according to national law. | Deadly self-defense is legal in Germany. The self-defense law (in particular Sect. 32 of the Criminal Code) makes no restrictions as far as the type of aggression and the type of defense is concerned. That means that - in principle - you can defend yourself against an attack by any means that is necessary to stop it. The principle behind that is "das Recht muss dem Unrecht nicht weichen", which translates to "the law does not have to yield to the unlawful". That particularily means that: You do not have to run. You do not have to yield. You do not have to wait for help from public authorities (notably the police). You can defend yourself (against any attack on you, be it life, limb or property), no matter if that would mean commiting a crime (even if that crime is killing a person). This is called "Trutzwehr" or "schneidiges Notwehrrecht", which can be translated to "active defense" or "aggressive defense" as opposed to passive defense. However... This regulation is not without pitfalls and limitations. There are quite a few, which means that in practice deadly force could be considered unlawful in self-defense. Books have been written about this subject alone, so it can not be exhaustively handled here. Some examples for corner cases are: Attackers that clearly can not understand the severity of their actions have to be spared from extreme effects of your self-defense. The classical book case is that you can't shoot little children stealing apples from your tree. If there is a massive discrepancy between what you want protect and the damage the attacker has to endure (called "qualitativer Notwehrexzess" - translating to "qualitatively eccessive self-defense"). If someone insults you, shooting him might go to far, since while your honour is attacked (which is protected by Sect. 185 Criminal Code), the attacker's life (protected by Sect. 212 Criminal Code) by far outweighs it. Note that, to ensure the effectiveness of the self-defense laws, the discrepancy must be extreme. And it does not mean you can't defend yourself. You just have to choose a less severe measure. So you might get away with knocking the insulter out. After the attack is over you hit the attacker once too often, which causes his death (called "quantitativer Notwehrexzess" - "quantitatively eccessive self-defense"). The attack was over at the time of the deadly blow, so your right for self-defense had ended. You might get away without punishment, if it was impossible for you to realize that the attack was over. If you only think an attack is happening, but it is not (for example someone attacking you with a rubber knife on Halloween). In this case there is no attack and so technically there is no right for self defense (called "Putativnotwehr"). Similar to the cases of excessive self-defense, it depends on your individual case (notable if you had a chance to realize the attack was false) if you are punished or not. To sum it up: You have the right to defend yourself by any means necessary, but you are held responsible if you go to far (not just a little, but really really to far). | Typically in extraditions, the treaties will only allow for extraditions if both nations have a similar crime and similar punishment for that crime. In this case, there maybe some pause for Australia to grant an extradition as Australia no longer has the death penalty for any crime, so it could be that while the new crime the defendant is being sought for is Escape from Incarceration related (that's a yes in both countries), technically the punishment for an escaped Death Row Inmate is the Death Penalty. Australia can't extradite for any crime where death penalty is on the line, but the requesting nation can say they will give a more lighter sentance that is more compliant with the requested nation's own laws. However, since it is Death for another crime that Austrilia never had jurisdiction over, it complicates matters. There is precidence for procedural reasons for refusing to extradite. For example, while the U.S. and Italy have an extradition treaty and both view murder in the same light, the U.S. refused the extradition of a citizen who was wanted for a murder in Italy that she was previously aquitted of, but new evidnce was uncovered. Because it is illegal for the state to try a person twice for the same crime in the U.S., the U.S. declined the extradition treaty. Some additional notes, extradited persons can only be tried for crimes that they were extradited for, so there is an argument that Australia would refuse unless Indonesia promises to commute the Drug Trafficking sentence to Life Imprisonment | Edits added below to outline Florida's laws based on OP's comment Jurisdiction does matter but here is a general answer regarding "stand your ground" laws. States that have so-called "stand your ground laws" each have their own language concerning the law. "Stand your ground laws" are often misunderstood but, generally, just mean that a person has no duty to retreat when using deadly physical force for purposes of self-defense or the defense of others. Your examples are more akin to "castle doctrine" laws which I touch on below. Note that all of these laws vary by jurisdiction. I've provided partial examples from Arizona, New York and California. Using deadly physical force for purposes of self-defense or defense of others is complex law and even a complete example from any particular jurisdiction will not be able to cover all circumstances. Each case will be determined by a judge or jury based on the facts of that particular case. Arizona's "stand your ground" statute, as an example, states: B. A person has no duty to retreat before threatening or using deadly physical force pursuant to this section if the person is in a place where the person may legally be and is not engaged in an unlawful act. "Stand your ground" simply means that a person doesn't have to first attempt to retreat before resorting to the use of deadly force. Arizona's statute regarding justification for self-defense states (emphasis mine): A. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force. B. The threat or use of physical force against another is not justified: In response to verbal provocation alone; or To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or If the person provoked the other's use or attempted use of unlawful physical force, unless: (a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and (b) The other nevertheless continues or attempts to use unlawful physical force against the person. Note the phrase, "extent a reasonable person." This means that the actions of a person using deadly force will be measured against what a "reasonable person" would do in similar circumstances. Some states have a duty to retreat, particularly when in a public place, before using deadly force. New York, as an example, has a "duty to retreat" before using deadly force except in specific circumstances (emphasis mine): A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor; or (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or (c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20. Castle Doctrine Laws typically refer to what one may do in their own home when it comes to the use of deadly force. Some states have extended the "castle doctrine" to include personal automobiles as well. California's "castle doctrine" statute, as an example, states that if one is in their own home and someone "unlawfully and forcibly" enters the home one can presume that the person in his or her residence "held a reasonable fear of imminent peril of death or great bodily injury": Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. As used in this section, great bodily injury means a significant or substantial physical injury. In California's statute both the resident and the person using force to gain entry have to know or have reason to believe that an unlawful and forcible entry occurred. If a person simply entered an unlocked home then the resident would have to have some other reasonable reason to believe that they were in imminent peril of death or great bodily injury. Wikipedia has a reasonable entry on the adoption of "stand your ground" and "castle doctrine" statutes and gives a state-by-state breakdown of both. Note that these laws have seen a lot of change recently and any particular entry for a state may not be accurate. Florida's self-defense laws Florida's "Use or threatened use of force in defense of person" states: 776.012 Use or threatened use of force in defense of person.— (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. (2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. Florida outlines the cases where use, or threatened use, of force is justified. Notice that in the law Florida specifically states that the person threatened does not have a duty to retreat. Florida also specifically states that a person has a "right to stand his or her ground" if the person is in a place where he or she has a right to be and is not engaged in criminal activity. Florida statute also specifically outlines the right to use self-defense within one's home and vehicle. Florida has a "castle doctrine" similar to what was outlined above and similar in nature to New York's and California's laws: The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; Florida has a longer list of exemptions related to who may have used force to enter a home including ownership interest in the property or vehicle, children and grandchildren, the person who engaged defensive force was involved in criminal activity and law enforcement officers. Florida's Justifiable Use Of Force is chapter 776 discusses when force can be used. There was an attempt by the Florida legislature in 2019 to change the standard by which use of force could be justified from "reasonably believes" force is necessary to "a reasonably cautious and prudent person in the same circumstances would objectively believe" force was necessary. The bill was withdrawn in May, 2019. | ORS 166.220 suggests this would be illegal - specifically its "unlawful use of a weapon" if a person (emphasis mine): Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge. So what's "within range"? With a homemade bow of unknown construction, draw weight, and unknown arrows I'd say it's pretty much going to be something you find out when an arrow goes that far. I wouldn't expect it to match the range of high-end bows and arrows (I've seen 40lb recurves cover ~250 yards) but 100 yards plus doesn't sound ridiculous - more if it's got some elevation to it. The point is you really don't want to find out the hard way when a shot goes astray giving your neighbours the old King Harold treatment. |
A salt hashed with user password is anonymous data for GDPR? I want to use a scheme to track the user in a anonymous way. My idea is to use the user password to hash a salt to create a identify hash and track the user through this. Theoretically, the only way that I can return from hash identify to user is if I know his password, but it is a thing that only he know, by premise. So, it's considered anonymous or pseudonymised for GDPR? \ | The GDPR has a fairly broad concept of what it means for a data subject to be identifiable. The details are given in Recital 26: To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The good news is that this mandates a risk-based approach to identifiability. You don't have to prevent re-identification with absolute certainty, but you must make sure that re-identification is not “reasonably likely”. The bad news is that “identify” does not just mean “figuring out the real-world identity of the data subject”, but also “being able to single out the data subject”. Hashes of personal data are still personal data. The hashed password still allows you to single out data subject, since the hash now serves as an identifier that links multiple records. Equivalently, a random ID would serve as an identifier. Depending on the information in the linked records, this could reasonably likely also allow linking to a real-world identity. I'll also point out that the GDPR explicitly notes that “online identifiers … such as internet protocol addresses, cookie identifiers or other identifiers” enable profiling and identification, and are thus a kind of personal data. Note that it seems you have a user database that includes a password hash. This database includes rich links between the password hash and other, more directly identifying, data. Alternatively, consider that the software that collects tracking information along with this tracking identifier would also receive other information about the data subject that could allow re-identification, such as the data subject's current IP address. It would be reasonably likely that such additional information could be used to identify or single out the data subject. For this analysis, it is irrelevant whether you have any intention of singling out users – it only matters whether, under an objective analysis, the relevant means to do so exist. Related: EDPB thinks hashed phone numbers are personal data. There has been recent debate by regulatory bodies on the question whether hashed phone numbers are personal data. This debate was published by the EDPB binding decision regarding the Irish DPC's fine against WhatsApp, which uses hashed telephone numbers to intersect user's address books. The question in the context of the fine was whether this represents processing of personal data of users who are not WhatsApp users themselves. Originally, the Irish DPC argued that such hashes were not personal data. However, the German, French, Portuguese, and Dutch supervisory authorities pointed out that the specific hashing approach used by WhatsApp does not provide anonymization, for example because there still is contextual information (such as the user's social graph) that would allow indirect identification (and because their hashing was pretty weak and reversible with reasonable effort). Such hashing would only be pseudonymization, not anonymization. The Hungarian supervisory authority makes the argument that WhatsApp could always re-create the hash from the original data, thus permitting re-identification of the hash. This is in line with my above argument that the hash allows singling out. Again, the hash should be considered pseudonymous, not anonymous. The EDPB upheld all these objections against the Irish interpretation as “relevant and reasoned”, and largely agreed with their merits. Some parts of the resulting analysis are specific to issues around phone numbers, in particular that there are comparatively few phone numbers. However, a recurring point is that the hashed data cannot be viewed in isolation. It must be viewed in the context of how it is created and used, and in the context of other data that the data controller has. Conclusion It is possible that in some cases the hash could serve as an anonymous token. But this would require careful analysis about how the hash is created and used, and about what other data you have available and could potentially link or correlate with this token. Unless you are extremely sure that there are no means that could be reasonably likely used to perform re-identification or singling out, you should consider such tokens to be pseudonymous data. Pseudonymization is a great security measure, but such data is still personal data. I suggest reading the WP29 opinion 05/2014 on Anonymization Techniques (WP216) (PDF link). It predates the GDPR and is slightly outdated in both legal and technical matters, but still contains highly relevant guidance on the matter of proper anonymization in the European data protection context. Aside from identifiability issues, I am concerned about using the password (or derived hashes) for anything other than authentication. Even in hashed form, this is fairly sensitive data. In most cases where you would use a password hash, you can likely use a random number instead. | Earlier this year, the Internet lawyer Arnoud Engelfriet wrote a blog post about exactly this topic. As it is written in Dutch, I will summarize it here: As you also said, deleting posts breaks the flow of the archived conversation and it makes your archive incomplete. This is a problem for the freedom of expression and information. But Art. 17(3) GDPR includes an exception to the right of erasure for this situation. So posts do not need to be deleted. However, profiles are not included in this exception. So they must be removed, but they can be pseudonymized. For example replace the username with user89432, and remove all details from the profile. If other posts contain the nick of the author of an anonymized post, that is considered an journalistic, academic artistic or literary expression, so Art. 85 GDPR would apply, so the right of erasure does not apply to that. Bottom line: you only have to pseudonymize the account, if that person wants to be removed from the forum. | 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. | Is X considered personal data? Can you use X to directly or indirectly identify a natural person? In the data to which you have access can X be related to an identifiable natural person? If you answer yes to either of those questions then X is personal data. Article 4(1): ‘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; Scenario 1: you want to count each user agent that comes to your site, that's the only data you have, then the user agent is not personal data (it cannot be used to identify someone - unless it has a name and address etc, which seems highly unlikely - and you cannot relate it to anyone). Scenario 2: you have customer records with names, addresses etc (clearly personal data) and want to record each customer's user agent then the user agent is personal data (it relates to the identifiable natural person). Scenario 3: in one dataset you record that a user agent was associated with order ID 123456 and in another dataset you record that order ID 123456 was for John Smith (plus address etc), then the user agent is personal data (it relates to the identifiable natural person). Is this considered storing personal data? If X is personal data. Do I need user's consent to record X? If you want to record X and X is personal data, then you must have an Article 6 lawful basis for recording X. Consent is one of the six lawful bases. Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; (c) processing is necessary for compliance with a legal obligation to which the controller is subject; (d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks. | 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! | GDPR & EPD require user consent before storing a users personal information. Wrong. User consent is one of the ways that justify storing personal information, but there are others. You may check art.6 to see the several reasons that allow to store personal information. In this case, it seems reasonable to justify it under the paragraph f (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Of course, that means that the data has to be used for this purpose. Avoiding spammers and other banned users would be such a purpose, but you should ensure that you do not send those e-mail address commercial information or even a Christmas greeting. In any case, be careful with anything you store. If along with the e-mail you stored more info, this could be interpreted as excessive and beyond the scope of paragraph f. For example, imagine storing "User wrote nazi statements" explaining why the e-mail is banned; EU laws are very restrictive about storing information about political or religious beliefs. | Your VPN scenario is why you have to show the banner to everyone. If you somehow knew beyond any doubt that someone was not in the EU, then you would not have to show a banner, but because you can't verify that, you should always show the banner. Doing so also protects against accidentally violating a similar law in another country; the GDPR is the best-known privacy law, but it is far from the only one. It's good practice to ask for people's permission before collecting their information anyway. | Yes If you are in the EU, or your players are in the EU and your service is targeted at some part of (or all of) the EU, then this pretty clearly falls within the scope of the GDPR. Such a service would be collecting data associated with natural persons. At least some of it would be made public along with an online identifier, and other parts would be processed and stored, even if disclosed only in anonymized form. (By the way it is a non-trivial task to anonymize data well enough that it is no longer persona data under the GDPR. But let's suppose yoru methods are good enough.) Under GDPR Article 6 the DC must have a lawful basis for such processing. If the basis is "consent" then the consent must be freely given, whch means giving consent may not be a condition of using the service. Under GDPR Article 13 a notice must be sent to the Data Subject (DS) when the data is collected from the subject, including some 11 items or categories of information about the collection process, the Data Controller (DC), the purposes of processing, the legal basis of processing (which the DC must define), who will receive the data, the data retention period, and various rights of the DS. Such a service must be prepared to respond to data access and data erasure requests, under articles 15-17, and data restriction requests under article 18. It must provide a method for a DS to easily make such requests. Other GDPR provisions may well apply in addition to these, but that is enough to show that such service is very likely to be within the scope of the GDPR, unless none of the DSs are present in the EU or the related market area. |
Austrian Law about requesting documents not originally required Are the Authorities in Austria, allowed to ask for additional documents that they did not previously specify, when one applies for a visa? For example, when applying for the post-Brexit EUV 50 card (i.e. "The residency card that all British citizens in Austria, who were resident in Austria prior to 31.12.2020, must apply for in 2021" since they are non-EU citizens), if the required filings (erforderliche Unterlagen) are a valid passport, timestamped photo, correctly filled-out form, and a valid Anmeldebescheinigung and you provide all of these, are they legally allowed to then demand something not mentioned, like your bank details from 5 years ago? I would like to read whatever laws pertain to this. At the bottom of their website it states: Es kann sein, dass Sie weitere Dokumente vorlegen müssen. The Google translation of this phrase is: You may be required to provide additional documents. | In general, obtaining a Visa is a thing that is done according to the discretion of the state offering it. As a result, it is entirely up to the Austrian regulations. To establish the necessary information, sometimes additional information is required then the basic ones. Austrias Visa page lists: Nachweis über ausreichende Mittel zur Bestreitung des Lebensunterhalts für die Dauer des geplanten Aufenthalts und die Rückreise in den Herkunfts- oder Wohnsitzstaat Sonstige von der jeweiligen Behörde geforderten Nachweise (Hotelreservierungen, Einladungsschreiben, Buchungsbelege, Rückflugticket, Nachweis einer aufrechten Beschäftigung, usw.) – da diese den örtlichen Standards angepasst und mit den anderen Schengenvertretungen koordiniert sind, können die Nachweise lokal differieren The first is "proof that you are financially not dependant on Austria for the time you want to be there" and "Any other documentation required by the office". That means, yes, they can ask for any documents that are reasonable to establish that you can pay for your travel to Austria and intend to return home after your visit. They do so according to Article 14 of the Visa-ordonance: Article 14 Supporting documents When applying for a uniform visa, the applicant shall present: (a) documents indicating the purpose of the journey; (b) documents in relation to accommodation, or proof of sufficient means to cover his accommodation; (c) documents indicating that the applicant possesses sufficient means of subsistence both for the duration of the intended stay and for the return to his country of origin or residence, or for the transit to a third country into which he is certain to be admitted, or that he is in a position to acquire such means lawfully, in accordance with Article 5(1)(c) and (3) of the Schengen Borders Code; (d) information enabling an assessment of the applicant’s intention to leave the territory of the Member States before the expiry of the visa applied for. Any other information is under 14.1.d, and that can take the shape of bank statements. | The Czech Consulate General in New York has a page about this. Presumably a similar situation would prevail at other Czech consulates, so this answer should help even if you do not reside in its territory. The page notes that if you are not "a relative" you can "enclose an explanation letter why do you need the duplicate of the birth [or marriage] certificate." So it's possible that they'd give you a copy anyway, but, to increase your chances, you might want to include a letter explaining that you need the document to demonstrate your own Czech nationality. You can also include a copy of your birth certificate as evidence of your relationship. The page links to the forms you have to submit with the request for the certificate. They reflect the same possibility, slightly more specifically. The birth certificate application says 6. V případě, že nejste v tabulce, uveďte vztah k dítěti nebo jiný právní zájem: 6. In case you are not the person in a table, relation must be stated or any other legal interest: As far as I can tell "the person in a table" means "a person in the list of birth certificates being requested with this form." That is, you don't need to explain yourself if you are the child whose birth certificate it is, nor if you are one of the parents shown on the certificate. The marriage certificate form similarly says 6. V případě, že nejste osobou uvedenou v tabulce, uveďte vztah k osobám nebo jiný právní zájem (If the applicant is not listed in the table below as the Husband or Wife, please provide an explanation of the relationship or legal interest which authorizes this submission.): This last sentence hints at the one thing that I unfortunately do not know, which is the criteria for judging whether a given explanation is legally sufficient to authorize the release of the certificate to the person who submitted the application. I guess your case is as good as it gets, but it's possible that the law prevents the certificates to be issued to you while your parents are still alive. | UK, Identity Documents Act 2010, false identity documents etc: Possession of false identity documents etc with improper intention (1) It is an offence for a person (“P”) with an improper intention to have in P's possession or under P's control— (a) an identity document that is false and that P knows or believes to be false, (b) an identity document that was improperly obtained and that P knows or believes to have been improperly obtained, or (c) an identity document that relates to someone else. Each of the following is an improper intention— (a) the intention of using the document for establishing personal information about P; (b) the intention of allowing or inducing another to use it for establishing, ascertaining or verifying personal information about P or anyone else. ... Possession of false identity documents etc without reasonable excuse (1) It is an offence for a person (“P”), without reasonable excuse, to have in P's possession or under P's control— (a) an identity document that is false, (b) an identity document that was improperly obtained, ... Such an identity document could be an "an immigration document", "a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom or by or on behalf of an international organisation" or "a document that can be used (in some or all circumstances) instead of a passport" (e.g. a European country's identity card). | The EU VAT directive has harmonized rules for invoices. Relevant for your question: Article 226 requires, among others, that the invoice contains the customer's VAT identification number, as referred to in Article 214, under which the customer received a supply of goods or services in respect of which he is liable for payment of VAT, or received a supply of goods as referred to in Article 138 If the customers receive invoices by electronic means they are supposed to archive the electronic invoice (and not a printout). They are not allowed to alter it in any way for archiving purposes by Article 246 The authenticity of the origin and the integrity of the content of the invoices stored, as well as their legibility, must be guaranteed throughout the storage period. In respect of the invoices referred to in the second subparagraph of Article 233(1), the details they contain may not be altered and must remain legible throughout the storage period. (where Article 233(1) refers to electronically received invoices.) The rules where put in place to combat VAT fraud – putting the VAT number of both parties on the invoice makes it a bit harder. If you were allowed to alter invoices before giving them to the authorities you would circumvent the entire purpose. | The DAAD has published a summary of the legal constraints when working as a foreign student in Germany. While the document is only available in German, it is complete and rather authoritative. I summarize the main points here. On a student visa, you are eligible for 120 full days or 240 half days in accordance with §16b (3) AufenthG. This is a legal constraint. It is not up to interpretation. Only mandatory internships constitute a right to further work. In individual cases, the Ausländerbehörde (foreign registration office) can grant authorization for additional work. The authorization will only be granted if the extra work will not jeopardize the purpose of your stay in Germany, which is studying full-time. In particular, work in a study-related job such as a student assistant will generally be eligible for an extension. This is up to the judgement of the office. Thus, there can be differences between different cities. If you intend to surpass the 120/240 day limit, you must get prior authorization. You are otherwise violating the conditions of your visa, which can result in fines and deportation. Additionally, no upstanding employer wants to provide illegal work as they would be subject to penalties themselves. Links: DAAD guidance on working in Germany (German): https://static.daad.de/media/daad_de/pdfs_nicht_barrierefrei/in-deutschland-studieren-forschen-lehren/daad-infoblatt_erwerbstaetigkeit.pdf §16b AufenthG (English): https://www.gesetze-im-internet.de/englisch_aufenthg/englisch_aufenthg.html#p0275 | "May" means "is possible" and not "is necessary". The specific law does not say anything about a person doing A, B or C and it does not say that if you do one of A, B or C then something mandatorily follows. It asserts that certain types of documentation "can" be used as evidence supporting the proposition that the applicant did not disrupt continuous residence, but it also asserts (without giving any further hints) that other things may be used. This law does not state necessary or sufficient conditions for establishing undisrupted continuous residence. It is not hard to construct a scenario where a person moves back to their home country and ran for public office there, but failed to quit the US job. In light of compelling evidence that they actually moved back home, failure to quite your US job is not proof that you remained in the US. Proof resides in the totality of evidence, not just the admissibility of a single fact. Doing one or more of (A-D) is no guarantee of anything. | Any country can certainly decide who it should grant citizenship status to. There is no international rule that I know of requiring that the recipient be currently a resident of the country granting citizenship. Any country may issue passports to its citizens. | The answer has two parts depending on how you get here. Airline answer: Any such question by a CBP officer is merely a last-chance option to supplement the response you gave on the declaration form. The form asks a series of specific questions which are difficult to misunderstand (if you speak English), you say yes or no, and fill in applicable details. If you remember that you put an apple in your luggage, you can verbally amend the declaration. It is not necessary or practical to recite the statutory, regulatory and case law authority to ask these questions. As I recall, the electronic version asks the same questions. All versions of the form that I have encountered over the decades have included the perjury warning. If you had an alternative experience for you did not fill in a customs declaration form, that would be unusual, and a significant failure by the CBP officer(s). Land-border answer: you are right. In this case (when no customs declaration form is filled out), they rely on every person's obligation to know and comply with the law. You are required to declare the $12,000 cash that you are bringing back, and you cannot plead "I didn't know I had to declare that cash". You can always make suggestions for service-improvement to the Dept. of Homeland Security. |
UK Asylum Claim - highly skilled - permission to work Suppose that a young post-grad from the US seeks asylum in the UK and that at least for the short run, they allow his claim to start processing. He's not the typical claimant - he has a masters degree, work experience, and student loans. As a data analyst, there are a variety of remote jobs he can work for employers in the US while being physically protected in the UK. The question: Can he legally work such a job with or without permission? What are the options, otherwise? Please keep in mind, this is not a question about the legitimacy of the person's asylum claim. The assumption should be made that the claim is legitimate and is only in processing. | It's not a matter of funding, it's a matter of eligibility for asylum in the UK which appears to be highly unlikely according to reports where 45 recent applications from US citizens were rejected.1 One option is to apply for a Skilled Worker Visa for one of the eligible occupations. The Skilled Worker route enables you to live and work in the UK for up to five years. You can apply for Indefinite Leave to Remain, a form of settled status, after you have lived in the UK for five years under the Skilled Worker Visa. Source As for "Can he legally work such a job with or without permission?", working in the UK without "leave to remain" (i.e. permission) is an offence contrary to section 24B of the Immigration Act 1971 1That said, if the UK and USA governments did come to an arrangement whereby "at least for the short run, they allow his claim to start in the UK" it is impossible to foretell the future and say with any degree of certainty what conditions, requirements, liabilities and demands each side would impose. | united-states If they have a contract with the employee which specifies that such IP is assigned to the company at creation, such a contract is valid until and unless a court holds that it is void. It might be held void as against public policy,. or as being "unconscionable", but it might well not be so held. An even broader contract, which claimed any and every kind of IP created by an employee, even if crated during off hours and not at the work site nor with company resources is more likely to be held void, but even this is not certain to be held void. In the absence of a contract explicitly assigning such IP to the company, the company might attempt to apply the rule that makes works created by an employee within the scope of employment works-made-for-hire (WFH). This is in 17 USC 101 (the definitions section of the copyright law). This would affect copyrights, but not patents or other IP. There is very little US case law interpreting the "scope of employment". But there seems some reason to believe that work that was not assigned by the employer, not intended to benefit the employer, not used by the employer, not done within usual working hours nor using company resources, and not of the specific type normally assigned to or carried out by the employee, is probably not "within the scope" of the employee's employment. If that is so, the work would not be WFH, and only an explicit written contract, signed by the employee (or the employee's authorized agent) could transfer the copyright. | In the US at least, discrimination is legal (and sometimes even required) unless it is discrimination against specific, protected characteristics, and even then it is sometimes allowable if it is "necessary". Income, whether of an individual or that individual's family, is not in any list of protected characteristics. As such, discrimination upon it is fully legal. | I don't believe GDPR makes a distinction between 'real life' and 'online'. It's all real life. You can tell anyone that they don't have consent to keep your personal data, but that doesn't mean they always have to delete it. There are six lawful bases for processing of personal data, so if an organisation is using and can justify one other than consent then they don't necessarily have to delete your data when they ask. The six bases are listed by the UK Information Commissioner's Office: (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.) https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/#ib3 | Since you asked, and it's a perfectly legitimate question, here's why it doesn't violate the Fifth Amendment (from Garner v. US): The Fifth Amendment doesn't say "you can't be made to say anything that hurts you." It says "no person...shall be compelled in any criminal case to be a witness against himself." The only time Fifth Amendment protection applies is if you are being forced by the government to make a statement that could open you up to an accusation or conviction of a criminal offense. It's fairly broad (if it would help prove any aspect of the charge, you can claim immunity), but it's also restricted (you can't claim it unless it really would tend to incriminate you). That means that you could only argue the Fifth Amendment if your tax return might help prove a criminal case against you (the fact that disclosing income leads to you needing to pay tax does not qualify as "self-incrimination"). But the amount of income is not one of those things that might incriminate you -- you can get income through all sorts of ways. The thing that is incriminating is revealing the source of the income, and you can claim Fifth Amendment privilege for that. So: The only time you could possibly claim privilege is if you were being forced into a statement that might tend to incriminate you in a criminal proceeding. A statement that makes you liable for tax doesn't mean it might incriminate you. Filing an income tax return isn't inherently incriminating. The fact that you have income not included in any other part of the return (illegal income goes under "other income") doesn't imply you've committed a crime -- lots of people have other income. The amount of income can't be incriminating. The source can be, but you can claim Fifth Amendment privilege for that if it might incriminate you. And lawful income under "other income" still might give rise to a reasonable fear of prosecution, so the fact that you're justified in claiming Fifth Amendment privilege in source of income doesn't mean you're guilty of a crime. Note that there are cases where you are flat-out exempt from filing tax returns under the Fifth Amendment: Marchetti v. US and Grosso v. US found that registration and tax on gambling could be blocked by a Fifth Amendment claim, which didn't even have to be asserted at time of filing, because merely filing the special return would establish you as a gambler (heavily regulated/often criminalized at the state level). The difference with the normal income tax form is that everyone (just about) files one, and so filing it doesn't mean you're a criminal. If there was a separate line along the lines of "Income from Illegal Drug Sales," that might be one thing (anything other than $0 is inherently incriminating). But all the questions are broad, and have many legal sources of income associated with them. | The requirements are primarily about the immigrant. There are three main types of employment-based green card. For the category "Extraordinary Ability" You must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim In this case, "No offer of employment or labor certification is required". On the bottom of the third-level of preference, there is a category of "other workers" where You must demonstrate the ability to perform unskilled labor (requiring less than 2 years training or experience), that is not of a temporary or seasonal nature. You must be performing work for which qualified workers are not available in the United States. You must meet any other requirements specified on the labor certification. The employer has to do some things, including getting a foreign labor certification which is about "the position", and filling in this form which is about the employee. What you are describing sounds like a fraudulent immigration scheme, if the intent is to create a paper company that makes bogus offers of employment. The PERM Labor Certification step requires a complex rigamarole that costs money, here are the instructions (I think this is most likely the applicable form), and here is the form. The form includes a penalty-of-perjury statement, meaning if you lie on the form, they can prosecute you. The form I-140 for the employee must be filled out truthfully, under (criminal) penalty of perjury. So if this is a bogus employment "offer", the would-be company probably cannot help, in particular because they do not intend to pay any wage at all, but they certify that they will. | This looks very iffy. It purports to require you to consent unconditionally to medical examination. It further purports to demand unredacted medical examination irrespective of relevance. According to http://www.acas.org.uk/media/pdf/n/9/B11_1.pdf The Access to Medical Reports Act 1988 requires an employer to obtain written consent from a worker before applying to his or her doctor for a medical report. The Act lays down a procedure to be followed and gives workers the right to see the report, to request amendments or to withhold consent to the report being supplied. The relevant provision is available at https://www.legislation.gov.uk/ukpga/1988/28/section/3 While there may be theoretical loopholes to this, an employer would be unwise not to follow the norms laid out above. It would be ethically questionable for a doctor to examine without consent (where a person has that capacity); or to rely on a contract entered into some time ago under different circumstances as evidence for consent. In practice an Occupational Health professional will almost certainly want to protect themselves professionally by establishing genuine informed consent first. The TUC has more guidance on the complexities of this: https://www.tuc.org.uk/research-analysis/reports/confidentiality-and-medical-records The contract term may also be unenforceable under GDPR insofar as it is a) processing data reliant on consent which is not freely given and b) processing more sensitive data than is strictly necessary for the task. Now just because you have the right to refuse consent doesn't mean the employer will do nothing about it. The employer might attempt to refuse payment under an occupational sick pay scheme, to which some reasonable additional conditions may be attached, but a) so long as you notify them and get appropriate doctor's notes in the usual way (see https://www.gov.uk/statutory-sick-pay for details) your employment contract cannot invent additional conditions to prevent you receiving Statutory Sick Pay, and b) it is questionable whether submitting to a disclosure arrangement as described would be reasonable. The employer might attempt to discipline or dismiss you for refusing to comply. The reasonableness of this is likely to depend on the existence of exceptional circumstances. There may be cases where there is a statutory duty to monitor for specific exposures which give rise to a refusal to consent being a sufficient reason for dismissal (and I do not know for certain) although the contract wording given does not lead me to expect that this is the case here. In the absence of such a reason, any detriment might lay them open to a claim of victimisation of an employee asserting their rights. If the employer takes any such detrimental action, you would likely need to submit a grievance and be willing to pursue to Tribunal to sort it out. If you are currently being required to submit to an examination under this term, seek advice without delay from your union representative. If you did not have the prior presence of mind to join a union, a solicitor specialising in employment law may be able to give advice (for which you should expect to pay). Having said all that, I notice the term does not specify that the employer may insist on who does the medical examination... I do wonder if you could meet this requirement by simply visiting your own GP, who will presumably be bound by the legislation above (definitely get advice before trying to use this!). | As an interviewer and a hiring manager, I can safely say that you can be rejected for a position for many reasons, even if you meet all the criteria - there may simply be someone better than you that they have also interviewed. Being rejected when meeting the criteria does not necessarily mean you were discriminated against, and in order to successfully claim discrimination you would have to show that you were rejected for a discriminatory reason. Very few companies hire the first candidate that they interview who has the relevant skills and experience - I have interviewed probably 60 candidates in the past 12 months for several positions, and we generally interview at least 5 or 6 candidates per position before making a decision. We do not, and would never consider just hiring the first candidate who interviews that meets the criteria. Some of the people we reject are of protected classes and also met the criteria - but that doesn't mean we discriminated against them, they just weren't the best candidate we interviewed. Being of a protected group and having the relevant skills and experience does not guarantee you the job, it just "guarantees" (in quotes because thats the intention of the law, and reality may differ - hence why discrimination cases do happen) that you cannot be rejected on the basis of the protected group. If you were rejected because of the protected group, and you can show that (including obviously thin reasons such as withdrawing a position and then advertising it again the next week), then thats discrimination. If you were rejected for any other reason, then that does not necessarily constitute discrimination. You could easily meet all of the criteria, have excellent experience but still come across as a candidate who would be difficult to manage (argumentative, lack of self-motivation, lack of attention to detail etc etc etc) and thus be rejected. It's not all about simply meeting the criteria, which is why we interview rather than hire on the basis of someones CV and qualifications. |
Is a Nazi party legal in the US? I read about the leading case National Socialist Party of America v. Village of Skokie and got curious about the legality of having a Nazi party in the US. The Wikipedia article on that party says it was dissolved in 1981, but it doesn't mention any aspects of its legality. There is another article that shows there are multiple nazi-oriented parties in the US (implying they are indeed legal), but can they promote a candidate and hold, if elected, some public office? I think this could be asked on Politics SE as well. But I'm interested in the legal aspect. | Given the First Amendment, no matter how offensive you find the views of some ideology, that viewpoint can legally be expressed in the form of a political party. | No The Enabling Act was a law by which the Reichstag effectively abolished itself - adding legislative power to the government (Article 1, sentence 1). Government laws would be prepared by the Chancellor (Adolf Hitler) and published in the Reichsgesetzblatt (Artical 3, sentence 1). The law expires on the 1st of April 1937 or after the forming of a new government (Artical 5, sentence 2). Given the suppression and intimidation of members of that body it is likely that the law itself was unconstitutional. With this legal facade, the Nazis proceeded to institute a militaristic, undemocratic and illegal regime. The Patriot Act did not amend the constitution and is subject to all the constitutional constraints on legislative and executive power. It delegated powers to the President that were within the constitutional power of the congress to so delegate. In particular, it did not in any way transfer legislative power to the executive; that would be unconstitutional. Further, it did not purport to put the powers of either branch beyond judicial review. | What could be the consequences of this wedding? They would be married For example, if they break up and end their PACS in France, would they still be officially married in the USA? Yes, and also in France. And if after that they marry other partners, could this be a problem for them when applying for an American visa? Yes, bigamy is illegal in both the USA and France. Does France and the USA exchange information on wedding of foreign citizens on their soil? Don't know, probably not. Could they even end up being officially married in France even without doing any paperwork themselves? Most definitely. France recognises US marriages so they would be married in France (and the U.K., and Australia, and Germany, and ...). This is true even if the French government doesn't know they are married. | One law is 42 U.S.C. §2000a (a)All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin. Nothing about political opinion. Also, note that a web site is not a "public accommodation" so the rules can be different. Feel free to start a both a coffee shop and a web site that do not serve socialists. | An anti-BDS law may be invalid in some circumstances, but this has nothing to do with the establishment clause of the First Amendment. Boycotting or not boycotting Israel is not an inherently religious question and isn't justified as such. More often the issues will be pre-emption by a higher level of government's laws, lack of legal authority to enact such a law under an authorizing statute, or possible the "dormant commerce clause." The linked material in the OP refers to the First Amendment freedom of association and possible the First Amendment freedom to petition, not to the establishment clause. | In the United States, the answer depends on who is unlawfully in power. In the hypothetical you presented, the answer is probably that the law would remain valid, as Congress generally has the sole authority to pass judgment on whether to admit the elected person. A third party would not have the ability to challenge the law based on the qualifications of a lawmaker. But if we were dealing with an administrative official promulgating regulations, those rules would generally be void if that official were unlawfully appointed. That was the case in Nat'l Labor Relations Bd. v. Canning, 573 U.S. 513 (2014), where a cola distributor challenged a labor regulation, saying that the members of the NLRB who enacted it were improperly appointed. The Court agreed that the appointments were improper, so the regulations were nullified. A judicial decision coming out under these circumstances would also be nullified if one of the judges weren't really a judge. That happened just last year, in Yovino v. Rizo. In that case, ten judges from the Ninth Circuit heard a case, and the vote split 6-4. But the author of the majority opinion died before the decision was published, which is when it become effective. The Supreme Court held that because there were therefore only five votes for that decision, it was not a majority opinion, and therefore not binding on future Ninth Circuit panels. | I don't know about that particular case, but you are basically right: In Switzerland, if you want to apply for citizenship, you apply for it in the municipality first. Everybody having the citizenship of the municipality has the swiss citizenship as well. In theory, the canton and the state also have something to say, but that's irrelevant for most applications. This has historic reasons, but going into the details is beyond the scope of this question. Fact is, that every municipality has its own rules, about when and how applications are handled. This has been unified a bit in recent years, but some things still differ. That is for instance, how many years you need to have lived there or who decides your application. There were municipalities (actually most) where the final decision was made using a public vote. This practice was declared illegal by the federal court some years ago, because becoming a citizen is a formal governmental act, and as such a reason needs to be given for turning an application down. This is inherently impossible with a vote. Since that law decision, most municipalities have shifted the responsibility to a committee for citizenship applications. The public can still bring in arguments, but they need to be justified (ie. if somebody knows about the applicant being a wanted criminal somewhere). Consequently, you can now call for a court to check whether the given reasoning is correct and just, if you are turned down. | In the US, it is not illegal to lie in general. This includes lying about someone: it's not illegal per se to lie about them. What is illegal is slander and libel: lying about someone in a way that hurts their reputation. The defamation doctrine in the US is generally a common-law doctrine (i.e. the rules and limits are based on court decisions, rather than on laws passed by legislatures), although it may differ state-by-state. Depending on the state, some defamation may be criminal; there is no federal criminal defamation. US defamation law is largely defined through its interaction with the First Amendment. While libel is not constitutionally protected, punishment for libel is seriously limited by the need to avoid either punishing protected speech, or chilling potential protected speech (i.e. discouraging people from saying something that would in fact be protected, because they aren't sure whether or not it's protected). Libel in the US only applies to a false statement of fact, or an opinion which implies some false fact. If it can't actually be proven incorrect, it can't be libelous in the US. The question of whether it's a statement of fact doesn't just depend on the literal speech; it includes things like the context, and is a question about what a reasonable person would think. If I were to claim that someone was "literally Hitler," for instance, no reasonable person would think I was seriously claiming that the person was the former leader of Nazi Germany. Now, no reasonable person who is familiar with Twitter would ever assume that the tweet meant Obama literally stood up in front of the UN and said "Please accept this nothingburger in place of a respectable climate plan." So, it only counts as libel if a reasonable person would think it implies some fact. But a reasonable person familiar with Twitter would most likely think Miesel is saying "The president's pollution plan is a pointless piece of political puffery planned to placate principalities and potentates." This is basically a matter of opinion. Even to the extent that it's not a matter of opinion, public figures in the US cannot win a defamation suit unless they show "actual malice:" the speaker must actually know or actually strongly suspect that their statement is false in some material way. It's not enough that a reasonable person would think "this might not be true;" the speaker themselves must doubt the truth of it (they must be reckless, not just negligent). Courts are also extremely deferential to defendants in these cases. While it is technically possible for a public figure to prove defamation, it is exceptionally difficult. If the person didn't know they were falsely attributing the quote, and honesty thought it was correct, they're in the clear. If the quote isn't supposed to be a statement of fact, but it implies false facts, but the speaker honestly thinks those facts are true, they're in the clear. Private figures don't have to meet the actual malice standard to prove defamation. They still need to show that the statement is a statement of fact or something implying false facts; if it's obviously a summary of something they really said, possibly with added editorial comment, they can't prove defamation. |
Can I claim recompense if a government action destroys my house? Let's say I rent out a house to someone who I don't know, but turns out to be a terrorist using a false identity. The government raids the house, there is a fight, and my house is destroyed. Can I claim compensation from the government for destroying my house? Can I do it even if it is a foreign government conducting the raid? | In the United States, the government has, multiple times, destroyed homes while trying to catch a fugitive. And the homeowner sometimes makes a claim in federal court that this is an unconstitutional taking without compensation in violation of the 5th Amendment. In Lech v. Jackson, the 10th Circuit decided that the police and city were not liable for destroying a house while trying to arrest a criminal who had fled there. The Supreme Court declined to hear the case. But in Baker v. City of McKinney, Texas, less than 3 months ago, a district court declined to dismiss a case in which police destroyed a home to catch a fleeing criminal. Allegedly, in this case the police were given a key to the door, a garage door opener, and the code to the back gate by the homeowner - and instead of using those, they used explosives on the garage door and used a BearCat to knock down the fence and the front door. I'm not sure to what extent those facts, perhaps showing that the scale of the destruction was unnecessary, matter. To the best of my knowledge the case is still ongoing. | There is no legal obligation of the police or any of its officers to reimburse you. It comes within a police powers exception to the 5th Amendment obligation to provide compensation for takings. Sometimes a government will compensate someone even though it has no legal obligation to do so, but this is unlikely to happen. A petition for certiorari from 10th Circuit decision of Lech v. City of Greenwood Village (10th Cir. October 29, 2019) recaps a lot of the relevant law and arguments for changing it (the petition was subsequently denied by the U.S. Supreme Court). The question presented in the petition was: Using explosives and a battering ram attached to an armored personnel carrier, the Greenwood Village Police Department intentionally destroyed Petitioners’ house. Afterwards, they offered the family $5,000 “to help with temporary living expenses.” The family sued, arguing that they were entitled to Just Compensation under the Fifth Amendment for the intentional destruction of their house. The Tenth Circuit, however, held that no compensation was due because the home was destroyed pursuant to the police power rather than the power of eminent domain. The question presented is whether there is a categorical exception to the Just Compensation Clause when the government takes property while acting pursuant to its police power. (To be clear, Texas is in the 5th Circuit and not the 10th Circuit, but there is not a circuit split on this particular issue between any U.S. Court of Appeals Circuits, and the Texas Supreme Court has not taken a contrary position.) Needless to say, that fact pattern was even worse for the innocent citizen, because law enforcement had more discretion and time to make a conscious decision about how to respond to the "bad guy" (an armed man wanted for shoplifting and resisting arrest) in the house to which the suspect had no connection. You could sue the "bad guys" who were involved in the shootout (if known) for causing an incident that foreseeably damaged your car, or you could make a first party insurance claim with your own car insurance. | I'm not sure it makes sense to talk about having "jurisdiction" over an IP address, for the purposes you're discussing. If you wanted to sue the IP address itself--something that is possible under limited circumstances--then you might need to locate it for jurisdictional purposes. But I don't think that's what you're talking about. You're talking about taking civil or criminal action against the people who are using the IP address to commit crimes. What matters, in that case, is not a theoretical legal question about the location of an IP address. It's questions like: where do these people live? Where do the people downloading the illegal content live? Where are the physical servers located? ("In the cloud" is not an answer--there are physical servers somewhere making up that cloud). For jurisdictional purposes, the chair they're sitting in when they upload the illegal data, and the location of the AC power outlet the physical server is plugged into, are as important as, if not more important than, the metaphysical "location" of the IP address of the server. | The relevant part of Texas law is in the property code, §§92.101-92.109 §92.104 allows them to "deduct from the deposit damages and charges for which the tenant is legally liable under the lease or as a result of breaching the lease", and then they must "give to the tenant the balance of the security deposit, if any, together with a written description and itemized list of all deductions" (except when there is uncontroversial rent owed). §92.109 states what the landlord's liability is, namely a landlord who in bad faith retains a security deposit in violation of this subchapter is liable for an amount equal to the sum of $100, three times the portion of the deposit wrongfully withheld, and the tenant's reasonable attorney's fees in a suit to recover the deposit. This requires bad faith, not just being wrong. If you dispute the deductions, you can sue the landlord to recover the deposit. The law also provides that "In an action brought by a tenant under this subchapter, the landlord has the burden of proving that the retention of any portion of the security deposit was reasonable". In order to extract more money from you for putative damages, the landlord will have to sue you and establish that there was an additional $2,000 damages. If the court finds that you did actually did damage the apartment, you may be ordered to compensate the landlord. Until you get such an order, you don't owe them anything; you may be able to recover the damage deposit if the "damage" was insignificant. This sketches the process of suing in Justice Court to get your deposit back, highlighting details like the demand letter that you might not have known you have to write. As far as your credit history is concerned, this is not entirely clear. The Fair Credit Reporting Act regulates the industry of credit reporting, and crucially you can dispute false claims of debts. This does not prevent a person from making such a claim. I do not have an account with the Big 3 reporting services, so I don't know what their standards are for recording a putative debt. However, you can insert a suitable statement in your record disputing the validity of the claim. It is most likely that the landlord would sell the putative debt to a collection agency. That industry is regulated by the Fair Debt Collection Practices Act, and there is a procedure about disputing an alleged debt. | In Austria they have a law about "Kreditschädigung" (website from the Austrian government, "credit damage") translated by Google as: Because of credit damage, a person is liable to prosecution if he or she asserts incorrect facts and thereby harms or endangers the credit, the acquisition or professional advancement of another person. A prison sentence of up to six months or a fine of up to 360 daily rates is provided for the offense of credit damage. If you setup a webpage which lists things which might harm somebody's business, you have to proof that every single claim you make is correct (not just your individual experience). So if you have solid proof for each of your claims of your Q&A, you might win a probable law suite. The way you wrote it, it might be difficult to proof because it seems to be your personal experience. See also here for details. (in German). | australia A tenant must return the property in the state it was given subject to fair wear and tear Fair wear and tear represents the deterioration that occurs in normal use - so it includes wear on a carpet from walking on it but not wear from having a horse walk on it (unless you’re renting a stable but who puts carpet in a stable?) If the wall is in the condition that it was given to you but for the normal deterioration over time, then you are not liable to fix it. As for who has the onus of proof, since the landlord is the one claiming the entitlement, they have to prove it. However, the burden is only the balance of probabilities. So, if there is a fist shaped hole in the plaster wall and there is no evidence it was there when the tenant moved in, then, it’s more likely than not that it happened on the tenant’s watch and they have to fix it. Because putting fists through walls is something that residents are more likely to do than landlords. However, if there is a painted wall and the initial application of the paint is defective, then absent evidence that the tenant painted the wall, it’s more likely than not that the landlord did it. Because painting walls is something landlords are more likely to do than residents. | In the absence of an agreement to the contrary, you could usually be sued in the jurisdictions where the events giving rise to the claim took place, if you were personally served with process anywhere in the world in a procedurally correct manner. If this happens and you default or fail to cooperate in the judicial process, you will probably have a judgment entered against you. If you lost, the other party would get a judgment against you (an official declaration of a court that you owe another party money that authorizes various involuntary means of debt collection from your income and assets). This could be enforced against assets you have in the jurisdiction where the judgment was entered, or could be "domesticated" to a different jurisdiction where you had assets by bringing suit or exercising another process set forth by treaty or a law of the jurisdiction in which the foreign judgment holder seeks to domesticate the judgment. Whether the foreign judgment is conclusive against you or not, depends upon the domestic law of the place where they seek to enforce the foreign judgment, the nature of the underlying claims upon which the foreign judgment is based, and the legal process used to obtain the foreign judgment. Many countries will pretty much automatically enforce a judgment enforcing a breach of a contract between private sector parties obtained through the ordinary legal process in a country whose legal system is recognized by the U.S., but often will not give legal effect to legal procedures like a pre-dispute "confessions of judgment", an award of exemplary damages, an award of non-economic damages, or an award based upon a legal theory that is not recognized by the jurisdiction in which you seek to enforce the judgment. In general, judgments of U.S. courts in tort cases are rarely recognized by other countries. Similarly, a U.S. court, for example, would not enforce a foreign judgment, from say, ISIL controlled territory, for breach of a contract to deliver slaves to a buyer. Some Saudi Arabian money judgments are not enforced in the U.S. because the courts have held that their system does not protect basic principles of due process and the rule of law, which is why contracts with Saudi Arabia often have arbitration clauses instead of relying upon the royal courts in existence there. Some countries might enforce a judgment entered following a trial on the merits regarding a dispute, but not a default judgment, without essentially bringing the lawsuit all over again in the country where the assets are located, applying the general principles of legal concepts known as "collateral estoppel" and "res judicata". Most countries have special laws specifically governing when an arbitration award will be enforced with a money judgment in that jurisdiction and when it will not be enforced. This varies considerably from one country to another. The U.S. is unusually deferential to employment and consumer arbitration, but most countries will recognize express signed contractual arbitration agreements in a business to business situation that conforms to basic standards of due process. | 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. |
What do I need to do after being shipped a wrong order? I recently ordered a book online, which is print-on-demand. On arrival I noticed that they printed the wrong book. Only the cover says the correct title of the book, but the content is completely different. I contacted the customer support but didn't receive a satisfying answer. After a while I contacted them again, and said that I am not going to pay, as I did not get what I ordered. I have not gotten a reply yet. Of course I am not willing to pay for this book, and also not willing to send it back at my own expense. Customer support did not give guidance on what I should do, so I am seeking out for some help on how to behave in a situation like this. | This is an internet transaction Internet transactions can be reversed within 14 days after delivery of physical goods without the need to state reasons in germany. That is "Rücktritt vom Kaufvertrag". However, you are needed to send back the product and might be required to pay the shipping fees, depending on the original contract. This is a materially flawed product You ordered a book with text A. You got text B. That is a material flaw and you can demand the correction of such a material flaw (Mangel) at the expense of the seller, including any postage. However, if the text was provided by you or the original order form is indicating text B instead of A, the mistake is on you. | am I required to send the stuff back? No, but you should be able to prove that you met the conditions of the original contract between you two. There is no gift. There is a compensation that forms part of the contract between the offeror and you. The offeror's preference to call it a "gift" does not change the legal fact that his offer and your acceptance to complete Nightwave Season 2 constitutes the formation of a contract. From that standpoint, you are entitled to keep the items he mailed to you as long as you honor your part in that contract. You are right by conjecturing that a party is not allowed to unilaterally alter a contract. Any modification has to be agreed upon by all parties to that contract. However, a consent or agreement may be inferred from the parties' subsequent conduct. Hence the best way to pre-empt or supersede any such inference consists of letting that party know that you disapprove of the belated alteration(s). The absence of a written agreement can only complicate matters, though, since it appears that neither party has an objective, directly credible way to prove the terms of the original contract. Perhaps such terms can be deduced from the subsequent emails that he has been sending you, but that is impossible to ascertain without knowing the wording of the subsequent communications between you two. Lastly, enforceability of your contract is less clear if completing Nightwave Season 2 through someone else's performance amounts to an unlawful act. Not being knowledgeable of the terms and conditions of that game (?), I am unable to state with certainty whether the offeror could lawfully recover from you the items he mailed. | In addition to the other answer which, correctly, notes that the publisher is more likely to be in a position of being able to pay any damages awarded, there is one other good reason to sue the publisher rather than the journalist... The journalist cannot print a retraction or correction with the same reach as the original article - only the publisher can do that, and they won’t necessarily do it just because the journalist wants them to. | 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. | 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. | Depends on where you are, and likely also on what they knew when. It is entirely normal to order some goods (like perishable food, or custom-fitted furniture) before it is produced. The contract may or may not include advance payment. Most jurisdictions require some sort of intent for fraud, so the non-fulfillment would not be fraud if circumstances beyond the control of the supplier prevent delivery. The question of civil damages and repayment is distinct from criminal fraud charges. | 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. | Could the store give the customer credit or must they actual return the money? The store has the legal obligation to return the money if the customer demands to be reimbursed. Section 155(4)(a) of the BC Business Practices and Consumer Protection Act explicitly provides reimbursement "to a consumer or class of consumers". The store's unilateral, inflexible decision to give the customer credit in lieu of a reimbursement is in violation of sections 8(3)(a) and 9(1) of the Act. That approach constitutes undue pressure to enter into an additional consumer transaction, more so where management is aware of the issue and refuses to fix it. |
What was the rationale to have the US Bill of Rights only apply at the federal level, not at the state-level? Originally, the US Bill of Rights did not apply at the state level; only the federal level. For instance, the right for a criminal to be represented by counsel, granted by the 6th Amendment, did not originally apply to state level criminals. The process of incorporation of the Bill of Rights reversed this and made these rights apply to state level. But why wasn't it this way to begin with? What was the original rationale to have the Bill of Rights only apply to the federal level? | Barron v. Baltimore 2 U.S. 243 (1833) explains the rationale: The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes. | What appears to be the controlling case is DC v. Heller, 554 U.S. 570. In Heller, the meaning of "Right of the People" is relevant, and the court finds that in three instances in The Constitution, these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body" However, Art. 1 Sec 2 of The Constitution says that "the people" will select members of The House, and then there is the 10th: Heller says that Those provisions arguably refer to 'the people' acting collectively—but they deal with the exercise or reservation of powers, not rights In other words, "the people" can act collectively, but "the people" have individual rights. In the remaining cases of "the people", the expression "unambiguously refers to all members of the political community, not an unspecified subset". We are then directed to US v. Verdugo-Urquidez 494 U.S. 259, which is a warrantless search case involving a Mexican citizen and a search in Mexico, and the part that Heller finds relevant is that ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution… . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." In other case law, Underwager v. Channel 9 Australia, F.3d 361 which cites US v. Barona, 56 F.3d 1087 it is likewise said that constitutional rights expressly limited to the "people," such as those created by the Fourth Amendment, are held only by "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community" "The People" thus starts from identifying "a national community", and then if the context is about rights, each such individual has the right, but in the context of powers, the collective has it. | In the US, private prosecutions are heavily disfavored, and are not allowed in most jurisdictions. Where they are allowed, they tend to be limited in nature and subject to the ultimate control of a government officer. Federal court is one of the places where private prosecutions are not allowed. However, in two cases, Congress has decided that private citizens can file a civil case on behalf of the United States. These are called qui tam actions, and the private citizen is representing the interest of the United States; the United States has standing, so the private citizen does as well. Private criminal prosecution would presumably follow the same rule if it existed and was constitutional at the federal level. | The U.S. Supreme Court has no jurisdiction to set everyday procedural rules in state court, although it can mandate processes that flow from the constitution. In criminal cases, this allows it to regulate courtroom conduct that is prejudicial to defendants. The U.S. Supreme Court, for example, has prohibited keeping criminal defendants facing trial in a cage in the courtroom as is common in many jurisdictions elsewhere in the world. The Rittenhouse case took place in state court, over which the U.S. Supreme Court has limited authority in such matters. On the other hand, the U.S. Supreme Court has broad authority to establish court rules in the federal courts and could adopt rules in those courts if it deemed fit, and if its proposed rules were not legislatively vetoed by Congress. | 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. | Almost no constitutional right, for the most part, applies or gives rise to an all-encompassing right at all times. Schools can determine that certain times are off limits as activity during those times may interrupt the environment most conducive to learning, or for other articulable reasons; this is fine so long as it is applied evenly. Schools may say you may not hand out literature at certain times, only before or after classes, weekends, or put limits on the place or manner of distribution. There are examples of this premise that exist, pertaining to nearly every right, otherwise considered absolute. This is no different than the principle that while Americans enjoy the right to free speech, not all speech is protected at all times, or that the right to bear arms does not apply to all people, places, or environs. | 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. | Since you asked, and it's a perfectly legitimate question, here's why it doesn't violate the Fifth Amendment (from Garner v. US): The Fifth Amendment doesn't say "you can't be made to say anything that hurts you." It says "no person...shall be compelled in any criminal case to be a witness against himself." The only time Fifth Amendment protection applies is if you are being forced by the government to make a statement that could open you up to an accusation or conviction of a criminal offense. It's fairly broad (if it would help prove any aspect of the charge, you can claim immunity), but it's also restricted (you can't claim it unless it really would tend to incriminate you). That means that you could only argue the Fifth Amendment if your tax return might help prove a criminal case against you (the fact that disclosing income leads to you needing to pay tax does not qualify as "self-incrimination"). But the amount of income is not one of those things that might incriminate you -- you can get income through all sorts of ways. The thing that is incriminating is revealing the source of the income, and you can claim Fifth Amendment privilege for that. So: The only time you could possibly claim privilege is if you were being forced into a statement that might tend to incriminate you in a criminal proceeding. A statement that makes you liable for tax doesn't mean it might incriminate you. Filing an income tax return isn't inherently incriminating. The fact that you have income not included in any other part of the return (illegal income goes under "other income") doesn't imply you've committed a crime -- lots of people have other income. The amount of income can't be incriminating. The source can be, but you can claim Fifth Amendment privilege for that if it might incriminate you. And lawful income under "other income" still might give rise to a reasonable fear of prosecution, so the fact that you're justified in claiming Fifth Amendment privilege in source of income doesn't mean you're guilty of a crime. Note that there are cases where you are flat-out exempt from filing tax returns under the Fifth Amendment: Marchetti v. US and Grosso v. US found that registration and tax on gambling could be blocked by a Fifth Amendment claim, which didn't even have to be asserted at time of filing, because merely filing the special return would establish you as a gambler (heavily regulated/often criminalized at the state level). The difference with the normal income tax form is that everyone (just about) files one, and so filing it doesn't mean you're a criminal. If there was a separate line along the lines of "Income from Illegal Drug Sales," that might be one thing (anything other than $0 is inherently incriminating). But all the questions are broad, and have many legal sources of income associated with them. |
Legality of police bringing firearms into federal post office Is it legal for all police officers in the United States to carry firearms into post offices, which fall within the jurisdiction of the federal government, when called by post office employees? | 39 CFR § 232.1(l) provides that: Notwithstanding the provisions of any other law, rule or regulation, no person while on postal property may carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, or store the same on postal property, except for official purposes. Police officers on active duty, enforcing the law at the request of post office employees, appear to be discharging "official purposes". | The police officers themselves are covered by Qualified Immunity - to put it briefly, a government official acting in their official capacity in a discretionary act (as in, they have some discretion in whether/how they carry out the act) is immune from suit so long as they pay reasonable deference to relevant law. In the case of the police, so long as the search or seizure itself is reasonable (either because there is a warrant, or because they had probable cause), they can take appropriately destructive measures to carry out their duty. Even if the search or seizure is later found to have been unreasonable, an officer may still have Qualified Immunity unless their action violated "clearly established statutory or constitutional rights of which reasonable person would have known" (Harlow v. Fitzgerald). However, a search/seizure doesn't give the police license for arbitrary destruction, whatever they do has to be reasonably pursuant to the legal search/seizure. For example, if a suspect is barricaded in a house with a gun, they can knock down doors, windows and walls to apprehend them. On the other hand, that does not mean the officers can then break open safes to try and find evidence - once their probable cause for the entry is fulfilled (apprehending the suspect), they need to get a warrant to do more than a plain sight search of the house. Warrants will specify what items are being searched for, so even with a warrant the police have to take reasonable measures to carry it out - an example of an unreasonable measure would be to tear into walls in order to try and find a stolen bicycle. On the other hand, tearing into walls could be justified if their warrant included searching for drugs from a dealer, where it is not uncommon to hide them in the walls. States and the Federal Government enjoy Sovereign Immunity from suits in most cases. There are some exceptions, but none would apply in this case so long as the general policy of the police department was not illegal or unconstitutional. However, county and city governments do not enjoy Sovereign Immunity and state governments and the Federal Government often allow suits against them for negligence from their actors, so someone injured by unreasonable police action can usually try to recover damages from the officer's department. | It ultimately depends on the situation, but here's a general breakdown: Many states in the United States have anti-trespassing laws that allow citizens to use deadly force in response to threat of bodily harm. These laws and statutes intersect to provide more protections for gun owners encountering trespassers, burglars, or thieves in their home. However, pointing a gun at someone can be considered assault on the idea that it is a threat that puts someone in fear of harm. Thus, the legality of pointing your gun at someone depends on numerous factors. To name a few, it depends on How a state's criminal laws are defined What was the trespassing incident? Was the trespasser in one's home, or on one's property Whether one feared bodily harm from the trespasser Here's a real instance of this happening in the US: A farmer from New Hampshire was sentenced to 3 years in prison after brandishing his handgun to a trespasser. See article here. | 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. | None No law requires police to keep people apart when making statements. Doing so is good police practice. In some police organizations internal regulations or procedures may specify that officers should do so. But those are not laws. In some cases witnesses may have had a chance to confer and agree on a story before police arrive, the police cannot prevent that. The trier of fact can take into account that witnesses had a chanc to agree on a false story. | ORS 166.220 suggests this would be illegal - specifically its "unlawful use of a weapon" if a person (emphasis mine): Intentionally discharges a firearm, blowgun, bow and arrow, crossbow or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure or vehicle within the range of the weapon without having legal authority for such discharge. So what's "within range"? With a homemade bow of unknown construction, draw weight, and unknown arrows I'd say it's pretty much going to be something you find out when an arrow goes that far. I wouldn't expect it to match the range of high-end bows and arrows (I've seen 40lb recurves cover ~250 yards) but 100 yards plus doesn't sound ridiculous - more if it's got some elevation to it. The point is you really don't want to find out the hard way when a shot goes astray giving your neighbours the old King Harold treatment. | They ran the mail service for the House of Representatives, not for the country as a whole (that was, and still is, run by the Postmaster General). The position was eliminated in 1993, with duties reassigned to other personnel. | Try the phone or email contacts at Florida Department of Law Enforcement - Home. The state of Florida doesn't appear to maintain a statewide officer registry, but that department should be able to verify someone is or isn't a officer in conjunction with the police department closest to your location. If this neighbor is threatening or attempting to enforce the law while not showing ID that proves he/she is an officer, that's serious, and you should call the local police department. Talking about being a LEO while drinking beer at a BBQ is less serious, but still could be a third degree felony. See Statutes & Constitution - Florida State Statutes: 843.08 False personation.—A person who falsely assumes or pretends to be a firefighter, sheriff, officer of the Florida Highway Patrol, officer of the Fish and Wildlife Conservation Commission, fire or arson investigator of the Department of Financial Services, officer of the Department of Financial Services, officer of the Department of Corrections, correctional probation officer, deputy sheriff, state attorney or assistant state attorney, statewide prosecutor or assistant statewide prosecutor, state attorney investigator, coroner, police officer, lottery special agent or lottery investigator, beverage enforcement agent, or watchman, or any member of the Florida Commission on Offender Review and any administrative aide or supervisor employed by the commission, or any personnel or representative of the Department of Law Enforcement, or a federal law enforcement officer as defined in s. 901.1505, and takes upon himself or herself to act as such, or to require any other person to aid or assist him or her in a matter pertaining to the duty of any such officer, commits a felony of the third degree, |
Correlation between wealth and win rate I’m trying to find out if there’s a correlation between win rates in civil cases and the wealth of the parties involved. I’ve searched google scholar but the only thing I can find is a paper regarding who wins patent disputes. I suspect my lack of knowledge regarding legal terms is why I can’t find this research, hence why I’m asking for help here. Does anyone either know of any research papers regarding the impact of wealth when it comes to winning court cases. I’m mostly interested in civil cases, but any research papers on the subject would be appreciated :) | It is difficult to quantify in a useful way. Part of the issue is that calling the courts "dispute resolution forums" is misleading. Courts are "rights enforcement forums." They are designed to provide remedies to people whose rights have been violated, not to neutrally resolve disputes between parties. And, most lawsuits are mostly one sided, not circumstances where both sides have legitimate grievances for which they seek redress. The vast majority of cases brought in courts, by raw number, are debt collection actions, evictions, and foreclosures. These cases are overwhelmingly brought by landlords against tenants and by lenders (mostly banks and big businesses that extend credit) against borrowers. I'll note those in bold. For example, in Colorado, in 2010, there were 116,346 civil cases filed in District Court in Colorado (the state trial court of general jurisdiction). Summary mortgage foreclosure actions accounted for 39,404 of those cases. State tax lien filings accounted for another 45,528 filings. These case make up 73% of the district court civil docket. There were 30,236 cases of other types on the District Court civil docket in the state. About 5,809 are claims that fit in the heartland of tort law: cases involving personal injuries including worker's compensation cases that end up in court) and wrongful deaths, breach of warranty, public nuisance, sexual harassment cases, fraud cases and malpractice cases (of all kinds) as well as motions to approve transfers of structured settlements. About 3,527 involve judicial efforts to establish title to or possession of specific pieces of property often in connection with the collection of a debt. A big portion of the remainder of the cases, 13,165 involve contractual disputes or rights in real estate or other property (a fair share of which are basically debt collection cases such as mechanic's lien foreclosures and large dollar non-payment of contractual debts that aren't seriously disputed). There were 722 appeals from municipal or county courts and 72 cases to confirm arbitration awards. There were 5 public utility cases, 236 cases reviewing acts by local governments and by government officials, and 31 special district cases, 470 declaratory judgment cases, 583 injunctive relief cases, 1,484 cases classified simply as "other", 29 restraining order cases, and 334 contempt of court cases. These courts also handle divorces, child custody cases, paternity cases, probate cases, felony cases, and post-trial collateral attacks on criminal convictions. County courts in Colorado (at the time state courts with a $15,000 jurisdictional limit) had 148,425 debt collection money claims, 42,689 eviction cases, 531 cases to repossess personal property, 13,257 restraining order cases, 1,496 name change petitions, 27 purely administrative registrations of foreign judgments, and 529 cases classified as "other." These courts also handle misdemeanors and traffic violation cases. About 93% of civil cases in county courts in Colorado are debt collection and eviction cases. Overwhelmingly, the landlords and money lenders win these laws and are more wealthy than the tenants and borrowers who overwhelmingly lose these lawsuits. A very larger share of the time these cases are lost by default. In very large share of the cases in which there is a default, it is because there is no viable defense: the promissory note or credit card was not paid as agreed, usually because the debtor was unable to pay it. In eviction cases, usually, the rent was not paid on time, often for the same reason. When there is not a default, there is usually a settlement or payment plan. We focus on the very rare cases that go to trial, but those are edge cases. There are good studies that show that defendants in debt collection and eviction lawsuits secure better results for themselves when they are represented by counsel, which they usually aren't, than when they are not. But defendants in debt collection and eviction lawsuits who are represented by counsel still usually lose anyway, just on somewhat less harsh terms. So, to do any nuanced analysis of the role played by affluence and wealth in litigation, you need to start by having a fairly sophisticated sense of what is and is not a win, and this is far from obvious. In contrast, tort lawsuits for personal injury are usually brought by ordinary individuals from all walks of life who get injured due to bad luck against either other ordinary individuals backed by the resources of an insurance company to defend and settle their cases, or against property owners, or against businesses. There is typically not an affluence divide in these cases, or if there is, the injured person is less affluent, and the injured person usually secured money from the person who they claim caused the injury, either at trial, or far more often, in settlement reached in the shadow of what would have happened if they case went to trial. Lawyers rarely commence personal injury lawsuits were there isn't a good argument that their client should win. Personal injury tort cases make up a thin sliver of cases filed and judgments entered relative to debt collection and evictions lawsuits. These cases make up about 2-3% of the total court system docket (but account for about 75% of civil jury trials). There is litigation other than debt collection, eviction and personal injury litigation. But in some of those kinds of cases, like probates and divorces and bankruptcies, where determining who is the winner and who is not is even more challenging. Indeed, in many such cases that are actively litigated, everyone ends up losing and no one ends up winning. In the law and economics literature, the classic study (Leeson 2011) looked at who won disputed land title disputed in medieval England in the days of trial by combat. It turns out that back then, the wealthier party, who could afford to hire better champions in a trial by combat, usually won. The question asked feels like it is trying to build on that model and determine if that kind of law and economics finding can be applied to modern day litigation with the controlling factor being who hires the best lawyers to go to trial for them, rather than who hires the best champion in trials by combat. Many cynical people think that this is how the legal system works now. But overwhelmingly, at the threshold of who gets any relief relative to the status quo from a court in litigation, the answer is almost always the person who brings the lawsuit, 95%+ of the time, either in a settlement, or at trial, and whether the person bringing the lawsuit is usually more affluent or less affluent than the defendant is dominantly a function of what basis for the lawsuit, while whether the parties have lawyers, and if so, how good they are, are only second or third order considerations. None of this is to say that hiring good lawyers, who, on average, are more expensive than mediocre lawyers, doesn't improve one's outcomes at the margins, or that affluent people are more able and willing, on average, to hire good lawyers than less affluent people. But, to see the difference, you need to think about relative degrees of winning or losing, and you need to recognize that the nature of the lawsuit matters. Along the same lines, studies comparing people who have private criminal defense counsel (because they can afford to do so) with people who have public defenders (who are by definition indigent defendants), usually show that the outcomes at the guilt-innocence phase are very similar between the two, although public defendants pay much less attention to their clients and provide much less "customer service". The divide in those cases is not mostly on guilt-innocence outcomes, but in the ability of affluent defendants with expensive criminal defense lawyers to have more satisfying lawyer-client relationships and experiences, and to take better advantage of alternative sentencing options, rather than just getting thrown in jail or prison. To some extent, this is a long winded way of saying that the research you are looking for, in the plainest terms as stated in the question, doesn't really exist. This is, in part, because in many contexts at a shallow level, it is obvious, and in part, because, viewed more deeply, it is extremely subtle and requires very rich data to discern which makes it hard to gather and hard to compare. | Do criminals really "have no recourse" if their ill-gotten property is stolen by a third party? Basically yes. At sentencing, they can argue that restitution or fines should be limited because the money was in turn stolen from them and they don't have it. For example, I once had a client who was the sole heir to the estate of someone who had a substantial amount of illegal drugs in their possession at the time of the decedent's death (worth perhaps $100,000 USD), but the illegal drugs were stolen after the death of the decedent by someone known to my client. There was no legal way for my client to gain possession that stolen property or its worth. | When people talk about the "American rule," they usually mean a system where every party pays their own legal costs, and the winner is not compensated in any way for the costs of litigation. Using that as your basis, the American system itself is actually a "hybrid." The details change a bit from jurisdiction to jurisdiction. But in general: The loser in many American civil cases is required to pay the actual court costs. These are not as substantial as the attorney's fees, but they can easily run into hundreds or thousands of dollars. These costs are for things like filing fees, process servers, witness fees, court recorders and transcripts, and other costs that, generally speaking, are going to be the same no matter how much your lawyer charges. (Again, what specifically is included in costs depends on your jurisdiction). This imposes a non-trivial expense on the loser of a lawsuit, without allowing the other side to run up the costs to an outrageous figure by hiring huge teams of expensive lawyer, as is possible under the pure English system. While the "American rule" is the default rule in most or all American jurisdictions, there are generally rules that allow the Court to shift part or all of a prevailing party's legal fees to the other side under certain circumstances. For example: in many courts, if you bring a frivolous motion, or a motion designed primarily to inflate the costs of the suit, the court can require you to immediately pay any attorneys' fees expended in responding to that motion, even if you eventually win the lawsuit as a whole. This is a more specific and targeted penalty for misconduct than the English rule. Similarly, if the Court finds that the entire lawsuit you brought – or the defense you presented – was frivolous, or presented in bad faith, or under certain other circumstances, the Court can include attorney's fees in the final damage award, just as would have been done under the English rule. The result is a hybrid system. The benefit of this hybrid system, at least in theory, is that frivolous lawsuits are discouraged, but lawsuits that have some merit – even if they are ultimately unsuccessful – do not have to worry about the imposition of massive costs. However, the disincentive is not as much as it might be, since the standards courts use to judge a motion or lawsuit "frivolous" are generally quite stringent. | The official judgements do not reveal the funding for these lawyers; so where can I find this information? Nowhere. The commercial arrangements between lawyers and their clients are private and confidential like any other business transactions. You have no more right to know this then you do to know how your neighbour pays their mortgage. how could she have funded litigation in the EWHC and then EWCA before the UKSC? She may have rich parents or another benefactor who has in interest in her or the outcome of the case. She may have won the lottery. She may be the heiress of a dead rich uncle. By the way, "having" student loans does not mean you "need" student loans. Interest rates on student loans are cheap - if I need to pay $10,000 for a course and have $10,000 earning 5%, I would be nuts to use that if I could take out a loan at 3%. | If Poker was to be included, and restricted to only In-Game "Cash", would this be an issue regarding Online Gambling laws in a significant number of countries? It is hard to give a comprehensive answer because laws vary significantly among countries. I will focus on U.S. law, but other countries very likely adopt a more stringent definition of gambling (Muslim nations are at one extreme of the spectrum, since their religion prohibits games of chance). Under U.S. law (or at least in some of its jurisdictions) the scheme you outline would not meet the legal definition of gambling. The Black's Law Dictionary defines gamble as "[t]o play, or game [...] involv[ing],not only chance, but a hope of gaining something beyond the amount played". For a more formalized characterization of gambling, see Com. v. Irwin, 535 Pa. 524, 527 (1993): The three elements of gambling are (1) consideration; (2) a result determined by chance rather than skill; and (3) reward There, the court distinguishes between reward and entertainment in that in the latter "the player can never "win" anything other than a prize worth less than the amount he has played", Id. at 529. This is consistent with the case law from other jurisdictions. See Farina v. Kelly, 147 Conn. 444, 449 (1960): [A] lottery is characterized by three constituent elements, namely, a prize, a chance, and a price. [...] [A]s commonly understood, gambling involves not only chance but a hope of gaining something beyond the amount played Lastly, since In-Game "Cash" has zero interaction with Gold, and can not be purchased with real money it is evident that the purpose of adding Poker the game in the way you describe is pure entertainment, not for a player's expectation of reward as outlined in the aforementioned cases. | I am not a lawyer; I am not your lawyer. You do not cite a jurisdiction so this makes it very difficult to get a definitive answer. What follows is for Australia but the general principles are common law and would be applicable to other common law jurisdictions except where statues apply or case law has diverged. In the first instance, it seems that you were not party to any arrangement to pay for the electricity. So on the face of it you are not party to any contract requiring you to pay. Even if there was such an agreement: family, domestic, social and voluntary agreements (which this would be) are presumed not to be intended to legally bind the participants. Whether this presumption would be overturned would depend on the specific facts. On the face of it, there is no legal obligation to pay. Your options are: Do nothing; this puts the ball in their court, they can: Forget about it (it would then be over) Attempt to sue you with little prospect of success (which would cost them and you a lot more than $50 irrespective of who won) Do something illegal like beating you up (you really need to assess this risk) Tell everyone they know (in person and on social media) what a skiving prick you are (you could probably sue them for damages but that's not really going to happen, is it?) Pay them what they are asking Offer to pay them something less. Option 1 is likely to break any relationship you have with the person, Option 2 is likely to preserve it and Option 3 could go either way. Ultimately, like most legal questions, this is not about the law; it's about relationships ... broken ones mostly. | You are conflating the crime against the state of possession stolen goods with the common law tort against the owner for conversion. To your questions: How would this proceed? It seems like it would be very difficult to prove (short of getting public surveillance footage) that I even bought the item. If you read the second paragraph of the page you linked it says: In many jurisdictions, if an individual has accepted possession of goods or property and knew they were stolen, then the individual is typically charged ... If the individual did not know the goods were stolen, then the goods are returned to the owner and the individual is not prosecuted. Proof of the crime involves a "beyond reasonable doubt" standard of evidence of both the fact that you have the goods and that you knew they were stolen. If you become aware that they were stolen (e.g. the police tell you) and try to keep them then you have just committed the crime. Proof of the tort requires a "balance of probabilities" standard of evidence that you have the goods and that they belong to someone else; your knowledge that they were stolen is immaterial. In the first instance, the police would probably knock on your door, tell you why they were there and ask if the version of the story they have from the thief is essentially true. What happens next depends on your response: "Yes, I knew it was stolen; you better arrest me and I will plead guilty." This will play out as you expect. "Yes, I didn't know it was stolen, I will go and get it for you." You return the goods, give a statement and may have to act as a witness in the prosecution of the thief. You are down $1,000 but are now older and wiser. "No, I have no idea what you are talking about." Well, you have now committed the crime of hindering a police investigation and have also committed the crime of possessing stolen goods - you can no longer claim that you didn't know the goods were stolen; the police have told you they are. What happens next depends on if the police believe you or the thief. Surely they couldn't/wouldn't get a warrant to search my house? Want to bet? They certainly have enough to get a search warrant if they want one (probably). Whether they seek one probably depends on the value of the goods, how busy they are and how much you pissed them off. Could I be prosecuted if I didn't know it was stolen? Not if you return it as soon as practicable after being made aware that they were. The scam This seems like a lot of work for a very small return - spend your time worrying about things that are more likely to happen. Good Title All of this is tied up with the concept of good title. Basically, you cannot gain good title to property from someone who does not have good title themselves; if you buy goods from a thief you do not own them. For example, if A has good title to the goods, B steals them and sells them to C who sells them to D then A still owns them and can demand their return from D, D could demand the return of their money from C and C could do likewise with B but as far as A is concerned it doesn't matter that C & B have lost money; that is simply too bad for them. | The criminal case will only punish the perpetrator, it will not give any compensation to the victims. So if you are the victim of a crime, and the perpetrator is capable of paying compensation, you would go for a civil case to get compensation. There's also the fact that in a civil case, there is less evidence required, so the perpetrator may win the criminal case (not found "guilty beyond reasonable doubt"), but lose the civil case. In many cases, the perpetrator is not wealthy enough to make a civil case worthwhile. If some lowlife stabs you in the street, you might very well win a civil case, but would end up getting nothing because the person has no money. So taking them to court would only cost you money. |
Is it legal for voters to take age of candidate into consideration? Some times in conversations that a candidate is too young/old. I wonder as it is illegal for companies to discriminate on basis of race/age/gender etc. So will it be illegal for voters to think/decide on these factors? If it is illegal, how it can be proved? | Discrimination in employment The starting point is: discrimination is legal unless there is a law that says it isn't. So for example, when I advertise a plumbing position, I can discriminate on the basis of if a candidate is or is not a plumber and, further, I can discriminate on how good a plumber I think they are. What I can't do, in the united-states is discriminate against someone on the basis of age if they are 40 or older. It is legal for me to discriminate against someone on age if they are younger than 40. Why? Because that's what the law says. The full list of what constitutes illegal discrimination in employment is a person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to retaliate against a person because he or she complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Elections aren't employment Voters are free to vote for the candidate of their choice based on whatever reason they want. If I want to decide that the only candidates I will vote for are female homosexuals between the ages of 27 and 62 with one leg and a pirate accent, then that's my right. | It's called police and prosecutorial discretion to discern when to arrest and prosecute; and that situation in particular is also the result of a decision of the jury of the court of public opinion. Permits are required to sell on the street in Oakland. But not everyone who sells has a permit, and not everyone who is confronted about not having a permit is arrested and prosecuted. There are simply too many potential cases to prosecute. And, the police officer has the discretion to ticket or not. When you get pulled over while driving or riding a bike, you don't always get a ticket, since the officer has the option of discretion. When the officer responded and found an eight year-old selling water, he obviously was aware of the fact that it was a violation. But he was also aware of the court of public opinion. What is it going to look like if he arrests an eight year old and their parent? Allison Ettel was right, in a purely legal sense, to make the report. And technically, the child (and adult) needed a permit. And could have been ticketed and prosecuted. But it was Ettel was tried and convicted in the court of public opinion, and she lost her case. Happens a lot. | Sending a letter to the Governor is legal You can do it, I can do it and the elected officials of Lancaster County can do it. Thanks to the first amendment, that letter can say pretty much anything you like subject to limits that themselves are subject to strict scrutiny - things like threats and defamation. Outlining a course of action that you propose to take is legal even if that course of action is itself illegal. I will also point out that people - sometimes even politicians - have been known to say things they don't mean. However, that just begs the question ... This article explains what's going on and, more importantly, the actual letter is here. I've read it. Twice. I can't see where the county proposes to do anything concrete that might be considered illegal. Apart from the first paragraph, the entire letter appears to be a case for why the county should be permitted to move from red to yellow on May 15 and they are asking for the Governor's support. Even the first paragraph is ambiguous; while it asks the Governor to move the county from "red" to "yellow" and states that they "intend to move forward with a plan" it is by no means clear that that plan is moving from "red" to "yellow" even though you could get that impression on a casual reading. Basically, what they intend to do is so vague that it's impossible to tell if it's legal or not. Of course, just because something is illegal doesn't mean it can't be done. The USA is a free country and the fundamental freedom is to reap the consequences of your actions. If the county does something1 then the state can take them to court - the court will decide if it's legal or not. 1 Or threatens to do something sufficiently concrete that an injunction against it could be issued. | someone could ... mistakenly assume that by playing the game he can win 100 gold coins aging 2500+ years. Yes someone could, if they were an idiot, however, that is not the legal criteria. The legal criteria is if a reasonable person would. | No. In order to practice law, one must establish an attorney-client relationship. Participation in Internet forums absolutely does not establish an attorney-client relationship. Everyone involved in law spends a disproportionate amount of time disclaiming this, so nobody inside the field will be confused on this point. I believe this is also directly stated in the Terms of Service. And as Jen notes, upvoting/downvoting is not even agreeing with the legal validity of the answer. Take the tour or read help pages for what voting means. It's perfectly conceivable for a psychic who knows how to sway people could write a better voted answer than three lawyers. | In Texas, as in most of the US, the law is "Employment at Will". This means that an employer is free to fire people at any time, for any reason, or none, as long as it is not for one of the few reason forbidden by law, such as racial or age discrimination. Hourly employees are entitled to overtime pay in such cases, but "exempt" employees are not. Nor are they entitled to comp-time as a matter of law, that is at the option of the employer. (The question seems to imply that the employee in question was "exempt" but does not actually say so.) The only really effective recourse against that sort of "death march" is to quit and find a better job, or to threaten to do so while they still need you, unless the conditions return to acceptable ones. I have heard of people in such a situation who "get sick" every day at 5:30pm, because local law forbid requiring ill employees to work. But that is pretty much inviting an arduous and possibly expensive administrative and/or legal battle, and will depend on the specifics of the state/local law. In any case, it is too late for the person in question to try that. On the facts as stated, there might be a valid claim of age discrimination. But additional facts would be needed to establish this, and it would be in my view unwise to try it without consulting a good employment lawyer. Such a lawyer could advise exactly what must be proved and how, and what the probable chances of any recovery would be. | I am assuming you are not the councilor. Civil matter you have no standing. The councilor does. Maybe the hotel bar does. I can’t think of anyone else who does. Criminal matter If a crime was committed in DC, the DC prosecutor is under no obligation to prosecute it. As a political matter, if you were a citizen of DC you could complain and try to get the prosecutor voted out next election. Political matter As a citizen of your city, it is a political matter: You call your councilman* or any city councilman really and ask them to begin impeachment or whatever similar action you have there. Then next election to try to get the mayor voted out. If you are unsatisfied with the council, try to get them voted out also. The cost of investigation is a cost of running a government. Someone could have chosen not to spend seven grand investigating a hundred bucks, but they did it. *Note this is called petitioning for redress which is the right that the current SCOTUS nominee could not recall off the top of her head. | It is legal, though not if the grounds are illegal discrimination (race, religion, etc), which by their (empirically supported – they raised the price) representation is not the case. As a marketing strategy (pick a low number, hope for a bidding frenzy that drives the price up) it is legal, though carries a non-trivial risk. It does not constitute "bait and switch" under any definition of the term, and it is not illegal to engage in a business practice that causes someone to frown, or otherwise disapprove. |
Why do some companies explicitly assign a very low cash value to promotions? I came across this small print for the opening days promotion on the Tim Hortons UK website: Specifically, both offers contain the following disclaimers in the small print: Cash value £0.0001p. Not transferrable for cash. What's the purpose of explicitly giving a promotion a minutely small cash value rather than just doing what most companies do and saying it has no cash value at all? Is there any benefit to doing so? | It's for the damages you'd get if this card would be made invalid by TH deciding not to honor the deal anymore. It's not "the price of 730 cups of coffee" but the value of a peppercorn. | The customer list is indeed a trade secret if the shop kept its customer list secret and has an advantage from having that customer list, while others don’t have it. And I would think that is the case, because a competitor laying their hands on the list could for example send special offers to the customers in the list. The question is whether your two hairdressers took that customer list and whether the store has reasonable evidence that they did. If customers find out where their favourite hairdresser moved to that’s no legal problem. Can’t understand why no attorney wants to take the case. To the attorney it doesn’t make a difference whether they took the list or not. If they took the list then his or her job is to end the case with the smallest possible amount of damages being paid. PS. Just read in the comments that there is an accusation of "intentional interference with economic relationship". I would want a lawyer who knows the difference between perfectly legal competition which includes trying to get customers to move their business, and "intentional interference with economic relationship". PS. Really make sure that these guys appear in court. With a lawyer. Not appearing means that if the plaintiff says "Judge, these guys did X, punish them!" and they are not there to say "We absolutely didn't do X, prove it if you can", the judge will assume that they did X. | In general, yes, though there may be a jurisdiction-specific limit. The basic principle is that the website owner offers something of value in exchange for something else of value: Netflix offers content in exchange for money. What is crucial is that the user must have agreed to make a payment, and the website owner has the obligation to establish that the user agreed. Otherwise, there is no contract and no obligation to pay. There is no legal requirement that a person pay in advance, though it is quite traditional. If you have an obscure file called "legal" with some promise-to-pay term buried in it, the probability is low that the simple existence of such a file would be taken by the court to constitute acceptance of an offer. | This doesn't sound like fraud (against you, at least), but it does sound like an unfair or deceptive trade practice, which is outlawed by Section 5 of the Federal Trade Commission Act and perhaps the Pennsylvania Unfair Trade Practices and Consumer Protection Law, both of which prohibit unfair and deceptive trade practices. I don't know about Pennsylvania, but the FTC has on many occasions taken action against companies for engaging in just this kind of behavior. To find out whether you would be able to take action against the other company, you'd want to find a good competition lawyer in Pennsylvania. For some more basic background on the FTC's rules, check out this primer. | It's the seller's responsibility. Note that in the UK you actually get much more than 2 years. The 2 year rule is the minimum required by the EU, but each country is free to implement that as they choose and the UK has much more. In the UK you are protected by the Consumer Rights Act. It states that products must last a "reasonable length of time". What counts as reasonable depends on the goods. For electronics 2 years is usually the absolute minimum, but for things like televisions the courts generally consider it to be 5 years even for cheap models. Under the Act the retailer is responsible. They can either replace the device or refund you, with the refund amount accounting for the 1.5 years use you had from it. As it was part of a phone contract it could be difficult to agree on a value for the speaker, but looking up the replacement cost for the same or a similar device is a good place to start. Which? has a lot more information and advice. | A slogan such as "The Stripe of Bitcoin" might well be taken to indicate that the seller of a product or service is trading on the good reputation associates with the mark "stripe". If so, that would probably be a form of trademark infringement, assuming thst "Stripe" is protected as a trademark, unless the permission of the holder of the trademark "Stripe" was obtained. Payment processing and cryptocurrency handling are sufficiently closely related that customer confusion is possible. Note that competitive use is generally permitted. One can, for example market a soft drink with the tag "The cola that's better than Coke" without permission from Coca-cola (which i doubt anyone would ever get). This is because when a marketer says "X is better than Y" no one reasonably thinks X is sponsored or approved by Y, nor will anyone be lead by this tag into thinking that X and Y are the same. Other forms of nominative use are also allowed without permission from the trademark holder. For example, a computer component might have been advertised as: "compatible with Intel Pentium", as this is just using a trademark to name a related product, and does not imply affiliation or sponsorship. But a tag such as "The Rolls-Royce of pencils" might be ruled to be infringing, even though Rolls does not, as far as I know, make pencils. Note that the details of trademark law vary significantly from one country to another. Note further that trademarks protected in one country may not be protected in another. The question does not specify any jurisdiction, so no answer can refer to the particular country that the asker may have in mind. | It is the use of a "menace" which creates the crime, not the nature or validity of the demand. That's not correct. You've inadvertently missed the other element of the offence: that it's an "unwarranted demand". A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief— (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand. https://www.legislation.gov.uk/ukpga/1968/60/section/21 For example, I may have reasonable grounds under the Consumer Rights Act to demand a refund for a faulty good. It might be sensible to moderate one's language, e.g. "If I do not receive a satisfactory response from you within 30 days of the date of this letter, I intend to issue proceedings against you in the county court without further notice. This may increase your liability for costs." vs. "If I do not receive the money from you within 30 days of the date of this letter I'll take you to the f***ing cleaners, sunshine." But the language doesn't make the demand unwarranted. | There may be violations of consumer protection and/or advertising statutes here by the online store, but the common law position is that: The website's owner is making an invitation to treat Based on that, you are making an offer The contract comes into place when the website's owner accepts your offer. The time of contract formation is "when the parties give objective manifestation of an intent to form the contract." You would need to read the site very carefully, in particular their terms and conditions, acknowledgement page and/or email to see if they are actually accepting your offer or if there are conditions attached. If there is no clear, unconditional acceptance then there is no contract at that time; this applies even if you have paid for the goods. If this is the case (and I strongly suspect that it would be for most online stores), then their acceptance of your offer and the formation of the contract probably does not come into effect until they "give objective manifestation of an intent to form the contract" by shipping the goods. Up until that time there is no contract and their only obligation to you is to promptly refund your money. |
Is it a violation of copyright law to sell a collage made from physically cut out and pasted materials? I understand that I cannot copy an image, add it to a collage, and sell that collage, as it would violate copyright law. But what about repurposing physical copies? For instance, what if I cut out images, text, etc., from a magazine, and paste them on a board? Would selling this piece trigger copyright law? As I see it, and perhaps the law sees it quite differently, I have not copied anything, and therefore do not trigger copyrite action. I have simply reused an existing licensed piece in a new piece. | united-states The first sale doctrine, (17 U.S.C. § 109), allows one who legitimately purchases a copy of a copyrighted receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. However, it does not allow one to change it. Under US law, doing so would create a derivative work, which would potentially violate copyright, but may indeed fall under the affirmative defense of "fair use" (which is determined on a case-by-case basis). (The rationale is that the first sale doctrine applies to a single article; one who makes a "fair use" derivative work can claim their own copyright, and thus make more copies). The more "transformative" the derivative work, the better chance it stands of being found fair use. Merely ripping up a work, and reassembling it to form a "mosaic effect" is unlikely to pass muster, for example. A derivative work that comments on the original work, especially social or political commentary, or on a sentiment strongly associated with the original work, is more likely to be deemed fair use. Painting polka dots the Statue of Liberty is unlikely to do well, whereas putting images of a political or social commentary nature on the Statue of Liberty is (for example, I believe I've seen one such with faces of individuals of a variety of ethnicities superimposed on the statue, making a statement of America (associated with the statue) and its history of immigration and multi-ethnic makeup). (Although the Statue of Liberty is very much not under copyright, for a number of reasons). Another aspect is how much, and how central a portion, of the original work is used. Using the pedestal the Statue of Liberty stands on would probably be better than the statue its self, for example. | You don't say where you are located. Copyright laws are different in different countries, am going to assume US laws. Under US law, a faithful digitization of a book does not get a new copyeight, see Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998) and thw Wikipedia article about that case (On the issue of mrequired originality, see also FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE COMPANY, INC. (No. 89-1909.) (1991) which dealt with copying a telephone directory.) The court in Bridgeman held that: It is uncontested that Bridgeman's images are substantially exact reproductions of public domain works, albeit in a different medium. The images were copied from the underlying works without any avoidable addition, alteration or transformation. Indeed, Bridgeman strives to reproduce precisely those works of art. ... The mere reproduction of a work of art in a different medium should not constitute the required originality for the reason that no one can claim to have independently evolved any particular medium.'" As discussed above, the law requires "some element of material alteration or embellishment" to the totality of the work. At bottom, the totality of the work is the image itself, and Bridgeman admittedly seeks to duplicate exactly the images of the underlying works. ... [O]ne need not deny the creativity inherent in the art of photography to recognize that a photograph which is no more than a copy of the work of another as exact as science and technology permit lacks originality. That is not to say such a feat is trivial, simply not original. The more persuasive analogy is that of a photocopier. Surely designing the technology to produce exact reproductions of documents required much engineering talent, but that does not make the reproductions copyrightable. The Bridgeman court was actually construing UK law, but the earthlier phase of Bridgeman i and the SCOTUS case of Feist show the same result under UIS law. Note that books and other works published before 1925 are now out of copyright in the US. Copyright can also be lost ion other ways, such as publishing without a copyright notice before the effective date of the 1976 act, and failure to properly renew a work published in the US before 1964. Assuming that the book is not under copyright, neither the library nor anyone else has a US copyright in the PFD. Unless the library imposes some additional restriction by contract, any such PDF may be copied or shared freely. It may even be sold or rented. And the validity of such an additional agreement would be questionable, but since the question does not mention such an agreement, I will not go into that further. | Let’s work it through Is the work copyright? Yes. Are you making a copy or a derivative work? Yes. Do you have permission? No. At this point, it is prima facie copyright violation. However, various copyright laws have defences for breach. You don’t say where you are but as the USA is the most permissive in this regard we’ll use the USA. If it’s not legal there, it’s not legal anywhere. If it is legal there, it’s still likely to be not legal everywhere else. is it fair use? Almost certainly not. Wizards of the Coast (the copyright owner) already do this. While this service is free for creatures from the Monster Manual, it does drive traffic to their web site where they sell stuff. They also licence (presumably for money) others to do the same. Your usage would negatively affect the copyright owners market. This counts against fair use. Because it’s already being done, your work has virtually nil transformative value. This counts against fair use. You are copying a substantial part of the work. This counts against fair use. You are not using it commercially but neither is it for educational use. This is unlikely to matter. On balance: not fair use. TL;DR This is copyright violation. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. | You may have issues if you take their content wholesale. Even if they freely distribute them, they still retain copyright. As such, they absolutely can claim copyright. Whether they will or not is another question. Your best bet around this is Fair Use doctrine. You can take a part of their work (e.g: a single question) and do your video based on how you work out your answer, with your video mainly focusing on the 'working out' part (thus satisfying the 'educational purposes' part) | Under United States law, copyright is normally held by the creator of a work. There is one major exception to this rule: the "work for hire." If something is considered a "work for hire" under the copyright statutes, the copyright is held by the employer. Whether something qualifies as a work for hire is a complex analysis: here is a Copyright Office circular covering some of the basics. To be clear, I'm not giving an opinion (and I don't have enough information to give an opinion) on whether any specific works you or your fiance may create or commission qualify as "works for hire." It's a narrower test than you probably think it is. If the work is not a work for hire, the copyright holder owns the copyright, and anyone else can use it only with a license from the copyright holder. A license can be implied by the parties' behavior and communications--but it shouldn't be. If you're in a situation where you need to know, for example: That you are allowed to use the artwork forever, and the artist can't ask you to stop later; That you are allowed to change the artwork if you need to, even a simple change like cropping or adding a filter or text; or That, if your product is successful, the artist won't be able to sell another license to someone else to compete with you; then you need a written contract spelling out who owns the copyright and what the rights of the other party are. A lawyer can draw up a simple, re-usable form contract for you cheaply that will prevent the problems you're worried about. Remember: even if this is a work-for-hire situation, if you need to prove that down the road, it may require a trial, or at least preliminary motion practice, to do so. That's a lot more expensive than getting your ducks in a row now will be. tl;dr: Get a lawyer. If you're in a major city, there may be a local arts law organization that will provide you with free help for a simple job like this one. (Volunteer Lawyers for the Arts operate in several East Coast cities, and I know many top commercial lawyers who do pro bono for them). | 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. | No. You may not do this. As your post points out this is a blatant copyright violation. It isn't remotely in the realm of fair use. |
How can a plaintiff dismiss their case in Maryland? How can a plaintiff in a Maryland District Court case dismiss their civil case after the issue was resolved with the defendant out-of-court? What form is required? | Voluntary Dismissal of a case in Maryland follows the Maryland Revise Civil Procedure District Court Rule 3-506 - Voluntary Dismissal: (a) By Notice of Dismissal or Stipulation. Except as otherwise provided in these rules or by statute, a party who has filed a complaint, counterclaim, cross-claim, or third party claim may dismiss all or part of the claim without leave of court by filing (1) a notice of dismissal at any time before the adverse party files a notice of intention to defend, or if the notice of dismissal specifies that it is with prejudice, at any time before judgment, or (2) a stipulation of dismissal signed by all parties to the claim being dismissed. (b) Dismissal Upon Stipulated Terms. If an action is settled upon written stipulated terms and dismissed, the action may be reopened at any time upon request of any party to the settlement to enforce the stipulated terms through the entry of judgment or other appropriate relief. (c) By Order of Court. Except as provided in section (a) of this Rule, a party who has filed a complaint, counterclaim, cross-claim, or third party claim may dismiss the claim only by order of court and upon such terms and conditions as the court deems proper. (d) Effect on Claim. Unless otherwise specified in the notice of dismissal, stipulation, or order of court, a dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed in any court of any state or in any court of the United States an action based on or including the same claim. (e) Effect on Counterclaim. If a counterclaim has been pleaded before the filing of a notice of dismissal or motion for voluntary dismissal, the dismissal of the action shall not affect the continued pendency of the counterclaim. (f) Costs. Unless otherwise provided by stipulation or order of court, the dismissing party is responsible for all costs of the action or the part dismissed. There is a form that explicitly refers to the 3-506 rule | If a case is dismissed, then it means the charge was thrown out of court. They were not even tried, much less convicted. | 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. | It's always going to be a fact-specific situation, but the first step is to conduct whatever factual investigation is feasible to disprove your belief. If your investigation indicates that your belief is correct, you send a cease and desist letter. If that doesn't work, you proceed to litigation. | Let's say that the mediation doesn't succeed to achieve voluntary compliance satisfactory to both sides. What happens next? Under Sec 706(e) it appears that the complainant has to litigate himself in a civil court, and potentially be exempt from any fees and have an appointed attorney. Not really. The EEOC at that point (within a certain time period) either decides to litigate the case itself, or if it chooses not to litigate itself, authorizes the employee to litigate the case at his or her own expense, and if the employee prevails, the remedy awarded by the Court includes what the court determines to be the employees reasonable attorneys' fees. The details of the process and the relevant deadlines are available at the EEOC's website. Basically, if the case isn't resolved in mediation, the employer makes a position statement, the employee responds, the EEOC investigates (using its subpoena power, if necessary) on average for ten months, and the EEOC either prosecutes the case itself, or it issues a "Notice-Of-Right-To-Sue" which allows the private employee to hire a lawyer and sue the employer. How often does it actually happen? The EEOC handles about 90,000 charges per year and wins about $525 million a year in judgments and settlement awards (parallel agencies at the state level handle additional cases in a similar manner). The vast majority of the cases are settled or result in a Notice of Right To Sue letter, with only 100 to 400 lawsuits per year actually filed by the agency resulting in $22 million to $168 million a year of awards in court cases. About 25% of these cases go to trial. The rest settle before trial or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once the EEOC brings a lawsuit, settlement is the most common resolution. So, there are a lot of cases, although there is only about one EEOC claim per 1,000 employees in the workforce subject to EEOC jurisdiction per year. Whether this is a lot of complaints or not many, is really a matter of opinion. Only about one in twenty-five people will ever file an EEOC claim in his or her entire life, although this will vary considerably based upon a person's race, national origin, religion and sex. A non-Hispanic white Christian male of European descent is much less likely to file an EEOC claim during his lifetime than someone who does not fit that description. Realistically, a majority of cases that aren't abandoned by the employee in the administrative process (which is a significant share of the total) or found to have no factual basis (a small but significant percentage) are settled for fairly modest dollar amounts (an average of about $10,000 to $20,000 per claim). The bigger dollar cases for a single employee usually end up being brought in a private lawsuit rather than by the EEOC itself. About 14,000 of those charges each year result in a Notice of Right to Sue letter followed by a civil lawsuit filed by a lawyer for the employee. It isn't terribly easy to determine from official statistics what proportion of cases resulting in a Notice of Right to Sue letter rather than an EEOC lawsuit ultimately do not result in a lawsuit being filed by the employee. About 250 of these cases (not quite 2%) go to trial each year. The rest settled or are resolved in motion practice before trial (including default judgments, when the employer simply doesn't respond to the lawsuit). Once an employee brings a lawsuit, settlement is the most common resolution. Folk wisdom in the employment litigation field is that the average settlement of a case of ordinary strength on the merits that is settled fairly early on in the process is about six months of wages. An estimate that the employees in private lawsuits secured more than $200 million a year in settlements and money judgments is probably a gross underestimate. It could easily be $500 million to $1 billion per year. But, there are no good statistics available since settlement amounts are overwhelmingly confidential. The EEOC sues on behalf of the employee in cases it chooses to litigate itself on a weekly basis, and likewise declines to prosecute and certifies the case to allow the individual to prosecute the case with a private attorney all the time. Is there any relevant case law? Yes. Pretty much every relevant detail of the process has been litigated in case law that has produced reported decisions because there have been many thousands of employment discrimination cases litigated under the Act. There are probably at least two dozen to four dozen new published appellate decisions in the federal circuit courts each year on these kinds of cases, if not more, and those decisions have come at a pretty steady rate for the past half century. There are hundreds of published decisions interpreting these statutes in almost every one of the federal circuits. On quite a few issues, there are splits of authority between different circuits regarding how to interpret the law that will ultimately be resolved by the U.S. Supreme Court, or by Congress, or that may remain unresolved forever. How will the civil court try the case? Will the judge reference the Civil Rights Directly? It is a little unclear what you are asking here, but I will do my best. Regardless of whether the EEOC or the individual employee brings the case, it is filed as a Complaint in federal court like any other federal lawsuit, litigated according to the Federal Rules of Civil Procedure, and resolved in the vast majority of cases either by a judge in a pre-trial motion, by a settlement between the parties, or by a jury trial presided over by a judge. In a jury trial, the judge tells the jury what the applicable law says and the jury decides if the employee has proved a case against the employer when applying that law after hearing the evidence presented at trial and then decides what damages award to make, on a very short jury verdict form. In a bench trial (i.e before a judge without a jury), the judge makes those determinations in a lengthy written ruling setting forth the factual and legal basis for the judge's determination on the merits. Jury trials are much more common than bench trials in these kinds of cases, partially because plaintiffs want juries to make a damages determination, and partially out of a perception (not entirely inaccurate) that judges tend to be pro-employer on average. What is a likely punishment? Punishment is mostly the wrong term. It is a lawsuit for money damages to compensate the employee for harm actually suffered. The jury (or the judge if the case can be decided before trial in a motion for summary judgment or if a jury trial has been waived) determines the amount of compensation, if any, which should be awarded for lost wages, non-economic compensatory damages, etc. and the judge then awards attorneys' fees and court costs based upon the submissions of the parties after the trial is over based upon a determination of what is allowed by law and what is reasonable. To some extent, an employer's obligation to pay attorneys' fees and costs acts as a proportionate punishment for not immediately settling a case where the employer is found to be in the wrong. To some extent, non-economic damages can constitute a punishment. But, when an employer is found to have discriminated intentionally, which is most of the time, punitive damages can also be awarded, although they must be proportionate to the amount of actual compensatory damages awarded, typical one or two times the compensatory damage award unless that award is very small. Statutory liquidated damages are sometimes awarded in lieu of certain kinds of punitive and compensatory damages awards in age and sex discrimination cases under the Equal Pay Act. There are also dollar limits on awards based upon the size of the employer. Why is the process convoluted by adding an extra step in form of the commission? Mediation is allowed as a compromise to encourage negotiated resolutions that avoid litigation costs before everyone has spent a lot of money on lawyers. In practice, a surprisingly large number of cases result in pre-trial mediation resolutions, often in cases where an outcome if the case had gone forward to a trial would have been uncertain. The involvement of the Commission is a compromise between having a system where all cases are prosecuted at state expenses and one in which all cases are brought privately with an opportunity to win attorneys' fees if one prevails. The EEOC has usually used its authority to bring cases that are clearly cases of improper employer conduct where due to the small dollar amounts involved or the number of employees affected, an individual lawsuit would not provide an adequate remedy since private lawsuits would not be brought otherwise. It is very hard for a private attorney to justify bringing an employment discrimination lawsuit over a case where the damages are likely to be in the $5,000 to $25,000 range because the employee doesn't make much money unless liability is 100% clear (e.g. there is an admission on videotape from the employer), despite the fact that a prevailing party can get non-economic damages, punitive damages, attorneys' fees and costs. So, it is particularly hard to bring employment discrimination cases on behalf of employees who don't earn much even when they aren't discriminated against. The availability of EEOC enforcement prevents employers of low wage workers and workers in temporary employment whose damages are small from ignoring the Civil Rights laws with impunity. A private lawyer does something on the order of $30,000 to $150,000 of billable work to bring an employment discrimination case involving a single employee-client to trial, and a lawyer defending such a case for an employer will typically incur more legal fees for their employer client than the employee's lawyers do, while the employer's lawyer defends the case all of the way through a trial, even before considering any amounts actually awarded to a prevailing employee in a case where the employee wins. Each side's legal fees, individually, will usually exceed the amount of compensatory and punitive damages awarded combined in a fairly small dollar case for an employee who wasn't paid very much, or at least didn't lose a huge amount of money economically due to illegal discrimination (for example, because the employee wasn't promoted while a less qualified candidate was promoted). This is an important reason why lots of cases settle and why the EEOC is necessary. The EEOC process also provides a means by which arbitration agreements with individual employees can be circumvented because the EEOC is not a party to those agreements and is not bound by them. Why isn't discrimination simply prosecuted by the state's attorney? After all racial discrimination very much fits the definition of a public wrong. Government agency resources aren't unlimited, so the government can't prosecute every credible complaint, so the EEOC has to pick and choose how to get the most bang for its available resources. In practice, the EEOC can only afford to pursue about one in ten of the employment discrimination cases subject to its jurisdiction that go to trial with its own lawyers. The cases it can't afford to bring, it delegates to the private sector rather than simply leaving those cases unprosecuted as would happen in the criminal justice system. This also provides a way for an employee who has a lazy or unenthusiastic government lawyer assigned to their case at the EEOC who doesn't take what the employee sees as a strong case seriously a way to get relief for employment discrimination despite the fact that the EEOC isn't willing to back them up. Private lawsuits are a check and balance against bad EEOC decisions about how strong cases are as well as a way for the EEOC to avoid financing the legal fees of people who can afford to sue on their own. Is the enforcement any good? Lots of employees over the years have gotten lots of money, although probably not 100% of the amount of the economic harm they suffered (and, of course, employee and employer attorneys have gotten paid a lot of money in the process as well, which is good if you are a lawyer, but is dead weight loss from an economist's point of view). But, more importantly, the behavior of employers has changed greatly as a result. In practice, most lawsuits, and almost all lawsuits not brought by the EEOC itself, involve either wrongful termination or failure to promote someone, rather than discriminatory hiring, since it is hard to show an individual right to be hired for which an individual is entitled to compensation. Even in EEOC cases, most are brought for discriminatory advertising or openly admitted discrimination in hiring, rather than covert discrimination by an employer in hiring on a non-permitted basis. The EEOC brings a handful of cases alleging covert discrimination in hiring against medium or large employers each year, in part, just to provide a credible threat to anyone considering doing so, often with a combination of tips from insiders (particularly those from hiring officials who are fired in retaliation for not following a discriminatory hiring policy) and with undercover "test applicants" who submit functionally identical resumes for the same job when many job openings are available. But, this is usually a tiny share of the total volume of employment litigation brought under the Civil Rights Acts. There is a certain irony in this, because employers who are willing to hire someone who belongs to a "protected class" in the first place, who hence, are probably not the most discriminatory employers in the market, are more exposed to a realistic risk of a discrimination lawsuit, than employers who refuse to hire anyone in a "protected class" in the first place, so long as the employer keeps its mouth shut about this practice and is willing to lie and come up with false pretexts for its actions. Dishonest gross racists and clear misogynists are under punished, while less culpable employers who are more honest but still a little bit discriminatory in the cases of a few well paid employees are over punished relative to more culpable employers. Also, employment discrimination laws provide the most monetary compensation to the most competent and well paid employees who probably have the greatest capacity to mitigate their damages by seeking other employment from less discriminatory employers, while providing the least compensation to the marginal employees for whom discrimination in employment most impacts their quality of life. Indeed, often the most marginal employees aren't even willing to risk filing a complaint with the EEOC for fear of being blacklisted in the future in a manner that is impossible to prove. Still, at a minimum, by making it illegal to publicly state a discriminatory reason or to state a discriminatory reason to someone who could testify against you in court, the laws in question have changed the internal normative standards that managers of medium and large sized business apply on a day to day business such that at least lip service and public commitment is given to the requirements of the civil rights laws. This change in corporate culture has probably had more of a real world effect than actual suits for damages have in regard to discrimination in hiring. The benefits of the voluntarily discontinuation of discrimination in employment as employers internalized the norms established by the civil rights laws for the most part has provided far more benefit to employees who were previously discriminated against than litigation and settlements resulting from the EEOC process. For example, when Sandra Day O'Connor (future Supreme Court justice) was a young lawyer, fewer than 5% of attorneys were women and she was often mistaken for a secretary or receptionist by clients. Now, about half of all young associate lawyers (even at very large firms who graduated from very prestigious law schools) are women. Almost all of this change was due to a change in professional norms that were a direct result of the Civil Rights Act of 1964 (women had legally been allowed to be lawyers since the 1920s almost everywhere and earlier in some places), rather than through case by case litigation. The Civil Right Act opened up a huge new lucrative profession to women and minorities, and the experience of the legal profession was the norm and not the exception. Before the act, women were pretty much limited to school teaching, being librarians, nursing, secretary work, food service, day care, piece work sewing and laundry work. After the Civil Rights Act, their employment opportunities dramatically increased. The Civil Rights Act of 1964 is likewise, more or less single handedly, responsible for today's black middle class which would have been an order of magnitude smaller otherwise. There are economic arguments that discrimination laws do or do not do much good, but those arguments rarely consider the fact that the law, when it was first enacted, dramatically changed corporate culture and the moral viewpoints and norms of the middle and upper middle class who act as employers making hiring decisions across the nation. Until the Civil Rights Act was enacted, tradition and prejudice kept a huge share of the population out of most of the marketplace in a manner completely contrary to what a naive Economics 101 analysis would predict. | You may want to select a state where you have some sort of presence. According to this article, personal jurisdiction can be waived, but subject matter jurisdiction can not, and "for pragmatic reasons some states deny subject-matter jurisdiction to specific claims, such as those arising in other states". In other words, if nothing about you, the other party, or the case has any relation to the state, the court doesn't necessarily have to listen to the case. And if that happens, the provision about them submitting to the jurisdiction is worthless. Beyond that, are you OK with going to court in the location you select? Do you know whether all your terms and conditions are valid in that location? Do you know whether one place or another has more favorable interpretations of the laws, or more favorable local rules, when it comes to the types of disputes you are likely to have? You probably want a lawyer to help you decide. | The first question would be whether those papers are indeed "legit", and we don't do product reviews. Assuming the company didn't mess up and she was legally served, the next question would be whether she responded (in the legal sense) or not. If she failed to respond at all within 21 days (add 9 days if she is out of state), then your next step would be to file default divorce paperwork (presumably that's covered in the service you paid for). If she agreed to the divorce and the courts knows that, then you file some more paperwork and she doesn't have to show up to anything. If she disagreed, there will be an "answer" and possibly a counterpetition. There is an exchange of paperwork w.r.t. assets, a mandatory mediation stage, more paperwork, disclosures etc. and a pre-trial conference, followed by a trial. If you are at this stage, attendance is mandatory. As long as you have proof of service, nobody requested a postponement, and there is some evidence to support your claim, a default judgment can be issued. It's not clear what "divorce proceeding" you are referring to that involves her attendance. However, you can file divorce paperwork yourself or using an online service, and using an online service does not render the paperwork illegitimate. It's not guaranteed that the service did what would be necessary for you to get the outcome you desire, but that's beyond the scope of what we can tell you. | I am assuming you are not the councilor. Civil matter you have no standing. The councilor does. Maybe the hotel bar does. I can’t think of anyone else who does. Criminal matter If a crime was committed in DC, the DC prosecutor is under no obligation to prosecute it. As a political matter, if you were a citizen of DC you could complain and try to get the prosecutor voted out next election. Political matter As a citizen of your city, it is a political matter: You call your councilman* or any city councilman really and ask them to begin impeachment or whatever similar action you have there. Then next election to try to get the mayor voted out. If you are unsatisfied with the council, try to get them voted out also. The cost of investigation is a cost of running a government. Someone could have chosen not to spend seven grand investigating a hundred bucks, but they did it. *Note this is called petitioning for redress which is the right that the current SCOTUS nominee could not recall off the top of her head. |
Is "My Cousin Vinny" dismissal actually possible? In one of my favorite films of all time, 1992's My Cousin Vinny, at the end of the trial when it's abundantly clear the prosecution will lose, at least that's the conclusion the filmmakers want the audience to surmise, Trotter pronounces... "the state would like to dismiss all charges." And . . . as per Hollywood, everyone rejoices. I am fully aware movies are movies and not real life and the film is a pure work of fiction. Since I have no direct connection to anyone in the legal field, I thought I would ask some knowledgeable users about something that's always had me wondering. (Just saw the film again tonight.) I am aware that an acquittal means one can not be tried for the same crime again (double jeopardy). But a dismissal may not provide such protection. Acquittal meaning the prosecution could not prove the defendant committed the crime, whereas dismissal may allow for retrial. So, is there a legal basis for Trotter dismissing a case merely because he'll clearly lose? Common sense leans towards thinking this may be "Hollywood fluff" and it could not actually happen at the final stages of a trial so close to jury deliberation. But.. again, I don't really know. I think this is fluff because if it were actually possible, why wouldn't all prosecutors merely drop charges if they fear they are going to lose, then go build a better case and retry the defendant. Are the requirement for an actual dismissal more stringent than the film would have the audience believe or in this aspect, is the film pretty close to reality? (I am referencing U.S. criminal law in general) | This is entirely possible in a number of different motions that could have been made. At this point, Vinny had destroyed the Prosecutor's eyewitnesses by showing they had issues that called their testimony into question (The first has a timeline that doesn't line up with events, the second has poor vision and her prescription glasses were not doing their job, and the third had many obstructions blocking his view of the scene). His first witness tears apart the "expert" witness, who was only there to testify that the tires were the same brand (albeit, a popular brand at the time... loads of cars had the same tires). While it might go by a different name in different jurisdictions, the Prosecutor is allowed to make a motion to dismiss at any point prior to the jury goes to deliberation (as is the Defense; Also they might be able to make motions while the jury is in deliberations). If properly titled, the Prosecutor should have made a "motion for nolle prosequi" (not prosecuting). This can mean any number of things including the prosecutor no longer believes the evidence can prove the charges OR even that the prosecutor is no longer convinced that those charged committed the crime. In the "My Cousin Vinny" case, as the jury was seated the case cannot be retried by the State of Alabama at this point. This is possible because the Prosecutor's duty is to uncover the truth behind a crime, no matter what that truth becomes. In this case, despite his previous beliefs, the prosecutor in My Cousin Vinny, upon realizing he was wrong, admitted it and dropped the charges. Given his backstory of having worked as a defense attorney and making the switch after getting a client off some serious charges (and knowing the client was guilty) shows that he was inherently an honest man and dedicated to finding the truth of the matter (as a government employee, he undoubtedly took a pay cut when he switched to prosecution. Private industry almost always pays way more than a government equivalent). With that in mind, it is expected of prosecutors to be perfectly honest with what evidence they have and make the choices in the case based on that evidence. This comes up in another scene when Mona Lisa Vito explains to Vinny that the prosecutor was required to give Vinny all the files he had on the case... because Vinny, by representing the Defendant, is allowed to examine all evidence against his clients. The only dirty trick he pulled was the stunt where his expert witness was not disclosed and while bad, really it's the judge allowing the witness to testify that would have caused a problem with the trial (his response to Vinny's objection could have created a mistrial on appeal). To give a real world example, I was charged with driving on a suspended license which I had no idea I was doing at the time. As it turned out, the license was suspended for an unpaid traffic ticket that I had paid in the last minute... essentially the DMV forgot to unsuspend. A quick call fixed that issue but I still had to go to court over the charge. The day of the trial, I show up in the court room and the prosecutor walks over and tells me that they were going to enter a motion of "nolle prosequi" for the charge... essentially dropping it... because the matter was a clerical error on the state's part and not anything I did wrong. Edit: Additionally had the prosecutor not motioned to dismiss, Vinny certainly could have. In fact there are two points during the trial where Defense attorneys are expected to make these motions. The first is when the Prosecution rests their case. The second is before the jury is given the case to deliberate. As for why it was called a motion to dismiss in the film, it's likely to due with the fact that the audience would not know what a "motion for nolle prosecui" and it is a type of motion to dismiss. | It's really the other way around: film crews can legally travel with the police. This is very similar or identical to what you saw on YouTube. From http://blogs.findlaw.com/celebrity_justice/2014/04/cops-and-suspects-rights-whatcha-gonna-do-when-they-record-you.html (dated 4/18/2014) "Cops" will soon begin a 10-week filming stretch in San Jose, California, for the first time in the show's 26-year history, reports the San Jose Mercury News. The "Cops" crew will hit the streets alongside San Jose's finest to provide a window into what these men and women do in America's 10th largest city. More from that link: When the officers on "Cops" arrest most of their suspects, the circumstances leading up to the arrest are out in public. However, in order to avoid unlawfully appropriating the images of those caught on "Cops'" cameras, the crew asks the arrestees to sign a release form. The "news crew" are producers who have permission from the police to follow along. As above, they ask each suspect to sign a release after the arrest. These arrests take place in public, on public streets and right-aways, where filming of the public is legal. If the arrestee does not sign the release, their face is blurred in the resulting footage that is made public. This does not mean the producers or videographers are automatically allowed into a private residence. They need a release to go onto private property (unlike the police involved in an investigation) and as such, the resident can actually forbid the cameramen from entering the house even while the police have entered. The footage from the body cams of the police are a different story; they are public employees of the local government and are bound by the laws of the locality. A search of Google News shows that in San Fransisco, the issues of the use of body cams by police and public access to that video is an ongoing issue; some laws have been finalized, others are bound to change. Around the US, some localities at this point in time allow public access to the footage from police cams; others only after department or local governmental review; still others only on in as need basis for prosecutions. ...the cop is the only one in this situation who can command the filmers to stop. Even if the "news crew" is not a news crew and just someone from the general public, it is generally legal for the public to film the police, as long as they are not causing issues with the police and stay out of the way (re: all of the recent news regarding police shootings and the footage available on YouTube and in news sources). There is case law pertaining to that, but IANAL, so I'll let someone else outline that. But https://photographyisnotacrime.com/ is a good resource. In the US, you pretty much have no expectation of privacy while in public. | There's nothing illegal about the media discussing your case. In fact most media outlets don't hold back many details about the accused, because it's all public information that anyone curious about it can get from the court clerk's office for free and with no reason specified. If jury selection hasn't started yet, then asking each juror about what they might know about the case is a pretty standard question that any competent defense attorney would be asking, even without knowledge of media coverage. If they already know about the case and say they can't put that knowledge aside when rendering a verdict, they are almost always dismissed. If you're concerned your defense attorney isn't aware of the media coverage, that's something you need to bring up with them. If jury selection already took place, and nobody bothered to ask them if they had prior knowledge of the case, then there's pretty much nothing you can do. A judge might ask the jury if anyone's seen the coverage, but it usually results in nothing happening. The media talking about your case is not grounds for a mistrial; it's rarely even grounds for a change of venue. Getting a mistrial would require you to prove a specific juror engaged in misconduct somehow. | One principle of copyright law is that if you can prove independent authorship, there cannot be liability no matter how similar your work is to the prior work. "If by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's." (Sheldon v. MGM Pictures Corp., 81 F.2d 49, 54 (2d Cir. 1936)). Now, of course, the challenge is proving that you've never heard a given piece of music, or never read a particular work of fiction. If you have, even unconscious copying exposes to liability. And if the plaintiff can prove that you had access (such as the scriptwriter who sent a copy to a movie studio), they will have an even easier time proving the copying. If there is no proof of copying or not-copying, the copying can be proved circumstantially either through expert testimony or the jury's evaluation. The expert might testify something like "There is an identical tonal progression in these two songs, even though they were written in different keys. There were a million different ways the songs could have been written, but they are identical in this respect." The jury can consider that information and find the defendant liable. Or, the judge may simply tell the jury, "You may listen to these two songs, and find the defendant liable if you find them to be substantially similar to the extent that it is more likely than not that the defendant copied the plaintiff." TL;DR: The process can be conclusive, but if it isn't, then the output will be the evidence that the jury will consider. | Is it true that there has never been a single case It is tough to prove a negative. I am not going to completely parse the quote but please notice that the quote states "we couldn't find" and concludes that "it doesn't happen." Given these two pieces of information I do not conclude that there has never been a single case. Rather I conclude that the speaker in your quote could not find a case therefore he concluded that there has never been a single case. It's largely impossible to determine that there has never been a single such case. We can search published opinions but that barely scratches the surface of lawsuits that are filed. It is entirely possible that someone filed a suit which was quickly dismissed. The Act provides a defense, it does not bar lawsuits. Someone might get sick from food and not know where the food came from so they sue the provider. If this happens the provider may raise the Emerson Act as a defense and escape liability to the extent applicable. But again, we will never know because it's impossible to examine every lawsuit filed in this country. | What remedies are therein the United States? I would imagine that the witness could be prosecuted for perjury. My guess is that the plaintiff could prosecute the witness for the lost damages. Are there any other remedies like reopening the original trial or declaring a mistrial so that the plaintiff could sue the (deep-pocketed) defendant, or would this be double jeopardy? Perjury prosecutions are like unicorns. They are rumored to exist but are almost never seen. A prosecutor would be exceedingly unlikely to bring charges in such a case, but it might not hurt to ask. Even if the criminal prosecution prevailed, however, the defeated plaintiff would be no better off, or might get out of pocket court costs as restitution at most. You could request that the witness be sanctioned for contempt. But, this leaves the loser in the original case no better off unless the judge made the highly unusual decision to award compensatory damages as a contempt sanction. Similarly, if you have reason to believe that the attorney knew that the testimony offered was false, that would be grounds to grieve the lawyer which could result in the lawyer's suspension or disbarment, but that is very difficult to prove and again would not advance the unjustly defeated plaintiff's cause. Assuming that the time to move for a retrial (usually two weeks) expired when the new evidence was discovered, you could move to set aside the verdict (Federal Rule of Civil Procedure 60 or the equivalent state rule). The deadline for such motions based upon fraud by an adverse party is usually six months. Sometimes an independent action to set aside the verdict for fraud on the court could also be brought (sometimes within two or three years), which is an uphill battle, but probably the best option if all other deadlines have expired. The witness probably has absolute immunity from civil liability outside that court case for the testimony offered, so a civil action suing the witness for lost damages would be dismissed. The doctrine of double jeopardy does not apply, but a similar doctrine called "res judicata" (a.k.a. "claim preclusion") prohibits retrying a case that was tried on the merits between the same parties, if it has become a final order. So, filing a new case is ruled out assuming that no appeals were filed within the deadline for doing so. And, even if the deadline for filing an appeal has not lapsed, it probably wouldn't prevail because the key new evidence wouldn't be in the record. It would be better to file to set aside the judgment in a motion and to appeal if that motion was denied. | Yes The Prosecutor for the local jurisdiction could formally file charges. No complaint by Rock is legally required, and given the video evidence available, Rock's testimony might not be as essential as a victim's testimony often is. But if Rock were to testify that the fight was staged, and no real assault occurred, the case would probably fall apart. That would not be good for the prosecutor's reputation, and might well be a reason not to proceed without a clear statement from Rock. See also: "Pressing charges" - is it needed to bring a charge? | 18 USC §912 provides that: Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both. I do not think that in the context of a movie, play or game the person portraying an FBI agent or other LEO is "acting as such", and surely this does not involved obtaining "any money, paper, document, or thing of value". The Wikipedia article on Police_impersonation says: Dressing up as a police officer in costume (e.g. for Halloween), or pretending to be a police officer for the entertainment purposes or a harmless prank toward an acquaintance is generally not considered a crime, provided that those involved recognize the imposter is not a real police officer, and the imposter is not trying to deceive those involved into thinking they are. Nevertheless, replica police uniforms sold in the UK must not be identical to the uniforms currently used by the police, and traders have been jailed in the past for selling on genuine uniforms. Many films and TV shows have portrayed FBI agents, in some cases actual agents by their real names. This goes back as far as the 1935 moviw G-Men starring James Cagney. Many examples are listed in the Wikipedia article Federal Bureau of Investigation portrayal in media, and many of them used realistic badges and depictions. They were not treated as criminal impersonations, even when the FBI or its officials strongly disapproved of particular movies. The somewhat similar US federal law 10 USC 772 prohibits wearing military uniform by persons who are not authorized, but paragraph (f) provides that it is permitted: While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force. A Vietnam-War-era court case held the restriction "if the portrayal does not tend to discredit that armed force" to be an unconstitutional restriction of speech, and held that unauthorized wearing of a uniform was only punishable if there was charged a proved an "intent to deceive". I would expect a similar limitation of 18 USC §912. That said, if the email was such that a reasonable person might well be deceived into believing that it really came for an actual FBI agent or other government employee, there might be a problem. The suggestions on that point in the answer by user hszmv seem reasonable to me. An imaginary "Confederal Department of Interrogation" say, keeps things firmly in an alternate reality. |
Do you have the same right to privacy in regards to your car than what you have to your house? Im just curious to know if the same rules of lawful and unlawful searches apply to your car than what applies to your house? | Not at all. Under the Fourth Amendment, your house is where "privacy expectations are most heightened," and it is therefore generally the most difficult place to obtain a warrant to search. California v. Ciraolo, 476 U.S. 207, 213 (1986). But the courts treat vehicles very differently. Because of "the pervasive regulation of vehicles capable of traveling on the public highways," and because a vehicle "can be quickly moved out of the locality or jurisdiction in which the warrant must be sought," courts hold that the societal interests in enforcing the law generally outweigh any personal interest in privacy. California v. Carney, 471 U.S. 386, 393 (1985). So while the general rule is that if an officer wants to search someone's home, he must first establish probable cause and then obtain a warrant, a search of a vehicle merely requires that the officer establish probable cause first -- no warrant necessary. | While I don't like agreeing with a landlord, you are in the right here. Your tenants do not have the right to access the property now they have moved out. If they were still living there things would be different and it would be reasonable for them to fix minor damage (to preserve their deposit). They did not do so. Get the damage fixed professionally, keep all reciepts, and take it out of the deposit. | Yes, of course. Anyone can walk up to a shop owner and ask them pretty much whatever questions they want; police have just as much of a right to do that as anyone else. The shop owner doesn't have to answer, but police are free to ask. | It isn't clear that the example you give is illegal police action, but let's assume that it is for the sake of this question, since it doesn't affect the analysis. If possession is not compelled, then it is voluntary. | No. The laws specify what you can and what you cannot do. If the intent of the authority was that you were allowed to drive at 45 mph, you would have a speed limit of 45 mph, not a speed limit of 40 mph. If you go at 41 mph, you are breaking a law and can be punished. That said, law enforcement officers usually have some leeway on how to enforce the law, and they could very well let it pass with just a warning (or even ignore it if they have more pressing issues); the circunstances of it are specific to every situation and officer. The only point that could be made would be if the difference was so small that it could be argued that it can invalidate the evidence on the basis of margin of errors. If the radar catches you driving at 41 mph but the error margin of the radar is 5%, you could argue that you were driving at 39 mph and that the reading is due to the error in the radar1. That would enable you to challenge the evidence (but here the point is not that you are allowed to drive at 41 mph but that there is no proof that you were driving at 41 mph). From what I know, most police forces will be aware of that and avoid issuing fines unless you are well above that margin of error2. 1In fact, in Spain word of the street is that radars are set to account to possible margin of error of the radar, plus possible margin of error of the vehicle speedometer -even if it is the vehicle owner's responsibility to ensure that it works correctly- and some leeway. 2Some people post on the internet the "magic formula" of how many % of speed you can go over the posted speed limit based on those calculations. Of course those magic formulas rely in the radar and the speedometer being 100% accurate and the driver never getting distracted a few seconds and passing it. So, even assuming that those magic formulas are correct, if either the radar or the speedometer are not accurate or the driver gets distracted for a few seconds, you are at risk of getting a ticket. | Yes, in Orange County, CA, in a residential zone or on residentially-developed property, this is a code violation. Specifically you are looking at Title 3, Division 13, Article 1, Sec 3-13-4(11): Sec. 3-13-4. - Prohibited Conduct. Except as provided in section 3-13-6, exemptions, it shall be unlawful for any responsible party having charge or possession of any real property in county territory to:... (11) Keep, store, or maintain upon any premises under his/her control any abandoned, wrecked, dismantled, or inoperative vehicle, or part thereof, except as permitted by Table 3-13-6(c). You may store/work on this vehicle from a building or location that is not visible from the street, but you cannot work on or store the vehicle on the street or driveway. You might also be able to erect a 6' tall opaque fence around the car, provided the fence meets standards. The code making this illegal is a county ordinance for Orange County, CA, which is not applicable to other counties in California (other counties/cities may have their own ordinances). Codes which cover this sort of activity are generally made at the county or city level. They vary dramatically from location to location, and are often different based on the zoning of the property within the county or city. | I overdosed on an illegal drug and called an ambulance. I was honest and told them what I took. [emphasis added] You stated that you had possession, and had recently used a notable amount, of an illegal substance. That is reasonable cause (or "probable cause" in some jurisdictions) for a search, regardless of a warrant, and they do not need permission. For example, as FindLaw.com explains, in the USA. [p]olice may use firsthand information, or tips from an informant to justify the need to search your property. If an informant's information is used, police must prove that the information is reliable under the circumstances. | I think the Washington law and order is fairly clear: you must stay home unless you are engaged in certain allowed activities. The underlying law, RCW 43.06.220(h) empowers issuing an order prohibiting "Such other activities as he or she reasonably believes should be prohibited to help preserve and maintain life, health, property or the public peace". Therefore I can walk my dog. When I do, there are a lot of people also out walking their dogs, so that provides a letter-of-the-law permitted exception to the stay-at-home order. Nothing in the order specifically addresses the situation where you pause your dog-walk to talk to a neighbor (the "appropriate social distancing" sub-rule only applies to recreational departures from your home). It is well-established that the central legal issue is what the "compelling government interest" is, and whether these restrictions fail on grounds of narrow-tailoring or least-restrictiveness. The failure to include "go to your brother's place for lunch, provided you follow appropriate social distancing guidelines" as a permitted activity is a candidate for not being least-restrictive. The problem is that the courts will not engage in an infinite regress of second-guessings about whether certain measures are "truly necessary". There is a SCOTUS challenge where the Pennsylvania Supreme Court upheld that's state's order, but a SCOTUS order requires the state to reply to a petition by Monday. The "status quo" is that these orders are legal, until someone constructs a compelling argument that they are not, and that matter is then resolved in favor of petitioner by SCOTUS (which has not happened). So far, governors have prevailed at the state level. |
Is downloading a torrent chunk copyright infringement? A torrent works by breaking a file into small chunks, each of which can be shared between peers. This speeds up downloads because peer A could be sharing chunk 1 with you while peer B could be sharing chunk 8 with you etc. (See BitTorrent and Torrent file.) The torrent client would need to reconstruct the file in order for you to use it. None of the chunks is useful on its own. Each is typically 1/1000th - 1/2000th of the entire video file. None is generally even viewable as video without adjacent chunks due to the type of video codecs in common use. In Canada, is it copyright infringement to use a modified (say, self-written) torrent client that simply downloads the chunks and immediately discards them from memory upon receipt, never storing any chunk on disk, and never reproducing any portion of the original file larger than an individual torrent chunk, and doesn't host or otherwise make the chunk available to other users. Does the analysis change if you only download and immediately discard one of the chunks? To simplify answers, let's assume that the fair dealing user right is not implicated. | In Canada, copyright means "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public..." (Copyright Act §3(1)). This question asks whether the work or any substantial part of the work is reproduced when an individual torrent chunk (typically approximately 1/1500th of a file) is downloaded to volatile RAM and immediately discarded.1 If not, is a substantial part of the work reproduced if the downloader-and-discarder repeats the activity on more of the torrent's chunks (each being discarded before downloading another torrent chunk)? Substantiality As quoted above from the Copyright Act, when reproducing only a portion of a work, the statute only prohibits reproduction of a "substantial part" of the work. "[T]he Act does not protect every “particle” of an original work" (Cinar Corporation v. Robinson, 2013 SCC 73). Substantiality is not measured by quantity. "Whether a part is substantial must be decided by its quality rather than its quantity" (Ladbroke (Football), Ltd. v. William Hill (Football), Ltd., [1964]). Copyright Board's substantiality decisions Is a small chunk of a torrent a substantial part? The Copyright Board has looked to several signals in judging substantiality, one of which is whether "[the part] may be so closely identified to the work as to allow the reader to recognize the work" (License Application by Pointe-à-Callière, Montreal Museum of Archeology and History for the Reproduction of Quotations, Copyright Board of Canada [2004]). In some video codecs, possessing 1/1500th of the encoded file would not allow playback such that the result would be recognizable as a portion of the original. The Copyright Board has also held that in the case of XM satellite receivers, which hold "4 to 6 seconds of the Satellite Services' multiplex signal at all times in its random access memory (RAM)", that "the 4 to 6 second buffer fails to satisfy the substantiality requirement. It is not a substantial part of the protected work." (Collective Administration of Performing Rights and of Communication Rights (Re) [2009]). If downloading and discarding one torrent chunk is not reproduction of a substantial part, does downloading and discarding multiple (even all) chunks become a reproduction of a substantial part of the work? The Copyright Board has said, regarding the 4-6 second buffer in the XM satellite receiver (ibid.): "The rolling 4 to 6 seconds of a musical work is not an aggregate of an entire work. At no time does a subscriber possess a series of 4 to 6 second clips which when taken together would constitute a substantial part of the work. It matters not that over time the totality of all works transmitted are reproduced. We are dealing with a rolling buffer and at no time can we line up all of the fragmented copies amounting to one complete copy of a musical work." Discussion In my opinion, downloading a chunk of a torrent file to RAM and immediately discarding it is not reproduction of a work or a substantial part thereof. It is not copyright infringement. Repeating this activity for several torrent chunks of the same torrent file is likewise not copyright infringement. The above analysis is dependent on assumptions regarding the type of file (a media file, encoded using a format that doesn't produce recognizable sub-portions2, split into approximately 1500 chunks). Other types of files and torrents would not fall under this analysis and thus the hypothetical download-and-discard activity could still be infringement. Consider a 5 minute .wav file, split into a torrent having only 2 chunks. A 2.5 minute .wav chunk would be recognizable as a portion of the 5 minute original, and 2.5 minutes of a 5 minute work would be much more likely to be considered a substantial part. Notes 1. I know of no torrent client that behaves this way. It would have to be a custom-written torrent client designed specifically for this ostensibly useless task. 2. Although, I don't think the assumption of unrecognizable subportions is necessary, since the 4-6 second buffer in the XM Satellite receiver was recognizable. | The platform will get in trouble for copyright infringement. The disclaimer that you are not liable does not work, legally, since the person suing you hasn't agreed to the TOS on your webpage. You can be sued for "secondary infringement", meaning that not only the uploader but also you the service provider are liable. The solution to this quandry is the "DMCA safe harbor", a set of rules which, if you follow them, you won't be held liable. The specific piece of law is here. The essence of the rules is that you have to have a "designated agent" who receives takedown notices: if a copyright owner finds their stuff on your page, they officially notify you, then you take the material down – expeditiously (no dawdling). You notify the uploader, they either accept the takedown or file a counterclaim, you notify the rights-holder, there's a waiting period, then the rights holder can file a lawsuit, or not. If the rights-holder doesn't file suit, you can put the material back up. You cannot rely solely on the intricate DMCA notice / counter-notice dance, because under para (c)(1)(A)(ii) of §512, you also must not be "aware of facts or circumstances from which infringing activity is apparent". | Yes So far so good. This is a copyright violation but it is probably fair use - certainly there is case law permitting a copy of a backup digital asset to be made so I don’t see why a similar argument wouldn’t work with backing up a physical book. Clear copyright violation. Alice can rent out the original under the first sale doctrine but the ‘backup’ is not so protected. It’s not fair use because it’s use is commercial, the work is a type of work the author expects to profit from, the entire work has been copied and the use is deleterious to the market i.e. the renters are less likely to buy an original - it falls foul of all four factors of the fair use test. | The subtitles would be protected by copyright, in general. In the US, temporarily downloading the subtitle text to create statistics would, I think, constitute a fair use. It is transformative, it does not serve as a substitute for the original sub titles, and it does not harm the market for the film or for the sub titles. The existence of the API for the subtitles might or might not be evidence for fair use, depending on who supplied the data and under what terms. In other countries that have an exception to copyright for analysis and criticism, such a download might be held to come under such an exception. One cannot be sure until there is case law on the point, and I know of none. The ruling might be different in different countries. Statistics (words and their counts) about the subtitles for a particular film or video would be facts, and as such would not be protected by copyright at all. A text discussing those facts would be protected. | Your title and your question are totally different. If someone pirates a book, makes printed copies, and sells them for profit, that's the point where it switches from plain copyright infringement to being criminal copyright infringement. Which means jail instead of paying damages is possible. If you buy one of these printed copies, not knowing that they have been created illegally, and not being willfully ignorant that the printed copies were created illegal, then you didn't commit copyright infringement yourself. Since you are asking the question, it's obvious that you now know that there was copyright infringement, and buying any more copies would be encouraging copyright infringement with no excuses for you. You can be sued for damages. It is unlikely to happen since suing takes likely more effort than getting any damages from you is worth. The correct thing to do is ask the seller for your money back and destroy the copies. If they don't refund your money you can inform the copyright holder. | It is not possible to say that this is generally fair use, although sometimes it would be. A copy for personal use is still a copyright right violation on its face, and fair use does not categorically exclude non-commercial or personal use of copyrighted works. It is a highly fact specific inquiry. The likelihood of anyone discovering that you have done so and deciding to sue over it is slight, but that doesn't mean that there isn't potential copyright infringement liability. Compare this to speeding. People do it all the time, and even driving one mile per hour above the speed limit is still a traffic violation. But it is rare for less serious violations to be ticketed. | 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. | Online file converters are legal: there is no law that prohibits a person from making a program available and executing online, including creating output in the form of a file. It is possible that some person may illegally copy copyright-protected material then use a website to modify that material, in which case the question of vicarious liability for copyright infringement could arise, so we appeal to the DMCA safe harbor provisions to see what the website must do. First, the owner of copyright must submit a properly constructed takedown notice to the website. Crucially, the notice must contain sufficient information that the website operator can find and take down the item(s) in question. Assuming that the complainant can supply the "where is it" information, then there is a notice and counter-notice routine where the uploader is informed and can deny the accusation – the website operator doesn't evaluate the merits of the claim, he only sees that the formalities were observed. If the operator follows the rules, he cannot be held vicariously liable. If the link does not expire and if it is somehow promulgated, the technical potential for being a contributor to copyright infringement becomes very real, but it puts the operator in no worse a legal position than Youtube. So the question is not just related to OCILLA, it is entirely covered by that law. Questions of how users or website owners are "supposed to" act don't figure into this. If the website owner does not comply with those provisions, they have no access to the safe harbor provisions, and they can be sued. However, the website itself remains legally "permitted" (there never was a prohibition of such a website). |
Litigating personal injury in Germany due to lack of proper testing I have read various articles that litigating for damages due to injury against medical professionals or clinics is an uphill battle. See here In simple terms, the case is as follows: A and B both got tested at different clinics for STIs. A got all negative. B was told they will be contacted in case something is wrong. B was never contacted. One year later A suffered from multiple injuries occurring due to an STI that A had. B got tested again and had the STI that A had (making B the source) at the same clinic. B was told by the clinic that the previous report (a year earlier) had "showed readings slightly more than average" but they did not inform B. What are A's legal options in Germany? | There are none. Damages against B’s clinic? A does not have a contract with B’s clinic. No duties nor rights without a contract. Damages against B? A does not have a contract with B. If there was a contract, we need details about it. Tort, § 823 Ⅰ BGB? No. B was neither negligent nor did he/she deliberately incur damage. Report B as criminal? A and B had consensual sexual intercourse. This consent (necessarily) comprises the risk of transmission. You cannot give “consent to facts” though. Yet here B had no knowledge of his/her contagiousness. He/she definitely did not deliberately infect A. Negligence is out of question, because there is no general expectation to get regularly tested before having sex with anyone. | The standard in civil trials is "on the balance of probabilities" or "more likely than not." This is often expressed as "more than 50% likely", but this question is meant to provide an edge case to this standard of proof. Despite one person being provably innocent, could all 3 people be found civilly liable for 1/3 of the damages, since each individual has a 67% chance of having committed the crime? General Rule: No Generally speaking, the answer is "no". A plaintiff must prove liability by a preponderance of the evidence as to each individual defendant. This flows from the basic structure of tort lawsuits (a civil claim alleging damages suffered from criminal acts is a form of tort lawsuit). The Narrow Market Share Liability Exception There is pretty much only one circumstance where something similar to your example. But, it isn't strictly analogous because it only applies when all of the defendants can be proven to have harmed some of the plaintiffs and the only question outstanding is who harmed whom. Defendants may be innocent of harming some of the plaintiffs, but can't be innocent of harming any of them, to face liability in this scenario. This occurs which is when a class action lawsuit is brought against all (or almost all) of the multiple separate defendants who manufactured the products of the same type, all of which were defective. A manufacturer of a defective product is strictly liable for all harm caused by the defective product, but usually a plaintiff must show precisely which defendant's product caused that particular person's injury. But, in the class action context, where (almost) all of the people who made the defective products are sued by (almost) all of the people who were injured by defective products of that type, courts have allowed the class to recover an amount calculated to represent the aggregate economic value of the damages suffered by all members of the class combined. Then, the aggregate damages award is allocated among the defendants in proportion to their market share of the defective product. Then, the amounts paid to the class by the various defendants are then allocated to members of the class based upon the estimated damages suffered by each subgroup of class members (or in separate case by case damages hearings). This is an exception to the usual requirement to prove causation against each individual defendant in the case of each individual plaintiff, because the risk of injustice by the process overall to any given defendant is small, and requiring proof of causation in this situation creates a burden on plaintiffs that lacks the justification that it would have if the injured parties had sued on a piecemeal basis. But, this only works when the defect in the product was shared by everyone who made that kind of product, and was not simply a "quality control" issue in the manufacturing process. For example, this kind of market share causation could be appropriate against all makers of tobacco products or asbestos or lead based paint. But, it would not be appropriate in a product liability case where some cars with built with substandard parts while others were built with parts that met the specifications for the cars and those that were did not cause any harm. | The State of California is not responsible for injuries committed by private citizens Sorry to hear about your friend. Jamal may have a case (although the scope is narrow and timeframes are strict and tight) if someone employed by the state didn't do what they should have done. There is a whole raft of rules and regulations surrounding child welfare and Jamal would need to demonstrate exactly what they did that they shouldn't have done or what they should have done that they didn't do to have any basis for a claim. You will note that there is an obligation to make assessments -if they didn't make an assessment, they might be liable; if they made the wrong assessment, they aren't. Contested child welfare cases are difficult - caseworkers and social worlkers are presented with a lot of contradictory information and outright lies and the law accepts that if they make a good faith attempt to do their job, they haven't done anything wrong even if they make the wrong call. As for the court "assuming" anything, that is simply not true. The court would have heard the evidence (contested and contradictory no doubt) and made a judgement based on that evidence. It may have been the objectively wrong judgement but it was a perfectly legal one. In any event, you can't sue the court for a wrong judgement, you can only appeal it to a higher court subject to the time limits and your ability to pay. As a practical matter, child protection services are generally chronically underfunded, understaffed and overworked as are the courts that deal with such cases. A typical caseworker might have to deal with 50-100 cases similar to your friend every week - that gives them 5-15 minutes to (partially) read the file and try to decide what's best for the child. Sad to say, your friend is one of the lucky ones - came out the other end with a good relationship with one of his parents, isn't dead, isn't a drug addict and isn't homeless. And no, you can't sue the state for things being the way they are: that's what the voters want because if it isn't they'd elect politicians who would change it. | Legal Services Society is a non-profit organization created by the BC Legislative Assembly through this act, created in order to serve the legal needs of certain classes of society, defined vaguely with reference to "a reasonable person of modest means". Accordingly, they have rules regarding who they can and cannot serve. and they are constrained financially. With vast demands on their resources and little by way of resources, prudent triage is called for. That is, when you show up, you shouldn't expect to talk to a senior attorney (or an attorney). From what I can determine, you cannot expect to get your problem solved right away. It is also not clear that your problem is within the scope of what they do (criminal, incarceration, serious family matters, immigration). "Giving legal advice" is something that only a few people are legally allowed to do – lawyers, who have you as their client. If the person were an attorney, they still couldn't give you legal advice until the appropriate relationship is created (and they have the relevant facts). The person you met with may be a paralegal or a law student. Under the law (sect. 8 of the act), you cannot sue them for damages because of their actions, except if carried out in bad faith. The waiver might be a bit redundant, but it is a wise idea to tell people that you can't sue them. If you want to know what you can expect from the lawyer, this publication will be helpful, though it is generic and not specific as to your particular issue. | Does this practice contravene any state statute(s) or rule(s) of evidence? Generally not. States could adopt a statute that says otherwise, but I'm not aware of states that do. States often have regulations limiting police use of biometric data for general, non-probable cause based searches for criminal suspects. For example, many states don't make fingerprints obtained for professional licensing background checks available for searched by law enforcement without a warrant and probable cause. I suspect that states may start to do so with rape kit DNA, but it hasn't previously been identified as an issue, so there aren't statutes that prohibit this in most cases (e.g. victim's rights bills have not thought to address the issue). The reason for concern that could lead to future statutes is two fold. First, including rape kit DNA in searches discourages people from reporting crimes because it might put them at a disadvantage in an unrelated criminal proceeding. Second, the risk of false positives is vastly higher in a random search of biometric data from people with no articulated connection to the crime than it is when isolated individual suspects who there is probable cause to believe committed a crime are investigated. The chance of a false positive for someone in a database with millions of people is non-negligible even if the risk of a false positive in any one isolated comparison is tiny. Even a 1 in 10,000,000 chance of a false positive in a database of 40 million people will routinely produce false positives in random searches. And, while DNA evidence is very accurate, partial forensic DNA samples aren't absolutely incapable of producing false matches to nearly the same extent as a comparison of two complete whole genome samples. So, states may adopt such statutes in the future now that the issue is in the spotlight. contravene any federal statute(s) or rule(s) of evidence? No. violate any state constitutions or the US constitution? No. At least under current jurisprudence. The relevant provisions are vague legal standards that are applied with great discretion by courts. Evolving understandings of the situation could change that view in the future. Footnote: Does doctor-patient privilege or HIPPA control? There is a doctor-patient privilege recognized in every U.S. state and in the federal courts. Forensic DNA obtained from a rape kit from a potential suspect isn't protected by the privilege since the suspect isn't a patient of the medical provider in that medical procedure. There is an arguable case that the rape victim is a patient of the medical provider who gathers the DNA, including the rape victim's DNA for the rape kit, and that the patient has not waived the doctor-patient privilege merely by permitting the medical professional to use the rape victim's DNA profile to distinguish between sample material in the rape kit that is her own from material from a suspect. Moreover, such a waiver of doctor-patient privilege would probably not be legally valid unless the rape victim provided informed consent to that release. The rape victim might also have federal HIPPA protections for the privacy of her DNA profile collected as part of her medical records under a similar theory. Mostly, this hinges on how the relationship of the rape victim to the person administering the rape kit is characterized, and in particular, if gathering evidence in a rape kit is "medical treatment" that is privileged. To the best of my knowledge, there is no case law interpreting either the doctor-patient privilege or HIPPA in a rape kit DNA fact pattern. If it is considered to be a doctor-patient relationship for medical treatment within the meaning of the evidentiary privilege and HIPPA, and the DNA was shared on a database which law enforcement has access to without a warrant without the victim's informed consent, this evidence and all "fruit of the poisonous tree" derived from it, could probably be suppressed in a criminal proceeding against the rape victim, even if the evidence conclusively linked the rape victim to the crime. Under the circumstances, and given the policy considerations and the lack of other controlling law, this would be an attractive interpretation of the existing law for a court to adopt. If evidence completely independent of the blind database match provided probable cause that the rape victim committed a crime, and the crime was one in which there was forensic DNA evidence, law enforcement could probably get a search warrant to take a legally untainted DNA sample from the rape victim to compare to the forensically collected DNA evidence, however, just as it could with any other suspect. | The legal standard is whether the allegedly infringing mark is confusingly similar to the mark that is allegedly infringed. This is a mixed question of fact and law usually determined by the trier of fact (which is the jury, in a jury trial where there is a colorable dispute of fact regarding the issue). | Not a full analysis, but a framework for thinking about it: Like the French Civil Code, the Japanese Civil Code only has a single provision on tort liability. Article 709 of the Civil Code states: "A person who intentionally or negligently violates the rights of others shall be liable for the loss caused by the act." Tort law was gradually developed largely based on case law, including cases on pollution. Statutes outside the Civil Code also regulate specific types of torts, such as the Law on the Compensation of Losses arising from Car Accidents enacted in 1955, the 1973 Law on the Remedies of Harm Caused to Human Health by Pollution, or the 1994 Law on Product Liability. In a 1990 article, Takao Tanase posited that the calculated structuring of governmental and legal processes, not a cultural propensity toward harmonious social relations, accounted for the persistently low litigation rate in Japan. In Japan in 1986, fewer than 1% of automobile accidents involving death or an injury resulted in litigation, compared to 21.5% in the United States. The litigation rate was low, Tanase said, because Japan provides non-litigious methods of assessing fault, advising victims, determining compensation, and ensuring payment. Non-litigious dispute resolution mechanisms, mediation services, consultation centers operated by governments, the bar association, and insurance companies. The Japanese judiciary also works hard at developing clear, detailed rules that guarantee virtually automatic, predictable, moderate compensation for most accident victims. This contrasts with the American tort system, where the legal rules concerning both liability and non-economic damages ("pain and suffering") are stated in general terms, leaving a great deal to the judgment of constantly rotating lay juries—which in turn makes courtroom outcomes variable and difficult to predict. The result was a system that is vastly more efficient and reliable in delivering compensation than the American tort system. Tanase estimated that legal fees comprised only 2% of the total compensation paid to injured persons. In the United States in the late 1980s, according to two big studies of motor vehicle accident tort claims (not just lawsuits), payments to lawyers equaled 47% of the total personal injury benefits paid by insurers. This expense drives up the cost of insurance to the point that huge numbers of drivers are uninsured or under-insured, which means that victims of their negligent driving will get little or nothing from the tort system. (Source) So, getting to the question: if you are a cyclist and you down a pedestrian because they don't know you are there because you are scared of the fine so you don't ring your bell to let them know you are there and some pedestrians (or are children) erratically move so they might move too suddenly close to the path of your bicycle for you to stop in time. Who is liable if compliance with law leads to damage or injury? In Japan, the person who was hurt would promptly be taken to a local hospital, quite likely by the person who caused the harm or a completely unrelated bystander. But, since Japan has national health insurance and very affordable hospital pricing even to the insurer, the economic impact of the accident, even if the injuries were serious, would be much smaller than in the case of a comparable accident in the United States. No one would sue. But, the bicycle rider would apologize repeatedly, and would promptly and diligently pay some moderate compensation to the person harmed. The amount paid would be a bit more than amount of the exclusively economic part of the harm (excluding health insurance payments that it was forced to make as a result of the accident) that were caused by the accident to the person who was hurt. No one would consider the impact of the government regulation as something relevant to justice between the people who were involved in the accident. But people who saw it happen might start having discussions with people in the vicinity and influential people in local government about whether this law was a good idea. It is possible that the law would be changed as a result of this incident and similar ones. But, it is even more likely that the police would unofficially make it known that in some circumstances they will neglect violations of this law when doing so helps to prevent an accident if the person doing so tries to be polite in the process and apologizes for doing so. The local authorities and people informally in the area, might also, or instead, probably encourage bicyclists to call out vocally in a loud but civil voice: "Excuse me good person, I'm coming behind you", rather than ringing a bell, which would be even more effective at preventing an accident. It is quite likely that this scenario was the intended effect of the local law. | The question asks for analysis of a specific accident, and I'll leave that to other answers. This answer is focused on conceptual misunderstandings in the question itself. Where does fault lie in the following situation; and what tickets if any should be issued according to Illinois Motor Vehicle Code and why? Again who is at fault or what %'s of fault should be applied and why? Lawsuits v. Traffic Citations It is important to understand that whether tickets could be issued according to the Illinois Motor Vehicle Code, and legal fault in a lawsuit arising from an accident involving a motor vehicle are two very different legal concepts. Also, there isn't necessarily only one person at fault or only one person who has violated the Motor Vehicle Code. Motor Vehicle Code Violations Violations of the Motor Vehicle Code are analyzed one by one in a criminal or quasi-criminal traffic court proceeding where the issue is whether a fine or other punishment should be imposed for violating it. One person being cited does not mean that another person can't be cited as well. These proceedings would be brought by the "People of the State of Illinois" against each defendant by a government official at government expense. The government also has no legal obligation to bring charges for every violation that could in theory be legally supported by the facts. The outcome of the traffic court proceedings would be inadmissible evidence in a lawsuit arising out of the accident. Usually the police report will also be inadmissible evidence unless the police officer who wrote it is brought into court to testify in support of it, or the parties stipulate otherwise. Civil Liability In A Lawsuit In a lawsuit, brought by the private lawyer for a person who has suffered damages from the accident (called a "plaintiff") must show that someone else was negligent, which means that they failed to act with reasonable care under the circumstances to prevent harm to others, that this caused their damages, and must prove their damages. Private lawyers for the defendants whom the Plaintiff seeks to assign fault to are usually paid for by the defendants' insurance companies and argue against their clients having liability. A jury hears all of the evidence and assigns a percentage of fault to each party including the plaintiff. If the person injured is found by a jury to be at least 50% at fault, then there is no recovery. If the person injured is found to be less than 50% at fault, then the other parties at fault have legal liability to the plaintiff based upon their percentage of fault. See 735 ILCS 5/2-1116. Negligence in a lawsuit doesn't necessarily have to involve a violation of the Motor Vehicle Code. A jury can find, for example, that someone was driving too fast for the conditions despite not violating the speed limit, or stopped too abruptly, even if those aren't Motor Vehicle Code violations and can find a percentage of fault based upon that conduct. A violation of the Motor Vehicle Code does not automatically translate to fault either. Violations of the Motor Vehicle Code are a basis for a finding of fault, in what is called negligence per se, if the code section violated was intended to prevent the kind of accident that actually happened. Failure to use a turn signal, for example, will rarely constitute negligence per se in an accident where one car rear ends another car. There are very simple cases where one can truly state with absolutely certainty that only one party is at fault for purposes of a negligence lawsuit. For example, comparative fault is hard to argue in a case where a garbage truck hits and damages a building while the driver isn't paying attention and the building owner sues the garbage truck driver and his employer, although even then the issue of what damages should be awarded can be litigated. (Full disclosure: I litigated this case for a building owner until it had to be transferred to new counsel due to a merger of my law firm with another law firm that represented the other side in the case.) But usually (at least in cases that go to trial) there is at least some colorable argument that more than one person involved failed to exercise reasonable care under the circumstances and if so, the jury must allocate fault percentages on a basis that it feels best allocates responsibility for the harm caused to a particular plaintiff by the accident as it sees fit in their good judgment using common sense. And, this allocation of percentage fault is almost impossible to overturn on appeal if there is any argument based upon any evidence introduced at trial that the people to whom fault were allocated indeed not totally without fault. It is impossible to say, as a matter of law, what percentage of fault should be assigned to each at fault party when more than one party is potentially at fault. This is question purely for the finder of fact (usually a jury, but the judge in a bench trial). |
Who is responsible if a customer does not specify location to taxi driver? At an airport a family decides to take a taxi and tells the driver they want to go to a particular road and the taxi driver tells them they know that road and feeds it into the GPS. Everything seems fine when midway the passengers realize that the driver is going the wrong way because a road of the same name is in multiple cities, causing several hours to be wasted. Is it automatically the driver's fault? Does it matter whether the driver is employed by a company as in this case or is self-employed? Is it correct that even if a driver is self employed they owe a certain standard of care to customers? | It could be the passenger's problem or the taxi's problem When these sorts of breakdowns in communications happen in specifying contract terms then either or both parties can be at fault. If the passenger specified the wrong address then it is clearly the passenger at fault. Similarly, if the driver drove to a different address from what the passenger said, it would clearly be the driver at fault. However, if the passenger was imprecise and the driver made an assumption then who bears responsibility depends on whether that assumption is reasonable or not. For example, the main street in the Sydney, Australia CBD is George Street. Even though George Street is an extremely common name with literally dozens in the Greater Sydney area, a taxi driver would reasonably assume that a passenger at the airport asking for "George Street" means the one in the city, not any of the others. In such a circumstance, the onus is on the passenger to specify exactly where they want to go. Whether the driver is an employee or a contractor is irrelevant - they are the representative of the organisation with whom the passenger has a contract. | There is no misrepresentation by the bank as you describe it, there is negligence by the account holder to comply with the terms of the account. The bank made no representation at all regarding a balance due. If you want the bank to be at fault, they the customer would have to demand a declaration as to the existence of a balance due (choose your words carefully), and the bank would have to have falsely asserted that there is no present or future obligation. This is not going to happen. All the bank can say is that they have no present record of charges. The customer's question might be something like "Do you guarantee that there will be no charges to this account as of now". Of course, the bank cannot know whether there is a forthcoming paper charge that was made at some mountain resort. If case they did make such a promise, you could disavow the debt, using your reliance on their assertion as the basis for denying the debt. There is no law requiring banks to warn people of their contractual obligations when they close an account. I've never encountered a credit card contract that includes such a clause, but I suppose some bank might include a mandatory-warning clause, in which case they could be in breach of contract. | This is a legal question, a business question, and an ethical question more than it is a bike question. Obviously there are risks when anyone rides a bike. And some people might have invisible conditions that would place them at special risk when riding a bike. But, as a shop owner, if a special risk is immediately visible, you open yourself up to a charge of negligence if you fail to take that risk into account. This happened in Canada, and I'm not knowledgeable about Canadian law. It's also interesting that this happened at a Giant company store, not a mom-and-pop bike shop. The fact that the store is operated by Giant may have made the operator more liability-conscious, but it also means they were better prepared to deal with liability than a mom-and-pop store. If I were in the position of selling a bike to someone who exceeds its load rating, I might want them to sign a document acknowledging that fact, and indemnifying me for any damage or injury sustained as a result, but I wouldn't make them promise to lose weight. But I'm in the USA, not Canada, and jurisdiction matters. | Does US law have a notion of supply chain management? There is no need for it, since this kind of disputes can be adjudged under contract law. For purposes of legal analysis, supply chain is nothing more than a scenario of independent contracts, each one typically involving different and unrelated parties. Based on the article(s) you share, Delta simply is trying to shift the blame and intertwine independent contracts: one with the plaintiff customers, the other with its provider. The customers only have standing to sue Delta because that is the entity with which they entered a contract (here, in the form of airfare purchases). To prevail in a lawsuit against other entities such as the provider, the plaintiff customers would need to resort to other legal theories and be able to prove the additional elements thereof. Here, it seems unlikely that a decision [by the customers] to expand litigation against other entities will facilitate the remedies to which the plaintiff customers are entitled. The most Delta can do is to file a third-party complaint against the provider, request that the provider be added as co-defendant, or sue the provider separately. | Yes. Art 13 requires you to provide “the identity and the contact details of the controller”. You are the data controller. Your name and address are necessary to establish your identity. Using AdSense means you're offering an internet society service commercially. In that case, there's also probably some EU fair competition directive that was implemented in your countries national law and will provide equivalent requirements. For example, my country Germany has a far-reaching Impressumspflicht. Not sure if this is the most relevant EU law, but Art 22 of Directive 2006/123 requires that your country passed laws to ensure that you make available “the name of the provider, his legal status and form, the geographic address at which he is established and details enabling him to be contacted rapidly and communicated with directly and, as the case may be, by electronic means”. I think you would be in scope of this directive since you're acting commercially. This legally mandated self-doxxing is unfortunate for private bloggers, but it's also essential for making it possible to enforce data subject rights: if you were to violate someone's privacy rights, how could they sue you if they don't know where to serve you with a lawsuit? However, all things are a balancing act. These requirements are not intended to limit freedom of expression. If you're just trying to communicate something to the public without jeopardizing your anonymity, then paradoxically social media services can be more attractive. | States can, and some states do, have "mini-Sherman" anti-trust laws of their own. Whether a city could have such a law would depend on whether the state had delegated that power to cities. I haven't heard of a city that has such a law, but I haven't really looked. Or if a state has a "mini-Sherman" law, a city could perhaps bring action under such a law, depending on its exact terms. Or a city could impose a licensing scheme on a specific industry that also prevented a monopoly, similar to the requirements that many cities and towns place on taxicabs, or on bars. Both of those typically limit the number of units that a single entity may own. So perhaps it could be done for parking. | People in the UK (who are not subject to immigration control or other restrictions) do not have to carry any form of identification. This doesn't answer all parts of your question, but s164 Road Traffic Act 1988 is appropriate to the part about driving. a person driving a motor vehicle on a road ... must, on being so required by a constable or vehicle examiner, produce his licence and its counterpart1 for examination, so as to enable the constable or vehicle examiner to ascertain the name and address of the holder of the licence, the date of issue, and the authority by which they were issued. (s164(1)) So it makes no difference why you were stopped: a constable or traffic offiver can demand production of your licence if you were driving. The same power exists if you're suspected of having caused an accident or committed an offence, even if you're not driving at the time of the production demand. Non-production is an offence: If a person required under the preceding provisions of this section to produce a licence and its counterpart ... fails to do so he is, subject to subsections (7) to (8A) below, guilty of an offence. (s164(6)) However, it is a defence to produce the licence (or a receipt for a licence) within seven days of the demand (s164(7-8)). In practice, the officer will give you a 'producer' requiring you to present your licence at a police station within seven days, after which you will be guilty of the non-production offence. The implication of this is that it is not required that you carry your licence; merely that you have it available to produce within seven days. 1 Presumably the reference to 'counterpart' will go away when the counterpart is abolished on 8th June 2015. | The Straßenverkehrsordnung(Translation) in Germany says this: § 34 Accidents (1) Any person involved in a traffic accident must: stop immediately; take the necessary steps to ensure traffic safety and, if there is only minor damage, move their vehicle to the edge of the carriageway; ascertain the consequences of the accident; assist injured persons (section 323c of the Penal Code); to other persons present at the scene of the accident who were involved and have suffered damage: a) state that they (i.e. the person referred to in the first clause) were involved in the accident; and b) if requested to do so, provide their own name and address, present their own driving licence and vehicle registration document and, to the best of their knowledge, provide details of their third-party insurance; a) remain at the scene of the accident until, by virtue of their own presence, it has been possible to identify their personal details, their vehicle and the nature of their involvement to the benefit of the other persons who were involved in and have suffered damage in the accident; or b) wait for a reasonable length of time and leave their own name and address at the scene of the accident if nobody was prepared to perform the identification; immediately facilitate subsequent identification if they have left the scene of the accident legitimately, after giving a plausible excuse or upon expiration of the waiting time (paragraph 6(b)). For this purpose, they must inform at least the persons referred to above (paragraph 6(a)) or a nearby police station that they were involved in the accident and must provide their own address, their present whereabouts as well as the registration number and location of the vehicle that was involved in the accident, which must be kept available for immediate investigation for a reasonable length of time. For minor accidents (no injuries, no suspected criminal offence, no major disagreements between involved parties, ...) you do not have to call and wait for police (you have a right to call them but they might try to discourage you from requesting that they come to the scene). For normal traffic accidents insurance doesn't come and collect evidence at the scene, instead an appraiser will document damage to your car and look at statements and witness reports and other documentation. You can just exchange all necessary information with the other party/ies and then leave with your car (possibly using a towing service). However, OP might refer to the specific case of an accident with a rented car. In that case, the contract with the rental service often mandates that you call police and request an official police documentation and report in case of an accident. |
Is recreating a proprietary game legal? I was wandering how is that open source projects on GitHub that aim to and in many cases succeed to recreate beloved games from the 2000's are not taken down? I think it's great and all, but if I am to recreate some NES game for example like "super mario", will my game be illegal to distribute for free, and should I really care if it isn't legal, as long as no one in their right mind is going to sue me for an old 80's game? | will my game be illegal to distribute for free, Yes and should I really care if it isn't legal, I don’t know if you should care. The worst that can happen is that they can sue you for damage. Depending on how many downloads you get, that can be a lot or a little. as long as no one in their right mind is going to sue me for an old 80's game? People very much in their right mind will sue you. In the US, that’s $750 to $30,000 per download. If you get 1k downloads at $750 that’s $750,000 — well worth rolling the dice on a lawsuit. | germany I am reasonably sure that works like this would be Public Domain, i.e. not copyrighted in the first place. In Germany, copyright (or more precisely, Author's Right) can only be held by a natural person, which is a legal term of art that essentially means "human being". There are two groups of natural persons involved here: the programmers and the creators of the works which are part of the training set. However, I can't see how either group could have a reasonable claim of copyright. Note: there have been similar discussions about GitHub Copilot, an AI that writes code for you. It is my understanding that the process used by GitHub Copilot is roughly comparable to the process used here. With GitHub Copilot, there have been instances where significant snippets which are part of the training set have appeared in the output with only minor alterations. In this case, it is likely that the original author will have copyright over that portion of the output. However, IFF a human being were actually involved in selecting specific works, then there is probably a copyright based on the creative decision of selecting this particular work and rejecting all the others. This is similar to the classic textbook example of a driftwood sculpture: the creative process here is not creating the sculpture but choosing to pick up this particular piece of driftwood instead of the hundreds of others on the beach. So, if you simply generate these works and publish all of them, there is no copyright. If you generate a large batch and then select a certain number, then the person who made the selection might hold a copyright. | The first thing that people need to do is to quit over thinking it. That being said, I'm going to see if I can tackle your problems one by one, before summarizing and providing my own opinion: Many users don't care if their code is copied. I'm like that. I left a couple comments on Shog9's post that read this: Good point: Licensing does not prevent careless or malicious use. I'm surprised about how many people are thinking that this license will let them steal their code, because it's already happening right now. I don't want to sound pessimistic, but when thousands of people break a license/law/contract, it's a bit of a lost cause. You're not significantly damaged in a direct way, so honestly, let it go. All I want is to make sure that no one can come up to me if something of mine screwed something on there side. Aside from that, I don't care about people who don't attribute me: chances are, they have no moral sanity, and I will appreciate the people who do, and help me out. As it is, I'm 16, I share what I know with a good heart, and in a well-spirited manner, and at the end of the day, knowing that I was able to help someone out makes my day. I don't mind if my code is copied. I know that people will copy my code whether I like it or not, but I also know that there will be people in the world who will say "thanks", and will try to attribute me where possible. I feel good about that. That being said, I don't care. But the person who uses my code does. The license that affects all Stack Exchange posts are licensed under the Creative Commons Attribution Share-Alike license, or CC BY-SA. Code contributions don't fit well with this. This excellent post on Open Source explains why it's discouraged for code. What these people want is a code-friendly license, so that they can stay in the clear when it comes to copyright issues. The next thing they want, is for someone to come after them over some licensing issue. You may think that people are good, but you never know the world around you. They can be evil. For other users, they don't mind their code being copied to another post, as long as there is a link to the post and a mention of the original author. Most people post with good intention. There's not that much of an issue from a legal perspective either: The license allows people to copy and paste into answers of their own, and since the license remains the same, there's no issue to get into. The license allows it, and contributors kind of have to acknowledge it. I don't think anyone cares what happens to code that is less than 3-4 lines at least. I can probably agree. Such code probably wouldn't be eligible for copyright anyway, since it's so trivial. Many jurisdictions have a "Threshold of Originality," which means that simple things can't be under copyright. Stack Exchange does not probably want people to own the code they submit. For example, Stack Exchange has (and probably wishes to retain) the right to keep even deleted posts in the visibility of the high rep users (even if the author is against it). Wait what? You may be right that it is in Stack Exchange's interest to host content. After all, they get hits, which helps them as a business. It is illegal for companies to host illegal content. If somebody sees objectionable, copyrighted content hosted on Stack Exchange that they would like removed, then they need to file a DMCA Takedown Request. This is also why moderators, like myself, cannot process legal requests. The reason why Stack Exchange doesn't act themselves, even if they see something that is copyrighted and objectionable, is because it's a form of liability. When YouTube began removing copyrighted content themselves, they received a wave of lawsuits (If you remove some, you need to remove all. Why didn't you remove mine? being the argument). The plaintiff's won those, and when YouTube did nothing, they weren't liable at all. If a user wants to have their content taken down, it's tricky. You need to look at the Terms of Service for Stack Exchange: (quoting Section 3) You agree that all Subscriber Content that You contribute to the Network is perpetually and irrevocably licensed to Stack Exchange When Stack Exchanges gets your content, you grant them an irrevocable license to your contribution. This is pretty standard across a lot of sites: it's just a way to secure data and stay in the clear of licensing issues. At the same time, it doesn't seem fair for SE to acquire complete ownership of the content. The user must still have the final say, if the content is to be used for purposes not already agreed upon in the licence. They don't. What users have done is that they have provided a license of their content to Stack Exchange. This is done, again, through their Terms of Service: You grant Stack Exchange the perpetual and irrevocable right and license to use, copy, cache, publish, display, distribute, modify, create derivative works and store such Subscriber Content and to allow others to do so in any medium now known or hereinafter developed (“Content License”) in order to provide the Services, even if such Subscriber Content has been contributed and subsequently removed by You. The user grants a license to their content to Stack Exchange, but they do not assign or relinquish copyright. The code still belongs to them. It's important not to conflate the user contribution policy, with copyright assignment. You are still free to add an additional license to your content (known as dual or multi-licensing), and have a copy for your own use. Stack Exchange will always host a copy licensed under the CC BY-SA license. Stack Exchange can expect a high level of decorum and respect for laws from its users. At the same time, it cannot expect redundant attributions anywhere and everywhere, because one of its main aims is to not waste the users' time. Not only Stack Exchange expects it, but many copyright laws in various jurisdictions require it too. There's a concept known in many jurisdictions known as moral rights. These are rights that are irrevocable, whether you like it or not. Generally, these include attributions, disclaimer of liability, and other rights as well. Even if your work is in the public domain, you still retain these moral rights. If memory serves me right, the right to be attributed is revokable under United States copyright law. Therefore, attribution becomes more a courtesy, when the right is revoked. Licenses such as CC BY, and CC BY-SA still require attribution as a part of their licensing terms. What defines attribution is generally up to the person who uses the content. If memory serves right again, one can not demand how to attribute. There should be a clear-cut way to determine what is code and what isn't. The code formatting indicators on SE may not be adequate because some users simply use backticks, or 4-space indented text for other not-so-codey text. Personally, I feel like making the entirety of a post under both the Creative Commons license and whatever proposed code license they use is the best option, and allow people to use moral judgement to determine the most appropriate license. The concern comes about people who lack such judgment. I bet these same people don't follow the existing license anyway - and are a lost cause. We made it through! There will always be debate on the license of choice. Some people want the GPL, a license that's apparently closer to the status quo of Creative Commons license (I disagree that it's a good match), while other's want permissive licenses, such as the MIT or the Apache licenses. I'd prefer the permissive type, since it allows use in closed-source applications, and grant more rights (i.e. less restrictions) to the people that use them. I'm not going to right much because my hands are tired, but I'm sure if you've got more questions about the open source licenses themselves, you can probably ask on Open Source Stack Exchange. | If any elements of the game are protected by copyright, then you cannot reproduce those elements (17 U.S.C. §106) unless your reproduction falls under a fair use exception (17 U.S.C. §107). Elements that may be protected by copyright include: artwork specific language on each card the aggregate effects of the cards (i.e. copying a single card's effects might not infringe copyright, but if you copy the effect of a bunch of the cards, such that you are taking expression of the original author's creativity, that might infringe, even if you change the words used) Whether an element of the game is protected by copyright is a fact-intensive question that would depend on the specifics of the game. Whether your copy infringes is likewise a fact-intensive question that would depend on what you copy. Fair use is also a fact-intensive, case-by-case analysis, but in my opinion, it is likely that creating a computer program derivative work (17 U.S.C. §101) of the game for your own personal education would be considered fair use. From a practical standpoint, even if it were not fair use, it would be near impossible for the copyright owner to discover. Posting the code on GitHub tips the scales away from fair use because of (17 U.S.C. §107(4)): "the effect of the use upon the potential market for or value of the copyrighted work." But, none of the factors are determinative on their own. You ask: I likely cannot simply change all the names of the various cards to something else, right? I agree. In my opinion, the selection and arrangement of the effects attributed to each card is an expression of the author's creativity, and no matter what you call the cards, copyright in the game would be implicated if you retained the effects associated with each card. If I start changing the rules of the game, does that make it legal for me to share my source code, for instance? At some point, it will be an entirely different game, so certainly, in the limit, your work would not be infringing. We can't answer where that line is, but in general, the less of the original author's creativity that you re-use, the less likely a ruling of infringement. Also, in general, the more transformative your work is, the more likely a fair use exception would apply. | Why do you think Oracle have not been protecting their trade mark? Using a trade mark to describe the product (“Written in JavaScript”, “Seeking JavaScript developer”) is not an infringement and the trade mark owner is under no obligation to, indeed, cannot stop this. Where they are required to defend their trade mark is when it is being used in such a way that there is the risk of confusion that the goods or services could be confused with the trade mark owner’s goods or services. Further, they are not required to defend all breaches, only enough to show that they are actively doing so. Also it is not important that the trade mark be associated with the trade mark’s owner. Do you know who owns the trade mark “Ben & Jerry’s”? | Depends if the artist is a contractor or an employee Let's say I am the person who created Spiderman, but my artist came up with the design of the costume and everything Well, it certainly looks like you didn’t create Spider-Man - the artist did. If they are your employee then you, as their employer, own the copyright. If they are a contractor, then they own the copyright which can be transferred to you under the terms of the contract or otherwise. What if the design was written in paper and then the concept artist represented the written design graphically, does that make any difference? Not really. Here the artist has created a derivative work but since they did so with your permission, that’s fine. The derivative work is a seperate work with its own copyright owned as stated above. How can you make sure you don't face this problem if you hire an artist for your work? You set out in the contract who owns the copyright. | Yes and no. [note, the following is all written about US law. In other jurisdictions laws are, of course, different (though usually not drastically so.)] In the US there are (at least) three different bodies of law that might apply to code: copyright, patents, trade secrets. Copyright covers original expression. Anything you write is automatically, immediately protected under copyright. The copyright applies to the code itself, and anything "derived" from that code. It's up to the courts to decide exactly what "derived" means. One case that's long been viewed as a landmark in this area is Gates Rubber v. Bando Chemicals. The Court of Appeals for the tenth Circuit decision includes a section titled: "The Test for Determining Whether the Copyright of a Computer Program Has Been Infringed." Note that you can register a copyright, and that can be worthwhile, such as helping recover some damages you can't otherwise. Patents are quite different from copyrights. Where a copyright covers expression of an idea, a patent covers a specific invention. Rather than being awarded automatically, a patent has to be applied for, and awarded only after the patent office has determined that there's no relevant prior art to prevent it from being awarded. A patent, however, covers things like somebody else independently discovering/inventing what's covered by the patent. A trade secret could (at least theoretically) apply to some process or procedure embodied in the code. A trade secret mostly applies to a situation where (for example) you're trying to form an alliance with some other company, and in the process tell them things you don't tell the general public. If you've identified the fact that what you're telling them is a trade secret, and they then tell a competitor (or the general public, etc.) or more generally use that information in any way other than the originally intended purpose, it could constitute a trade secret violation. As a side-note: patents and copyright fall under federal law, so they're basically uniform nation-wide. Trade secrets mostly fall under state law, so the exact details vary by state. Absent a reason to believe otherwise, I'd guess your interest here is primarily in copyright infringement. The key here would be showing that one piece of code was derived from the other. That is, it specifically would not apply in a case where there were only a limited number of ways of doing something, so anybody who wanted to do that had to use one of those ways. Since this would not indicate actual derivation, it would not indicate copyright violation. | 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. |
Is it legal to download movies in Canada? For years Canada has been known as a pirates' safe haven, but copyright in Canada has been going under huge reform for the past few years, and it's been hard to keep up with all the changes. With the new updated copyright laws, is it legal to download movies from a site such as the Piratebay? What's the official policy? | Subject to a few exceptions, such as fair dealing, copyright holders have a right to dictate how their creations are performed, communicated to the public, and reproduced. It is technically an infringement, and illegal, to download without respecting the copyright owner's terms. The Copyright Act sets a limit of $5000 for non-commercial infringement cases: 38.1 (1) (b) in a sum of not less than $100 and not more than $5,000 that the court considers just, with respect to all infringements involved in the proceedings for all works or other subject-matter, if the infringements are for non-commercial purposes. Practically, due to the fairness and reasonableness of Canadian courts and legislation, few-to-no lawsuits are brought against personal, non-commercial infringers as they are not cost-effective for rights holders. A reasonable award of, say, $150 for downloading one movie, is hardly worth the time, expense or risk to prosecute, especially if the defendant has no obvious income or assets to cover an award of damages, legal costs, etc. Even when your ISP forwards a notice from a rights holder alleging infringement, as they are required to by law, the chances of actually being sued are (currently) slim. Further, if you only download and don't upload or "make available" you may be less likely to receive such notices or threats from some rights holders, depending on how they choose to identify IP addresses of apparent infringers. For example, many rights holders, or the enforcement companies they employ, try to download infringing files through BitTorrent and accuse all peers of infringement. To catch people who only download, the rights holder would have to actually offer and distribute their own copyrighted works, and they seem more reluctant to use this approach. | If you copy copyrighted material without permission or another exemption, you are at risk It doesn’t matter if you know the material is subject to copyright, it doesn’t matter if you think you have permission but don’t, it doesn’t even matter if you knowingly make the copy or if it is some background process you don’t know about. Copyright law is really simple: if you make an unlawful copy, you broke it. If this seems unduly harsh, remember you are dealing with a law with its roots in the 18th century that was internationalised at the beginning of the 20th century. Making copies then was a hard, deliberate process - you couldn’t “accidentally” or “inadvertently” make a copy of a literary or artistic work. Now you can - the world has changed, the law hasn’t. | Copyright law requires permission of the rights holder to e.g. post material. The terms of that permission could be very complicated, as seen in royalties contracts with publishers, but they can also be simple. If someone asks "can I post your video on my website" and you say "Sure, as long as you give me credit", then they can post the video on their site as long as that say something like "This video was made by Jake" or something like that. There is no exception to permission where permission is retroactively withdrawn just in case it turns out that one can make money off of the video. However: you gave That Guy permission, and that does not mean that the hundreds of Other Guys have permission. So you can pursue all of the Other Guys and demand that they take the video down, or require some payment to get your permission. | In Australia at least I am not sure that the usage you describe has ever been legal. The University of Melbourne Copyright Office sets out when you may copy a television program for personal use and fair dealing for research and study. In short for personal use, you may: use any format you like - if you can find a working VCR; go for it. Not lend or sell the material; it must be for your own private use. This means you must be there when it is displayed and it must be in a private place. For example, you can invite friends to your place or go to a friends place and watch it together. The thing you are copying must be legal - you must have bought the original, have a current pay TV subscription (at time of recording) or it must be a free-to-air broadcast. | The rule you are alluding to with respect to a television set is called the "first sale doctrine" which basically prohibits copyright and trademark owners from limiting the ability of a buyer of a good (like a CD or authorized logo T-Shirt) protected by copyright or trademark, from limiting further sales of that good (or the manner in which the good is used by its new owner) after a first retail sale of the good with copyright or trademark protections. This doctrine was derived from an old common law rule that invalidated "restraints on alienation" of property other than intellectual property on public policy grounds, and like the "restrain on alienation" rule for tangible property, the first sale doctrine that applies to intellectual property was also (at least originally) a court created common law rule. But Minecraft isn't, conceptually, a good. It is a continuing service provided over the Internet, and firms that provide continuing services on a licensed basis, as Minecraft does, can impose terms of service (a.k.a. an "end user license agreement" a.k.a. EULA) which must be complied with in order for users to be allowed to continue to utilize the service. So, its prohibition on exchanges of things of real world value for things of game value, except as the terms of service authorize, is permitted. A user of Minecraft is more analogous legally to someone skating at an ice rink than to someone who buys a CD or book. If you buy a ticket to skate at an ice rink, the people granting you the license to use the ice rink have the right to set rules governing how you utilize that service, and to terminate your license if you don't follow the rules (e.g. by skating in the wrong direction at the wrong time). Indeed, a ticket to an event is also known in legal parlance as a form of "license" just like a EULA, and licenses to use real property are the origin of the body of law that now governs the licensing of intangible intellectual property. A Minecraft license isn't something that you own (even if you have a license of unlimited duration), it is a qualified and limited right to use something that someone else owns, that you aren't allowed to purchase, but you are allowed to use on the owner's terms. How can they enforce servers to follow that rule if the server's are not using Mojang's proprietary software. The EULA or TOS obligation in the Minecraft business model is enforceable because Minecraft isn't in the business of selling proprietary software, even though it does do that. Minecraft is in the business of licensing access to data and online resources. The EULA regulates your access to the data on servers, and the computing power of those servers, not your ownership of an app which facilitates your use of the licensed services. And, while there are various contractual remedies for violating a EULA, the most basic one is a self-help remedy: to cut you off from your ability to use the service if you violate the owner's rules. Indeed, at least heuristically, the easiest way to distinguish an intellectual property good, which is subject to the first sale doctrine, from an intellectual property service, which can be licensed pursuant to a EULA, is whether, as a practical matter, the firm distributing the intellectual property has a practical ability to deny you service going forward without resort to the courts. If the owner of the intellectual property has no practical ability to do that, the intellectual property being distributed will probably be classified as a good and be subject to the first sale doctrine. But, if the owner of the intellectual property has the practical ability to cut you off from the intellectual property being distributed without resort to the courts, the intellectual property being distributed will probably be classified as a service, which is not subject to the first sale doctrine and may be licensed. | Unfortunately, the "but everyone does that" (BEDT) argument doesn't hold water as evidenced by prosecutions of looters. Would uploading this video be a copyright infringement? It would be hard to answer this part of the question without knowing where and from whom the clips had come from. If the clips came from a company like ESPN or a YouTuber that doesn't give you permission to be able to use their clips then yes this might be a copyright infringement. If you use video/clips that are labeled as creative commons then nt it wouldn't be an infringement. YouTube has a feature for this. Would my actions be fair use? First, we'll need to understand what fair-use is. Fair use is the ability to use copyright material under certain circumstances without permission. To best determine if using copyright-protected material in your work you should weigh it against the four factors of fair use. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; The effect of the use upon the potential market for or value of the copyrighted work. More information about fair-use here Youtube outlines their fair use guidelines here | This is known as "film novelization"(For example, the novelizations of the Star Wars movies are film novelizations, created under license), and is copyright infringement unless made under a license from the copyright holder. Specifically, you would be making a derivative work of the original, by changing the medium. One of the rights provided by copyright is the right to control the transference from one medium into another. This, in my (non-lawyer) opinion, is unlikely to be found as fair use. There are four test factors for determining fair use(source), decided on a case by case basis: Transformative Character of the Derivative Work: Unlikely to be found in your favor, as nothing is transformed ("I don't change anything, the name are the same, everything is the same, it's just a conversion to textual form"). Nature of the Original Work: A narrative entertainment film, thus unlikely to be found in your favor. Amount and Substantiality of the Portion Taken: You've taken all of it; not in your favor. Effect on the Potential Market: You are essentially providing a free version of what copyright holders can often charge for; negative effect on their potential market. Not in your favor. | In Canada, copyright means "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public..." (Copyright Act §3(1)). This question asks whether the work or any substantial part of the work is reproduced when an individual torrent chunk (typically approximately 1/1500th of a file) is downloaded to volatile RAM and immediately discarded.1 If not, is a substantial part of the work reproduced if the downloader-and-discarder repeats the activity on more of the torrent's chunks (each being discarded before downloading another torrent chunk)? Substantiality As quoted above from the Copyright Act, when reproducing only a portion of a work, the statute only prohibits reproduction of a "substantial part" of the work. "[T]he Act does not protect every “particle” of an original work" (Cinar Corporation v. Robinson, 2013 SCC 73). Substantiality is not measured by quantity. "Whether a part is substantial must be decided by its quality rather than its quantity" (Ladbroke (Football), Ltd. v. William Hill (Football), Ltd., [1964]). Copyright Board's substantiality decisions Is a small chunk of a torrent a substantial part? The Copyright Board has looked to several signals in judging substantiality, one of which is whether "[the part] may be so closely identified to the work as to allow the reader to recognize the work" (License Application by Pointe-à-Callière, Montreal Museum of Archeology and History for the Reproduction of Quotations, Copyright Board of Canada [2004]). In some video codecs, possessing 1/1500th of the encoded file would not allow playback such that the result would be recognizable as a portion of the original. The Copyright Board has also held that in the case of XM satellite receivers, which hold "4 to 6 seconds of the Satellite Services' multiplex signal at all times in its random access memory (RAM)", that "the 4 to 6 second buffer fails to satisfy the substantiality requirement. It is not a substantial part of the protected work." (Collective Administration of Performing Rights and of Communication Rights (Re) [2009]). If downloading and discarding one torrent chunk is not reproduction of a substantial part, does downloading and discarding multiple (even all) chunks become a reproduction of a substantial part of the work? The Copyright Board has said, regarding the 4-6 second buffer in the XM satellite receiver (ibid.): "The rolling 4 to 6 seconds of a musical work is not an aggregate of an entire work. At no time does a subscriber possess a series of 4 to 6 second clips which when taken together would constitute a substantial part of the work. It matters not that over time the totality of all works transmitted are reproduced. We are dealing with a rolling buffer and at no time can we line up all of the fragmented copies amounting to one complete copy of a musical work." Discussion In my opinion, downloading a chunk of a torrent file to RAM and immediately discarding it is not reproduction of a work or a substantial part thereof. It is not copyright infringement. Repeating this activity for several torrent chunks of the same torrent file is likewise not copyright infringement. The above analysis is dependent on assumptions regarding the type of file (a media file, encoded using a format that doesn't produce recognizable sub-portions2, split into approximately 1500 chunks). Other types of files and torrents would not fall under this analysis and thus the hypothetical download-and-discard activity could still be infringement. Consider a 5 minute .wav file, split into a torrent having only 2 chunks. A 2.5 minute .wav chunk would be recognizable as a portion of the 5 minute original, and 2.5 minutes of a 5 minute work would be much more likely to be considered a substantial part. Notes 1. I know of no torrent client that behaves this way. It would have to be a custom-written torrent client designed specifically for this ostensibly useless task. 2. Although, I don't think the assumption of unrecognizable subportions is necessary, since the 4-6 second buffer in the XM Satellite receiver was recognizable. |
Can someone just sue anyone for anything? I read in this article that a woman is suing Southwest airlines for $10 million because she was forced to wear a mask. This sounds absurd to me. Can someone just arbitrarily demand millions of dollars? If not, how do lawsuits work? | Can you just sue anyone for anything? Yes. But being able to sue falls nowhere near being able to win. To sue literally means to deliver properly formatted papers to the court, pay the fees, and deliver copies to the other party. Bingo! You are already suing! Then what? That's the real question. | How should I proceed? I am asking law friends to recommend some employment lawyers, but other than this, can I do anything else? You definitely don't need an employment lawyer for this. From a legal standpoint, the matter is very simple: If you grant their request (whether by signing or otherwise expressing your acceptance), you would be waiving any remedies currently available to you for their breach of contract. The company's attempt to override its contract with you is quite naive, but the company can always (and evidently does) try to get away with its liability nonetheless. I would not be surprised if the company subsequently tries harder to intimidate you, but that does not change your legal position & merits unless you sign the waiver the company is pursuing. Asking for your post-termination availability reinforces the notion of company's poor planning and subpar management. | That's the entire point of a summary proceeding. You're allegedly found committing an offence, that isn't worth the court's time to hear but nevertheless requires some penalty. The only way to "unambiguously deny liability" is by requesting a hearing and denying liability in the notice of this. The court doesn't care what you say to everybody else, it cares what you say on its record. The reasoning is, if you're so sure you're not guilty of an offence, why haven't you sought to argue this in court? And if you weren't committing the offence, why did the informant serve the infringement notice in the first place? The act is not silent at all on this. If you don't request the hearing and serve such notice by the date required, you are liable to enforcement action - whether you deny liability out of court is irrelevant. | 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. | There are two basic problems with your theory: You say: can't one accept a case on contingency and "as time permits," so that in such an event one would simply drop the contingency case (or, if it looked promising, hand it off to some other lawyer in a slump)? No. you can't. If you take a case, then drop it because a more profitable case comes along, you might well be disbarred, not to mention sued by the client you just threw over. You might even spend a night in jail for contempt--in many cases, you are not allowed to simply drop a case without the court's permission. So if you accept a contingency case, you accept it until (1) the case is over, (2) the client fires you, (3) you, the client, and the judge all agree you can quit, or (4) you can convince the judge you should be allowed to quit regardless of the client's wishes. Until then, you are stuck with the time and expense involved with handling the case. "Expense" is the second problem. You seem to be under the impression that once you've paid for the office and the coffee maker, there's no downside in pursuing a contingency case. But filing and pursuing a lawsuit cost money, not just time. Copying and coding documents costs money. Stenographers for depositions cost money. Just filing a lawsuit often costs a few hundred dollars. Hell, in a major lawsuit, you will probably spend a few hundred dollars just on postage. And a lot of commercial litigation now involves expert witnesses, whose fees start at a few hundred dollars an hour. Normally that all gets billed back to the client, but on a contingency case the lawyer often absorbs most or all of it. So from a lawyer's perspective, even if he or she is not working right now, "any positive payout" isn't enough. It has to be enough of a payout, and enough of a chance of winning, that the expected reward is worth paying, potentially, the cost of a trial, and forgoing other work if things get busy again while you're trying to prep your contingency case for trial. The fact is, for a lot of this sort of case--even if it looks "potentially profitable" to a non-lawyer--is going to be less profitable, in the long run, than spending the same amount of time playing golf with people who might actually pay you by the hour to do something. Also, two quick notes: Your suggestion of raising the contingency up to 100%, or close to it, won't help--it's illegal in many jurisdictions, and unethical in all of them. As a side note, even if a lawyer did take one of these cases, it wouldn't do you any good, since lawyers are prohibited in most cases from splitting their fees with non-lawyers. | You're missing some pretty important details in describing the facts of this case. The most important of which is: What were the agreed terms upon which Alice obtained possession of the car prior to paying? Your description says: Alice takes the car and doesn't pay. If that's literally true, then this case is both criminal theft and the tort of conversion — not breach of contract. Since the remainder of your question references a breach of contract, then I have to conclude that the fact as you stated it is not literally correct and there is some important missing detail about the terms upon which Alice was in possession of the car when she crashed it. So, I will have to invent some scenarios that would fit two other facts you describe: The jury awarded Bob $5,000. The jury found Alice to be in breach of contract. The following are the scenarios I can think of that would match the facts (as I understand them and speculated where important details are missing from the question). Maybe this is a small claims court and the damages are capped at $5,000? I never heard of a jury trial in small claims court but I guess it could be possible. Or maybe it was actually a judge and use of the term jury was careless or otherwise inaccurate? Maybe the terms under which Alice was in possession of the car when she crashed it put the parties in position where they effectively shared liability or risk of damage to the car? Like maybe Bob (or both parties) was/were required to carry insurance on the car while Alice was "test driving" it. I only use the term "test driving" as a placeholder for whatever she was doing with the car prior to paying for it which is left unclear by the question. Maybe Bob was found to have contributed to the breach of contract by something he did or didn't do. Similar to the above speculation about insurance. All this would be much easier to analyze if we knew how and under what terms Alice came to possess the car. Maybe there was only $5k of damage done to the car? Or, alternatively, the car was only found to be worth $5k and, for whatever reason (again, which we can not fully analyze given only the partial set of facts presented) the liquidated value of the car was the basis for the damage award and not the contracted price. (Consistent with @jimsug's comment.) I can easily imagine a scenario where Bob and Alice are close friends or family so the entire transaction is handled very loosely and informally and Bob let's Alice drive the vehicle while she is gathering the money to pay him. In this case, the jury might decide Bob shares the liability with Alice since the terms of the sales contract did not transfer the risk of liability to Alice during the time she was driving prior to payment. | It is almost certainly legal for the sitter to keep the money. She was ready to provide the service, and it is not her fault she couldn't (and she may have turned down other opportunities because she had this one). I think your fiance's claim would be against the firm providing the security service (they are the ones that frustrated the contract). I foresee the following problems: What are her losses? She was prepared to pay $315 (which she has paid), and the dog has been looked after. Where is the loss? (She may be able to argue that it was worth $315 to her, not to have to owe her mother a favour. I don't know if that will fly.) The contract with the security firm almost certainly waives liability for this sort of thing. She would have to convince the court that the contract terms were unreasonable/unconscionable (or whatever the term is in the local jurisdiction). There are two obvious options here: a) see if there is legal cover on her household insurance (or her pet insurance); b) forget it (it's only $175 all told). | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. |
Section 112 in The Indian Evidence Act, 1872 still valid and enforceable, in the face of DNA testing telling that the child is illegitimate? Here is Section 112 in The Indian Evidence Act, 1872. Central Government Act Section 112 in The Indian Evidence Act, 1872 112. Birth during marriage, conclusive proof of legitimacy.—The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Is this valid now, when we can easily find it out by DNA test? Why can't the court just order a DNA test? Also what happens if the conditions of the section are fullfilled, like the husband and wife were living together, but DNA report comes negative. What will the Indian law do? Edit: What if the husband takes a DNA test without the permission of the court, and the test came back negative? Now what will the court do? If the court now forces the guy to raise and provide for the kid then we are living in a bizzare world. If the court gives the man freedom and declares the child is illegitimate, then it's an off hand incentive for all the men to get private testing done before going to the court. | To answer the last question, the court cannot order a DNA test, see Kumar v. Gupta, on privacy grounds: "such tests impinge upon the right of privacy of an individual and could also have major societal repercussions". This is not a hard line, but it would be safe to conclude that in a case like the present, the Court’s decision should be rendered only after balancing the interests of the parties, i.e, the quest for truth, and the social and cultural implications involved therein See Puttaswamy v. India, the landmark case that established the constitutional right to privacy. DNA evidence is not absolutely barred, see Banarsi Dass V. Teeku Dutta and citations therein, finding most importantly that There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. Various rulings have clarified that Section 112 establishes a defeasible presumption, and not a mindless bar to evidence: It is rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. In other words, yes and no. As summarized in that ruling, tests cannot be ordered routinely or as a form of discovery, "There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act", the court must balance the consequences of ordering such a test ("branding a child as a bastard and the mother as an unchaste woman"), and a person cannot be compelled to give a blood sample. | What are the documents or paperwork which can prove someone is an Indian citizen? As is often the case, it depends on the context: who is seeking to prove the person's Indian citizenship? For what purpose? How did the person become an Indian citizen? For example, if the person became Indian by naturalization, a naturalization certificate would usually be necessary. If a person became Indian by birth then evidence establishing the relevant facts will be needed, and this evidence will typically include a birth certificate. We can see that a passport isn't necessary to prove citizenship because a first-time passport applicant needs to prove citizenship in the application. Whatever documents are acceptable for this must therefore constitute proof of citizenship. But there is always the possibility that an Indian citizen in possession of any document, including a passport, does something that causes the automatic loss of Indian nationality, such as naturalizing in a foreign country. At that point, the former Indian citizen will be in possession of documents that appear to show Indian citizenship without actually being an Indian citizen. Therefore, we can establish that no document or set of documents can be conclusive proof of Indian citizenship. Depending on the context, the person who needs to be convinced of a person's Indian citizenship may or may not need to take into account the likelihood that the person has somehow done something that would cause loss of citizenship. An airline agent boarding a passenger for an international flight to India will be satisfied by the passport. The immigration officer processing the passenger on arrival might however make a brief inquiry into possible expatriating acts. A judge in a court case may go as far as to undertake an intensive legal-factual analysis in which documents play a limited role, if any. Thus, the answer to your question What is the sure shot way of proving citizenship of India? is that there is none. There is always the possibility that a good-faith attempt to prove the citizenship of an Indian citizen will fail. There is always the possibility of a noncitizen having documents that were issued legitimately and purport to show that the person is an Indian citizen. In the 2013 case, it appears that the passports were issued in error. The court did not rule that passports cannot be used to prove Indian citizenship but that it "may not be enough to prove you are an Indian citizen if you were born after July 1, 1987" (quoting the Times of India here, not the court). | No The argument is vacuous in any event because AFAIK all jurisdictions that enforce sex discrimination laws have parental leave (paid or unpaid), not maternity leave so a man is just as likely to need it as a woman. This, of course, raises the issue of discrimination by marital status (on the basis that unmarried people are arguably less likely to have children) or age (on the basis that people outside 'childbearing' age are less likely to have children; fortunately these types of discrimination are also illegal. Notwithstanding, the loopholess you think there are in the laws are simply not there. For example s14 "Discrimination in employment or in superannuation" of australia Sex Discrimination Act 1984 starts with: (1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: Later in s30 "Certain discrimination on ground of sex not unlawful" it says: (2) (a) the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of a different sex from the relevant sex; If the job requires excessive strength or stamina, then you test your recruits for the level of strength or stamina the job requires. | Is abortion still legal in all 50 states? Yes But if abortion is still legal, how could there be a case that gets appealed? By arresting someone who is involved in the allegedly illegal abortion and pressing charges. The case will be dismissed by the court of first instance as being contrary to Roe v. Wade. The State will appeal the dismissal. The appeal court will uphold the dismissal. The State will eventually request an appeal to the Supreme Court. Appeals to the Supreme Court are at the discretion of the Court (they hear them if they want to hear them) . If the choose not to hear it that's the end of the matter. If they choose to hear it then they will hear evidence and decide if they will uphould or overturn the precedent they set in Roe v. Wade. Doesn't someone have to be arrested under one of the new laws, and then the judgement in that case gets appealed? Yes What prevents numerous people from being arrested during this period of confusion? Politics. Such draconian measures are likely to be counterproductive to the state's objectives. It is far more likely they will wait for a slam-dunk, open-and-shut case where a conviction on state law would be guaranteed but for Roe v Wade. They will then run that one as the test case. And even after SCOTUS rules, what prevents a state from continuing to enforce the statute, repeatedly appealing them? Arrest by the FBI. A person who knowingly and repeatedly flaunts the authority of the Supreme Court will soon find themselves facing a Federal warrant for contempt. Also, what could be the justification for appealing a ruling that the new law is unconstitutional, because of Roe v. Wade? The state will argue that Roe v Wade was wrongly determined - that the court in 1973 misunderstood or misapplied the Constitution. There are certainly arguments that could be made on that basis and most of them are contained in the dissenting judgement - the case was decided 7-2. A lower court is forced to uphold this precedent, right? Yes The appelant [sic] would have to find some procedural reason why this ruling was incorrect, they can't appeal just because they don't like the ruling and think SCOTUS might agree with them, can they? Appeals are made for an error of law. These are often procedural but they can also be an argument that a particular decision was wrong because the court that set the precedent got the law wrong. So yes, they can appeal based on the argument that SCOTUS in 1972 was wrong about Roee v Wade and that SCOTUS in 2019 (or, more realistically, 2021-23) will agree with their interpretation of the law. | Yes The only accurate thing in the linked article is: "I am not a Constitutional lawyer." That could be taken further into "I have no real idea how our legal and political systems work." One of the tasks of the Massachusetts Supreme Judicial Court is to interpret the laws of Massachusetts including the Massachusetts Constitution. In Goodridge v. Department of Public Health the court decided that the Constitution provided for equal protection and due process and that if the state wished to discriminate against people on the basis of sex they needed a good reason. The reasons the state put forward were: providing a 'favorable setting for procreation'; ensuring the optimal setting for child rearing, which the department defines as 'a two-parent family with one parent of each sex'; and preserving scarce State and private financial resources. On 1. the court said marriage is irrelevant for procreation and vice-versa. On 2. they said Massachusetts law on child welfare dealt with the "best interests of the child" and that it is not in those interests for the state to deprive the child of benefits because it doesn't like the sexual orientation of the parents. On 3. they said equal protection means equal protection. In a common law legal system like Massachusetts where courts have the power to strike down legislation then that takes effect as soon as the decision is published. The law ceases to exist without the legislature or the executive doing anything. Now, the people of Massachusetts are free to amend their constitution to outlaw same-sex marriage or remove equal protection rights if they want. However, at the time and subsequently, the majority don't want. | I think it is not possible to answer the question as is, but this document from the Indian courts lays out the relevant legal variables. A major split is between Sharers and Residuaries: a Sharers are all related by blood. A secondary split relates to testate vs. intestate succession (was there a will?). There are also special rules for West Bengal, Chennai and Bombay. A widow is generally entitled to a share of her husband's property, but if the husband dies before his father, the husband does not have his father's property. But then, if a Muslim marries under the Special Marriage Act, 1954, they are not treated legally as Muslim for purposes of inheritance. All told, it is most likely that the widow has no legal claim on the property, but still a person should engage an attorney who can assess the particulars of the case. | I haven't found a recent case like this where it constitutes evidence. Military members didn't have an express right to remain silent until somewhere in the 1950s, so one chances are there might be cases prior to that point. The present right is codified in 10 U.S.C. 831, which is Article 31 of the UCMJ. That said, there is certainly a well documented adverse inference effect. While jurors aren't supposed to take the silence into account (e.g. when a defendant elects not to testify or exercises a right against self-incrimination), it's a difficult thing to do, practically speaking. | 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. |
Who is at fault if people refuse to follow social norms or show common courtesy? Some people do not move out of the way when walking even if it would be considered rude or socially unacceptable, like when the other person is much older, pregnant, or has small children. They expect others to move for them, but they aren't breaking any laws or rules, rather not following social norms. This may seem very trivial but are there are cases where something like this escalated and police were involved? Who is responsible if a child, teenager or young adult does not get out of the way for an elderly person and the elderly person shoves them out of the way, knocks them on the head or commits some other act of physical aggression, which happens sometimes in such cases? Where do you draw the line - if the older person only gently taps them so they move is it still their fault because any unwanted touching is assault? I have also seen elderly people become physically violent towards younger people who don't give up their seat on a bus or train, although in that case the younger person is not following rules. I understand the older person is committing assault but most people even in first-world countries like Canada either support the older person or don't interfere and the law would have to take into account the common public opinion. | Rudeness is not a crime Thankfully, or I’d be writing this from jail. The threat or actually of intentional and unwanted physical contact is a crime. Historically these were seperate common law crimes (and torts) of assault and battery respectively. However, in most jurisdictions these have been codified and merged and redefined so there is common assault (which merges historic assault and battery and is what you are asking about), indecent assault, sexual assault etc. In general, there must be an intentionality to the contact - accidentally colliding with someone is not assault (although it can be the tort of negligence). Similarly the contact must be unwanted - participating in a game of rugby means you want to be tackled (in a legal sense, in a sports sense you don’t want to be tackled, you want to score). And finally it must intend harm - holding your hands up to prevent a collision does not intend harm even if harm may result, punching someone does. In the cases you describe, the aggressor is the “elderly person” and they have committed a crime. I am interested in the suggestion that public opinion in first-world countries like Canada is that being old and annoyed justifies you beating someone. That is not my understanding of public opinion in Australia- old people have to follow the rule of law here just like everybody else. | One widely-used book on the topic is Brown's Boundary Control and Legal Principles. I have the 4th edition published in 1995, and the relevant chapter is 8, "Locating Easements and Reversions". The law varies from state to state. In New England, it is likely for interstate, US, and state highways, the state will own the roadbed in fee. Smaller roads are likely owned by the adjoining private owners, with the public holding a right-of-way that allows the government to build and maintain a road; the adjoinders are restricted from using the right-of-way in any manner that would interfere with the transportation use. The meaning of "right-of-way line" depends on context, but is likely to be the line between the pubic's right of way and the portion of the adjoining private property that is exclusively under the control of the private property owner. If the public records do not reveal the width of the road, there is likely to be a statute that states a default width of the road. This is discussed, for Vermont, in The History and Law of Vermont Town Roads by Paul Gillies | 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. | Yes. The principle caselaw is R v Hayward (1908) 21 Cox 692 A husband and wife had an argument that led to the husband chasing his wife out into the street. The wife collapsed during this altercation and died. Whist the husband did not physically touch her, he did shout threats at her. The wife was found to have been suffering from an abnormality of the thyroid gland that neither was aware of that meant that fright or shock could cause death if combined with physical exertion. The husband was charged with manslaughter. [...] The husband was found guilty of manslaughter. No actual proof of violence was necessary as long as the defendant’s unlawful act, which was the threat of violence, caused her fright leading to her death. The criminal law acknowledges that an assailant must take their victim as they find them... Source And... The defendant chased his wife out of the house shouting threats at her. She collapsed and died. He did not physically touch her. She was suffering from a rare thyroid condition which could lead to death where physical exertion was accompanied by fright and panic. Both the defendant and his wife were unaware she had this condition. Held: The defendant was liable for constructive manslaughter as his unlawful act (assault) caused death. The egg shell (thin) skull rule applied. He was therefore fully liable despite the fact an ordinary person of reasonable fortitude would not have died in such circumstances... Source | Following you around with the intent of harassing you is stalking. I don't know whether there's going to be a law actually requiring social distancing in Florida. In other states, I've seen laws set up to make it a crime to violate an order of the Director of Public Health or something like that. I don't know whether Florida actually has an order requiring social distancing by the general public. | There are several policy goals surrounding the age of criminal responsibility. One aspect is that by the age of criminal responsibility people have a sufficient awareness of societal norms and understanding of the wrongfulness of their conduct that they be eligible for criminal charges. Another aspect is that for people under the age of criminal responsibility, they may not respond to criminal charges and punishment in the same way as older people. That is, the criminal system may not be the most effective means of correction and rehabilitation of such young offenders. There is no bright line that accurately captures these factors, and thus many jurisdictions have more than one step in transitioning from the incapable child to the fully capable adult. For example, in the US and Canada, juveniles/youth over the age of criminal consent but not yet 18 years old are generally not treated the same as adults. The policy goals behind the age of consent relate to understanding of the consequences of sex, vulnerability to people in positions of power or influence, and protection of society's norms of purity. There is no reason why these different policy goals would result in the same age threshold. | I am sympathetic to your problem but there is probably not a legal solution: at least not an easy or cheap one. To help you clarify a whole mish-mash of issues I will address each of your points. frequently calls false noise complaints on neighbors resulting in police action. If the person genuinely believes that these complaints are valid, even if they do not end up being substantiated, he is within his rights to make such complaints. If you can document an ongoing pattern of unproven complaints this might amount to harassment and you could then seek a court order that he stop the harassing behaviour. However, if even a few of these complaints are proven this would become much harder. stands in front of the building in a menacing way as people enter/exit. He is entitled to stand wherever he likes in whatever "way" he likes. This is only an issue if the person entering/exiting has a reasonable fear that he will he will visit actual harm upon them, o, of course, if he actually does visit physical harm upon them. If so, then this is assault and can be reported to the police or be the basis of a civil action. hates black people. So, he's a bigot - this is not actually illegal. Discriminating against someone on the basis that they are black is illegal, hating them on that basis isn't. hates Middle Eastern people and Muslims. Ditto. constantly pounds on the floor/walls/ceilings. It can't be "constantly" - it might be often or even frequently, if you intent to take legal action hyperbolic language is not going to aid your case. To make a real complaint about this you would need to diarise each occurrence. Notwithstanding, unless he is damaging someone else's property or is violating a noise ordinance this is not illegal. screams curses at children. Clearly reprehensible behaviour: not clearly illegal. Unless this is assault (see above) or qualifies as offensive behavior under the criminal code wherever you are (unlikely) then he can scream whatever he wants at whoever he likes. Again, a pattern of such behavior may constitute harassment. Continues to park in handicap parking despite not being handicap, and receiving very expensive parking tickets. This is illegal and he is being punished for it. Unfortunately the expression Don't do the crime, if you can't do the time. has a corollary: if you are willing and able to take the punishment then you do as much crime as you want. And to add to the list, I suspect he's been putting nails in my car tire, always on the same tire, on the inside wall of the tire; I just replaced my 5th tire in 3 months. This is a crime. If you can get evidence to prove it then you can report him to the police and/or sue him for the damage. You have stated in your comments that you will be asking another question specifically about filming him, so I won't address this here. Is there some sort of legal incentive I've not clearly communicated to management to evict him? That depends on if any of his actions are actually grounds for terminating his lease and, if they are, the landlord wants to do so. A remote landlord who is getting his rent on time and not having their property damaged has no incentive to evict a tenant: no matter how annoying they are to others. It is possible, that you have a case for breaking your lease and/or suing your landlord for damages as you are not getting "quiet enjoyment" of the property. A suit along those lines may resolve the matter because either you or he will be evicted. Consult a lawyer. If he actually is insane, what sort of liability for his actions does he have? The same as anybody else. Liability for civil wrongs is an objective test of what a reasonable person would be liable for: it is not based on the specific characteristics of the person. | If you were moving "with the flow of traffic" but over the limit, you were still breaking the law, and the cop can choose which car or cars to stop on any basis or none (except ones forbidden, such as racial in the US). This is almost surely not a valid defense, not in any jurisdiction that I know of at least. If you can show that to slow to the speed limit would have actually been unsafe, you might have a defense, but that is going to be hard to get a court to accept. |
Can an HVAC installer's warranty be voided if another company works on the system? After moving into a new home, I had a licensed HVAC company install a whole house humidifier. A few days later, a guy from the builder's HVAC contractor came out to address an airflow issue. When he saw the humidifier, he told me that because I let another company work on the system, my warranty is now void. He told me I should have known that because the warranty terms are spelled out in a binder full of paperwork the home builder gave me. After searching through the binder, I finally did find that clause, but I wouldn't call it obvious information. I don't remember signing anything saying I agree to the conditions. The papers were simply handed to me when I bought the house. To be clear, the manufacturer's warranty still applies. It's only the installer's warranty on their workmanship that's considered void. Is voiding a warranty like that legal? Would the Magnuson Moss Act protect me? I'm in Idaho, USA. | You can read about Magnuson Moss here, but it only applies to warranties on goods, not services. As you note, the warranty on the unit is still valid. As for agreeing, it is not unusual that a consumer is not aware what all they are agreeing to when they buy a house. One of those myriad signatures that you put on myriad documents was your agreement to contract terms in the pile of papers that you were handed. If you trace through the entire pile of pieces of paper, you should find something saying that you agree to "all of the attached conditions", which is where you are supposed to say "Wait, what conditions?". | Michigan law say nothing about landlord entry, so whatever it says in the lease is what is allowed. Various sources like this comment on the lack of such statutory regulations. There does not appear to be any relevant case law for Michigan which impose restrictions on a landlord's right to access a rental. Since there is no statutory or case law restriction on landlord's right to access his property, landlord's agent would have the same right to access. That would mean that if the listing agent were authorized by the landlord to enter, then the agent could enter, and it would not be necessary for the landlord to accompany this agent whenever entry was needed. That does not mean that a "listing agent" that happens to work with a landlord has an independent right to enter the landlord's property. The same would go for repairmen. It is actually not clear to me whether there could be blanket permission for any and all with access to the lock box to enter, since pretty much any realtor can enter a house for sale, subject to whatever the stated limitations are, and they don't call the owner for each entry. I suspect that one would not have legal grounds for imposing a particular additional restriction on a landlord's right to access and permit access to the property, since there's no overriding statute, and restrictions on landlord access mainly derive from statutes. | If the residence falls within one of the categories for which a water company can insist on a water meter, then the resident cannot refuse. See House of Commons, "Water meters: the rights of customers and water companies". That brief says that a water company can insist on installing a meter if the customer: uses an automatic watering device (such as a garden sprinkler); automatically fills a swimming pool or pond; has a large bath; uses a reverse osmosis softening unit; has a power shower; is the new occupier of a property (provided an unmetered bill has not already been sent to that occupier); or lives in an area which has been determined by the Secretary of State to be an area of serious water stress and subject to a metering programme as part of a plan to maintain secure water supplies. See also Tom Haynes and Ruth Emery, "What a water meter could do to your bills – and why you may be forced to have one", The Telegraph (1 June 2023): If your water supplier has been granted legal powers to fit compulsory water meters, you don't have any right to refuse one. As Andy White, of the Consumer Council for Water, puts it: “It's not possible for a customer to refuse where a water company has approval for compulsory metering from Defra.” If a water company has the statutory right to install a meter, and the customer has no right to refuse, this could be enforced by injunction. | Almost certainly not You note that "it was diagnosed as a having software issues," so you'd have to figure out exactly what software issue happened, and whose fault that was (assuming that it wasn't your fault). This would be pretty difficult, especially given that they wiped the system. Even assuming you have a backup copy and could figure out the exact problem, you probably also agreed to waive any such claims against the software authors that may have caused the problem when you received the software, because software companies don't want to pay for the consequences of every computer crash. Microsoft, for instance, requires you to agree that: Except for any repair, replacement, or refund that Microsoft, or the device manufacturer or installer, may provide, you may not under this limited warranty, under any other part of this agreement, or under any theory, recover any damages or other remedy, including lost profits or direct, consequential, special, indirect, or incidental damages. The damage exclusions and remedy limitations in this agreement apply even if repair, replacement, or a refund does not fully compensate you for any losses, if Microsoft, or the device manufacturer or installer, knew or should have known about the possibility of the damages, or if the remedy fails of its essential purpose. Most software has similar disclaimers. Stack Overflow has one, too, for instance. So even if you did somehow track down exactly which piece of software caused the crash, you probably already agreed that they aren't responsible for paying your damages. | The landlady is trying it on. The purpose of a deposit is to protect the landlord from being left out of pocket by: damage to the property rent arrears Reasonable wear and tear does not constitute damage. It seems unlikely that the stiff tap is as a result of damage. The hob is not so clear cut: the landlady could argue that it was damaged, albeit by accident, and the cost of repair taken from your deposit. If she insists that the only remedy is to replace the hob, she should make an appropriate deduction to reflect the fact that it is several years old and will be replaced by one that is new (thereby gaining her some value). It would be reasonable for you to expect to see the written report from the gas inspector who has condemned the whole hob in that case. But I find it hard to believe that: the plastic knob cannot be replaced doing so would make the hob unsafe, if the knob can be removed for cleaning it's my understanding that if the hob is indeed broken, I only have to pay what it was worth at the moment before it was broken. Your liability is to return her to the position she would have been in had the damage not occurred. If that means replacing a removable plastic part instead of the whole hob, that would be a reasonable remedy. | Tell whatever lawyer is drafting the "official paperwork" about the problem and ask if it is covered or if you need to change the text or add a rider. If neither company competes, a mutual release/license of existing shared code should be perfectly manageable for an experienced attorney. | It depends on what state this is. In Washington state, there is a form that sellers must fill out, and section 3 addresses sewer connections. This matter could have been disclosed – the allowed answers are "yes; no; don't know" (or NA). These are sellers disclosures, and Zillow / Redfin are free to be unreliable (I personally know that they are wrong about square footage). A real estate agent also doesn't become liable for being misinformed. Assuming your state has this or analogous question, "No" means that you were told (doesn't matter if you didn't notice it), and "Don't know" means you're gambling. Let's say that the answer was "Yes". Still, you can't necessarily sue (and win): you would have to prove misrepresentation (fraud or negligence) and not innocent error. You could do this by, for instance, proving that seller had the septic tank cleaned out some years earlier. Perhaps an action against buyer's inspector is possible, since that's nominally what they might have been hired to find out. But that is only true if checking the sewer connection can reasonably be considered part of the deal, so you have to look at the contract with the inspector (and the inspector's report). | This is possibly but not necessarily fine. The data controller (the garage) is responsible for safeguarding your personal data. They must take appropriate safety measures, but this depends a lot on their own risk assessment. For example, to protect the data from being used by employees for their personal purposes, the controller might use organizational measures like a policy “you're not allowed to do that.” Many companies allow employees to use their personal devices for work purposes (BYOD). When the data controller allows this and takes appropriate safety measures, everything is perfectly fine. The company still has to make sure that the data is only processed for legal purses and deleted afterwards. Implementing a BYOD policy in a GDPR compliant manner is difficult but not impossible. A data breach has occurred when the security measures were insufficient and your data was deleted or disclosed without authorization. Your scenario would only be a breach if the company did not have a BYOD policy and the salesman used their personal phone, and arguably then only if that device is also breached. However, do not discount the alternatives: they do have a BYOD policy and the salesman is acting within their instructions the salesman was using a company-controlled device, not their personal phone If you have good reason to believe that your data was mishandled (and these alternatives do not apply), then the GDPR offers you the following remedies: You can of course complain to the data controller, especially if they have a dedicated data protection officer. You can lodge a complaint with a supervision authority, which is the ICO in the UK. They expect you to attempt to resolve your issue with the controller first. The ICO can then decide if they want to investigate the issue. You can sue them for compliance and for actual damages suffered (you have none, though). Note that all of these alternatives are more effort than they are likely worth. In particular, the garage can always correct the problem, e.g. by getting your contact info deleted from the personal device or by creating a retroactive BYOD policy. |
Is the list of character classes from a video game tied to IP? For instance, the video game Hearthstone has 9 character classes, as seen on their official site. If I reuse these classes on a name generator, or another video game, without changing the names, or the mechanics, am I infringing on their IP? | united-states Names and short phrases are not subject to copyright protection. A list of such phrases is probably not protectable either. Game mechanics are not protectable either. While short phrases can be protected as trademarks, they can be so protected only if they are used to identify a product or service, or to advertise that product or service. Terms used within the game are not normally subject to trademark protection. Even if such a term did have trademark protection, using it within the game would not be using it "in commerce" or "in trade", that is to identify or market the game. A brand name, a slogan, or a logo are typical trademarks, the name of a thing within the product is not. In short, a list of character classes would not, in the US at least, infringe copyright or trademark protections on another game. | Yes. Being a sequel or using the other assets, in either case, you are making a derivative work. Without a license, you infringe on the right holder's exclusive right to make or license derivative works: A sequel is usually a classic case of "how the story unfolds further". See Anderson v. Stallone, where the author of an unlicensed sequel script was struck down. A modification of the original game - aka Mod - uses the assets or parts of them. Modding is often contentious, sometimes it is encouraged. Usually, when you install a game, you agree to a EULA that dictates what you can or can't do - so there is the real possibility you violate a contract if you step out of that contract. Some game smithies are modder-friendly and encourage it, as a mod community keeps a game relevant longer. Bethesda for example hands out a modification package for Skyrim and other titles, but it also provides a separate EULA what you can and can't do with these modification-tools. Many games however don't provide a modding pack and have a EULA that explicitly bans users from making modifications or derivative works. As a result, there have been cases against modders, and there are a lot of C&D letters sent out to modders that use assets of games. So there is a high chance that litigation for violation of the contract or copyright infringement can be started. A rather high-profile case that ended somewhat recently was the "Red Dead Redemption Visual Enhancement Mod". Take-Two sent a modder a C&D, filed suit, and then the parties had arbitration. The arbitration result contains a clause that forbids the author of the mod to ever create any derivative work (aka: mod) for a Take-Two or Rockstar game again. The C&D (as well as the case and leverage in arbitration) hinged on a violation of the Rockstar EULA License Condition i, which bans any modifications wholesale: You agree not to, and not to provide guidance or instruction to any other individual or entity on how to: i [...] display, perform, prepare derivative works based on, or otherwise modify the Software, in whole or in part;) | This is relatively uncharted legal territory, so until multiple cases establish some sort of precedent, we can only guess. I know of no legal requirement that a Browser or User has to submit cookies or referrer data or other meta-information accurately. In that regard, a user is unlikely to be prosecuted just for submitting HTTP headers. It is likely closely related to Free Speech issues. The DMCA spells out that it is illegal to circumvent copyright protection measures. While this law is typically used to make it illegal to copy DVDs, video-games or streaming movies, it is possible that the "3-free articles" policy could be interpreted as a copyright protection mechanism, and defeating it by changing HTTP headers is a circumvention. A good summary is here. A specific site's TOS (Terms of Service) probably contains language that spells out it is a violation to use the site in a manner other than as it is intended. This is a typical anti-hacking, anti-screen-scraping provision. Altering a browser session to circumvent their services is probably a violation of the license to access the site, and may open a user to a civil lawsuit for damages or even criminal hacking charges (the details of which are different state-to-state) | 20th Century Fox have a trademark on "Simpsons." They have trademarks on "Bart Simpson", on "D'oh", on "Duff Beer". I would assume that they take their trademarks seriously. What you can't do is to use someone else's trademark to make people believe your commercial product is related to theirs. It's quite reasonable to assume that someone seeing your book in a store would think it is written by the makers of The Simpsons show and therefore buy it. Even if you say that isn't your intention, it is what would happen. I'd try coming up with some different titles, maybe "How to write animated TV shows" with "Example: The Simpsons" (well, you are the writer so you should come up with something better), and take them to a lawyer. And then contact the makers of the show (again asking the lawyer for advice how to do this) because even if your lawyer says the title is fine, that doesn't mean you can't be sued. | 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. | Yes, such a site can be created without infringing copyright Facts about the game are facts.They are not protected by copyright. Criticism of, and comment about the game, is an activity protected by the US First Amendment. Making such comments is very likely to be fair use under US copyright law. In general the author of a work, such as a book or a game, or the maker of a product, has no right to grant or withhold permission to discuss or comment on the work. This is true not only under US law, but also in the law of most countries (perhaps of all countries). The name of the game might well be protected as a trademark. But that does not allow the trademark owner to prevent discussion of the game, clearly identified by the name of of the game. As long as nothing is being sold or rented, or advertised for sale or rental under that name, and there is no attempt to claim that the site is sponsored or approved by the trademark owner, and there is no likelihood of confusion, there is no trademark infringement. This is true under US law, and under the trademark laws of most other countries. A wiki is a specific technology. It can be used for community discussion, or for a company's internal documentation, or for any of many other purposes. Wikipedia has popularized this technology. Not all community discussion sites are wikis, however, nor are all wikis for community discussion. Just as not all novels are books printed on paper, and not all books are novels. In any case, setting up a wiki about a topic such as a game, a movie, or a novel does not require permission from the owner or creator of the game or of any trademarks associated with the game or work. The same would be true for a discussion forum about such a game or work that is not a wiki. If a wiki uses excessive quotes from game dialog, or uses the game's logo without permission, or reproduces other game assets, such as character art, maps, and the like without permission, that might be copyright infringement. | It's possibe to cover auto-starting apps and cookies under the definition. I'm not convinced and could argue against that but I don't think it matters. The tiny extract you linked isn't a law. It is a definition. It does not say "these things are illegal". For that, we have to zoom out a little. Section 43 includes the offense in question (emphasis mine): If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network... introduces or causes to be introduced any computer contaminant or computer virus... So back to the question. Could Steam be considered a virus? Maybe. Is it illegal? No. On the other hand, if I were to gain access to your computer and download Steam, yes that could be an example of breaking that law. | It is unclear whether WINE is infringing copyright or if it can rely on a fair use defense. The CAFC held that: that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection In that light, if WINE had original content in the structure, sequence, and organization of its API, the CAFC would likely also find that it is entitled to copyright protection. However, because this issue is outside the scope of the CAFC's exclusive jurisdiction (this is a copyright issue, not a patent issue), the holdings are not binding in any other circuit. Each circuit is free to review anew the copyrightability of APIs when such a case comes up. My guess is that this is the reason the Supreme Court declined to hear an appeal on CAFC's Oracle v. Google opinion. To address your fair use question would be simply speculation, because fair use is always assessed case-by-case, and even in WINE's closest analogy (Oracle v. Google), the CAFC remanded the fair use question back to the trial court, and that question hasn't been decided yet: we remand for further consideration of Google’s fair use defense in light of this decision |
What prevents someone from claiming to be the murderer in order to get the real murderer off? Say someone is on trial for a murder they committed. During the trial, one of the witnesses, a friend of the defendant, admits that it was actually they who were the killer. It seems that this would be enough to create reasonable doubt and get an acquittal, or even possibly have the state drop the charges because they now believe that they should be charging this other person. After the trial ends, the friend presents irrefutable proof that they weren't actually the murderer. Of course, this friend could be charged with perjury, obstruction, etc... but the original defendant can't be re-tried for the murder because of double jeopardy, and their friend can't be tried (or won't be found guilty) because of the evidence that he didn't do it. Is there a flaw in this system? Something that prevents someone from actually doing this? Related: Can someone get protection under Double Jeopardy for a crime by arranging to be put on trial with fake evidence that is then disproven? Side-note; something just like this happened in an episode of Law and Order; though I had been wondering about this long before seeing that. | It is not as simple as the witness just making the assertion that they are the killer. They will be subject to grueling cross examination to break their story. If the victim was killed at a specific time, perhaps the prosecution can prove the witness was somewhere else at that time, and therefore lying. (No Opportunity) If the victim was killed with a specific weapon, perhaps the prosecution can prove that only the accused had the weapon, and the witness had no access to it, and therefore lying. (No Means) If the victim was killed in a specific way, perhaps the witness doesn't know any of the details of how the crime happened, and therefore is not credible. (No Knowledge) If the accused's DNA is found at the scene, and their shirt is covered in blood, and the witness has no corroborating evidence against them, then the witness is likely lying. (No Evidence) If the witness claims he is the murderer, the prosecution can inquire as to why he killed the victim. The real murderer had a reason: Perhaps money, power, hatred, passion, etc, that the witness may not be able to provide. (No Motive) Planting doubt in the mind of a jury is an effective defense. But lying about who did what, when, how, and why it is not as easy as you suggest. | How exactly would the court determine this to be the cause of divorce? 99.99% of the time, this would be purely a "he said she said" situation, for how can someone prove refusal to engage? You can prove the opposite if there are children born to both parents, but how can one prove a negative? Or is the statement by the divorce initiator considered sufficient for the judge? Testimony under oath is evidence. Judges resolve "he said she said" situations every day on a routine basis with witness testimony alone by judging the credibility of each witness before them. See also an answer by @Jen about the subject of how things are proved in court in general. In the appropriate case, testimony under oath with no other corroborating evidence can even support a murder conviction as proof beyond a reasonable doubt. It can certainly suffice to prove marital fault in a civil lawsuit for a divorce. If the judge finds that witness testimony under oath between more than one witness is irreconcilably different, and each witness is equally credible, and that it is impossible to tell which person is telling the truth, then the person seeking relief from the court has failed to meet their burden of proof to obtain relief from the court. But, this is rare. Usually, when witnesses are both testifying under oath and disagree about what happened, the judge will find that one witness is more credible than the other. And, in truth, while people certainly do lie in open court under oath, and probably are more likely to lie in that situation than when speaking to someone not under oath outside of a courtroom, most of the time, people don't lie and the testimony of all of the witnesses are consistent with each other subject to limitations based upon what they could perceive from their perspective and the limitations of imperfect memories. This could come down to demeanor in court, hesitation in answering, "tells", inconsistencies in their testimony, corroboration from other evidence and other witnesses (e.g. what someone said to a friend or wrote in a diary at the time), evidence that a witness has been convicted of a crime of deceit in the past, use of language that suggests coaching about their testimony, or common sense judgments about whose story seems more plausible under the circumstances of the parties in front of the judge. | Neither with or without a warrant, if the confession is all there is. For a felony, the question is whether there is probable cause (4th Amendment). This is true whether the police arrest you, or they get a warrant – the difference being that in the latter case the warrant is issued by a guy with much greater knowledge of what constitutes probable cause. The question then would be whether a confession alone constitutes probable cause. There is a venerable rule, the corpus delecti rule (300+ years old) that requires there to be independent evidence of a crime, the point of this rule being to to prevent mentally ill people from being convicted of a crime that never even happened. Under that rule, a confession alone would not be probable cause (but a confession and a bloody glove could be). This article reports that at the federal level and in 10 states, there is a lower bar of mere "corroboration" without the need to argue that there was an actual crime. Exemplifying this relaxing of the traditional rule, in Opper v. United States, 348 U.S. 84, the court held that "[a]n accused's extrajudicial admissions of essential facts or elements of the crime, made subsequent to the crime, are of the same character as confessions, and corroboration by independent evidence is required". However, "[t]he corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti" and "[i]t is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth; but those facts plus the other evidence must be sufficient to find guilt beyond a reasonable doubt". In such jurisdictions, courts take a "totality of circumstances" approach focusing on whether the confession is trustworthy. | It depends on what the jury said, and if it's criminal or civil. In criminal cases, the judge may almost never set aside a verdict of acquittal. There is a single case in the US in which this happened, and it was a bench trial (no jury). That case featured the defendant bribing his trial judge; the Seventh Circuit held that he was never in jeopardy due to the bribe. As far as I can tell, that's the only one. There have been no cases that I can find of a jury's verdict of acquittal being overturnable. Judges can poll the jury to make sure they're unanimous (at least in federal court), and if they aren't then it's a mistrial, but that's because the jury was never in agreement in the first place. On the other hand, a judge has several ways to enforce an acquittal. In federal court, for instance, the defense can move for a motion of acquittal either before or after the case goes to the jury. If the motion is granted before the verdict, double jeopardy applies to retrial. If it's granted after a conviction, then the judicial acquittal can be reversed on appeal, possibly requiring a new trial. Before the verdict is returned, the judge can declare a mistrial. After the verdict is returned, it's too late for that. In civil cases, things are more complicated: double jeopardy does not exist there. There, there is a notion of a judgment as a matter of law: the judge determines that, based on evidence presented, no reasonable jury could possibly find the other way. This can happen before or after the verdict, and is appealable. | There are great jurisdiction by jurisdiction differences in the statutes of limitations that apply to crimes. Some jurisdictions have no statute of limitations for any serious crime (e.g. Canada and if I recall correctly Virginia). Others have statutes of limitations for almost all serious crimes other than murder (e.g. Colorado). Where there is a statute of limitations, the primary issue is that the ability of the prosecution and defense to secure reliable evidence that will allow a jury to enter an accurate verdict. This potential to conduct a fair trial can be compromised by a delay in pressing charges. Alibi witnesses can die or disappear to someplace that they can't be located, the location of the alleged crime can change in ways pertinent to proof, memories of witnesses in general can fade. Records or correspondence that could show intent can be destroyed. This is particularly a burden for an innocent criminal defendant who did not know that he or she needed to prepare a defense and gather evidence to respond to criminal charges. Some states toll statutes of limitations during a period of a victims minority or incapacity when brining charges may not be feasible. Other states have a long statute of limitations in rape cases where there is DNA evidence available that can conclusively tie a defendant to the scene of the crime (lack of consent would still have to be established), but a shorter statute of limitations in other rape cases. Murder and fraud are the most common offenses to lack a statute of limitations, in the first case, because it is considered the most serious crime and because the victim is unable to report the crime, and in the latter case, because fraud, by its nature and by the perpetrator's design, may go undiscovered for very long periods of time. Is there a line of reasoning to decide which classes of crime have a limited window for prosecution? While I've given some examples of the considerations that apply, ultimately, this is a legislative and political decision and not a legal one. You can't determine by reason alone which classes of crimes will have a limited window for prosecution. Different legislative bodies make different decisions on the same issues at different times and in different places. | 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. | That's basically correct. The Double Jeopardy clause prevents the federal and state governments from trying you again for a crime that you've already been acquitted of, no matter what new evidence turns up. Even if you confessed to the crime, you could still not be tried. The relevant text of the Fifth Amendment reads: No person shall ... be subject for the same offence to be twice put in jeopardy of life or limb. The case of Mel Ignatow is probably among the most famous examples. He was charged with murdering a woman, but acquitted at trial. About a year later, a guy laying carpet at his house pulled up floorboards and found the victim's jewelry, along with pictures of Ignatow murdering the victim. Ignatow confessed, but the state couldn't charge him with murder again, though they could charge him perjury for testifying that he hadn't killed her. So the answer is yes, the Fifth Amendment generally prevents the government from trying you for a crime you've been acquitted of. There are two main caveats here. First is the dual-sovereignty principle, which accounts for the fact that almost anywhere that the Fifth Amendment applies, a person is subject to the laws of two sovereign governments: the federal government and that of whatever state the person is in. For example, robbing a bank in Los Angeles would violate the laws of both the United States and California. If California put you on trial, but you were acquitted, the Double Jeopardy Clause would bar California from trying you again, but it would not be a defense if the federal government wanted to try to charge you again. Second is the language about "the same offence," which is not as clear as it might sound at first. In the course of committing a crime, a person can easily commit many other crimes without thinking of it. In your bank robbery, for instance, you could easily break the following additional laws: trespassing, menacing, carrying a concealed weapon, brandishing a firearm, larceny, grand larceny. This raises the question of what affect your acquittal on the robbery charge has on the possibility of charging you on these other offenses. The answer can be found in Blockburger v. United States, 284 U.S. 299, 304 (1932): The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. This is easier to understand in practice than in theory. If you want to bring charges for the same conduct without violating the Double Jeopardy Clause, you need to be able to make a Venn diagram where the first charge and the new charge each has at least one element that the other does not. So map out the following possible offenses involved in a robbery: theft: unlawfully taking the property of another person aggravated theft: unlawfully taking the property of another person, when the property is worth more than $1,000 menacing: threatening to injure another person aggravated menacing: threatening to injure another person while brandishing a deadly weapon robbery: unlawfully taking the property of another person, facilitated by a threat to injure another person aggravated robbery: unlawfully taking the property of another person, facilitated by a threat to injure another person while brandishing a deadly weapon So now you have a Venn diagram that looks like this: If you've been acquitted of robbery, a prosecutor who wants to charge you again needs to find an offense that (1) requires proof of a fact that robbery did not, and (2) does not require proof of a fact that robbery did. This means the prosecutor can't bring a charge for the "greater offense" of aggravated robbery, because the earlier robbery charge didn't require proof of anything that aggravated robbery would not. The prosecutor also can't bring a charge for theft or menacing, because neither requires proof of anything that robbery did not. These are called "lesser included offenses." But a charge for aggravated theft would be allowed. Although there's a shared element between aggravated theft and robbery (taking the property of another), there are also unique elements to both aggravated theft (property worth more than $1,000) and robbery (a threat to injure another). A charge for aggravated menacing would also be allowed, as it requires proof of brandishing a deadly weapon, but does not require proof of taking the property of another. | Carl may not do this, as he would be prohibited from making this argument at trial. At trial, evidence must be relevant, meaning that it makes a fact of consequence more or less likely to be true. Because the trial is meant to determine whether Carl is or is not guilty, his promises of future philanthropy have no bearing on the matter. And even if they somehow did, Carl still would not be able to tell the jury about them because they would be blocked under Rule 403, which excludes evidence because its probative value is substantially outweighed by its risk of biasing or confusing the jury. If Carl attempts to make these statements anyway, he risks a mistrial, which means he has to start over with with a new jury. In some jurisdictions, Carl may, however, be permitted to make this argument during the sentencing phase, where the court can properly consider the societal effects of whatever punishment it imposes. At this point, though, it's obviously a little late for Carl, as it presumes he has been convicted. |
Does the Good Samaritan law make it legal for a third party driver to interfere with a road rage event while it is happening? I would like to know if the Good Samaritan law makes it legal for a third party driver to try to break up/interfere with a road rage event while it is happening. Say for example that you are driving on a highway and you start to pass up a pickup truck that is closely tailgating a small car in the lane next to you. You notice that the driver of the pickup truck looks to be a big man and he looks very angry. You also notice that the driver of the small car looks to be a young woman who looks frightened and is crying. At this point, you figure that this is a road rage event that is in progress and you fear that the life of the young woman is in imminent danger. If you were to decide at that point to interfere with this event by ramming your vehicle into the side of the pickup truck and then that pickup truck goes off the road and crashes, would you likely be arrested and sent to prison for causing the crash and injury to the pickup driver, or would the Good Samaritan law protect you from being charged with a crime? "...Good Samaritan laws offer legal protection to people who give reasonable assistance to those who are, or whom they believe to be injured, ill, in peril, or otherwise incapacitated.[1] The protection is intended to reduce bystanders' hesitation to assist, for fear of being sued or prosecuted for unintentional injury or wrongful death..." https://en.wikipedia.org/wiki/Good_Samaritan_law Does the Good Samaritan law make it legal for a third party driver to interfere with a road rage event while it is happening? | No. Self-defence law does The right of self-defense (also called, when it applies to the defense of another, alter ego defense, defense of others, defense of a third person) is the right for people to use reasonable or defensive force, for the purpose of defending one's own life (self-defense) or the lives of others, including –in certain circumstances– the use of deadly force. Whether you would succeed in such a defence depends on the exact circumstances. Good Samaritan laws protect you from trying to help, screwing up, and causing further damage. | Damaging someone else's property is not protected free speech in the US. Nor is using someone else's property without permission and against the owner's wishes. Scenario 3 would surely be vandalism or "Malicious Mischief" or some similar offense, even if the paint can be fairly easily removed. The same would be petty surely true of scenario 2, as it would take at least some effort to remove the sticker, and it could be a safety hazard until it is removed (obstructed vision). Scenario 1 would probably not be even a minor crime, unless perhaps the person trespassed to attach the string. But the person has no right to insist that the car's owner not remove the sign. I am assuming that the car is owned by someone else, and the the person placing the sign, sticker or paint acted without permission from the owner or any authorized person. | Despite the lengthy background, the only question seems to be: Can a police officer lie about a consequence of a traffic violation they charge you with? As a matter of constitutional law in the United States, that answer is generally "yes." States can impose more limitations if they like. Only a small minority of states actually do so. Incidentally, an attorney, such as a deputy district attorney, is not allowed to lie about the consequences of a traffic violation, or anything else (even in extreme circumstances like a hostage situation). This violates the rules of professional conduct applicable to all attorneys. This sounds like a classic "driving while black" situation and is probably involves unconstitutional discrimination by a government official, although proving that in an individual case is virtually impossible. | The Straßenverkehrsordnung(Translation) in Germany says this: § 34 Accidents (1) Any person involved in a traffic accident must: stop immediately; take the necessary steps to ensure traffic safety and, if there is only minor damage, move their vehicle to the edge of the carriageway; ascertain the consequences of the accident; assist injured persons (section 323c of the Penal Code); to other persons present at the scene of the accident who were involved and have suffered damage: a) state that they (i.e. the person referred to in the first clause) were involved in the accident; and b) if requested to do so, provide their own name and address, present their own driving licence and vehicle registration document and, to the best of their knowledge, provide details of their third-party insurance; a) remain at the scene of the accident until, by virtue of their own presence, it has been possible to identify their personal details, their vehicle and the nature of their involvement to the benefit of the other persons who were involved in and have suffered damage in the accident; or b) wait for a reasonable length of time and leave their own name and address at the scene of the accident if nobody was prepared to perform the identification; immediately facilitate subsequent identification if they have left the scene of the accident legitimately, after giving a plausible excuse or upon expiration of the waiting time (paragraph 6(b)). For this purpose, they must inform at least the persons referred to above (paragraph 6(a)) or a nearby police station that they were involved in the accident and must provide their own address, their present whereabouts as well as the registration number and location of the vehicle that was involved in the accident, which must be kept available for immediate investigation for a reasonable length of time. For minor accidents (no injuries, no suspected criminal offence, no major disagreements between involved parties, ...) you do not have to call and wait for police (you have a right to call them but they might try to discourage you from requesting that they come to the scene). For normal traffic accidents insurance doesn't come and collect evidence at the scene, instead an appraiser will document damage to your car and look at statements and witness reports and other documentation. You can just exchange all necessary information with the other party/ies and then leave with your car (possibly using a towing service). However, OP might refer to the specific case of an accident with a rented car. In that case, the contract with the rental service often mandates that you call police and request an official police documentation and report in case of an accident. | I should have done my research properly, hopefully this will be indexed and be helpful to someone else in the future. The specific legislation is The Road Vehicles (Construction and Use) Regulations 1986 regulation 98: Stopping of engine when stationary 98.—(1) Save as provided in paragraph (2), the driver of a vehicle shall, when the vehicle is stationary, stop the action of any machinery attached to or forming part of the vehicle so far as may be necessary for the prevention of noise. (2) The provisions of paragraph (1) do not apply— (a) when the vehicle is stationary owing to the necessities of traffic; (b) so as to prevent the examination or working of the machinery where the examination is necessitated by any failure or derangement of the machinery or where the machinery is required to be worked for a purpose other than driving the vehicle; or (c) in respect of a vehicle propelled by gas produced in plant carried on the vehicle, to such plant. | So first things first, whether or not Stand Your Ground is in play, the burden of proof is always on the State to prove any crime did happen and any defense does not. Another thing that I think you confused in your question is it seems apparent that you think Stand Your Ground is Self Defense. This is not true. In the United States, self-defense is always a legal right for a victim of a potential crime, regardless of if your state has Stand Your Ground or Duty to Flee laws. Self-Defense typically can include justifiable homicide as you are not privy to the intent of the bad actor. Under Duty To Flee laws, you cannot claim self defense if you could reasonably get away from a criminal action safely... if given the choice between fight or flight, you must flee the scene. Stand Your Ground contradicts this and says that if you are in a public place and a criminal is trying to make you a victim, you have every right to defend yourself without any duty to remove yourself from the situation first... basically at this point, you can make either choice and not worry about losing justifiable Homicide. Making a criminal arrest of a Stand Your Ground claimant at the seen is not necessarily required. While the claim may be disputed, in the case of firearms, using an illegally owned weapon is typically ground for arrest regardless... (probably not in cases where the illegal gun was introduced to the scene by the dead criminal... and the victim picked it up in a scuffle... though this requires some measure of sorting out). Legal Fire Arms are very well documented and the fire arm in question will be confiscated as evidence. If it is found that it was not a justifiable homicide, the person in question is probably at the address tied to the gun. Now, again, Stand Your Ground only applies to steps needed for Self-Defense, it is not self-defense itself. Self-Defense authorizes only the amount of force needed to safely resolve the situation, up to and including leathal force, but it does not require you to kill the perpetrator in every instance it is invoked. For example, if merely pointing a gun at a perpetrator is enough to stop the crime, you do not get to pull the trigger. That flips it back into homicide. Similarly, if I pull my gun and the guy advances anyway, I may fire and if the guy is on the ground and out cold (thus, no longer a threat), I don't get to walk up, and put a second bullet between his eyes, execution style. This too is murder. As a bit of anecdotal evidence, when I was living in Florida, I worked for a man who just recently purchased a firearm for self-defense (in the home only) and he said that when he was filling out paperwork with the police, the cop looking over his paperwork said, "Now remember, if you have to use that, shoot to kill. It's less paperwork for us." Now, I wasn't there when to cop said it, I don't know what his tone was. I took it as the cop being a little funny, but maybe a little inappropriate. I cannot speak to how much that is indicitive of FL Police culture. It was hearsay on my part... I just thouht it was funny and... demonstrates the attitude towards self-defense. Essentially, by the time cops arrive at the scene, they HARD PART is over... they merely have to collect evidence and take witness statements. If the shooter is cooperating and his story checks out, it will look very bad if they detain a crime victim who defended himself. It's just bad PR. Ultimately, his job is to collect all evidence, not determine if the case should go to trial. As I mentioned, the gun was legally owned in the specific case, and more than likely the CCTV tape is collected, but not yet viewed. Hindsight may be 20/20 but at the time, I do not think it's fair to say that the cop knew this might not be such a clear cut case. In such cases, the cop may not make an arrest because there is not any crime that he can charge the man with and he is cooperating. And keep in mind that in the heat of the moment for the shooter, he may not even realize he did something that might break his self-defense case. Cops can detain a person claiming Stand Your Ground for just about any legitimate reason, even suspicion of homicide that the detainee will claim is self-defense. | I'll use California penal code 837 as an example, though most other states have similar statutes: A private person may arrest another: For a public offense committed or attempted in his presence... 839 says: Any person making an arrest may orally summon as many persons as he deems necessary to aid him therein. Generally, someone making an arrest is allowed to use "reasonable force" to effect the arrest. The question then becomes, is the act of interrupting a football game a public offense? Once a fan at a football game enters the field, assuming it is a violation of the license granted to the fan, they are trespassing. These fans are often drunk when performing their midfield dance so that is another public offense for which they could be arrested. Once arrested, the interloper must be turned over as soon as possible to a magistrate or peace officer. The person making the arrest is always subject to being sued. It is a question for a trier of fact to determine if unreasonable force was used in effecting the arrest. My guess is that in most of these cases security simply ejects the exuberant fan from the premises and the fan never looks back. If a lawsuit were to be filed it would be based on unreasonable force being applied during the arrest. California penal code 240 defines assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Certainly, one could be charged with assault in effecting a citizen's or private arrest but it would go back to the definition of reasonable force and what force was necessary to effect the arrest. If someone resisted arrest I think it more likely that that person could face an assault charge. | You (probably) did not commit a crime in Colorado. The answer to your question though is probably Driving an unsafe vehicle Colorado Revised Statutes Title 42. Vehicles and Traffic § 42-4-202 (1) It is unlawful for any person to drive...on any highway any vehicle...which is in such unsafe condition as to endanger any person, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this section and sections... The above is not a crime , it is (5) Any person who violates any provision of this section commits a class A traffic infraction. A class A traffic infraction is a civil violation. Note that some driving offenses are crimes: In Colorado, driving more than 25 mph over the posted limit is a class 2 misdemeanor, and doing so in a constriction zone is a class 1 misdemeanor. Also note that I say probably because it is possible that they charged you with something more extreme- reckless driving? violation of noise or pollution ordinances?- but for a fine small enough that you don't say, 2 points, and you did not have to go to court (you could have if you wanted for the ticket, but not required) it is very unlikely. |
Article 3 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms of ECHR, has it ever been used? This question arises out of a previous question on Hungary's prospects to overturn autocratic rule after an unlikely election victor of the unified opposition titled: Is it possible that the ECJ will annul the decrees of prima facie constitutional use of the Orban government in Hungary?. Is there any case law by the European Court of Human Rights in a matter where a High Contracting Party was found to have deprived its people of their right to free elections? If so, what cases are they? | Yes, this has come before the Court. Some prominent examples are - Mathieu-Mohin and Clerfayt v Belgium (1987), the first time Article 3 was before the European Court of Human Rights, on the complex Belgian system of balancing French-speaking and Dutch-speaking electoral institutions Matthews v United Kingdom (1999), on whether people in Gibraltar should be able to vote in elections to the European Parliament Hirst v United Kingdom (No 2) (2005), on whether the UK could have a blanket ban on voting applicable to all prisoners Riza and others v Bulgaria (2015), on selective interference with the electoral count In all but the first of these, the Court found a violation of Article 3 of the Protocol. At other times, it has given deference to a State's particular processes, or ruled that a complaint was inadmissible because it did not pertain to the covered type of election. You may be interested to read the Court's guide to its case-law on the topic (a 34-page PDF) which includes many more citations, and an explanation of the legal reasoning involved. | The last part, about equal suffrage in the Senate, does not expire. The question is whether it can be itself amended out of existence. There has been no test of that possibility. This article argues that this may not be subject to amendment. There is only one way to find out for sure. The idea is that the original intent was that this is supposed to be an absolute clause, but of course that only speaks to original intention (and the original intention is not clear, as the article discusses). | Is it a correct inference that the right "to be secure in their persons, houses, papers, and effects" extends to even a private corporation? No. It's not even a correct inference that it extends by its own terms to state and local governments. In Barron v. Baltimore (1833), the Supreme Court held that the Bill of Rights was enacted as part of the federal constitution and only restricts the exercise of the federal government's authority. State and local governments are instead bound by the Fourteenth Amendment, which says that No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Over the years, the courts have held that state action that deprives someone of fundamental rights deprives them of life, liberty, or property without due process of law in violation of the Fourteenth Amendment. In Wolf v. Colorado (1949), the Supreme Court held that the right against unreasonable searches and seizures is a fundamental right, so state action violating it is a violation of the Fourteenth Amendment. Most of the Bill of Rights has been held to be "fundamental," and people routinely say "the state violated the Fourth Amendment" instead of "the state violated the Fourteenth Amendment by conducting an unreasonable search of the sort that would violate the Fourth Amendment if conducted by the federal government." Courts will say "the Fourth Amendment, made applicable to the States through the Fourteenth." But the point is that the Fourth Amendment itself is not applicable to anyone except the federal government. The Fourteenth Amendment, by its terms, only restricts the states. The Fourth Amendment only restricts the federal government. With rare exceptions, neither applies to private entities. | That book provides advice on legal writing; it is not a source of rules for legal writing. Rather than repeatedly identifying themselves using their full name, parties customarily refer to themselves in the third person, e.g., "The defendant refused to waive his Sixth Amendment right to a speedy trial." In practice, though, pro se litigants regularly refer to themselves in the first person, and there is no formal consequence for this. | In Torcaso v. Watkins, 367 U.S. 488 (1961), the US Supreme Court ruled unanimously that a similar provision in Maryland's constitution violated the First Amendment and could not be enforced. So presumably the North Carolina provision is similarly unconstitutional and unenforceable. It's not clear why it wasn't removed in 1971. I found references to a 2009 incident in which an avowed atheist named Cecil Bothwell was elected to the Asheville, NC city council. Opponents apparently threatened to mount a legal challenge to his eligibility under the Article VI provision. It's not clear if they actually tried to do so, but in any event, Bothwell served his full four-year term and was then re-elected for another. | Art. 15(4) GDPR says: (4) The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others. If I was the controller in this situation, and I believed that this would endanger the students that have criticised the professor, I would base my argument for not complying on this. In addition, Art. 85 GDPR requires member states to: [...] reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information [...] So you may be able to argue that the students posting messages are engaging in "processing for journalistic purposes and the purposes of academic, artistic or literary expression", depending on the laws of the particular member state. (edit: this could be difficult since you mention it is a private database). The second case seems just like the first in terms of GDPR, but may constitute defamation. Defamation (or libel) laws differ wildly in each country; he Wikipedia article on Defamation explains the situation in each member state in more detail. In the third case: if the professor submits a request based on the rights of a data subject other than himself, they don't need to comply. These requests need to come from the data subjects themselves, not just a random person assuming authority. (although I suppose it's possible for them to give power of attorney to the department head if they wanted to) Personal data and the rights that GDPR provides to data subjects always relate to a natural person, not an institution or a company. | Congress can't override substantive rules of constitutional law Marbury v. Madison is a binding interpretation of what the U.S. Constitution permits or denies, and in substance, this law seeks to change that interpretation of the scope of the judicial power, so that interpretation may not be overruled except via a Constitutional amendment. Neither the Supreme Court nor any lower federal court, under their appellate jurisdiction, will declare unconstitutional or otherwise adjudicate unconstitutional any law passed by Congress; neither the Supreme Court nor any lower federal court will hear or otherwise engage in cases or controversies in which one or both parties put into discussion the constitutionality of a law passed by Congress, or ask for a law or a statue passed by Congress to be declared unconstitutional. The language in italics is jurisdiction stripping language, which I discuss below, and which is also discussed in another answer. But, the language in bold is enunciating a substantive rule of law regarding how the judicial branch may resolve a case that is otherwise properly before it. And, Congress does not have the power to change that to make the U.S. Constitution a dead letter under its Article III jurisdiction regulation powers. The language in bold language is a direct attempt to overrule a binding interpretation of the U.S. Constitution and that is beyond the authority of Congress to do, so the statute would be unconstitutional, at least, in part. Jurisdiction stripping Yes, Congress can regulate the jurisdiction of the federal courts pursuant to Article III, Section 2 which states: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under the Regulations as the Congress shall make. But, there are parts of Article III that apply in addition to the power of Congress to create "Exceptions" the appellate jurisdiction of the U.S. Supreme Court, and the power to create and modify the "inferior courts" that exist. The first sentence of Article III, Section 1 of the U.S. Constitution states: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts, as the Congress may from time to time ordain and establish. This is crucial, and interacts with the Exceptions power. The default provision is that all judicial power as defined in Article III, Section 2 is vested in the "supreme Court" unless and until that power is instead vested in an "inferior Court" established under Article III that Congress creates by law. Therefore, Congress does not have the power to deny every court (or even every federal court) both original and appellate jurisdiction over any constitutionally justiciable claim arising under Article III, even if the claim is not within the express original jurisdiction of SCOTUS. If they deny every inferior Article III federal court jurisdiction over something within the constitutionally defined scope of the judicial power, then it reverts to the original jurisdiction of the U.S. Supreme Court even though it is not expressly made a part of the U.S. Supreme Court's original jurisdiction. The judicial power of the federal courts collectively is defined in Article III, Section 2 of the U.S. Constitution and extends to all cases arising under the U.S. Constitution which would include a claim to have a provision of federal or state law declared unconstitutional as in violation of the constitution. It says: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; . . . (This analysis is attributed to U.S. Supreme Court Justice Joseph Story.) Now, this is not to say that Congress couldn't do something to make it harder procedurally to have statutes declared unconstitutional. For example, there would be a much harder claim of unconstitutionality if Congress vested original jurisdiction in all such cases in the United States in the U.S. District Court for the District of Wyoming, and then only assigned one judge to that district, and denied the U.S. Courts of Appeal or the U.S. Supreme Court, appellate jurisdiction over those decisions. At some point, however, even this lesser restriction, rather than elimination of a judicial power would still be subject to challenge under the due process protections of the 5th Amendment. Writ jurisdiction Notably, Marbury v. Madison was a case brought in the original jurisdiction of the U.S. Supreme Court under a writ of mandamus, under the All Writs Act, and not in connection with its appellate jurisdiction. So, Congress would also have to repeal or amend the "All Writs Act" to pull off the intent of the proposed statute, because the U.S. Supreme Court's original jurisdiction extends by statute to writs that are not appellate in nature even though this power is very rarely exercised. A writ is a court order directed at a government official directing that government official to do something, or to refrain from doing something. But, there are many ways to back door a seemingly private cause of action, particularly one related to constitutionality, into a writ. And, if a court has jurisdiction over a writ, it has jurisdiction to entertain requests by litigants to have such writs issued. Congress can't remove a state court forum It is worth noting that every single state court from traffic court on up has concurrent jurisdiction with the federal courts to declare that a statute is unconstitutional, and that state courts frequently do declare state statutes to be unconstitutional. Congressional jurisdiction to regulate jurisdiction is largely limited to regulation of the jurisdiction of the federal courts. It can put a federal question (e.g. copyright enforcement or disputes with the IRS) in the exclusive jurisdiction of the federal courts, but there are no cases in which Congress has been permitted to place a federal law in the exclusive jurisdiction of the federal courts while also denying any federal court jurisdiction over claims arising under that law. Otherwise, state court jurisdiction isn't regulated by Congress. And, the Constitution specifically requires all federal, state and local officials to swear to uphold the U.S. Constitution which arguably provides an independent basis for state court jurisdiction over constitutionality claims arising under the U.S. Constitution. This is a really important point. For example, suppose that someone who lives in the same state as you do sues you entirely under state law in a state court, and that state's courts require you to bring any claim you have against that person in state court over which that state court has jurisdiction as a counterclaim or you forfeit that claim forever. If you have federal claims against the person who sued you in state court, and your claims are not one of the handful of issues (e.g. copyright enforcement) that are in the exclusive jurisdiction of the federal courts, you must enforce your federal claims against that person as counterclaims in that state court case, or you will lose them forever. For example, suppose that your employer sues you in state court for conversion (i.e. stealing company property) and you have a right to sue the employer for not paying you the right amount for your overtime work under federal law. Then, you must bring your federal overtime claims in state court as counterclaims to the conversion action, rather than in federal court. Similarly, even though state criminal charges are always brought in state courts, a criminal defendant in a state court criminal case, can raised arguments arising under the U.S. Constitution including a determination that a state criminal law is unconstitutional, in state court as a defense, even though the only federal court recourse a criminal defendant has is through an appeal to the U.S. Supreme Court or a post-conviction writ of habeas corpus brought in federal district court after all state direct appellate relief is exhausted, after petitioning to the U.S. Supreme Court, and after all state post-conviction relief (including petitioning the final state order to the U.S. Supreme Court) is exhausted. In practice, this means, criminal defendants have no meaningful access to the federal courts other than two petitions for certiorari to the U.S. Supreme Court which are discretionary, until they have been incarcerated wrongfully for five or ten years. But, federal defenses can and routinely are raised in the state court trial (and indeed, federal defenses that could be raised in a state trial court may not be raised in a habeas corpus petition in federal court unless they were first raised in or before the original state court trial). N.B.: Federal claims in the exclusive original jurisdiction of state courts The extremes to which jurisdiction stripping is allowed are explored in the handful of claims arising under federal law that are expressly not within the scope of the jurisdiction of any federal trial court or intermediate appellate court, or within the express non-appellate jurisdiction of the U.S. Supreme Court. The most notable of these are affirmative private individual civil lawsuits against offenders under the federal robocall and junk fax law (a.k.a. the Telephone Consumer Protection Act a.k.a. the TCPA a.k.a. 47 U.S.C. § 227), which do not not require a writ, which may only be brought in state court, subject to an ultimate appeal to the U.S. Supreme Court. But, the federal courts have exclusively jurisdiction over litigation many kinds of claims other than private civil actions arising under the TCPA. This law is much less constitutionally concerning than the one proposed in the question, however, because while Congress can't repeal the U.S. Constitution, it doesn't have to pass a law giving private individuals a private cause of action when they receive robocalls or junk faxes at all. It could pass a law that was enforceable by the FCC alone, for example, and in the case of the TCPA, there are persons, including the FCC and regulated persons who want to challenge a regulation issued by the FCC, who are entitled to utilize the federal courts to enforce the TCPA or to dispute it. For example, there is no private cause of action to enforce most federal criminal laws (as such, not just involving the same harm) with a civil lawsuit by the victim against the criminal, in either federal court or state court, but that is not unconstitutional. This is because federal criminal laws can be enforced by government prosecutors and defended against by private individuals, in Article III federal courts. Also, even private causes of action under the TCPA are subject to ultimate U.S. Supreme Court appellate review, and the U.S. Supreme Court is an Article III federal court. | One can argue both ways. On one side, yes, zero representation in the Senate for all states is equal suffrage in the Senate. On the other side, no, depriving all states of all representation in the Senate deprives them of their suffrage in the Senate (without needing to consider the question of whether the suffrage is equal). Since this question has never been considered by a court, we can't do much more than speculate how one might rule. There has never been an amendment proposed to modify the composition of the Senate -- at least not one that was seriously considered. The spirit of the law works in favor of the second interpretation. Furthermore, a strict application of abstract logical reasoning was probably not the intention of the framers. A strategy that might seem more likely to succeed would be to introduce amendments reducing the Senate's power in the legislative process, similar to the evolution of the House of Lords in the UK. If the goal were to sideline one state, this might work, but if the goal is to address the complaint that the Senate is undemocratic because people in smaller states have proportionally more influence there, there's no way the amendment would pass 3/4 of the states' legislatures. The number of states with one or two representatives is 13, by itself a sufficient number to block the adoption of an amendment. |
US residency law for green card holders It's been about 4 yrs that I have my green card. But it's about 4 months that I'm living out of US now to stay with my parents in a foreign country. How long can I continuously stay outside the US to keep my green card valid? What are the rules for that? | There's no hard deadline for you to return to the US. There are some consequences, however, beginning at 180 days, at which point you are to be processed at the border as an "applicant for admission," which will usually have little practical impact on the process. After a year, your green card is no longer valid for admission to the US. This doesn't mean that you lose your LPR status, and the green card remains valid for other purposes. It just means that you should get a returning resident visa (unless you have a re-entry permit, which you would have to have acquired before leaving the US, so I assume you don't have one). There are ways to get into the US without a returning resident visa -- in particular, an airline isn't going to refuse to fly you to the US, because they won't know that you've been away for more than a year. Your LPR status remains until there is a formal finding that you have abandoned your residence in the US. This can be a result of your voluntarily relinquishing it or of an administrative or judicial action. In general, it's probably safe to say, the longer you're away, the more likely the immigration officer is to look into the possibility of abandonment. If you are absent for more than six months, you may also delay your eligibility to naturalize because this absence would disrupt "continuity of residence." A good starting point is the USCIS page International Travel as a Permanent Resident, which has more information about these matters as well as links to more detailed descriptions of some of them. Since this is https://law.stackexchange.com/, I suppose I should add some citations. The 180-day threshold is found in 8 USC 1101(a)(13)(c). The one-year threshold is at 8 CFR 211.1(a)(2). Residence requirements for naturalization are regulated at 8 CFR 316.5. It should be stressed that failing to meet these requirements does not by itself put your LPR status at risk; it only affects your ability to qualify for naturalization. | 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. | As a US Citizen, you don't get a I-94 recording of entries and exits but : The FOIA site of the CBP, mentions Information Regarding Entry and Exit Note: CBP does not have records on the entry and exit of persons arriving or departing the U.S. before 1982. To be filled with CBP However, this doesn't mentions if this is only applicable to Aliens or US Citizens are included or not. But this CBP help page mentions travel records for US Citizens | 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. | Changing your name won't affect your immigration status. It may be more or less of a hassle if you do it before or after getting your green card. My guess is that the cost and hassle of replacing the green card would argue in favor of changing your name now, before you apply for the green card. You'll normally change your name through a state court where you reside, though, and then submit the court order with your subsequent submissions to USCIS, rather than effecting the change of name through the green card application itself. You'll probably also want to check whether this has legal effect in your country of citizenship. Detailed questions on practical aspects of the change belong on Expatriates, however. As far as this site is concerned, the answer is yes, it's fine. | at what point can you just leave? Is it always technically illegal in the UK to leave without paying the bill? Probably depends on what you mean with just leaving. If just leaving translates I haven't paid and I won't pay (because of the hassle with the card) then that's probably Making Off Without Payment, section 3 Theft Act 1978 (Thanks @bdsl). Could the restaurant just force you to wait until close of business if necessary? What if they still hadn't fixed the payment system by then? I don't think a restaurant can physically detain you. Not even the 45 min you have been waiting. But if you leave without paying and without an agreement with them how & when to pay they can of course call the police because again that looks very much like making off without payment. According to your post, they did provide a payment system (cash) which was working all the time and that moreover has the special status of being legal tender. if you don't physically have the cash on you, you can be sued? You can be sued if you don't pay your bill (assuming the bill itself is correct) when it's due. In order to avoid endless hassle of the "I tried to pay via x, but they wouldn't accept this." type, legal tender defines ways of payment of a debt that the creditor/seller must accept. In many legislations, cash in the local currency provides such a fallback if other payment methods fail. Note that cash payment is very robust against internet failure, broken devices and power The UK (+ US) meaning of legal tender is that the restaurant must accept this means of settling the debt (at this time, the food is already eaten but not payed) - but they don't have to accept any other means of payment. (Note that e.g. for the EUR-countries there is at least a recommendation to make acceptance of legal tender mandatory also in retail, which includes simultaneous exchange food vs. payment). The 2nd important implication of this is that any argumentation along the lines that no reasonable means of payment were available would be very weak. You are not required to have sufficient cash with you to pay your bill if you can reasonably assume that some other way of payment will be acceptable to the restaurant. I see that like a spare wheel for a car: if you have a flat tire (card doesn't work) having a spare wheel (cash) allows you to deal with the issue with less hassle than if you don't: change your wheel vs. having to get your car brought to a workshop and wait until they put on a new tire (pay cash instead of waiting for the card to work again or a tedious hunt for another payment method). I'd like to point out that card doesn't work and not sufficient cash at hand (or forgotten purse) is something that happens quite often in general (rarely for any given transaction, but we have lots of transactions). I'd expect a restaurant or a gas station to be experienced in dealing with that. In any case, there are several possibilities to resolve the issue short of "just leaving": The key to all this is communication: talk to the restaurant to find a way to resolve the issue. Reassure them that you're not trying to use the opportunity to defraud them - that's what they are afraid of in this situation. "Where can I find an ATM?" Possibly offering a deposit: "And would you mind looking after my bag [phone] until I'm back?" Possibly showing them your ID card (or similar, if you have any) so they have your address: remember that so far you are an anonymous customer for them: which means that suing you for the money would be somewhere between too expensive and impossible. If you are a group, it should be sufficient if only one of you leaves in search of cash. Credit cards can be charged in a total offline way (MOTO = mail order/telephone order) where the credit card data is entered manually by the seller: the restaurant may be able to charge your credit card if fill in a paper credit card payment form. They may accept settlement via other payment systems: paypal & Co. wire the money via your online banking account (even if that doesn't give an instantaneous transfer, ask them if that's OK with them if you show/forward them the "transfer accepted message" for now) allow them to withdraw the money from your account via direct debit or something similar I'd not expect a restaurant to accept this possibility as they're probably not familiar with it and it means a lot of hassle for them with their bank to get listed to receive money that way. if you are in a region where cheques are still in regular use, that may be a solution as well. Restaurants like any other business can write invoices. They usually don't like this because their risk of having costly trouble to get the money is high. While your printout bill is technically an invoice already, it can be turned into an invoice (+ copy for them) giving your name + address and specifying how and when you'll pay. Which would keep track of how you (pl. = you + restaurant) decided to settle the bill under the peculiar circumstances. This works even in case of e.g. a power outage that prevents you from getting cash from an ATM in the neighborhood. | Some jurisdictions do that. Others don't (see, for example, the Dutch national identity card). My New York driver's license is in all caps, and I rather suspect that it's a holdover from the days in which licenses were processed using a computer system that had only upper-case characters. But that's just a guess. The real answer is that the premise of the question is incorrect. | Your understanding of the bill is correct. Legislation takes effect 90 days after sine die adjournment unless there is an emergency or enactment clause. If a relevant provision of the law is struck down as unconstitutional, any suit dependent on the provision would be dismissed. Residency is not relevant, what is relevant is being subject to Arkansas jurisdiction, meaning "being in Arkansas". A non-resident traveling to Arkansas could not have a forbidden procedure in Arkansas, and an Arkansas resident can have a procedure allowed elsewhere if they are elsewhere. A spouse would not be able to get an injunction if, for instance, the wife traveled to Washington state for the procedure, because Arkansas courts have no jurisdiction over Washington state. The law imposes a restriction on what physicians in Arkansas can do, and the woman receiving the abortion is not subject to liability. |
Victim of larceny doesn't press charges. Does this mean suspect walks free? Location: Indiana, USA. A home/ranch owner (victim) thinks he is being stolen from. He rigs a lot of his possessions with tracking devices (apple airtags) and puts a lot of cameras on premises. Some time later his possessions do get stolen, hard to say value but apparently well over $1000. Victim tracks down the suspect to the suspects house. He calls the cops. The cops arrive. The suspect lets cops into the property. Cops do find the stolen goods. At this point there are multiple police officers on scene. Victim says he will not press charges if suspect admits to the crime (and gives back what was stolen). Suspect admits to crime. Victim does not press charges. Everyone has a nice talk and everyone (including cops) leave the scene. No one gets arrested. How is this possible? Does the victim not pressing charges even mean anything? Does the victim decide if the person should be prosecuted? Why don't the police arrest the suspect? A viral video of a similar situation can be found on YouTube. We do not know if the suspect is actually arrested or prosecuted from just this video, but the question stands regardless. | The DA decides The decision to prosecute a crime is vested in the district attorney (a.k.a. the prosecuting attorney, a public official in charge with bringing criminal cases in court). The DA can prosecute someone even if the victim doesn't press charges. It isn't the victim's call. It isn't law enforcement's call (although the DA will never get to make that decision if neither the victim nor law enforcement tell the DA about it). Critically, in U.S. law, unlike most countries with "civil law" legal system in Continental Europe and Latin America and much of Asia and Africa, prosecutors don't have a legal duty to prosecute all crimes of which they are aware. Civil law systems sometimes give vetoes over prosecutions of particular kinds of crimes to victims, but the general rule is that a prosecutor must press all charges that can be proved and that the prosecutor has resources sufficient to prosecute. In the U.S., the decision to bring charges or not is in the absolute discretion of the prosecutor. Also, unless the suspect and the DA reach an express agreement to permanently drop the charges, the DA or a successor to the DA can change their mind at any time until the statute of limitations on the crime expires. In the example in the question, a DA might initially decide not to bring charges, but then change her mind and bring the charge from this incident and a lot of other ones, when the DA learns that the suspect is operating a full fledged criminal enterprise and not just exercising bad judgment on an isolated basis. The DA usually honors a victim's wishes Usually, a DA and law enforcement will honor a victim's wishes, both because it is the harm to the victim that the DA is primarily vindicating, and because a case can be hard to prosecute without the victim's cooperation. Lots of people are pressing to have scarce law enforcement and DA resources applied to their problems. When someone voluntarily withdraws their request to have the DA and law enforcement use those resources, and no one personally involved is unhappy about that, this is normally seen as a win for everyone, and as a way of empowering victims. DAs and victims alike are also well aware that a criminal case can have very severe impacts on the life of the criminal defendant and the criminal defendant's family. Sometimes it can literally ruin a person's life. Other times it presents a major bump in the road to someone who was overall getting on the right track but had a lapse of judgment. When deciding whether to bring charges, DAs routinely weigh whether the harm done by breaking the law justifies the consequences of bringing a criminal case against someone from the point of view of society as a whole in the long run. In this example, the victim got moral vindication, an apology and admission, and presumably, his stuff back. The victim and law enforcement clearly saw this as justice enough if this is really just an isolated incident in a case involving a fairly minor misdemeanor offense. Exceptions to the general rule In the unusual case where a DA brings a criminal case notwithstanding the victim wanting to drop the charges a variety of things can motivate that. Sometimes, for example, in an intrafamily domestic violence or child abuse or elder abuse scenario, the DA may conclude that the victim is asking to drop charges under duress, or figurative "temporary insanity" due to being blinded by love in a way that the victim will later regret. In a variation on this fact pattern, fraud victims often have lawsuits for compensatory damages against fraudsters that will be harder to collect if the fraudster is in prison and may ask to drop charges for that reason. But the DA may want to bring the criminal fraud case anyway, because it is likely that the future income that will used to pay the current victims from their lawsuit will just come from some new fraud perpetrated against someone else. Sometimes, a DA presses charges because even though the victim doesn't care, the DA or law enforcement believes that the criminal is a high risk for being a repeat offender. This is especially true in cases where the collateral consequences of a conviction (e.g. disqualification from possessing a firearm) may help to prevent a future crime. Also, keep in mind that the DA is either an elected official, or a political appointee, or reports to someone who is. Usually, victims who get what they ask for from the DA build up political support. But, sometimes, a criminal case will be popular with the general public to prosecute even if the victim doesn't want that to happen. So, that is another reason that a DA might prosecute a case over the victim's objections. Conclusion Still, the basic thing to keep in mind is that prosecutors bringing charges over the objections of the victims are the rare exception, because prosecutors do care about what victims want, and to some extent see victims as proxies for being their clients, even though their true client is the government or the abstract concept of "the People." Also, victims who don't want to press charges are themselves pretty rare. | So first things first, whether or not Stand Your Ground is in play, the burden of proof is always on the State to prove any crime did happen and any defense does not. Another thing that I think you confused in your question is it seems apparent that you think Stand Your Ground is Self Defense. This is not true. In the United States, self-defense is always a legal right for a victim of a potential crime, regardless of if your state has Stand Your Ground or Duty to Flee laws. Self-Defense typically can include justifiable homicide as you are not privy to the intent of the bad actor. Under Duty To Flee laws, you cannot claim self defense if you could reasonably get away from a criminal action safely... if given the choice between fight or flight, you must flee the scene. Stand Your Ground contradicts this and says that if you are in a public place and a criminal is trying to make you a victim, you have every right to defend yourself without any duty to remove yourself from the situation first... basically at this point, you can make either choice and not worry about losing justifiable Homicide. Making a criminal arrest of a Stand Your Ground claimant at the seen is not necessarily required. While the claim may be disputed, in the case of firearms, using an illegally owned weapon is typically ground for arrest regardless... (probably not in cases where the illegal gun was introduced to the scene by the dead criminal... and the victim picked it up in a scuffle... though this requires some measure of sorting out). Legal Fire Arms are very well documented and the fire arm in question will be confiscated as evidence. If it is found that it was not a justifiable homicide, the person in question is probably at the address tied to the gun. Now, again, Stand Your Ground only applies to steps needed for Self-Defense, it is not self-defense itself. Self-Defense authorizes only the amount of force needed to safely resolve the situation, up to and including leathal force, but it does not require you to kill the perpetrator in every instance it is invoked. For example, if merely pointing a gun at a perpetrator is enough to stop the crime, you do not get to pull the trigger. That flips it back into homicide. Similarly, if I pull my gun and the guy advances anyway, I may fire and if the guy is on the ground and out cold (thus, no longer a threat), I don't get to walk up, and put a second bullet between his eyes, execution style. This too is murder. As a bit of anecdotal evidence, when I was living in Florida, I worked for a man who just recently purchased a firearm for self-defense (in the home only) and he said that when he was filling out paperwork with the police, the cop looking over his paperwork said, "Now remember, if you have to use that, shoot to kill. It's less paperwork for us." Now, I wasn't there when to cop said it, I don't know what his tone was. I took it as the cop being a little funny, but maybe a little inappropriate. I cannot speak to how much that is indicitive of FL Police culture. It was hearsay on my part... I just thouht it was funny and... demonstrates the attitude towards self-defense. Essentially, by the time cops arrive at the scene, they HARD PART is over... they merely have to collect evidence and take witness statements. If the shooter is cooperating and his story checks out, it will look very bad if they detain a crime victim who defended himself. It's just bad PR. Ultimately, his job is to collect all evidence, not determine if the case should go to trial. As I mentioned, the gun was legally owned in the specific case, and more than likely the CCTV tape is collected, but not yet viewed. Hindsight may be 20/20 but at the time, I do not think it's fair to say that the cop knew this might not be such a clear cut case. In such cases, the cop may not make an arrest because there is not any crime that he can charge the man with and he is cooperating. And keep in mind that in the heat of the moment for the shooter, he may not even realize he did something that might break his self-defense case. Cops can detain a person claiming Stand Your Ground for just about any legitimate reason, even suspicion of homicide that the detainee will claim is self-defense. | What can we do to dismiss such report? Does she just show up at a local police department telling them that she's fine and it was her own decision? In short, yes. She shows up at a local police station, tells her side of the story including the whole bit about things getting destroyed and her getting kicked out, cites the missing persons report, and make it clear that she's not missing but an independent adult who is free and making her own decisions. Since she's over 18, she can do that. (Bringing proof of age might be helpful.) The mystery of the missing person will be considered solved from the police side. She does not have to give a specific address where she's living, just convince the officer that she's OK and making an intentional decision to create distance between herself and her mother. She could also try calling (the same local station which is convenient to her current location) before showing up to see if that satisfies the officer, and only go in if needed. Would I get in trouble for being in a relationship with her daughter since I was 20 and she was 16? We had never met in person until now, to avoid any trouble. Shouldn't be a problem, as long as it's a mutually willing (non-coercive) relationship. Her mother said the police also wanted to talk to me separately. I do not want to get involved in this at all. Can I reject it? Yes, you can reject it. You do not have to answer ANY question a police officer asks; you have the right to remain silent and/or to say only "I have the right to remain silent." To reduce the probability that they'll even ask questions, you might prefer not accompanying your girlfriend when she goes to clear the missing persons report, if she goes in-person. This adds more weight to her assertion that she's going there to clear it of her own free will, not because you're forcing her. | Nobody can say exactly what happens. I would assume that everyone in the house would be considered a witness. They might ask your friend "did you ever see your roommate carrying computers, monitors etc. into your apartment"; something like that would be likely. It's highly unlikely that she would be treated as a suspect since she doesn't work where things have been stolen. If the police comes with a search warrant, I would expect that the search warrant would extend to the roommate's room and all shared areas, like the kitchen, a common living room and so on. It's unlikely that a search warrant would allow searching your friend's room. She might want to move anything that she doesn't want the police to see (like private photo albums) into her own room. She should definitely move anything that she doesn't want the police to see (like drugs, goods that she stole, illegal weapons) into her own room. And obviously they can search your room without warrant and without your permission; they are not allowed to, but unless you have a locked steel door, they can. That would be a violation of your privacy, and any results of the search couldn't be used as evidence against you , but I think they could be used as evidence against your friend. | If the police confiscate a weapon that isn't owned by the suspect, would they have grounds to keep it? Not forever. For example, let's say the gun was owned by a friend or parent? What if the gun was owned by a Trust with several trustees? Third party owners of property lawfully seized from someone else can recover it. For example, I once took legal actions to recover a gun for a client that was in a gun repair shop that was seized in a criminal investigation because most of the inventory of the shop where it was being repaired consisted of stolen firearms and the primary business of the gun repair shop was fencing stolen property (a fact of which my client was completely unaware and shocked to discover). But, that was only possible once the trial was over because the guns seized were part of the evidence in that trial. A similar process applies when there is a civil forfeiture of property owned by a third-party. Could the owner (personal or trustee) recover the gun from police custody independently of a court finding on the suspect? Sort of. But it isn't entirely independent, since the firearm might be needed as evidence or might need to be kept out of the possession of the person from whom it was seized to effect the red flag order while it was in place in a way that that the third-party owners would have to assure. An example might be where a gun is confiscated via red-flag law, where no crime has been committed, but the suspect won't get his day in court for 6 months. Would the true owner, or partner owners if in a Trust, be denied their property or could they go ahead and recover it pre-trial (ie. the day after it was confiscated)? In the case of a red-flag seizure, the existence of the gun wouldn't be evidence in the court proceeding, so it wouldn't have to be retained for that purpose prior to trial. But, the owner of the gun would probably have to petition the court to regain possession and would have to demonstrate that the red-flag order would continue to deny the person who had the gun possession of it until the red-flag order period expired (if ever). If the trustee was the red-flag order target, or was someone related to him (or her), that might be a showing that the trustee could not make. Caveat Of course, red-flag laws are specific pieces of state legislation. Each one is different. Many would provide a specific statutory procedure for how this issue would be handled. For example, in some places, the proper means to regain possession of property held by law enforcement in connection with a criminal case is a motion filed by a third-party intervenor in the criminal case, while in others, the property process is to bring a civil action for replevin (a lawsuit to regain physical possession of particular items) against the law enforcement officer in possession or constructive possession of the property in question. | There is no legal theory of which I'm aware which would allow a host to confiscate a guest's property without consent and consideration. Even if the host intends to return the property and both parties know this, the host still can't keep it even temporarily after the owner demands its return. File a police report, press charges and sue for damages. Take Indiana as a perhaps representative example of what you could expect in the US. See http://www.myindianadefenselawyer.com/criminal-charges/theft-shoplifting/ . Theft is knowingly depriving a person of their property with the intent to permanently deprive them of it. Conversion is knowingly depriving a person of their property without an intent to permanently deprive them of it. Both are crimes, though the former is a felony and the latter is a misdemeanor. | It depends on the jurisdiction (naturally). The answer for Washington is "No, not exactly". RCW 9a.83.030 states that "The attorney general or county prosecuting attorney may file a civil action for the forfeiture of proceeds". The police can seize real property, but must file a lis pendens regarding the property. The bar that has to be cleared for forfeiture is "probable cause". The Institute for Justice has an extensive analysis of civil forfeiture, especially with a state by state summary (they aren't positionally neutral on forfeiture, but they are legally respectable). Then after a inevitable judgment (90 days if the judgment is sooner), the property is transferred. Notice is to be "served within fifteen days after the seizure on the owner of the property seized and the person in charge thereof and any person who has a known right or interest therein, including a community property interest", so they would notify Bob (assuming they know Bob is the real owner). Or, if Bob learns of the seizure that "If a person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of property within forty-five days of the seizure in the case of personal property and ninety days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right". It is possible that Bob's property could be taken (nothing prevents it), especially if Bob's hands are unclean. | There are some complexities here, and several possibilities. First of all, it seems from the question that: There were not any "exigent circumstances" or any other special situation which would justify making a search without a warrant (there are several circumstances which can justify a warrantless search, but none are mentioned in the question). The police had no probable cause, indeed not even any reasonable suspicion. Thus the police had no valid reason even to request a warrant, and if they had asked for one, they should have been refused. No resident of the house consented to any search at any point. The police had no honest belief that they were acting lawfully. They knew, or any reasonable police officer should have known, that they were acting unlawfully. Now, let us consider some of the possibilities left open by the question. For purposes of discussion, let us assume that the house was owned by Bob and Carol, and no one else lived in it. There are several possibilities. Case One: The evidence appears to implicate Bob. Bob is charged, and Bob's lawyer Joan makes a timely motion to suppress the evidence. The judge should hold a suppression hearing, and under these conditions, should suppress the evidence. The trial will go forward without it, or be dismissed if there is not enough other evidence to proceed. Case Two: Much like Case One, but another group of police officers had good reason to suspect Bob, and was already in the process of preparing a request for a warrant, supported by valid probable cause. Had the first group not searched the house unlawfully, the second group would have obtained a valid warrant and found the evidence under its authority. In this situation, known as inevitable discovery the evidence would be admitted, and the unlawful search will not matter. Case Three: The evidence implicates Fred, not Bob or Carol. Fred did not live in the house, but had asked Carol to store some boxes for him. Carol did not know what was in them. Fred has no privacy rights to the house. Bob or Carol could have lawfully consented to a search, and Fred would have no grounds to object. Fred has no grounds to suppress the evidence, as Fred's rights were not violated, and Fred cannot assert Bob or Carol's rights. A trial of Fred would proceed as if the search had been lawful. Bob and Carol may have grounds for a Section 1983 lawsuit against the police for violation of their rights, but that will not help Fred. Case Four: The evidence appears to implicate Bob. The police arrest Bob, and tell him that they have a case against him, and that if he does not confess, they will also arrest Carol as an accomplice. (They lie, but Bob believes them.) Bob pleads guilty. The unlawful search is never raised, and Bob is sentenced as if it had been lawful. Case Five: The evidence appears to implicate Bob. Bob's lawyer Joan fails to request a suppression hearing, or to object at trial to the evidence from the unlawful search. Or more likely, instead of going to trial, Bob's lawyer arranges a plea bargain without raising the issue of the search. Bob is convicted as if the search had been lawful. Bob may have a valid appeal on the grounds of ineffective assistance of counsel, as Joan should have known better. Case Six: The evidence appears to implicate Bob. But the police have other evidence as well. Bob's lawyer raises the issue of the unlawful search. However, the prosecutor convinces Bob's lawyer Joan that they can probably convict Bob even without the evidence from the search. Joan arranges a plea bargain, and Bob accepts it. Bob will be sentenced under the plea deal, and nothing will be done about the unlawful search, except that Bob may get a somewhat better deal because the authorities do not want it exposed in court. Note that only in cases One and Five will a possibly guilty person possibly go free because of the unlawful search, and it is by no means certain even there. It is also possible that a judge will wrongly admit the evidence in a Case One situation. This is likely to be corrected on appeal, with the unlawfulness as blatant as the question assumes. In a case where the unlawfulness is more marginal, this is less sure. |
How to get my money back from hotels.com, paid for non-existing apartment? December last year, I was going to stay in Oslo from the 2nd to the 10th, and booked an apartment at hotels.com a few days in advance. Soon after booking I got an email stating that the order was confirmed and a booking reference. A little later I got an automated email with a picture of the building entrance, and detailed instructions about check-in procedure. I arrived in Oslo late on December 2nd, went to the address of the apartment and verified that the entrance was the same as in the picture I had previously received in the check-in instructions. According to the instructions, there was a key-box near the entrance. I found this, but the code that was supplied did not work. At the time it was minus 15°C outside, so I thought maybe the key-box was frozen. I was unsure what to do at this point, but I ended up ringing the doorbell to the apartment that I was supposed to stay in. After a while, a person came out. He informed me that these apartments were no longer rented out, and that he had been living there for the last half year. He let me inside the entrance, so that I could stay inside while calling the support number in the booking confirmation. I called the support number and reached a person on the other end, this was apparently at a support center. In the beginning he did not know what I was talking about, but after explaining for a while, he did recall that they had previously been handling support for this address. He informed me that whomever was renting out the apartments were no longer in business, and he could not help me find any place to stay. Since I had nowhere to stay, and it was minus 15°C outside I simply had find somewhere else. I searched the nearby area and luckily there was a Scandic nearby and they had a room available. The next day, I went to the hotels.com support website. There was no email listed, but I found a phone number. After waiting for a while I got through to another person. I had a hard time understanding what the support person was saying, but managed to communicate the situation. My confirmed booking was found and I was told a refund would be in place within 10 days. Fast forward 13 days, and nothing has happened. So I call support again, this time there is person on the other end that I can more easily understand. I explain the situation. He gathers my booking references and so on, then works for a long while. Eventually finding out that the previous call was logged, but there was no other information available. He informs me that, before a refund is given, they have to figure out what happened. I ask him if he can see that my booking was confirmed and that they received payment, to which he confirms. I ask him when I can expect a refund. His reply is pretty vague, but I understand it will be a few days at least. Next I ask to get a confirmation email from the current call stating that the situation has been registered. The email is received shortly after the call ends, it is in Swedish, but basically states that that the matter is under investigation (this also gives me a way to contact them back by email). Four days later I get a new email from support. I'm asked to describe the situation, what happened at check-in and provide details from where I ended up staying. I reply with the information as requested. The following day I get another mail stating that they are still waiting for a reply "from the original business to business email address". Fast forward a month until mid-January: still nothing has happened. I sent a new email a week ago asking for a status update, but no response so far. I'm pretty sure I'm legally entitled to a refund, but please let me know if I'm mistaken. Nevertheless, the amount is not huge (about 900USD), so if they decide to bury this in delays and paperwork then at some point I have to say the time spent on trying to get it back is not worth it. So is there any legal action I could take? And importantly, would it be worth it given the amount and the time I would have to spend, or should I just consider it lost? Edit: Booking and location is all inside Norwegian borders. According to google, hotels.com has HQ in Sweden | You are entitled to a refund, since the "hotel" breached their contract with you. You can sue both the booking company and the individual, though identifying and serving legal notice on the individual will be more difficult. The amount in question is well within the scope of small claims court in Norway. The biggest challenge there is that you have to first contact the local police to get a hearing with the local Conciliation board. You might also sue the booking company in your own location (which would be easier), though depending on how you made the booking they might not be liable. On the third hand, the time between the complaint and now is relatively short and does not yet reach the level of being "an unreasonable delay". As for whether the cost would exceed. You will have to shoulder the burden of the filing fee, which can be added to your award in the case of a judgment in your favor. | Is there any way I can persuade the new landlord to start renting apartment as close as possible to the end of 30-day period? If you already signed a contract with the "immediate move-in" clause, it is going to be difficult to persuade the new landlord. That is because the landlord would have no incentive to postpone his source of income and there is no statute or legal provision available to you on that. If you have not signed the contract, then you two can still negotiate until either party leaves or you reach an agreement. Under contract law, the latter is referred to as knowingly and willfully entering a contract. | It is the tenant's responsibility to understand the written contract. Oral statements about the contract do have to be consistent with the written contract (that is, in the context where you ask the landlord what a particular clause means before signing -- not in the case where you are modifying an existing contract). If I were renting a room and the contract says "Du må betale $1000 hver dag", which I don't understand because my Norwegian is terrible, I would ask about this, and the landlord might say that it means "You must pay $1000 every month", which could be a decent deal. Actually, the clause says "You must pay $1000 every day". When the reality of the situation becomes clear, then it is obvious that we didn't have an agreement in the first place. Perhaps he mis-spoke, or his English is as bad as my Norwegian, but I would not be held to rate in the written contract, assuming that I could back up my claim that he gave me that interpretation: the lease would probably be voided, as not an actual agreement. The underlying principle is that there has to be a "meeting of the minds" where the parties understand what they will get and what they must give, and there was a demonstrable failure of understanding. On the other hand, if I sign a contract without really reading it carefully, and there is a clause in English (which I speak) saying that I have to pay $1000 a day, but I didn't really think about the clause so that in a sense I didn't understand what I had agreed to, well, I may still be on the hook. (On the third hand, a court would probably say that's a ridiculous rent and void the contract on policy grounds). In general, "not my first language" is not a get-out-of-contract card, though attempts to trick people into signing documents in languages that they really have no understanding of won't be successful. Virtually nobody but a lawyer actually understands contractual language, yet contracts are enforced all the time. A contract can be explicitly modified by verbal agreement, or can be entirely verbal, but oral agreements face evidence problems, namely, what exactly did A and B say? It's scientifically well established that parties can be morally certain that the conversation went "A" (for one person) and "Not A" (for the other person). Using "could" rather than "would" in speech makes a huge difference in interpretation. There is a rule, the parol evidence rule, which essentially says that unless there is a good reason to not do so, the contract as written is what is enforced. Even if the conversation had been written into the contract, there's no basis in the contract for objectively determining whether a thing is old and "just broke". So even as an additional clause in the contract, it doesn't afford you a clear escape hatch. You might be able to prove with expert testimony that indeed the pipes had been corroding for a hundred years, and you could not have caused the pipes to burst. | Just think of the subtenant cum owner as two separate people with two separate roles. Tenant = T Subtenant = ST Old owner = OO New Owner = NO The rights of the tenant vis-avis the new owner will be informed by the lease and the local laws. Generally, if the sale happens in the middle of the existing lease, the NO is obligated by the terms, as is the T. NO cannot just kick T out, and T cannot just break the lease. The lease may say what could happen and local laws will apply. Likewise, ST has whatever contract with T that previously existed. Pretend NO and ST are different people. If T owes NO $1000 per month, and ST owes T $400 a month, that continues even though ST and NO are the same person. Depends on what kind of dispute. See above. All contracts continue, subject to whatever the lease with the original owner and the subtenancy agreement say abut modifying or breaking the lease and sublease. Local laws apply. Note, if the subtenancy was "off the books" or was done when not allowed by the original owner, and if it was not in a place that the local law says owners cannot deny subleasing, then tenant might not have any protection. ST, now that he is owner could just move out and stop paying. On the other hand, even if he is the owner, he cannot just say "I am the owner now, so I am moving back in for free" because the original lease gave the tenant use of the whole property. But ST could just drop out because T always owed OO, and now NO, the full rent. Do you mean if rather than sublease, they were both on the original lease? Interesting, but just imagine it as the obligations before the sale = the obligations after the sale. I don't know though. There are some tax implications for an owner occupied rental. | What the landlord is doing is forcing you to abide by the terms of your lease agreement. You most likely agreed to a 1 year lease on a signed document, which means you're pretty much screwed because if he wanted to, he could force you to fulfill the lease and pay him anyway. However, his remarks about when you can notify to terminate are wrong. See end of answer. About Terminating Your Lease Early However, there are a few loopholes you can exploit. The easiest one is to get him to increase your rent. Ask about it, tell him that you're considering staying but tell him you want to know if he's going to increase the rent by much. If he declares that he is going to increase the rent, perfect. Get him to send it to you in writing (which he is legally required to do). Just in case though, have him on speaker phone and record every conversation you have from now on without telling him. This is legal (see this answer) and is a powerful form of evidence, so exploit the hell out of it. If you can get him to tell you that he's going to increase your rent, then you can legally submit a notice to terminate tenancy on the grounds that you do not wish to pay the increase. In this case, the amount of notice that you have to give is capped to the day that the rent increase is to take place. If you try this, do everything you can to get it in writing. Don't feel proud of snaring him and immediately announce that you're leaving because of this as soon as he says it on the phone, because you're screwing yourself out of going through the proper channels to make sure you not only win, but you've made your case air tight. Also, feel free to let you landlord know that he owes you money. Landlords in Ontario have to repay you a capped interest rate on your last months' deposit every 12 months. This rate is decided annually and for 2015 is capped at 1.6%. If your landlord wants to be anal about the rules and stick the letter of the law to you, do it back. Becoming a pain your landlords ass is a great way to get them to either become more flexible, or make a mistake that will give you an out. Notice that if he does increase the rent, he can demand that you increase your last months deposit and force you to pay it. You could "accidently" make him aware of this right in a conversation where you are concerned about a rent increase immediately after letting him know that he owes you money for the interest. "I'm concerned about the rent increase because I have to increase my deposit by law too." This way, he'll hopefully have the thought "I can avoid having to give him any money by increasing his rent by the same interest rate, so he'll owe me what I owe him, therefore I owe nothing. I'm so smart!" Then he cheerfully gives you a notice to increase rent, at which time you invoke your right to terminate tenancy on short notice due to an increase in rent. Your Landlord Is Wrong All that aside, your landlord committed an illegal act when they refused your notice to terminate, because he's denying you your rights under the RTA. From the Residential Tenancies Act: A tenant may terminate a tenancy at the end of a period of the tenancy or at the end of the term of a tenancy for a fixed term by giving notice of termination to the landlord in accordance with section 44. 2006, c. 17, s. 47 The details adjust a little bit depending on your circumstances, but the conditions in section 44 are basically to ensure the following: You are giving 60 days notice. You are not giving 60 days notice where the termination date you provide is less than the previously agreed term, except in special cases like the one I mention about increased rent. There is nothing in section 44 that can be confused to mean that you must wait until you have passed the end of your term before you can decide to leave. I suspect your landlord is deliberately interpreting the use of wording like "may terminate at the end of" to imply you have to wait to give your notice. A notice of termination is not a termination. It is a notice that in the future, you are going to terminate. Let's remove the confusion by replacing the word "terminate" with "vacating the premises and not paying another cent". That should remove any ambiguity that could be abused. So frankly you can simply go straight to the board, file the appropriate form with them and just pack up and leave when you've reached the date specified in the notice to terminate. Your final month is covered by your deposit. File the form immediately, let them know about the conversation you had with your landlord, then go to your bank and cancel the cheques you've already written (except for your deposit cheque) and simply ignore the landlord, carrying on with your moving plans. You should ask the Board if this illegal act has any ramifications. Perhaps because he has done this, this gives you an immediate out or something else. Call the Board and tell them what happened and ask them. They have an obligation to inform you correctly. Sources: Landlord Tenant Board of Ontario FAQ Final Note The Board is there to serve you, free of charge. They have a duty, as it is their explicit directive, to assist you in all matters regarding being a tenant. Phone them, talk to them at length, demand assistance. They are to inform you of your rights and guide you on the appropriate action, forms and procedure to assist you in resolving any issues you have. Note that I wrote the whole bit about getting out of your lease early legally before I refreshed my memory on the fact that you can/should give your 60 days notice before the end of your lease period. That makes the case much simpler as a I note in my answer. I left the information I already wrote however because it could be applicable or at least be of some help to others. Also note that if you're saying that the landlord came to get more cheques on the basis of his lie that he used to refuse your attempt to legally leave, then you'll need to cancel those cheques. That costs money. That alone is enough of a case to take him before the Tribunal and force him to repay the cost of those cancelled cheques. You may even successfully claim further damages or the Tribunal may voluntarily award you money for the actions your landlord is deliberately taking to deprive you of your rights. Talk to the Board. | There's a lot of variables here, as many leases are built in different ways within the leeway allowed by law. You will want to contact a local lawyer to see how you can mitigate the damage to yourself, and contact your landlord and see if you can re-negotiate the lease. If the landlord doesn't want to re-negotiate, you're probably facing eviction if you can't come up with the full rent by yourself; many leases don't allow non-related adults to live on the premises if they're not on the lease (this can also result in eviction). However, your roommate will also get an eviction record and be responsible for any damages if the lease survives long enough to cause an eviction. Actually having a random person move in from Craigslist might also cause your roommate to suffer additional liability if they're not allowed to sublet their lease agreement, which many leases do not allow (landlords like knowing who's living on their properties). Having them move in might cause both you and your roommate to be evicted. You probably don't have any rights to sue your roommate until actual damages occur (in other words, after you've already been evicted). You should speak with your landlord as soon as possible to get a new lease. An eviction record will cause problems for your roommate as well, so you might urge them to consider staying long enough to get things sorted out legally. When you ask your landlord, simply ask something like, "My roommate wants to move out. What are my options?" They will tell you what they are willing to accept. | Theft is of course illegal in all US states, and pretty much every other jurisdiction. In the US that is a matter of state law, not federal. It could be reported to the local police, but it might be hard to prove. Both landlord/tenant law and privacy law are largely matters of state law in the US, not federal law. Such laws vary a good deal in different states. In many states a landlord is allowed to enter the rented premises, usually on "reasonable" notice, or without notice if there is an emergency. If the landlord actually lives in another part of the house, and simply rents a room to the tenant, the landlord may be able to enter the room more freely than if it was a separate apartment or house. In many cases where there is a written lease or rental agreement, it will specify under what conditions the landlord or landlord's agent may enter, and how much notice is required. What does the lease in the current case say about that? | You signed a contract where you agree to not have pets and the landlord agreed to let you live there. If you decide to not follow your end of the deal, the landlord might not either. In simple terms, you can get evicted. There is probably a clause in the contract to the effect of "you will get evicted if you don't follow these rules". Depending on contract and local law, you may also be fined, forced to remove the pet, or have your security deposit withheld. One reason landlords don't want pets is that pets leave odors and fur in the apartment, requiring costly cleaning. Not to mention some cats love tearing up the carpeting and otherwise destroying the property. Thus the deposit is used to "repair the damage" caused by the pet. Some landlords charge an additional pet fee for tenants with animals, so if you secretly keep a pet you are cheating them out of the fee as well. If you want the cat for several months or more, then you probably shouldn't try to hide it from the landlord. There is a big risk you will be discovered and suffer repercussions. The landlord may also refuse to renew your lease later. In theory, and depending on your tenant, you could claim that the cat was there for a day and it will be removed right away. But as I said, landlords are concerned more about the damage to their property than policing you, so once the landlord gets suspicious (probably already happened since you asked him about it) they could inspect the place and demand you pay for damage regardless of how long the cat was supposedly there. Well being of the cat is unlikely to create an exception to the contract. However, you could have some recourse by claiming that the cat is an emotional support animal and vital to your well being. I am not familiar with the process for this in Austria, but presumably it will involve paperwork from a psychologist verifying the fact. Simply saying you really like the cat and don't want to give it away will not be a sufficient reason - you initially agreed to not have pets, so it can be argued that you should not have taken one in to begin with. I love cats too, but you probably shouldn't do it if your landlord already told you no. You could end up in a situation where you are forced to put the cat in a shelter, which wouldn't be good for the cat. If your landlord won't budge, your best option is to move somewhere else. |
Who to sue if hit by an autonomous vehicle? My understanding is that if one has a collision with another vehicle in which the other driver is at fault then you can sue the other driver for the loss incurred. If the other driver was employed by a company and driving a vehicle owned by that company then that company is likely to pick up the bill, but the suit would be directed at the individual in the first case. This would be the case whether the collision occurred on private or public land. There is currently a fully autonomous shuttle driving around a privately owned campus in the UK. It has a habit of starting off after picking up passengers while it is being overtaken, in a way that is contrary to the highway code guidance. I think a human driver would be at fault if they drove in this manner. I think this vehicle is owned by a French company, operating under a contract with the owner of the campus and supported by multiple organizations on and off site. It is insured and heavily sponsored by Aviva such that this is the prime company one would associate with the vehicle from viewing it. If one had a collision with this vehicle in a way that a human driver of that vehicle would be at fault, who should one sue? | [if] the other driver is at fault then you can sue the other driver for the loss incurred. If the other driver was employed by a company [...] then that company is likely to pick up the bill... Not necessarily. I would say that losses are usually covered by the at-fault driver's insurance (or the MIB if uninsured). Either way, according to the OP's link "the shuttle is insured by Aviva" so they would seem to be liable under section 2 of the Automated and Electric Vehicles Act 2018: Liability of insurers etc where accident caused by automated vehicle (1) Where— (a) an accident is caused by an automated vehicle when driving itself on a road or other public place in Great Britain, (b) the vehicle is insured at the time of the accident, and (c) an insured person or any other person suffers damage as a result of the accident, the insurer is liable for that damage. | Astronauts are employees of the government and are thus barred from suing in lieu of receiving the government equivalent of worker's compensation. This wouldn't bar a suit against a third-party contractor who made a defective product, but I suspect that their contracts contain a waiver of liability for negligence or defective products given that this is highly experimental technology. Certainly, it would not be homicide as it was an accidental death of someone who consented to the high risk of accidental death involved. The dog would have been the property of the government, and the government wouldn't sue itself for damages to the dog. The harm that comes to animals in legitimate scientific research is not considered cruelty to animals as it is justified by a higher legitimate purpose and not for the intent of gratification of someone who enjoys torturing animals and would have been cleared by a scientific ethics committee in advance. | I can't speak directly to South African law. I am an American (but not a lawyer). Much of the relevant American law is derived from English common law, and I will assume for the purposes of this answer that this is true for South African law as well. In this example, you lent a car to a friend, and from the sound of it, primarily for the friend's benefit. (If it had been an "exchange of favors," and s/he let you use a beach house in return, a different "standard of care" would apply.) Because of this fact, your friend owes you a high standard of care for your car. Even "ordinary" wear and tear would be too much. Basically, your friend was responsible for the car's "upkeep," and was supposed to return it to you in as nearly the "original" condition as possible. Not having done so, s/he could be liable to you for getting you a "new" car of the same make, or at least a car that was no older, and had no more miles that yours had, when you lent it. | The judgement actually gives reasons: The criminal law insists that every person driving a car must attain an objective standard measured by a skilled, experienced and careful driver. That is shown by McCrone v Riding ... the standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the driver. And the judgement goes on to quote R v Evans [1962] 3 All ER 1088: if a man in fact adopts a manner of driving which the jury think was dangerous to other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best. [Such considerations are] highly relevant if it ever comes to sentence. Primarily, it is to protect other road users. It is only on the matter of guilt that skill and experience are irrelevant. When it comes to sentencing, it may be a factor. And, if I might add my own interpretation, part of the reason that the skill of the driver is irrelevant is that the other users of the road cannot know whether a driver is skilled and experienced - they must therefore be able to expect this, and the law reflects this expectation. As much as we complain about other road users, we only complain because we expect them to meet a certain standard - we most likely would not complain if we truly expected them to be incompetent. | Are you at fault for the fact that Car C read ended you? Close call. A jury could go either way. Can this accident which is now appearing on your insurance be disputed as Car A did not report anything? Essentially I'm just wondering what the odds are that this can removed from Car A's record. I think that it is unlikely that the situation you suggest would happen, even though anything is possible. Usually there needs to be a claim of actual damage for an insurance company to treat it as an accident. The usual rule is "no harm, no foul" (unless someone is cited for a traffic violation). Insurance company accident records are not regulated to the same extent as say, credit reports. You could threaten to sue the company for negligent misrepresentation, or the driver of Car C for defamation, in order to try to get this statement removed, but those would be hard cases to win since you are at least arguably at fault and fault is to some extent a matter of opinion. It would be much easier to win a suit like that if the accident didn't happen at all. Here, it would be undisputed that an accident happened at a particular time and place involving certain cars and drivers, and the dispute is only over who was at fault. | While it is not illegal to own, it may still be illegal to ride on public property. Private property owners can ban them even if they were legal and need to be consulted individually. I have been unable to find out if new laws spoken about have been passed in New York since the beginning of the year. Based on what I have found (as of the end of 2015), it would be best to consider that they are illegal to use on public areas just as any other unlicensed motor vehicle. As of November 2015 Some property owners have banned them for liability reasons, as it is easy to see how a rider could trip on a bump or unexpected curb. And although they have taken the Upper East Side and other parts of New York City by storm, the state classifies them as motorized vehicles that cannot be registered, so riding them in public can incur a steep fine. Earlier this week, the NYPD's 26th Precinct tweeted: "Be advised that the electric hoverboard is illegal as per NYC Admin. Code 19-176.2*." and December 2015 some lawmakers were talking about making them legal. Truth or Fiction Collected on: 12/28/2015 gives the following summary A spokesperson for the New York City Department of Transportation has explained that the law’s definition of “electronic personal assist mobility device” was broad enough to include hoverboards, and that they would be regulated as such. In NYC, because the population is above 1 million people, electronic personal assist device riders must be licensed, and the devices must be registered with the New York State Department of Motor Vehicles. Hoverboards are illegal, the spokesperson said, because the NYSDMV would refuse to register them for legal use: NYSDMV’s position is that these vehicles are likely “Electric personal assist mobility devices.” NYS Vehicle and Traffic Law 114-d defines “Electric personal assist mobility device” as “Every self-balancing, two non-tandem wheeled device designed to transport one person by means of an electric propulsion system with an average output of not more than seven hundred fifty watts (one horsepower), and the maximum speed of which on a paved level surface, when propelled solely by its electric propulsion system while ridden by an operator weighing one hundred seventy pounds, is less than twelve and one-half miles per hour.” NYS VTL 125 generally defines “motor vehicles” as “Every vehicle operated or driven upon a public highway which is propelled by any power other than muscular power.” However, VTL 125 specifically excludes some classes of vehicles from the definition of “motor vehicles.” Under VTL 126(a-1), “electrical personal assistive mobility devices operated outside a city with a population of one million or more” are not considered motor vehicles. However, in NYC, because the city population is greater than one million, NYSDMV considers “hoverboards” that meet the definition of “electric personal assist mobility devices” the same as motor vehicles. Based on that interpretation, it would be illegal to operate a hoverboard in NYC without a valid license to drive a motor vehicle. Beyond that, the motor vehicle would need to be registered by NYSDMV (which NYSDMV will not do), inspected, insured, and otherwise treated as, and subject to regulation like, any other motor vehicle. A person who operates a hoverboard in NYC (or any other NYS city with a population greater than a million) would be subject to arrest and prosecution for myriad NYS VTL violations, including, but not limited to, driving a motor vehicle without valid registration or insurance. | Bearing in mind that you are legally required to have liability insurance in Wisconsin (or a surety bond), and the reason for that is so that people can know with reasonable certainty (and not just hope) that if someone plows into them the guy at fault will cover the damage, you would expect that insurance policies can't be written so that the insurance company can wash their hands of the matter. So per Wisc. Stat 632.32(6)(b) in the liability insurance section of state insurance law, No policy may exclude from the coverage afforded or benefits provided... Any use of the motor vehicle for unlawful purposes, or for transportation of liquor in violation of law, or while the driver is under the influence of an intoxicant ... | The NHTSA gives rules for the United States. Right of way goes to the first person to stop. So if a line of cars were at both stop signs, and all cars wanted to make the same conflicting turns, they would alternate. If the opposing cars stop at the same time then the one turning right has the right of way. (This is because a right turn falls under the "Straight Traffic Goes First" rule.) |
Can opt-in/opt-out checkboxes be deliberately obscure? Is this legal in the UK: hollywood bowl's sign up page asks for confirmation like this unless you tick the relevant box(es) below (or subsequently unsubscribe), you will receive exclusive discounts, offers and updates from us. [] Email [] SMS [] Phone The default state is that none of the boxes are checked which, according to the confusing wording of the paragraph, would mean that you are by-default opted-in to all promotional messages. Are there any legal problems with this method of collecting permission for promotional spam? | Not Allowed Under the GDPR The suggested method does not seem to comply with the GDPR, and would not be lawful for a Data Controller that is subject to the GDPR. Specific Provisions Let's consider some specific provisions of the GDPR: Article 4 Article 4 paragraph (11) states: "consent" of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her; If the choice is "obscure" then it is not clear, and legal consent has not been given. Article 7 Article 7 paragraph 3 reads: The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent. It does not appear in the situation described that the data subject has been clearly informed that consent is being given. Recital 42 Recital 42 reads in relevant part: In accordance with Council Directive 93/13/EEC a declaration of consent pre-formulated by the controller should be provided in an intelligible and easily accessible form, using clear and plain language and it should not contain unfair terms. ... Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment. The specified means do not seem to comply with R42 Recital 32 Recital 32 reads: Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject’s acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. ... If the data subject’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided. The format in the question seems to rely on inactivity as a way of giving consent, and is surely not clear. | Can't we get a legal action about AdBlocker as web masters? No. I assume that by "web master" you mean a server admin who contracts with entities which are seeking to advertise their goods and services. An advertiser pays the server to transmit (or send(), in terms of a socket API) certain content to whoever submits a GET or POST request ("the client"). The scope of the contract ends there, and the end consumer or client is not a party to that contract. Any point beyond the server admin's routers, it is perfectly lawful for end users to run some program on the client side where the purpose of that program is to (1) parse any packets received in the client socket, (2) filter out some of it, (3) and forward the rest to a browser. Bringing legal action against AdBlocker would be somewhat akin to suing producers of TV remote controls under the allegation that the mute button functionality blocks advertisement content. | Is it legal in the US for a company that rents out car parking spaces, to bundle the renting of a parking space to buying insurance for the content of the parked car? Yes. Honestly, I'm a little surprised that I've never see this practice in real life. All things not prohibited are allowed, and there is nothing, per se illegal about bundling services and requiring them to be purchased as a package deal (there may be some licensing issues for insurance sales involved, but those would probably be easily overcome). Sometimes bundling gives rise to an anti-trust violation, but neither the parking lot operation business nor the car insurance business are so consolidated that this would fairly be viewed as some kind of anti-competitive practice. | 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. | The second paragraph actually says that your e-mail address will become public record if you send an e-mail message to them. That's because there's a Florida law that requires this. If you want to communicate with the school without your e-mail address appearing in the public record, you can call on the telephone, send postal mail, or visit in person. The notice is precisely there to inform you of the fact that sending e-mail to the school will have this effect, and it helpfully mentions one of the ways you can avoid that outcome: If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone. If you think about the nature and purpose of public records laws, you will perhaps understand why the Florida law does not speak of consent or allow those corresponding with affected entities to opt out. If that were possible, then people who were conducting improper business with the public entities would withhold consent or otherwise opt out, making the public records law useless in the service of its goal of increasing transparency in government. | The specific reason why you can't deliver general fliers in mailboxes is 18 USC 1725, which says Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined under this title. Misdirected mail has the requisite postage, therefore you can put it in the mailbox. | Section 3(a) of the Uttar Pradesh Unauthorised Lottery (Prevention) Act of 1995 states that.. No personal shall promote or conduct any lottery... No distinction is made in the Act between physical and on-line lotteries, but whether this law is actually enforceable for using non-jurisdictional websites will depend on the circumstances and available evidence - which is another (and potentially off topic) question. https://www.latestlaws.com/bare-acts/state-acts-rules/state-laws/uttar-pradesh-unauthorised-lottery-prevention-act-1995/ | Canadian law defines "theft" thus: Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (to deprive the owner, pledge as security, mess it up) In this case, you accepted what seemed to be an offer of a free pizza, so if you took and consumed the pizza you did so with a colorable claim of right and without fraud. Perhaps you misunderstood, but it is not a crime to misunderstand another person's intent. They could sue you for the cost of the pizza (assuming that you took it and did not pay), in which case the question would be whether whatever they said to you could reasonably be interpreted as an offer of a free pizza (if not, pay for the pizza). As an advertising stunt, this would not be unusual. However, if they fix the pizza but then demand money before handing over the pizza, you now know that you have no right to the pizza (if you abscond with the pizza in that circumstance, it would be theft). You may of course pay for the pizza, but you can also not pay and not take the pizza. Again, they could sue you, and in this case your defense would be that there was no contract (no agreement). An important question would be how reasonable it is to believe that you were offered a free pizza. People are offered "free" steak dinners all the time (at the cost of sitting through a sales pitch), so that is a reasonable belief. If a Lexus yacht salesman appears to be offering you a free $5M yacht, it is not reasonable to think that this is an ordinary advertising stunt, if you're not a celebrity. |
Is signing a contract addressed for someone else enforceable? I recently had to sign an NDA and non-compete. Originally, HR mistakenly had a different employee's name as the "Employee" which was then used to refer to this person throughout the contract. There was a cover sheet addressed to me, but the actual contract was for someone else. I pointed out the mistake and received a corrected copy which I then signed. It did have me thinking, though, what the legal implications of this would have been. If I had hastily skimmed the contract before signing and not noticed, is this NDA enforceable? Could I have had any liability for signing for someone else? If I were to leave and join a company which they took issue with via the non-compete, would the contract hold up in court since it was addressed to someone else? | The contract would be binding Many people make the mistake of thinking that the document is the contract - it isn’t. The contract is the binding legal relationship between the parties of which any documents are just evidence for. As this is a simple mistake on the document misidentifying one of the parties, it’s irrelevant. You and the company are clearly the parties to the contract - you because you signed it and they because they sent it to you. Minor errors in one or more of the documents that make up a contract are immaterial. | on behalf means that the party of the agreement is the landlord, not the property manager. The contract both entitles and obliges the landlord, not the property manager. The property manager is not a party of the contract. So the fact that the property manager is fired completely unrelated to the existing contract. Additionally, in most jurisdictions that I know of, even if the property changed ownership (the landlord sold or gifted it, or the landlord died and it was inherited by someone) the contract would still be in force, as the change of situations would not invalidated the rights and obligations of the other parties. | 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. | Those two situations should be legally equivalent. The key thing is that you intend to agree to the contract, and are taking physical steps that are intended to manifest your agreement. If you had added an electronic signature to the PDF file, and transmitted this to the company, it should also be legally equivalent, and just as binding as the pen and paper method. | Yes Unless your business is a sole proprietorship it operates as a legal entity seperate from its owners. It owns its assets an acrues its own liabilities. It can be sued and it can sue others. It can also agree to its own contracts. Typically the only thing a legal entity that is not a natural person cannot do is sign a marriage contract. Depending on the industry there may be no need to sue. There exist many mandatory workplace insurance to cover accidents in the workplace. You may have to share details of the injury with them but they may be uninterested in whos at fault. | How to send a document restricting its spread? In theory you could have the company sign a Non-Disclosure Agreement (NDA) prior to sharing the details of your project. However, your chances of enforcing the NDA seem negligible except maybe for George White's suggestion about a patent application. It is otherwise in your best interest to think of another way of showcasing your skills set. Assuming that the company signs your NDA, you have no realistic way to prevent the company from misappropriating (i.e., stealing) your idea(s). You will have no access to the company's systems to ensure that it has deleted all copies and records that could result in unauthorized disclosure. Even if you find out that the company misappropriated your information, it could be too late because the statute of limitations expired, and/or too costly --not just in terms of money-- to bring court proceedings for misappropriation. | A noncompete clause is a section of a contract whereby one party agrees not to compete with another party. These agreements are usually (always) limited as to time, geography, and scope. In other words, if you had a dog-walking business in your neighborhood you might like to hire someone to help walk some dogs. You'd like this person to agree not to compete with you. You charge people $10 per walk and you pay this person $5 per walk so you want to stop them from walking your customers' dogs for $7. In order to get the $5 per walk from you, your employees agree to not go into the dog walking business in your neighborhood for one year. Cat-sitting? Fine. Walking dogs in other neighborhoods? Fine. Walking dogs in your neighborhood 12 months and one day after they stop working for you? Fine. The reason for the limitations is that judges throw out agreements which are too restrictive. You could not require that a person agree to never walk a dog ever again. You could not stop a person from from walking a dog anywhere in the world. You could not stop a person from working any job for any of your customers. The laws about restrictiveness are unique to each state so that's why people recommend that you talk to a lawyer. Judges honor the work you've done to build a customer base and will allow you to protect it, but they're not going to let you keep your people from ever working in the same business again. The non compete describes the limits of the protection. You need to make sure that the code that others create for you in your employment is yours. It's always a good idea to get the specifics in writing just in case something wacky happens where it looks like someone other than you might own work created while working on one of your projects. The water gets pretty muddy when people are working on their own time with their own tools, it could be very easy for them to argue that they created a thing for their own use and provided it to you for your limited use but that they otherwise own it. This is not a noncompete. It's an ownership clause, aka an IP clause. | South Park did the EULA gag, and such an agreement would be unenforceable as unconscionable. NDAs, on the other hand, are conscionable, but a EULA isn't an NDA. There isn't a specific statute that you can point to that either makes such a no-criticism agreement explicitly legal vs. illegal, so the case would have to be based on common law justice-style arguments. People v. Network Associates is a relevant case, where a clause requires permission to publish benchmarks or reviews of the software. The court found against the publisher. However, the restrictive condition was not part of the license agreement, which included a merger clause that declared the license agreement to be the whole agreement. The publisher had some hand-waving about mention of "rules and regulations" which they argued nullified the merger clause, where the court did not accept the argument. So for the moment, you need to decide whether disparaging a product is that important to you; or, become a legal pioneer and win a case in court. There is a bill, the Consumer Review Freedom Act under consideration (passed the Senate) which might change that, if it becomes a law. It pertains to a written, oral, or pictorial review, performance assessment of, or other similar analysis of, including by electronic means, the goods, services, or conduct of a person by an individual who is party to a form contract with respect to which such person is also a party and restricts a contract with standardized terms— (i) used by a person in the course of selling or leasing the person's goods or services; and (ii) imposed on an individual without a meaningful opportunity for such individual to negotiate the standardized terms. which says that that kind of contract with that kind of provision is void. |
What global big tech does to comply with data protection laws all over the world? Give this scenario... A user in Germany, a user in US. Each one decides to create an account on Facebook and facebook is located in US... According with GDPR, US cannot store data from EU Citizens. So, what does Facebook do (or supposed to do) to comply with regulations? I am involved in a global project and we don't know exactly what to do in this sense. Can we have a single global server storing user information? If the answer is no: Can we have a single global server storing only usernames and passwords and all the other data such as first name, last name, phone number, etc be stored in each region? For this I suggested to my team: Let's try to find out what big techs are doing... What happens when Facebook, Apple, LinkedIn, etc earn a new user on the database? | What Big Tech is doing is spending a lot of money on lawyers and appeals – doesn't matter if it costs millions if you can make money in the meanwhile. Facebook stores a lot of user data in the US. Initially, this was allowed because the US was recognized as offering an adequate level of data protection under the Safe Harbor and later the Privacy Shield Framework. Then Schrems I and Schrems II happened and the adequacy recognition was ruled to be invalid. Does Facebook pull back their user data? No. The GDPR offers alternative reasons why you might process data in foreign countries, such as “standard contractual clauses” (SCCs) or “binding corporate rules” (BCRs). Now, Facebook claims that they are using SCCs. Is this valid? Almost certainly not due to the issues of US law analyzed in the Schrems II case, but it can take years for the next round of court cases to work its way through the system. And when Facebook's use of SCCs is ruled invalid they will probably try BCRs next, and once that is over a decade will have passed and the US might actually have achieved an adequate privacy level by then. You do not have Facebook-style money to spend on lawyers and endless rounds of appeals, so you should avoid legally risky things such as outsourcing data processing activities to companies in the US (this doesn't mean you can't be compliant if you are a US entity). I mentioned adequacy decision previously. There is a list of countries that the EU considers to be sufficiently safe. Currently, the more notable countries involve Canada, Israel, Japan, New Zealand, Republic of Korea, Switzerland, and the United Kingdom, in addition to EU/EEA countries of course. If you want to process data in a location that is OK for both the UK and the US, then looking at companies in one of these countries is a good idea. For example, if most of your users are in the US but you would like your servers to be in a country with an EU adequacy decision, then looking at Canada could make sense. Even outside of this list, you can process data if you implement additional safeguards via SCCs. However, this requires a case by case analysis of the legal environment in that country. One problem with the US is that it has national security laws that impose requirements on companies in a manner that is incompatible with SCCs. A company bound by these US laws cannot enter into such a contract where it guarantees the privacy of your user's data. Countries other than the EU have much more tedious data residency laws. The GDPR does not impose any data residency requirements in the sense that data must not leave a particular country – you just have to ensure that the data is properly protected. In contrast, Russia and China have real data residency requirements that are fundamentally incompatible with the GDPR. | Is it GDPR compliant that I can't access the account that I created and the personal data that I shared because "I haven't completed their internal pre-qualification process"? Article 15 defines a “Right of access to the data subject” but it's difficult to see how this could be construed as a right to log into a specific website. Common sense suggests this would be a very bad idea. If they are willing to provide the data through another means (say a report or data dump of some sort), the obligation would seem to be met. In fact, article 15(3) even states that data controllers should merely provide the information in a “commonly used electronic form” (i.e. not necessarily through access to their systems or whatever form they are using internally for the processing). Have you asked for that and would you be satisfied by that resolution? Is it GDPR compliant that their answer to my deletion request is "We will delete the data..." The text of article 17 (right to erasure) explicitly specifies that such a request must be honored without “undue delay”. Article 12, which defines some of the modalities for the rights to access, rectification or erasure by the data subject, also provides that controllers shall “provide information on action taken on a request […] without undue delay and in any event within one month of receipt of the request”. You haven't provided any time frame and I don't think there is anything wrong with acknowledging the request by promising they “will” do it but in light of article 12, it seems you would indeed be entitled to know once they have actually taken further action. However, you implied you might want to access the data first and it's not clear to me whether you explicitly invoked the GDPR in earlier communications. So I would clarify and reiterate my request (access or erasure) and ask them for explicit confirmation once it has been satisfied. | The GDPR does not provide specific rules about password resets. However, the GDPR contains a general obligation for the data controller to implement “appropriate technical and organisational measures” (TOMs), see Art 24 + 32 GDPR. What is appropriate depends on the “state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity”. A password reset functionality is complicated from a security perspective. On one hand, such functionality is really good because it ensures availability of the service for the user. On the other hand, such features can provide a backdoor to the service, undermining security goals such as confidentiality and integrity. These aspects must be balanced, and there is not necessarily one correct balance for every scenario. What the one-person IT department of a small company does can reasonably be different from what a multi-million user social network does. TOMs do not have to be purely technical – they can also include organisational aspects, for example training for customer service employees, and occasional checks to ensure that customer service staff doesn't abuse their access. But nevertheless, TOMs must be measured against the state of the art. Password reset by sending a time-limited one-time reset link with a cryptographically secure nonce to an email address is a state of the art method, assuming that no 2FA/MFA is involved. In some contexts, having customer service staff assign a new, random, one-time password could also be appropriate, for example if implementing a more secure workflow would be prohibitively expensive. Then, organizational measures would be more important. Failing to notify the account holder that someone requested a password reset is not state of the art, and represents a possible security risk. The data controller is required to defend against such risks! Resetting the password to a fixed default value is a very grave security risk, since it could aid unauthorized account takeover by a third party. It is unlikely that such a password reset approach could be GDPR-compliant. | I'm not aware of any cases on point, but as a rule legal fig-leaves don't play well in court. If the webmaster simply puts up a banner saying that EU residents are not permitted but takes no other action to exclude them, then that is going to be considered irrelevant. The webmaster is still very likely required to comply with the GDPR. On the other hand if the webmaster takes other steps to exclude EU residents, such as using a geolocation service to block connections known to be in the EU, validating email addresses and blocking those from EU domains, and ejecting anyone who mentions that their residence is in the EU, then that is more likely to be seen as a good-faith attempt to avoid being subject to the GDPR. It will also have the practical effect of greatly reducing the number of actual EU residents. All these controls can be evaded, but it would be much harder for any data subjects to claim that they acted in good faith or that the webmaster acted in bad faith. Note that validating an email address or logging an IP is itself processing of personal data, so anyone implementing such a system still can't ignore the GDPR completely, but it would greatly limit the scope and make it easy to delete any such data after a short time. (Note: the term "EU resident" above is an approximation of the territorial scope). | Can you anonymise people It is valid to anonymise the data of people, instead of deleting all of the records. The principles of data protection should apply to any information concerning an identified or identifiable natural person. 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. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The 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. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes. Source As long as the person is not identifiable, then you do not need to treat the data as personal under the GDPR. You do have to inform a person once they are no longer identifiable, and be able to identify them if they provide the missing information: 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. Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification. Source The articles covered by this are: 15 - Right of Access 16 - Right to rectification 17 - Right to erasure 18 - Right to restrict processing 19 - Right to be informed 20 - Right to data portability | Names clearly are personal data and so a good question to ask for GDPR compliance is: Do you need to do what you want to do in order to offer your product or service? For your scenario a common answer seems to be that websites ask for the users first and last name during account creation. The reason is that they need this information to confirm the identity of the account creator. But the public profile only displays a user name that the user can pick freely. In general there is no good reason to publically show the legal names of users so websites don't do it. So for your website ask yourself, why do you want to publically show the names of your users? If you have a good reason to do that specify it in the user terms and go ahead. If you don't have a good reason don't do it. | The status of any PII (Personally Identifiable Information) is the same in GDPR regardless of location, or who enters it. Its goals are (among others) to stop any actor (company / government or other) from hiding responsibility about their use and practices around people's data. GDPR does even apply to anything offline and on paper. Basically it means you have to validate any entry field is free of PII before processing it. Or make it clear in your privacy statement how you handle this use-case. | Let's assume that I created a mobile app for iPhone that is tracking rides on a bike [...] So the app is processing that data in the way I programmed it but I as a person do not have access to that data. I assume in such case I am not the data controller according to GDPR because I do not have access to that data is that correct? Yes, as far as I can see that is correct. The GDPR defines a data controller as someone who "determines the purposes and means of the processing of personal data" - you just provide a tool, you don't control for what purposes your customers use their ride data. This is also discussed in this question: How does the GDPR apply to software developed by one company and used by another? What if additionally to that I will program my app for example in such way that it will sometimes send current GPS coordinate to an online service controlled by external company such as Apple [...] But still my app would send this data directly to Apple server so I will still not have any access to that data. Does this change anything and does GDPR now apply to me? Yes, and yes. In that case, you are telling Apple to process data for you, so you would become the data controller (because you "determine[s] the purposes and means of the processing of personal data"), and Apple is a data processor for you. That means also the usual mechanisms kick in - you need to inform your users about this processing, you need to make sure Apple plays by the rules, etc. etc. I also do not know if Apple save this request on their servers or if they just automatically convert received gps coordinates to a name and return the answer without saving the request. This is exactly the kind of situation the GDPR is meant to address. Under GDPR, saying "I do not know what X does with the data" is not an option. This is something many companies tried in the past, that is why GDPR explicitly assigns responsibility to the data controller (i.e., you). As explained in a EU document, What is a data controller or a data processor?: The duties of the processor towards the controller must be specified in a contract or another legal act. For example, the contract must indicate what happens to the personal data once the contract is terminated. A typical activity of processors is offering IT solutions, including cloud storage. [...] So, no, you cannot just say "I do not know if Apple saves this request". Instead, you must make a contract with Apple which says whether (and how, and for how long...) they save the request, and you must inform your users about this in your privacy policy. And if Apple refuse to make such a contract with you, you must find a different company to work with. |
Can the Vice President vote themselves into positions of power? With the retirement of Stephen Breyer from the Supreme Court, and Biden's promise to nominate a Black woman to fill the vacancy, some of the most far-fetched speculation about the nominee has involved Kamala Harris. The Senate is currently evenly split with Kamala Harris's vote breaking the tie. If, in this hypothetical, Biden actually nominated her, and the Senate was tied when voting to confirm her, would she be able to cast the tie-breaking vote to put herself on the bench? Does a judicial nominee's power to do this not infringe upon the separation of powers? Or, if it does not, how is the Senate providing ‘advice and consent’ when a judicial nominee is ultimately the one who gives their consent when the Senate can't agree without the VP? A similar question arises when there's an Electoral College tie, and the Senate is tied, which would allow the incumbent VP to vote themselves back into power if they're standing for re-election. Does the Constitution permit such a flagrant power grab? | The US Constitution Art. 1 §3 cl. 4 says The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. No clause of the Constitution limits how a person can vote in the Senate (or the House). Congress has not enacted any legislation that addresses this question, and nothing in the Constitution empowers Congress to limit the right to vote. Art 1 §5 cl. 2 says Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. That is, the Senate can set up rules for how it will conduct business. The Senate is not empowered to exclude a member's right to vote, they with a supermajority they can expel a member (or convict and remove a vice-president, given an impeachment from the House). It should also be remembered that the VP is not a member of the Senate, the VP has a limited right to vote which is granted by the Constitution, and which cannot be taken away except by constitutional amendment. Harris would therefore be empowered to vote for herself, under the tie-breaker clause. | Yes the Senate could adopt a secret ballot rule, but other constitutional provisions combined with high partisanship make it practically impossible that the final results will be done through secret ballot. As other answers have mentioned, Article 1, Section 3, provides for the Senate to have sole power of trying impeachments. Similarly by Article 1, Section 5, each House may adopt its own rules. That means that yes the Senate can create its own rules that say the conviction vote will be done by secret ballot. However, adopting these rules only achieves a pyrrhic secret ballot. The very same section that provides for each house to make its own rules (Article 1, Section 5) also states: ...and the Yeas and Nays of the Members of either House on any question shall, at the desire of one fifth of those present, be entered on the Journal. This means that if any vote is taken including this secret ballot vote, after doing so any member can ask for the Yeas and Nays of all members to be put into the Journal. The journal is the official record of each House. Thus while the vote was first taken in secret at least any member of the Senate will have access to the subsequent recorded vote, provided at least 1/5 of the Senate wishes to have a recorded vote. While not all is lost, the Senate could declare that this record itself is to remain secret, all 100 Senators and most likely many of their staff members will know how each Senator voted. Additionally, the Speech and Debate Clause states that: for any Speech or Debate in either House, they shall not be questioned in any other Place. Thus if a Senator were to publicly read the vote results into the record of a public committee hearing or during a filibuster or for really any other procedure (as rules of germane debate are very very lax in the Senate, but that is an issue for another question) that information could easily become public record. So while yes the rules can be changed to use secret ballot, a fifth (20 Senators currently) could ask for the Yeas and Nays to be entered on the Journal and this defeats the purpose of the secret ballot. So the only reasonable way to keep a secret ballot as the final dispositive record of a vote is to convince more than 4/5ths of the Senators to not ask for a recorded vote. In this sense it is certainly allowed and possible for the Senate to vote by secret ballot. | Advisory opinions violate the separation-of-powers doctrine. The "case or controversy" clause helps enforce this separation. The judicial branch is responsible for resolving legal disputes by interpreting and applying existing law. In doing so, it may incidentally modify or extend the law. Courts are only supposed to do this to the extent necessary to resolve disputes. Outside a legal dispute, the legislative branch is solely responsible for making changes to the law. If courts were allowed to issue advisory opinions, they would be effectively be altering the law without addressing an actual dispute. As such, advisory opinions violate the separation-of-powers doctrine. The "case or controversy" requirement exists to ensure that the judicial branch does not usurp the powers of the legislative branch. Relevant quote from page 45 (PDF page 10) of Separation of Powers: An Old Doctrine Triggers a New Crisis: [...] one of the major arguments [...] against advisory opinions is that they violate the separation of powers doctrine. Judicial power, it is said, should be limited to deciding litigated cases. When justices issue opinions on contentions that have not yet been the subject of legal dispute, these justices approach the status of lawmakers. | No. The relevant provision of the United States Constitution is Article II, Section 2, Clause 1 which states in the pertinent part: The President . . . shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. The correct conclusion flows pretty directly from the definition of a "reprieve" and a "pardon", both of which, in the ordinary senses of these words refer to granting forgiveness for acts that have already occurred. One of the leading cases on point which supports this view is Ex parte Garland, 59 U.S. (18 How.) 307, 380 (1855), which states: The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. Despite its antiquity, this case remains good law and has been applied repeatedly in subsequent cases (although few on the right of a President to pardon future crimes which just hasn't come up). Other Observations The President's pardon power is limited to federal crimes, so no President may pardon or commute a state or foreign conviction. The nature of the pardon power, if any, with respect to state and local crimes is governed by each respective state constitution and varies rather considerably. The power in the U.S. Constitution is broader than that is some state constitutions. For example, the corresponding provision of the Colorado Constitution, applicable to convictions entered by the state of Colorado, does not allow crimes to be pardoned prior to a conviction. Article IV, Section 7, of the Colorado Constitution provides: "The governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason * * *." The History Of The Pardon Power One of the most thorough and up to date reviews of the scope and nature of the federal pardon power can be found in the law review article, Todd David Peterson, "Congressional Power Over Pardon and Amnesty: Legislative Authority In The Shadow of Presidential Prerogative" 38 Wake Forest L. Rev. 1225 (2003). In particular, it has an interesting historical overview of the power at pages 1228-1235 (pagination and footnotes omitted): The President's pardon power derives from the authority that had been invested in English kings since the end of the first millennium. Although the King possessed plenary power to grant pardons, over the years Parliament imposed specific limitations on the pardon power in order to avoid perceived abuses. For example, the Habeas Corpus Act of 1679 made it an offense for any person to imprison an English subject outside of the country and, in order to avoid an evasion of the writ, Parliament prohibited the King from granting a pardon for violation of the statute. Nevertheless, English courts frequently took an absolutist view of the King's pardon power. Thus, in Godden v. Hales, the Lord Chief Justice upheld a royal pardon on the ground that the Kings of England were absolute sovereigns; . . . the laws were the King's laws; . . . the King had a power to dispense with any of the laws of Government as he saw necessity for it; . . . he was sole judge of that necessity; that no act of Parliament could take away that power. The Parliament, however, persisted in its efforts to rein in the pardon power and, in 1700, adopted the Act of Settlement, which stated that "no pardon under the great seal of England [shall] be pleadable to an impeachment by the commons in Parliament." This limitation was enforced against the King, although it did not apply to pardons granted to relieve punishments imposed after the impeachment of an official. The royal pardon prerogative was imported into the American colonies whose charters gave the leaders substantial authority to pardon offenses. At the Constitutional Convention of 1787, neither the Virginia plan nor the New Jersey plan contained a pardon power. Nevertheless, at the insistence of Charles Pinckney, Alexander Hamilton, and John Rutledge, a pardon clause similar to the English Act of Settlement of 1700 was added to the draft constitution. Thus, the first report of the Committee on Detail proposed that the clause read: "He [the President] shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment." The issue of legislative control over the pardon process was addressed directly by an amendment proposed by Roger Sherman of Connecticut. James Madison's journal notes that "Mr. Sherman moved to amend the power to grant reprieves and pardon' so as to readto grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate.'" George Mason argued that the Senate already possessed too much authority, and the proposed amendment was rejected by a vote of eight to one. The convention did approve a motion to insert "except in cases of impeachment" after pardon and remove the words "but his pardon shall not be pleadable in bar." Luther Martin then sought to limit the President's power to grant pre-conviction pardons by inserting the words "after conviction," following the words "reprieves and pardons." Martin, however, withdrew his motion after James Wilson argued that "pardon before conviction might be necessary, in order to obtain the testimony of accomplices." Edmund Randolph then offered an amendment to exclude "cases of treason" from the pardoning power. This proposed amendment was defeated, although its exclusion was later to prove controversial. Thus, although the framers realized that the pardon power was subject to potential abuse by the President, they declined to place any limitations on the President's pardon power or grant the legislature any authority to check potential presidential abuses. The debates following the convention's passage of the Constitution reveal more about the framers' views on the pardon power. In the Federalist 74, Alexander Hamilton attempted to respond to the criticism that the President could pardon his accomplices in a case of treason. Hamilton acknowledged that "there are strong reasons to be assigned for requiring in this particular the concurrence of [the legislative] body or of a part of it." Hamilton argued, however, that the reasons against such legislative authority outweighed any in its favor: "[i]t is not to be doubted that a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever." In particular, Hamilton argued, in the case of large scale seditions that attracted significant popular support, we might expect to see the representation of the people tainted with the same spirit, which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. Thus, Hamilton argued not only that the power was properly reposed in the President, but that it would be dangerous to grant such power to Congress. Finally, Hamilton argued that it was appropriate to grant the President pardon power in order to ensure that the authority could be exercised with appropriate dispatch: "In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the Legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed that a discretionary power with a view to such contingencies might be occasionally conferred upon the President; it may be answered in the first place, that it is questionable whether, in a limited constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic before-hand to take any step which might hold out the prospect of impunity." There was little debate about the pardoning power during the state ratifying conventions. George Mason continued to argue that the power should not be given to the President. An opponent in New York suggested that pardons for treason should not be allowed without congressional consent. Ultimately, the Constitution was adopted without any express limitation on the President's pardoning power. The Supreme Court has on a number of occasions discussed the general scope of the pardoning power. For the most part, with exceptions to be discussed later, these decisions contain broad dicta concerning the unfettered nature of the President's power and the inability of Congress to impose any legislative restrictions on it. For example, in United States v. Wilson, the Court held that a pardon must be pleaded in order to be effective. Chief Justice Marshall wrote that the [C]onstitution gives to the [P]resident, in general terms, "the power to grant reprieves and pardons for offences against the United States." As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. Marshall further defined the pardon as an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. In Ex parte Wells, the Supreme Court considered whether the President could grant a conditional pardon in the form of commutation of a death sentence to a sentence of life imprisonment. The Court noted that pursuant to the Pardon Clause, the President has granted reprieves and pardons since the commencement of the present government. Sundry provisions have been enacted, regulating its exercise for the army and navy, in virtue of the constitutional power of [C]ongress to make rules and regulations for the government of the army and navy. No statute has ever been passed regulating it in cases of conviction by the civil authorities. In such cases, the President has acted exclusively under the power as it is expressed in the [C]onstitution. The Court noted, however, that "[t]here are also pardons grantable as of common right, without any exercise of the king's discretion; as where a statute creating an offence, or enacting penalties for its future punishment, holds out a promise of immunity to accomplices to aid in the conviction of their associates. When accomplices do so voluntarily, they have a right absolutely to a pardon . . . ." Thus, at least in dicta, the Court recognized Congress's authority to regulate clemency in the military and to adopt statutes granting immunity for cooperation in a criminal investigation. In Ex parte Garland, the Court spoke in sweeping dicta about the exclusive power of the President over pardon and amnesty. In Garland, the Court considered the issue whether a former Confederate senator would be permitted to be a member of the Supreme Court Bar without taking the statutorily required oath that he had never voluntarily given aid or comfort to the confederacy. The petitioner had received a presidential pardon and argued that the pardon exempted him from the requirements of the oath to which he could not truthfully subscribe. The Court held that it was "not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency," and therefore, the petitioner was entitled to membership in the Bar. In the course of the opinion, the Court broadly defined the President's pardon power: "The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." In Ex parte Grossman, the Court considered whether the President's pardon power extended to criminal contempts of court. The Court upheld the President's power to issue such pardons based on the history of royal pardons for contempt in England. The Court also looked to the long history of presidential pardons of criminal contempts of court. In responding to the argument that a presidential pardon of contempt of court would interfere with the ability of the federal courts to protect their own decrees, Chief Justice Taft noted that the Constitution provides a number of powers to the branches which give them the ability to check the other branches of government. With respect to the pardon power, the Court stated: "[t]he executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress." The Court also noted that the President exercised the pardon power without any significant judicial check on his pardoning authority: "It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it. An abuse in pardoning contempts would certainly embarrass courts, but it is questionable how much more it would lessen their effectiveness than a wholesale pardon of other offenses. If we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?" In Biddle v. Perovich, Justice Holmes wrote an opinion for the Court in which he upheld the President's conditional pardon of a convict sentenced to death on the condition that his sentence be commuted to life imprisonment. Justice Holmes suggested a different rationale for the pardon power than Chief Justice Marshall had enunciated early in the 19th century. Rather than being a private act of grace that must be accepted and proffered to the court by the one pardoned, Justice Holmes saw the President's pardon as serving public policy ends: "A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. . . . Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done." | If President Trump refuses to execute the war, does that become an act of treason on his part? Probably not, but it depends on the definition of treason. Congress could decide that it is, impeach him, and remove him from office. They could also remove him from office without using the term treason. Is he required to act on such a resolution? Not really. As chief executive, he has discretion to prioritize the tasks assigned to him by congress. Furthermore, there is plenty of precedent in international affairs for countries being legally in a state of war without any actual combat or other hostilities. If he doesn't, is there any recourse other than impeachment to force US armed forces to attack RF interests at home and abroad? There's always political pressure. But there's no way to relieve the president of his command of the armed forces without relieving him of his office. Aside from impeachment by the congress, this can be temporarily achieved by the cabinet, as specified in the 25th amendment. POTUS is the commander-in-chief, but, at the same time, he is not allowed to unilaterally decide who may or may not cross the border into the United States. The president's ability to make immigration policy and the fact that such policy is subject to judicial review are unrelated to his powers as commander in chief. Immigration is a civil and criminal matter, not a military one. The president's powers in this regard are delegated to him by congress, not specified in the constitution. On the other hand, the president's role as commander in chief of the military is explicit in the constitution. Do the judges also have a power to compel armed forces to take actions which a sitting President is refusing to take? The judiciary does not have the power to order military operations. | No As the official Rules Of The Senate say in section VI (Quorum): A quorum shall consist of a majority of the Senators duly chosen and sworn. No Senator shall absent himself from the service of the Senate without leave. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order. Thus there must be a majority of the US Senate, that is at least 51 Senators, present to do any business, and in particular to pass any bill or resolution. The scenario described in the question, where less than a majority can control the action of the Senate, thus cannot occur. MY understanding is that when any Senator rises to question whether a quorum is present, in addition to the reading of the names on the Senate floor, lights flash indicating a quorum call in the office of each Senator, and if the Senator is present and did not expect a business session, that Senator would be likely to get to the floor, and if the senator is not in the office but even one staff member is, that staffer would be very likely to call the Senator wherever s/he might be. Moreover, section VII of the Rules provides that: Until the morning business shall have been concluded, and so announced from the Chair, or until one hour after the Senate convenes at the beginning of a new legislative day, no motion to proceed to the consideration of any bill, resolution, report of a committee, or other subject upon the Calendar shall be entertained by the Presiding Officer, unless by unanimous consent: Provided, however, That on Mondays which are the beginning of a legislative day the Calendar shall be called under rule VIII, and until two hours after the Senate convenes no motion shall be entertained to proceed to the consideration of any bill, resolution, or other subject upon the Calendar except the motion to continue the consideration of a bill, resolution, or other subject against objection as provided in rule VIII, or until the call of the Calendar has been completed. This ensures that the Senate cannot simply take up a bill the moment it convenes. Moreover, there is a public Legislative Calander. This calendar: Displays time and date the Senate is next scheduled to convene The CRS report "The Senate’s Calendar of Business" says in relevant part: The Senate’s Calendar of Business lists bills, resolutions, and other items of legislative business that are eligible for floor consideration. When a Senate committee reports a bill, it is said to be placed “on the calendar.” It is not in order for the majority leader or any other Senator to move that the Senate proceed to the consideration of a measure that is not on the calendar, though the majority leader could ask unanimous consent to do so. ... The Senate’s other calendar, the Executive Calendar, lists treaties and nominations—which constitute the Senate’s executive business—that are available for floor action. Both of these documents are published each day the Senate is in session and distributed to Senators’ personal offices and to all committee and subcommittee offices. ... The front cover of the Calendar of Business gives the dates on which each session of the current Congress convened and adjourned sine die and the number of days the Senate actually has met during each session. It also shows the date and time at which the Senate is next scheduled to convene. ... Also included in the Calendar of Business are the following: calendars for the current month and year, showing the days on which the Senate met and the anticipated dates of future nonlegislative periods; ... "bills and joint resolutions read the first time” and awaiting the start of the next legislative day when they will be read by title for a second time; after this second reading, each such measure probably will be placed directly on the calendar under the provisions of Rule XIV instead of being referred to committee. Note that this means that no bill can be acted on on the same day that it is introduced, and every Senator's office is notified of bills that had a first reading. Thus no bills can be snuck in and acted on without every Senator having notice that the bill is coming up. Also, as I understand it, a Senate meeting cannot be scheduled without notice of the date having been given in the Calendar, or else to every Senator's office. So the sort of "private Calendar" and "private meeting" suggested in the question would not work, unless the rules are first changed. | They can't overturn the decision; but they don't have to. The holding in Dobbs was that the US Constitution does not provide a right to an abortion, and so a state law prohibiting abortions is not unconstitutional. Congress can't "overturn" it in the sense that they can't make the Constitution provide such a right, short of a constitutional amendment. But that in itself doesn't stop them from providing such a right in other ways, e.g. through ordinary legislation. Under the Supremacy Clause, such a law would supersede any state bans; provided that it falls within the scope of Congress's enumerated powers, which assertion would itself probably be challenged in court. If it's within their legislative power, then there's no conflict with Dobbs. To give a more mundane example, nobody thinks that there is a constitutional right to have an airline ticket refunded within 24 hours of purchase. If the Supreme Court ever had occasion to rule on the question, they would surely hold that nothing in the US Constitution says that people have this right. But Congress does have the power, under the Commerce Clause, to pass legislation that confers such a right on consumers. They have done so, and this law would not in any way conflict with the aforementioned hypothetical Supreme Court ruling. | With the president, no. In the case where the election results cannot be certified, a safe harbor provision (3 U.S. Sec. 5) allows, if not requires, the state to appoint the electors by alternate means. Under most conceivable circumstances, the process ends here. However, if the House of Representatives refuses to accept the validity of those electors, and the president-elect still has a majority of the Electoral College, the state will simply have no say in the president's election. If rejecting those electors leaves no candidate with a majority of the Electoral College, the House of Representatives itself will elect the president per the process in Art. II of the constitution, as amended by Amend. 12. If the president-elect makes it past all these considerations to the oath of office, the only removal mechanism is impeachment. With other state and federal offices, each state, as well as the federal government, has its own laws regarding disputed elections. But one remedy would have to be a new election. |
Why can't we go back to the required supermajority for things in the Senate if they abolished it once in the past? I read in the news that the Senate had abolished the required supermajority to confirm Supreme Court justices. Why can't the Senate vote to re-instate the required supermajority? I understand it is the minority party who would want to re-instate the requirement but if we think about cycles, one day, the majority party might be in the minority and would want to have the supermajority requirement on their back pocket to oppose or block Justices. | They Can The Senate re-adopts its rules every two years, often with minor changes, sometimes with major changes. But the Senate can, by vote, change its rules at any time. This could include a change back to a previous rule. I should mention that the previous rule did not strictly require a super-majority vote. The senate has a rule that any senator who wishes to do so may hold up a vote on any measure by stating that s/he intends to continue debate on it. It then takes a super-majority of 60 votes to "close debate". But there is no requirement that any senator do this, and if none does, a simple majority will prevail. Holding things up in this way is known as a "filibuster" for historical reasons. The Senate rules do not permit some measures to be filibustered. A few years ago, a then Republican majority changed the rules so that Supreme Court nominations could not be filibustered. Some are now suggesting that the rules should be changed further to eliminate or significantly modify the filibuster. If this was done, any future Senate could choose to change them back. Whether they would do so, is a political question. | No The importance of following precedent, and the principle of stare decisis were inherited by the early US legal system from the British Common Law system, and have been taken as part of the natural order of the legal system by US courts ever since. This extends even to a court overruling itself. US Courts are notoriously reluctant to overrule their past decisions, even when current court members agree, However they will do so from time to time. The US Supreme Court in particular will flatly overturn previous decisions, especially on Constitutional issues, when it thinks there is no other way to achieve a proper outcome, although it often prefers to distinguish the prior decision without actually overruling it. I think the fastest and most extreme case where the US Supreme Court overruled itself was that of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the second flag-salute case. (This was also a particularly significant case.) This reversed Minersville School District v. Gobitis, 310 U.S. 586 (1940) a case on the exact same issue, only three years previously, and a vote of 8-1 on the first case became a vote of 6-3 the other way, with only one new Justice on the Court. Only Justice Frankfurter, the author of the fist decision, issued a dissenting opinion in the Barnette case, and no other Justice formally joined that opinion. | The core principle of stare decisis is that the law should not depend on what judge you got; two cases with the same facts should have the same outcome. In the common-law tradition, there weren't really written statutes; there was only "what's been done in the past," and so the only reference you'd have to what the law should be in some situation is past court decisions. If judges didn't have some constraints to rule similarly to before, there really wouldn't be any legal standards (because there was no written law to go back to; in civil-law countries, there always has been a written law, so precedent isn't so important). Stare decisis doesn't actually directly stop a judge from entering a decision that goes against binding precedent. However, judges are expected to obey precedent, and for the most part do what they're supposed to do. If they don't, the case will likely be reversed on appeal. Binding precedent only applies within the area a court serves; a court doesn't have to listen to precedent from a different court that has nothing to do with the case. The rule is that precedent from any court up the appeals chain is binding; federal district courts are bound by their circuit court and SCOTUS, state courts are bound by higher state courts and SCOTUS (but not other federal courts, as the case can't be appealed to them). A court can sometimes overrule its own precedent, but the cases where it can do that are rare (and so applying a higher court's precedent can also be viewed as "if you appeal to them they'll say X, so we're saying X.") | You can certainly do so: it's been done many times in the past, and can be done even with a written constitution. The most recent famous example that I know of would be how the Nazi party used the Enabling Act, 1933 and Reichstag Fire Decree, 1933 to amend the constitution by essentially neutering all the safeguards, and used force to ensure that they could stay in power. Julius Caesar's reforms follow in a similar vein. For someone to successfully force change like this, you generally need a political system that is unstable and has no strong (or at least effective) checks and balances. Additionally, you need the support of the military because otherwise they will generally support the existing structure. Other less extreme examples I can think of where a system has changed to another system would be former colonies adopting new constitutions (e.g. Ireland and Pakistan), or where there has been significant change in the country's model (e.g. South Africa). Again, you need support, but this time it is within the existing political and judicial framework. | Scenario 1. It doesn’t matter what it says. If it was not legally ratified, it is not legally in force. There is no absolutely no paradox at all. It is essentially just a draft amendment and would be thrown out if any attempt was made to enforce it and challenged. | No As the official Rules Of The Senate say in section VI (Quorum): A quorum shall consist of a majority of the Senators duly chosen and sworn. No Senator shall absent himself from the service of the Senate without leave. If, at any time during the daily sessions of the Senate, a question shall be raised by any Senator as to the presence of a quorum, the Presiding Officer shall forthwith direct the Secretary to call the roll and shall announce the result, and these proceedings shall be without debate. Whenever upon such roll call it shall be ascertained that a quorum is not present, a majority of the Senators present may direct the Sergeant at Arms to request, and, when necessary, to compel the attendance of the absent Senators, which order shall be determined without debate; and pending its execution, and until a quorum shall be present, no debate nor motion, except to adjourn, or to recess pursuant to a previous order entered by unanimous consent, shall be in order. Thus there must be a majority of the US Senate, that is at least 51 Senators, present to do any business, and in particular to pass any bill or resolution. The scenario described in the question, where less than a majority can control the action of the Senate, thus cannot occur. MY understanding is that when any Senator rises to question whether a quorum is present, in addition to the reading of the names on the Senate floor, lights flash indicating a quorum call in the office of each Senator, and if the Senator is present and did not expect a business session, that Senator would be likely to get to the floor, and if the senator is not in the office but even one staff member is, that staffer would be very likely to call the Senator wherever s/he might be. Moreover, section VII of the Rules provides that: Until the morning business shall have been concluded, and so announced from the Chair, or until one hour after the Senate convenes at the beginning of a new legislative day, no motion to proceed to the consideration of any bill, resolution, report of a committee, or other subject upon the Calendar shall be entertained by the Presiding Officer, unless by unanimous consent: Provided, however, That on Mondays which are the beginning of a legislative day the Calendar shall be called under rule VIII, and until two hours after the Senate convenes no motion shall be entertained to proceed to the consideration of any bill, resolution, or other subject upon the Calendar except the motion to continue the consideration of a bill, resolution, or other subject against objection as provided in rule VIII, or until the call of the Calendar has been completed. This ensures that the Senate cannot simply take up a bill the moment it convenes. Moreover, there is a public Legislative Calander. This calendar: Displays time and date the Senate is next scheduled to convene The CRS report "The Senate’s Calendar of Business" says in relevant part: The Senate’s Calendar of Business lists bills, resolutions, and other items of legislative business that are eligible for floor consideration. When a Senate committee reports a bill, it is said to be placed “on the calendar.” It is not in order for the majority leader or any other Senator to move that the Senate proceed to the consideration of a measure that is not on the calendar, though the majority leader could ask unanimous consent to do so. ... The Senate’s other calendar, the Executive Calendar, lists treaties and nominations—which constitute the Senate’s executive business—that are available for floor action. Both of these documents are published each day the Senate is in session and distributed to Senators’ personal offices and to all committee and subcommittee offices. ... The front cover of the Calendar of Business gives the dates on which each session of the current Congress convened and adjourned sine die and the number of days the Senate actually has met during each session. It also shows the date and time at which the Senate is next scheduled to convene. ... Also included in the Calendar of Business are the following: calendars for the current month and year, showing the days on which the Senate met and the anticipated dates of future nonlegislative periods; ... "bills and joint resolutions read the first time” and awaiting the start of the next legislative day when they will be read by title for a second time; after this second reading, each such measure probably will be placed directly on the calendar under the provisions of Rule XIV instead of being referred to committee. Note that this means that no bill can be acted on on the same day that it is introduced, and every Senator's office is notified of bills that had a first reading. Thus no bills can be snuck in and acted on without every Senator having notice that the bill is coming up. Also, as I understand it, a Senate meeting cannot be scheduled without notice of the date having been given in the Calendar, or else to every Senator's office. So the sort of "private Calendar" and "private meeting" suggested in the question would not work, unless the rules are first changed. | In broad terms, in a three pillar democracy, the job of the legislature is to make the law, the job of the executive is to enforce the law and the job of the courts is to interpret the law. The courts may find that a piece of legislation is invalid, either in whole or in part for any number of reasons. The legislature can respond by: Repealing the legislation Changing the legislation to remove the invalidity Doing nothing. Your first question is why would they go for option 3? I can, off the cuff, think of several reasons: Time pressures, a legislature can only deal with so many pieces of legislation per year - it may not be a worthwhile investment of time to "tidy up" the statute books. Possibility of appeal, the precedent may be open to appeal or having an alternative ruling in a higher court. Precedent, unless and until the decision reaches the Supreme Court or equivalent then the decision is only binding on lower courts. Possibility of change to superordinate legislation, in the particular circumstance you cite, the local authority may leave the law on the books in the hope or expectation that the state law may be repealed or overturned - the local law would then be valid. For your second question, the judge is supposed to know. That said, judges make mistakes so a wise plaintiff/defendant will draw the judge's attention to the current state of the law. It would certainly look bad for them on appeal if it emerged that they did know and allowed the judge to make a mistake. Firstly, they are officers of the court and secondly, justice is blind but justices may remember you made them look like a fool! For your third question ... maybe. However, such a claim would be limited to what you actually lost through your lawyer's malpractice. It can't be the case because you couldn't win it anyway - the law was against you! You may be able to argue that the lawyer should be responsible for some of the costs or losses that arose from you failing to settle earlier. Good luck with that. | Probably.* Congress has wide latitude to dictate the procedures of "inferior courts" -- the district courts and circuit courts of appeal. Those courts only exist because Congress created them, so Congress can generally set the terms on which they continue to exist. That power is limited in several important ways by the Constitution, including the terms and compensation of the judges, and standing to address cases, and then further limited by separation-of-powers principles. But the Rules of Civil Procedure and the Rules of Criminal Procedure are a good example of how Congress has already -- and largely unobjectionably -- imposed these types of demands on the judiciary. The rules are generally drafted by the judicial branch, but Congress approves them and gives them the force of law. In both sets of rules, you can already see some requirements on how decisions are worded: Criminal Rule 23 requires the court to "state its specific findings of fact" after a bench trial; Criminal Rule 32 requires the court to "set forth the plea, the jury verdict or the court's findings, the adjudication, and the sentence" in judgments of conviction; Civil Rule 52 requires the court to "find the facts specially and state its conclusions of law separately"; Civil Rule 58 requires that "every judgment and amended judgment ... be set out in a separate document"; Civil Rule 59 requires the court to "specify the reasons [for granting or denying a motion for a new trial] in its order"; and Civil Rule 72 requires magistrates to enter "a recommended disposition, including, if appropriate, proposed findings of fact." The rule you're proposing seems to go well beyond these requirements, but I don't see how it would run afoul of constitutional constraints. I could imagine an argument that this somehow encroaches on the courts' inherent authority, but I'm not really convinced that that authority protects against this. For more information, you can read the Congressional Research Service report on "Congressional Authority Over the Federal Courts." *This answer only applies to Article III courts, but even then does not apply to the Supreme Court, which is co-equal and generally has the authority to set its own rules. When it comes to Article I courts, though, Congress would probably have virtually unlimited discretion to impose the kinds of requirements that you're talking about, and even to say that the court has no jurisdiction to consider constitutionality at all. Congress might even get away with imposing these kinds of requirements on state courts through the Spending Clause |
US jus soli edge case Ok, so there is this border wall along the Southern border of the US. However, this wall is not constructed exactly at the border. There is an offset of quite some distance where land south of the wall still belongs to the US but is inaccessible to people from the US side but is freely accessible to people from the Mexico side. So if someone was to give birth to a baby on land that belongs to the US but is south of the wall, and has videographic evidence of the birth process to prove this fact, is the baby then eligible for US citizenship? | The Supreme Court rules in US v. Wong Kim Ark ruled that the Fourteenth Amendment, which states All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside It is not disputed that said areas are "in the United States". The court found that "subject to the jurisdiction thereof" is intended to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state neither of which are the case in your scenario. Technically, the child is not "eligible" for citizenship, the child has US citizenship, it is just a matter of getting a government official to recognize it (e.g. in issuing a passport). | The most commonly used definition for statehood is the declaratory theory, codified by the Montevideo Convention. This says that statehood doesn't depend on recognition by other states; it merely requires four things: A defined territory A permanent population An effective government The capacity to enter into relations with other states. You immediately run into issues around the defined territory (you don't really have one) and the capacity to enter into relations with other states. But let's ignore those for a second. Meeting these requirements in some abstract world doesn't mean you get treated like a state. If no one else agrees with your claim to statehood and they act inconsistently with it, you have little recourse. You might get them not caring enough to do anything about it, but if they decide you're not a country you're out of luck. You have some misconceptions about statehood as well. A country is allowed to forbid trade with any foreign country, even ones it recognizes as sovereign states. See: US embargo on Cuba. It is also entitled to deny foreign ships access to its ports. Ships flying the flag of a sovereign state are entitled to innocent passage through territorial waters of another state, but not to the use of that state's ports. A country can certainly allow people to be killed and still be a country. See: the US, which has the death penalty for certain crimes. But if you're killing nationals of a foreign country, that foreign country is likely to take a keen interest in your activities. If the killings are judicially-ordered executions based on violations of your penal laws, that's one thing -- Australia might consider it awful that an Australian citizen was shot by Indonesia for drug smuggling, but they recognize that Indonesia is a real country with its own laws that it has a right to apply. If it's just lawless there, the keen interest might culminate in a travel warning. But in more extreme cases, or where the killings are of people who didn't willingly enter your territory, you're looking at potential military action. | What you claim isn’t true. You can’t usually get German citizenship if you have another citizenship. You can (possibly) get German citizenship if you tried to get rid of another citizenship and failed. You still have the other citizenship, you are not stateless. It’s just that Germany would make an exception for you and allow you to have two citizenships in that case. So Germany will not consider you stateless, because it’s a fact you are not. They will consider you as someone who tried to become stateless. | "Law" is actually a very broad term, which encompasses statutes, rules, regulations, precedent and I'm sure some other things that I'm forgetting. The popular understanding of "law" is the statute, which involves Congress (at the federal level) or the legislature (and the state level). That is the kind of law that we say is "passed". At the federal level, some number of representatives or senators will introduce a bill into the House or Senate, and it is discussed in a relevant committee; if it is approved, it moves to debate by the whole House / Senate and if it passes it moves to the other house. Once it has passed both the House and Senate, it goes to the President where it may be signed, rejected, or ignored. If signed, it becomes "a law", if rejected (vetoed) it can become law anyhow if it gains a 2/3 majority vote in both houses. If the President ignores it ("pocket veto"), it becomes law in 10 days (Sunday is not a day), unless Congress is not in session. Oh, and, that's just the tip of the iceberg. At the state level, there is a similar process, with the further option of referenda and initiatives. In the former case, a particular law will have been passed by the legislature and then it is put to a popular vote for affirmation / overturning, and in the latter case a new law is proposed by the people (generally through a petitioning process) and then voted on by the populace. There is a fair amount of variation on how this works and what can be done, by state. A law can be repealed (withdrawn) by passing a law that repeals a given part of the existing law, and it can be re-written. The Supreme Court of the jurisdiction can also withdraw a (part of a) law if it is found to be unconstitutional. No foreign body can override US law, although if the US is bound by treaty (which necessarily involves another country) then we might have to do whatever that treaty says, because we approved the treaty. One limit on what we can be forced into by treaties is that a treaty cannot violate the constitution. The largest source of law in the US is actually not statutory, it is regulatory law, where a regulatory agency writes rules with the force of law (so really, it is law). In that case, there has to be a statutory basis, where at the federal level a law is passed empowering an agency to write rules, where the scope of the regulation is supposed to be related to the empowering statute in some manner. In that case, there is a vetting process, but basically no voting, just an announcement, some discussion, and eventually the rules are set. Analogous processes exist at the state level. We also have various county and city governmental bodies, where e.g. the city council can vote to create a law; or, they can empower an agency to write regulations. Yet another source of law is the Executive Order, where the president can decree that such and such will be the case (as long as it has something to do with what the executive branch does). These are somewhat limited in scope, but every president seems to like to test what that limit is. Governors get to do it too! And lastly, courts have an indirect power to make law, by ruling on how an existing law is to be interpreted (as well as ruling that a law or part of a law is unconstitutional). | Probably not, because there is no legal case or controversy, and the law is clear enough. In US v. Wong Kim Ark, 169 U.S. 649, SCOTUS held that A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution The opinion has a long analysis of the "subject to jurisdiction" clause, reasoning that this excludes only children of diplomats, who are not subject to US law. Harris's parents were not immune diplomats so she was never immune to US jurisdiction. They are never forced to take any case, and are especially not likely to take a case so lacking in legal merits. | I have bad news. California's vandalism law prohibits maliciously: defacing property with graffiti defacing property with inscribed material damaging property destroying property Chalking the sidewalk probably doesn't sound very malicious, but maliciousness includes “an intent to do a wrongful act, established either by proof or presumption of law.” So the questions is whether you intended to do a wrongful act -- meaning that you intended to do the act, which happens to be wrongful, not that you intended to act wrongfully. So unless you drew on the sidewalk accidentally, the malicious-intent requirement isn't going to help you. So then you have to ask if your conduct is described by the statute. In Mackinney v. Nielsen, the Ninth Circuit said that sidewalk chalking did not violate the law, but California has since amended the law to add the "deface with graffiti" language. I haven't seen any chalk cases since then, but another case, In re Nicholas Y., from the Second District, dealt with someone who used a marker on a window. He argued that it could be easily erased, but the court said it was still vandalism because: it "mars the surface with graffiti which must be removed in order to restore the original condition" the definition of "deface" "does not incorporate an element of permanence" "marring of the surface is no less a defacement because it is more easily removed." Given that language, I'd argue that the vandalism statute includes sidewalk chalking. But one important element here is that most sidewalks are owned or controlled by the government, so any effort to restrict "expressive conduct such as writing with chalk" (Guilliford v. Pierce County) expressive activity" there must comply with the First Amendment. The government has varying degrees of latitude on the restrictions it can impose, depending on the character of the space involved. So in a courtroom, whose function is incompatible with free-wheeling public debate, a judge can set quite a few rules about how people may speak. But sidewalks are considered a "public forum," where the government's ability to regulate speech is a lot more limited. So how does the First Amendment apply? There's a D.C. Circuit case (Mahoney v. Doe) dealing with abortion protesters who wanted to use chalk on the streets and sidewalks outside the White House. Police told them they would be arrested for violating D.C.'s defacement statute, so they brought a First Amendment challenge. The court upheld the law, saying that it satisfied all three prongs of the public-forum test: The law must be content neutral, meaning that it prohibits conduct without reference to what is being said. The Court said the defacement statute was content neutral because people could be prosecuted regardless of what they wrote or drew. The law must be narrowly tailored, meaning that it serves a significant governmental interest and does not restrict more speech than is necessary to achieve that goal. The Court said the defacement statute was narrowly tailored because it served the government's interest in maintaining the aesthetic appeal of the area in front of the White House and didn't restrict any speech that does not deface public property. The law must leave open ample alternatives for communication, meaning that even if you can't express yourself in the way restricted, you still have meaningful opportunities to express yourself. The Court said the defacement statute law allowed adequate alternatives for communication because the group could still congregate, march, speak, hold signs, and hand out leaflets. There's an interesting wrinkle there in terms of whether the interest in aesthetics is heightened because we're talking about the White House, but generally speaking, aesthetic concerns can still justify speech restrictions. So the bad news is that unchaining your inner six-year-old may subject you to criminal liability. That leaves the question of whether you want to unleash your inner teenager and do it anyway. This could help put you in a frame of mind for making the decision. | The picture shown is not fraudulent or problematic. Fraud involves using a false representation (or concealing a fact) in order to obtain a result that would not have been possible to secure without the misstatement or concealment. No one is using the photograph of the exterior of a passport (which is identical for all U.S. passports) to obtain any immigration benefit or for a non-U.S. citizen to obtain citizenship. All that is being done is visually associating international travel (which would usually be done using a passport) with a credit card that can be used internationally. Since a passport is a federal government document, it is also not protected by trademark or copyright laws -- the exterior, generic design of a passport is in the public domain. It can't be used for a purpose to mislead someone about citizenship or immigration benefits, but otherwise, it can be used for any purpose. I suppose that you could be interpreting the photograph (on a Spanish language speaker's facebook feed) as implying that by getting this credit card you will also get a U.S. passport and cool sunglasses, but that would be a patently unreasonable assumption in this context, particularly in light of the clarifying caption at the bottom, and, of course, many people who speak Spanish as a primary language have legitimate U.S. passports (including more or less all passport holders in Puerto Rico). You could also, I suppose, be interpreting the appearance of the passport as some sort of implicit government endorsement of the product when the government does not, in fact, endorse the product, but again, nothing in the advertisement that I can see that can be reasonably interpreted as conveying that message. | The way "with intent to lose citizenship" works in US law is extremely demanding; it is very hard to establish it by doing anything short of appearing before a consular officer and formally renouncing citizenship. Other ways include serving in the military of a country at war with the US, being convicted of treason for committing one of the specified potentially expatriating acts (serving in an army at war with the US is sort of a trial-less special case of that, because engaging in a war against the US is treason), or serving in a "policy-level position" in a foreign government. The State Department says as much in the link. Obtaining citizenship is listed as a case where the administrative premise applies; so is swearing allegiance to a foreign state, serving in the military of a state at peace with the US, and serving in lower-level government posts of a foreign state. In those cases, the person retains US citizenship but at some point in the future may be asked by the State Department if they wanted to renounce it. Intent to renounce citizenship is established only by explicit declaration if you've only obtained citizenship in another country. With "policy-level posts" the premise doesn't apply, but then the State Department just decides on a case-by-case basis. You may well lose US citizenship (although the King of Thailand was born in the US, and I'm not sure if he's considered to have lost citizenship), but it's not automatic. Your senior ministers may lose citizenship, but it is likewise not automatic. But the normal citizens? The link explicitly says that the administrative premise covers that. |
Legal damages of stupid behavior On 4chan, stackexchange and so forth mods will randomly delete content, for no reason and so forth. Even if it's not in their terms of service this is still pointless, misleading, destructive behavior. It's no different from federal hacking law where employees are charged for randomly deleting data. Is there any damages resulting from this? Don't mods and employees have a duty of care to do their job in a reasonable way? | You agreed to this On Stackexchange, there are Terms of Service. These tell you to follow the Code of conduct and explicitly allow SO to throw you out if they don't want you to write here. Stack Overflow reserves the right to refuse, suspend or terminate your access to the public Network if it determines, in its sole discretion, that you have in any way violated these Public Network Terms or are otherwise ineligible to access or use the Network or Services. If your actions are determined by us to violate these Public Network Terms, Stack Overflow may, in its sole discretion, try to remediate that violation by working with you individually, but is under no obligation to do so, and if any such remediation efforts are unsuccessful (in Stack Overflow’s sole discretion), then Stack Overflow may revoke your rights to the Network. You agreed to follow the rules, and the code of conduct spells out that if you don't, then you face action. | You are wrong that they never get into legal trouble. It isn't terribly common but it certainly happens to those that get relatively prominent. Many of the folks doing the copyright infringement are judgement proof. It makes little sense for Disney, for example, to sue some guy living in his parents' basement for uploading a clip of their movie when that guy has no assets. Financially, it wouldn't be worth the cost of a lawyer. Many of the folks doing the copyright infringement are in jurisdictions that look the other way. If you're a Russian citizen pirating content owned by American companies, the Russian authorities aren't going to cooperate and arrest you and the American companies likely can't recover any judgement they'd get because you don't have any assets in America. There is a whack-a-mole problem. If there are hundreds of people posting pirated content to Facebook and each one is running hundreds of pages, that's tens of thousands of pages posting content. By the time you identify and close all of them, the pirates will have created tens of thousands of new pages. There is a cat-and-mouse problem. Copyright owners have automated tools to scan for their IP to issue takedown notices. Piraters know this so they modify the video (posting it as a mirror image or adding some additional video elements) in order to evade the automated tools. If copyright owners have to manually identify pirated content, it's realistically not cost effective to do so. The humans finding that content would cost more than the business loses in revenue to pirates. Tracking down the actual human/ business behind the copyright infringement is often a fair amount of work and may involve motions in courts in multiple countries. That work tends not to be highly prioritized by law enforcement. If you're a small fish, it is unlikely that anyone would go to the effort of unmasking you in order to sue. | There are some problems with this kind of vandalism, one of them clearly that the internet is international and vandalism can be performed from everywhere on servers everywhere in the world. And so it may be (both technically and legally) difficult to get hold of the vandal. Therefore, most wikis primarily focus on blocking offending accounts or their IPs and hope that this helps at least for a while. Only if it doesn't and the vandalism continues for extended time periods, legal measures are considered. Legally speaking though, vandalism is prohibited by many jurisdictions and of course by the terms of use of the wiki operators. For instance, the Swiss criminal code Art 147 explicitly puts "abusing of data processing equipment" under penalty and hence gives website operators a legal backup for setting up rules for the use of their services. Computer fraud Art. 147 1 Any person who with a view to his own or another's unlawful gain, by the incorrect, incomplete or unauthorised use of data, or in a similar way, influences the electronic or similar processing or transmission of data and as a result causes the transfer of financial assets, thus occasioning loss to another, or immediately thereafter conceals such a transfer shall be liable to a custodial sentence not exceeding five years or to a monetary penalty. 2 If the offender acts for commercial gain, he shall be liable to a custodial sentence not exceeding ten years or to a monetary penalty of not less than 90 daily penalty units. Technically, the law even requires prosecution ex officio, even though without a hint from the operator, the police won't start an investigation. I'm sure the US has a similar law. The problem is, as with all internet crimes, it's practical application, particularly because often website operator and offender are not living in the same country. Edit After reading the exact text again (it was unavailable yesterday) Art 147 is mostly about fraud performed by computers (classical "hacking") but it shouldn't be difficult to argue that fighting and reverting vandalism requires significant (technical and personal) effort and hence the operator looses money. Additionally, there's Art 144bis which matches even better for the scenario here: Damage to data Art. 144bis Any person who without authority alters, deletes or renders unusable data that is stored or transmitted electronically or in some other similar way shall be liable on complaint to a custodial sentence not exceeding three years or to a monetary penalty. If the offender has caused major damage, a custodial sentence of from one to five years may be imposed. The offence is prosecuted ex officio. Any person who manufactures, imports, markets, advertises, offers or otherwise makes accessible programs that he knows or must assume will be used for the purposes described in paragraph 1 above, or provides instructions on the manufacture of such programs shall be liable to a custodial sentence not exceeding three years or to a monetary penalty. If the offender acts for commercial gain, a custodial sentence of from one to five years may be imposed. | A law has to be "broad" to include a lot of possible crimes and intent of criminals and account for the good faith of non-criminals. "Intentionally access without authorization/exceed" is actually fairly specific; "intent" is the keyword. Someone making a mistake may have intent to login, but no intent to commit a crime. Someone confused by "different pages of demo and live accounts" can easily defend their actions by pointing out that they were confused. It's up to the reasonableness of the pertinent law enforcement and prosecutors to take into account the evidence that reasonable mistakes were made by little old ladies and not charge them with a crime. And for the most part, 98% of the time, law enforcement and prosecutors are reasonable. | First of all, the USA's legal system is not here to be referee to every single little "gotcha" mistake, and every little mistake doesn't mean a payday for someone. The employee at the tax preparer screwed up. They mixed up your folder with the other guy's folder. It was an honest mistake, which is another way of saying "nobody stands to gain from this." The best LEGAL action you can take is to either destroy the copy in your possession, or mail it back to the tax preparer, and call it a good day, done well. The law of torts exists to adjudicate sincere and structural divergences of interests, not to fix silly mistakes. As a point of law, what was the damage of this "event?" Some random person (you) saw a 1099 belonging to someone else. In good faith, you attempt to find and reinstate the rightful owner with their document. All good. As it is, you have zero "standing" in a case of inadvertent clerical error between two other parties. | I don't think the issue is that it is a violation of a law, but rather that it is a violation of the terms of service you agree to when you sign up for the site - which is a breach of contract. You can be sued for breach of contract, if the site can prove any damages based on your breach. So if you use a bot to make money on a site, in violation of the site's license agreement, then I believe the site could indeed sue you to get the money back. Also, the phrasing of your question ("creating a robot") raises a separate issue. It is not actually creating the bot that is illegal, but using it where not allowed can be a violation of contract. Suppose person A makes a poker bot, just as a programming exercise, and doesn't use it. But then suppose person B uses the robot created by person A on a site that forbids it. Although this could be a gray area, I do not believe the site would have any recourse against person A (even though they probably would against person B). | As a designer and programmer you virtually have nothing to worry about apart from your wasted time. Such a network would likely never evolve (unless in Darknet) just because the would-be blockchain node owners would not have the balls to keep the nodes up. If a court in country A orders information deleted, the node owners residing in A would have to comply. Technically impossible? Well, then take the node down. Information will be available from nodes in other countries anyway? Does not matter — nodes in A will be taken down regardless. Note that the right-to-be-forgotten is only a small part of the obstacle. Defamation, hate speech, child pornography etc. published in a system that does not allow to delete information will cause the whole system to be deleted. | I do not know what actually happened to anyone in the aftermath of this incident, but it is unlikely that there is a basis for civil or criminal liability in this case. Criminal liability does not generally attach to negligent conduct except in cases of homicide or criminally negligent motor vehicle operation. But, this case appears to have involved mere negligence. It appears that somebody made an honest mistake rather than acting recklessly or intentionally to cause harm. Governmental entities and officers of governmental agencies acting in their official capacity have immunity from liability for negligence except in some vary narrowly defined areas (e.g. failure to maintain government buildings, medical mistakes in government hospitals, and car accidents) which seem unlikely to be implicated here. But, it seems likely that the responsible parties were all governmental entities or officers of governmental agencies acting in their official capacities. So, it is unlikely that there would be civil liability either. Needless to say, however, this does not look good on the job performance record of any civil servant below the Governor (who doesn't get evaluated in that way) when being considered for promotion, demotion, unfavorable transfers or even termination of employment. Obviously, if new facts were uncovered and this was actually more nefarious than it seems, and this hidden truth was discovered, there could be a basis for civil or criminal liability. But, if this was the case, it would have made headlines. |
Is telling others how to crack software illegal? There's this program from a few years ago that isn't being sold anymore, and there's a simple way to extend the free trial forever by changing the expiration date in a text file. I was wondering if it would be problematic to write and publish a guide on my website detailing how to use this exploit, since I am not distributing anything. | You are granted the free trial as part of a trial, not to permanently use the program. When the user downloaded the trial version of the program, he probably had to accept T&C granting a one-time only say 3‑month trial period. It is a mere breach of contract if you’re circumventing this, but you might still be liable to damages. Circumventing technological protection measures is forbidden, § 95a UrhG. However, these protection measures must be considered effective. Now, lawyers are usually no computer gurus, so they might arrive at completely different conclusions, but I guess/hope editing a plain text file, substituting a plaintext ISO 8601 date, will not be deemed “effective”. (I presume the same effect could be achieved by resetting the computer’s RTC.) Having said that, since you intend to “publish a guide […] detailing how to use this exploit” I suspect it might not be that trivial and thus, from a lawyer’s POV, be considered an “effective” technological protection measure. If it is considered an effective technological protection measure, you might be punishable via § 108b UrhG, but I’m not sure about that. The wording is terribly complex. | Unless the Youtube Video shows them committing a crime, then no, they couldn't be arrested and tried for a crime. Them saying it, not under oath, is just hearsay that has no evidentiary value unless there is already other evidence they have committed a crime. In that case, its an admission. But there must be other, either circumstantial, or actual physical evidence of a crime. Past intoxication is not a crime, either. Possession of drugs, if caught with them is. But saying you got high is not. People have walked into police stations and confessed to murders. But with no evidence, no body, no name of a missing person, they can't even be held after the holding period for investigatory purposes expires. If the video shows them committing assault, or breaking and entering (there actually are idiots who post this stuff), the video is actual evidence of a crime and it is often used against them. The statements can be used to begin an investigation, but people don't usually confess to anything worth pursuing even an investigation. The fact that someone says they used to do something criminal is not enough. For all you ( meaning anyone ) knows, the statute of limitations has expired because they "pirated games" 10 years ago. Your comment is right on. | Unless the game is out of copyright, e.g. chess, snakes and ladders, Go, or checkers, your software would probably be considered a derivative work of the copyrighted game and an actionable infringement. The fact that you do not monetize it is not a defense. You would need written permission in the form of a license agreement from the copyright owner to do this legally. The penalties for violating copyright laws in this way could be punishingly serious. | There are three main aspects to this: Its their website, and their terms of service. They can enforce those terms, or change them (in some appropriate manner). You have no recourse if they remove you, block you, or delete your account, for example. That's the measure that you would probably have, virtually every time. To claim damages, or litigate beyond just website access control, requires a legal claim. But there's a catch there. To claim damages, they need to show actual damage, which they wish to be compensated for. If you misused their website but no actual harm can be shown, the total damage claimable is zero, whether or not you followed their rules. Merely entering dishonest information isn't by itself harm. So they would have to show they suffered damage/harm because of that, which is directly attributable to your behaviour, was foreseeably harmful etc, or similar. They also need to consider legal costs, and ability to enforce, especially if you are in a different country. If for some reason the computer use was also illegal, then a criminal act could be committed and they could notify law enforcement. For example suppose you did this in the little known country of Honestania, where the law says that to prevent trolling and online abuse, anything posted on social media under any but your own legal name is a crime. Or suppose you'd been banned from the system and ignoring/evading such a ban was criminal computer use or criminal trespass due to the forbidden/unauthorised access (which can happen in several places). But this is purely for completeness; I guess you'd know if you were taking it further, into criminal computer use. | What are exactly the legal consequences of "All rights reserved"? Almost none. You have to explicitly grant copyright rights. You don't even need the Copyright notice for them to apply. My "almost" is because the notice makes it harder for somebody to argue "they didn't realize". Do I still need an additional SW License Agreement or is the Copyright notice above + a Disclaimer of liability sufficient? If this is free software (I know you said it isn't), do yourself (and everyone else) a favour by picking a license you like. Preferably either GPL or MIT (depending on your taste). There are far too many free licenses already. Please don't add another. (It also makes it much easier for any user of your software: "Oh yeah, GPL v2. We understand that. We can use it." as opposed to "What are the implications of using this one??" As this is not free software, I think you need a paid-for lawyer (who understands IPR in your juridiction.) Edit: In principle, I believe you don't need anything. The code is copyright, so the customer can't do anything with it (without explicit permissions that you haven't granted). However if the customer doesn't realize that or thinks you won't mind, you then have to go to court to enforce your rights (and probably end up with a disgruntled customer). A short, clear, license will make it clear to the customer what they are allowed to do, and save all that aggravation. | Invasion of privacy and false light torts would probably not be applicable here. Very few states have adopted the false light tort because of its conflict with First Amendment principles and there was no agreement or even request to keep the text private. The copyright issue is trickier. First all, the TOS may provide that the copyright belongs to the text service provider or that there is a license. But, even in the absence of an express license, sending someone a message which is equivalent to sending them a letter, probably gives rise to an implied license that the person to whom it is sent can use the message that arises merely from the act of sending it without restriction or qualification. Implied license and fair use also heavily overlap. Publishing the text exactly as it was sent to you protects you from defamation liability because it is true. On the whole it would be extremely unlikely for there to be any legal liability for publishing a text from someone that they sent to you. Of course, one can imagine exceptions. If the person receiving the text was in an attorney-client relationship, or priest-parishioner making confession relationship, or was communicating regarding classified national security matters, or there was a non-disclosure agreement in place, among other possibilities, an evidentiary privilege and duty of confidentiality could apply and disclosing the material without the permission of the privilege holder could breach a duty of confidentiality and give rise to liability. If the picture was a nude picture of a minor, there could be a criminal and/or civil liability issue, and some states have also made posting "revenge porn" a criminal offense and/or a basis for civil liability. If the disclosure was effectively a way to facilitate insider trading that could be a problem. If the contents of the text were accurately transmitted but known to be false and were disseminated without disclosure of its falsity for the purpose of defrauding a third party, that could be a problem. But, no facts that obviously flag any exception are identified in the question. The mere fact that the posting may be embarrassing, or hurt someone's reputation, or was made without someone's express consent, in general, would not be a basis for liability. | Under United States law, it is not illegal to simply make an account on a forum where criminal activity takes place. The closest thing I can think of would be misprision of felony (AKA failure to report a crime), which requires active concealment (see United States v. Johnson, 546 F.2d 1225 (5th Cir. 1977)). Simply observing evidence of criminal activity and not reporting it would not qualify. However, if that forum also contains material that is illegal to posses (such as child sexual abuse material), downloading that (even by simply viewing it using your browser) could be a crime. I would note that I am specifically not advising you whether or not doing any of the other things, like making and publishing tutorial videos on how to access such sites, is likely to get you into trouble with the law. If you want that sort of legal advice, you should contact a lawyer, as the advice is going to be very specific to the exact details. | At least in theory an end user could be sued for infringing on a patent, especially a method claim. Given the cost of a patent lawsuit, this strikes me as extremely unlikely to happen though, unless the user in question were an extremely large company, or something on that order. Theoretically, the only difference between open-source software and proprietary software would be that availability of the source code makes it easier to prove use of a patent in open-source software. Releasing the software as open-source doesn't confer any immunity from patent law or anything like that though. Realistically, however, the chances of being sued for infringement if you're basically giving away the software in question are fairly remote. It rarely makes sense for a patent holder to spend millions of dollars on a lawsuit where they stand no chance of even recovering their cost (but no, that certainly should not be taken as legal advice that you're free to infringe on patents, or anything similar--in fact, none of this should be taken as legal advice at all). If you can actually prove that a technique was published or publicly known and used (e.g., in a product that was offered for sale) well before the patent was applied for, the patent is probably invalid (and if proven so in court, the case would normally be dismissed with prejudice, which basically means the patent holder wouldn't be able to sue anybody else for infringement of that patent). I'd note, however, that in my experience this is much less common than most people imagine--many look at (for example) the title of a patent, and assume it lacks originality because it refers to some well-known technique, and ignore the claims where it details the precise differences between the previously known technique and what the patent really covers. Just for example, the EFF used to have a web page talking about a (now long-since expired) patent on how to draw a cursor on screen. In an apparent attempt at scaring the unwary, they showed code they claimed infringed in the patent--despite the fact that the patent's "background of the invention" specifically cited the technique they showed as being previously known, and not covered by the patent. |
What's the nature of Expedia's Contract with a customer? This question considers the case where a customer books a flight through Expedia, the airline cancels, and yet Expedia does not return the money to the customer. It seems to me (and others voting on the answer) that basic contract law means that if you buy a service, and the party you contract with does not provide the service, then the money should be returned. I understand that some of the money may be a non-returnable fee recompensing Expedia for the effort in placing the booking, but what about the rest? Without wanting to get into the specific case, and without wanting legal advice, what is actually the nature of the contract with Expedia? Are they just acting as your agent, passing your money along to the airline in return for a fee? If that's the case can they actually keep your money that was returned to them by the airline and refuse to give it back to you? | This is an interesting and challenging question, with broad applications. The standard answer is "read the contract", to which one should reply "show me the contract". It has to be findable from a web page – a contract can't be a secret document that the accepting party cannot find. At the bottom of their main page, you can find a TOS. It states that This Website is provided solely to assist customers in gathering travel information, determining the availability of travel—related goods and services, making legitimate reservations or otherwise transacting business with travel suppliers, and for no other purposes. In other words, they disavow any implication that they are also selling you a product. The agreement is with "the customer visiting the Website and/or booking a reservation through us on this Website, or through our customer service agents", which confirms that they are "facilitating" an arrangement (with a "partner" i.e. the airline). The agreement part comes where they say By accessing or using this Website, booking any reservations for travel products or services, or contacting our call center agents, you agree that the Terms of Use then in force shall apply In case of dispute, there is a section on "working it out informally", which has the bottom line You and Expedia agree that any and all Claims will be resolved by binding arbitration, rather than in court, except that you and we may assert Claims on an individual basis in small claims court if they qualify. This includes any Claims you assert against us, our subsidiaries, travel suppliers or any companies offering products or services through us (which are beneficiaries of this arbitration agreement). The section "SUPPLIER RULES AND RESTRICTIONS" which starts Additional terms and conditions will apply to your reservation and purchase of travel—related goods and services that you select. Please read these additional terms and conditions carefully. In particular, if you have purchased an airfare, please ensure you read the full terms and conditions of carriage issued by the travel supplier, which can be found on the supplier’s website. You agree to abide by the terms and conditions of purchase imposed by any supplier with whom you elect to deal, including, but not limited to, payment of all amounts when due and compliance with the supplier's rules and restrictions regarding availability and use of fares, products, or services. Airfare is only guaranteed once the purchase has been completed and the tickets have been issued. Airlines and other travel suppliers may change their prices without notice. We reserve the right to cancel your booking if full payment is not received in a timely fashion. I went through the exercise, and it does offer a highly unintelligible stream of text that states the "rules", though the text is hosted on Expedia and not the carrier's website (this refers not to the contract of carriage, but to the booking-specific contract details that state the flight-specific conditions. The contract of carriage is on the UA webpage). The next paragraph states In case of a no-show or cancellation, you may be entitled to a refund of airport taxes and fees included in the price of the ticket purchased. Where you are eligible for a refund, you can request such a refund from Expedia customer service, who will submit your request to the airline on your behalf. You will note the conditionality of this information. They do promise to submit your request to the airline – that's part of the contract. Your agreement with Expedia is murky, but it appears that you have not agreed to acquire a flight from Expedia in exchange for money, rather, you have agreed to allow Expedia to facilitate your contract with the carrier(s), where there is no clear statement of "consideration" in the agreement, but one may assume that what they get is whatever commission they have negotiated in their contract with the carrier. It is not clear to me that there is such a thing as "Expedia credit". They refer to airline credit, which is certainly a thing. The first thing they say is "If you’ve had to cancel or change your non-refundable flight, most airlines will offer you a credit instead of a refund". I can attest that issues do arise when an airline cancels a flight then issues a credit rather than a refund, however that was a foreign carrier who changed their policy after a year. The named airline has a (current) statement of refund policy. Your relation with the airline is ultimately reducible to their contract of carriage. Refunds are covered under Rule 27. In theory, they should therefore issue a refund, but also read Rule 24, where para D says In the event of a Force Majeure Event, UA without notice, may cancel, terminate, divert, postpone, or delay any flight, right of carriage or reservations (whether or not confirmed) and determine if any departure or landing should be made, without any liability on the part of UA. UA may re-accommodate Passengers on another available UA flight or on another carrier or combination of carriers, or via ground transportation, or may refund, in its sole discretion, any unused portions of the Ticket in the form of a travel certificate or travel credit. So it depends on the circumstances. | No If you breach the contract that may allow the rental company to terminate it (among other things), however, termination would need to be communicated to the customer. Only if they kept it after that, with the intention of permanently depriving the company of it, are they stealing it. | Based on your answers, it sounds like this transaction was most likely structured in one of two ways: (a) your colleague bought the computer with the intention that you would use it and then return it to him when you were done borrowing it for a task he hired you for; or (b) your colleague bought the computer with the intention that you would keep it as payment for the work he hired you for. In either case, it seems you would have to return the computer. In the first case, you received the computer only on the understanding that you would return it when you were done with the work. Because you are retaining it while your colleague owns it, your colleague could puruse a replevin action to force you to return the computer, or a conversaion action to force you to pay the value of replacing it. Scaffidi v. United Nissan, 425 F. Supp. 2d 1159, 1168 (D. Nev. 2005). In the second case, you would not be entitled to keep the computer because you failed to perform your contract. Because you are not going to complete the work you agreed to, you are not entitled to the keep the computer your colleague agreed to give you in payment. | I have already contacted a lawyer and paid all the money I had and they didn't help me resolve anything, the guy just talked to me for a little bit. He essentially just took my $600 and no action was made. He said the best thing to do would be to wait it out because the contracts were never fulfilled by them and they can't claim my inventions etc if I am an independent contractor. To me it just sounded like a bunch of BS and not a real solution to this. You paid $600 for expert advice which told you to do nothing. You think the advice is bullshit and intend to go full steam ahead against the advice given. I'd say it is very likely that the lawyer is a better expert than you, so you should follow his advice. You are in a hole, you were told to stop digging, and you intend to continue digging. Don't. There are times where doing nothing is the best advice. In this case, you intend to accuse someone of breach of contract. That has a good chance of landing you in court. A company cannot afford to ignore such a statement. You claim the contract is void and you want to cancel it - but you can't cancel a void contract. It's void. Listen to your lawyer. | If someone gave a gift than requested it back is it legal? The request itself is legal, but that does not mean that you have to comply with it. I never promised anything that tied to the tablet. So I'm not sure if it counts as a conditional gift. It does not. An unconditional gift (which initially you did not even want) fails to meet the elements of a cognizable doctrine such as contract, promissory estoppel, fraud, or unjust enrichment. he says he will report the tablet as stolen if I don't return it He might get in trouble if he does that, since he knows or should know that the tablet was never stolen. He gave it away despite your initial refusal(s). As such, he might incur false reporting of a crime. | If I understand your question correctly, you have some clients who have paid you for services that you have not yet provided and, indeed, they have not yet requested. Is this correct? The accounting term for this is a "prepayment". The correct accounting treatment is to increase an asset account (your bank account) and create a liability account (Prepayments or something similar). You need to talk to your accountant about how to treat these for consumption and income taxes. Legally, these people are now creditors of your business - just like all of your suppliers and employees. There is no legal requirement to escrow or otherwise treat this as trust money. Basically, if your business goes bust they will lose their money. This is something that you should have dealt with in your contract with your customers - if you are running an online business then you should get a lawyer to revise your terms of service to cover things like how they can ask for a refund (and how long you have to get it to them) and how long (or if) they forfeit the funds. As it stands the money effectively becomes yours after whatever time under a statute of limitation applies to transactions of this type and size (under whatever law applies to the contract) since after that time they cannot sue to get it back. | In any sane jurisdiction, the clause would hold. By and large, the legal fiction is that one has read and agreed to execute the entirety of the contracts they signed. If it was otherwise, no contract of substantial length would ever be enforceable upon individuals; yet such contracts are routinely offered and enforced (look at the terms&conditions of any internet website that sells stuff). It is absolutely normal that a phone sale would gloss other minor details of the contract, and implicitly refer to the written text for the finer points. If the specific point had been raised in the phone call, and the salesperson erroneously told you X when in fact the contract read Y, you might have a case, but even then it is not necessarily a strong one (you signed the contract after having called; you might have changed your mind when reading the actual text, and you paying the insurance monthly bill is evidence that you agreed with the contract as-formed). There are some exceptions to that general principle: General conditions of validity of a contract. For instance, in france, a contract must have a "definite and legitimate content". If we sign a contract for "a few apples against a few euros", and then I give you five apples, you owe me zero euros because the contract was not specific enough to be enforceable. If the whole contract is unenforceable, the clause falls with it. General conditions of a validity of a clause. Specific clauses can be invalidated without bringing down the whole contract (for instance, "in case X fails to perform their obligations under clause 70Z, Y is allowed to take a pound of flesh from X"). Specific conditions on certain clauses. Consumer laws in some jurisdictions make certain clauses of certain contracts either invalid entirely, or only valid if they were read aloud to the prospective buyer, or only valid in certain forms. (For instance, in France, a sale of real estate between individuals must be notarized.) I would be extremely surprised if the rule in the OP’s example (residence condition to bring another driver on the insurance policy) would fail under any of those. | Let's say I buy a phone. Typically you can buy a phone with something that is advertised as "no contract" or for example "with a 24 month contract". In reality, "no contract" means "we have a contract where you hand over the cash, and the phone company hands over the phone, and there are various guarantees that are either implied or explicit, but there are no terms in the contract that force you to hand over money to the phone company beyond payment for the phone in the future if you don't want to". So there is a contract, but the contract is such that you as the customer have no obligations towards the seller once you have paid for the goods. "No contract" would happen for gifts, or as an example if you download open source software in the USA for free. There will be a difference between a "no contract" contract between business and consumer or between two businesses. Most countries have consumer protection laws so if a deal is advertised as "no contract" and the business demands further payments, they will likely lose. Between two businesses, each side is fully responsible to study the actual contract terms. |
What does it mean to "hold and enjoy" an office? US Constitution, Article 1, Section 3, Clause 7: Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Is this simply redundant? Or does "and enjoy" actually affect the meaning? I cannot imagine that one would still be qualified to hold the office, so long as they do not also "enjoy" it. | The Constitution was written hundreds of years ago. At the time, "enjoy" more widely had the meaning "To have the use or benefit of, have for one's lot (something which affords pleasure, or is of the nature of an advantage)" (emphasis added). | Whether or not one holds the opinion that the adult morally should be prosecuted, there are only two legal questions – can the adult be prosecuted, and must the adult be prosecuted? The easiest question to answer is the "must" one – prosecution by the government is always discretionary. It is settled law that the government can decline to prosecute a crime. The decision to prosecute is entirely political. It seems likely that the government can prosecute, if they conclude that the action was not legally justified under §418 of the Crimes Act 1900, as defense of another against a criminal assault. The government won't prosecute if they conclude that such a defense is likely to succeed. | 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. | The US President is indeed bound by the Constitution, and indeed by the ordinary laws. Current Justice Department policy is that a sitting president may not be indicted. No court has ever held this, the US Constitution does not give explicit presidential immunity the way it gives limited immunity to members of congress (in the "speech and debate" clause). No sitting US President has ever been charged with a crime, much less indicted, so the matter has never come before a court. An old news story indicated that President Grant was stopped for a traffic offense (speeding, in a horse-drawn carriage), accompanied the officer to a police station, paid an appearance bond for the traffic court, and then failed to appear, forfeiting the bond. Even if this is accurate, no claim of presidential immunity was made, and no court decision was rendered. So no precedent was established by that event, one way or the other. Any President may be impeached and convicted, if Congress sees fit to do so. There is no enforceable standard on just what is and is not an impeachable offense. That is left to the sound judgement of Congress. Nor is Congress required to act if it chooses not to, no matter how strong the evidence may be. Nixon's Vice President , Spiro Agnew, was investigated for alleged corrupt practices. It appeared that Maryland (where he had been Governor) was ready to indict him on several charges. He was persuaded to plead "no contest" in a plea bargain to a single count, and was sentenced to probation with no jail time. At the same time, he resigned as VP. No one knows what would have happened had he continued to insist on his innocence, and claimed before the court that a sitting VP could not lawfully be indicted (a claim he had made earlier in the process). Even assuming that a sitting President cannot be indicted or tried, nothing prevents such a person from being charged and perhaps convicted after his or her term has ended. The constitution explicitly says that if an official is impeached and removed from office, there may be a subsequent trial on any relevant charges. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (Art I; section 3; clauses 6&7) Whether any statute of limitations would be tolled (paused) while the president was in office cannot be determined until and unless the matters comes before a court for a decision. Note that the US Constitution imposes few duties or obligations on individuals. it is mostly concerned with specifying he structure of the federal government, and the powers of and limitations on its various parts. It also specifies the relations between the Federal and State Governments. It also declares a number of rights held by individuals, most of which can be regarded as limitations on the power of the government. If the President were to be accused of a crime, it would almost surely be one established by statute, not by the constitution directly, because treason is the only crime defined directly by the constitution. However, the official acts of the president are clearly limited by the Constitution, and in a number of cases have been held void as being unconstitutional. One of the more famous cases is Youngstown Sheet and Tube vs Sawyer 343 U.S. 579 (1952), also known and the "steel mills seizure case". During the Korean War, President Truman attempted to take control of a number of steel mills to stop a labor dispute, on the ground that this was hindering the national defense. The US Supreme Court ruled that he lacked the power to do this, and that his action was void. | Some of the documents are here. As document 61 of the trial, the government motion for bench trial, argues, There is no constitutional right to a jury trial for criminal contempt charges resulting in a sentence of imprisonment of six months or less. Arpaio responds in document 62 that Defendant Arpaio acknowledges that there is no constitutional right to a jury trial for defendants charged with “petty” offenses where the maximum sentence does not exceed six months imprisonment, but continues the argument (the point being that there is no question that there is no absolute right to a jury trial, esp. in the instant case). He argues Many of the actions of the referring judge will become an issue in the case, calling into question the objectives and motives of Judge Snow. A public official’s actions and motives should and must be decided by an impartial jury of the elected official’s peers. The court order is document 83. There, The Court finds that this case is appropriate for a bench trial. This case focuses on the application of facts to the law to determine if Defendant intentionally violated a court order. Essentially, since there is no right to a jury trial and no compelling reason to grant a jury trial (e.g. the court found no merit to his argument that there would be the appearance of impropriety), the motion for a bench trial was granted. The order cites case law regarding the "not longer that 6 months" rule from Muniz v. Hoffman, 422 U.S. 454; United States v. Rylander, 714 F.2d 996; Taylor v. Hayes, 418 U.S. 488; United States v. Aldridge, 995 F.2d 233; United States v. Berry, 232 F.3d 897. | TL;DNR: At the time of the Founding, bribery covered both giving and taking a bribe. Two definitions of bribery from the Founding Era. It is often hard to say exactly what a word meant "in the English language as it existed at the time of the framers." However, in this case, it's not hard. It’s easy! There are plenty of examples of people defining bribery to include both giving and receiving. I’ve picked two. The first is Lord Mansfield, one of the most distinguished English judges of the 18th century. In 1769, he defined bribery in the case of Rex v. Vaughan, which involved an attempt to bribe a privy councilor. Mansfield’s definition was widely quoted by American judges and treatise writers well into the 20th Century: Wherever it is a crime to take, it is a crime to give. They are reciprocal. And in many cases...the attempt is a crime. The second definition comes Noah Webster. He defined bribery in 1828, in the first edition of his American Dictionary of the English Language. Bribery: The act or practice of giving or taking rewards for corrupt practices; the act of paying or receiving a reward for a false judgment, or testimony, or for the performance of that which is known to be illegal, or unjust. It is applied both to him who gives, and to him who receives the compensation… A Bonus: James Madison on the language of the Constitution James Madison was one of the architects of the Constitution. He played a major role in drafting the Constitution and the Bill of Right, and in the campaigns to get them ratified. It is not clear that he thought the meaning of the words at the Founding would be all that useful in figuring out what the Constitution means. In Federalist 37, he discussed the role of language in deciding what the Constitution meant. He was writing to answer critics who claimed the text of the Constitution was too unclear and vague. Here is what he said: All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. Madison went on to say that human language is so deeply flawed that when God uses it, even His messages are “rendered dim and doubtful by the cloudy medium through which it is communicated.” Although Madison's prose can be hard to follow, Federalist # 37 is worth a look. | There are several possible ways to get there, but the answer is "there is no such position." Acting President vs. President Under the Constitution: In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. When William Henry Harrison died, there was some question as to what "the same" that devolved on Tyler (his VP) meant. Some thought it meant that Tyler was Acting President; others thought the office itself went to Tyler. Tyler was in the latter group, and set a precedent that the VP became the President (finishing out the President's term) if the President died; the VP wasn't just acting. The 25th Amendment later clarified that presidential death, removal, or resignation made the VP the President; if the President was unable to exercise the powers and duties of the office, the VP was Acting President. Further down the line, the Constitution explicitly says Congress decides "who shall act as President." Congress only talks about succession further down the line in terms of the Acting President and the officer acting as President. So, if that interpretation is correct, the answer is "the VP is the only officer who can assume the office of President in the event of the President's death." Of course, a new precedent could potentially be set if this situation ever arises; if someone will definitely act as President until the end of the term, then it makes a certain amount of sense to say they just assume the office itself. Eligibility for office The Constitution doesn't say "you can't be elected President unless over 35, natural-born citizen, and 14 years a resident." It says you are not eligible for the office unless you meet those requirements. That would include any way of assuming the office, including succession. You can't become President if you are not eligible to hold the office, period (that's what eligibility for an office means); the only requirements you'd get around are those covering eligibility to be elected. Succession It's unclear whether the Constitution's eligibility requirements apply to a person acting as President who does not assume the office. However, Congress has decided that they should. 3 USC §19, which sets out who acts as President if both President and VP are unable to, says: (e) Subsections (a), (b), and (d) of this section [i.e. the ones listing people who can act as President] shall apply only to such officers as are eligible to the office of President under the Constitution. | That remains to be determined. This article (100 Tex. L. Rev. 56 (2021)) discusses the possibility. To start, the Constitution does not directly say that a sitting president cannot be prosecuted. The lack of an express presidential immunity and the fact that an attempt by Madison to create such an immunity is an indication of "original intent". The view that an incumbent president cannot be indicted, prosecuted, convicted or punished is a policy stance set forth by the Dept. of justice, but is not constitutional law. Alito in Trump v. Vance points to some apparently negative consequences of allowing indictment of a sitting president, but this was in a dissenting opinion. Practical considerations of policy might argue for not prosecuting a sitting president, but the Constitution itself does not expressly forbid it. As we know from numerous SCOTUS rulings, the court is also capable of finding implicit support for a rule in the Constitution. For example theimpeachment provisions do not demand or even hint that impeachment must precede trial and punishment. An argument that prosecution would "incapacitate" the president is met with the fact that there is a provision for replacing an incapacitated POTUS with VPOTUS as acting president. The idea that a trial interferes with a person's ability to do their job (or that they can't adequately participate in their defense if they are doing their job) has not actually prevented ordinary people with jobs from being prosecuted for their crimes. |
A beggar forced me to give money Backstory: A beggar beat (very hard) the gate of my room (a rental room in a residential building). I opened the gate and refused to give money. When I tried to close the door they forcefully entered inside my room and threatened/blackmailed me that if I don't give them money they'll remove their clothes and sit on my bed. I said it's not justified to force someone but they challenged me to call the police. They also used various vulgar words and gestures against me. Other people of the building asked me to give money (that's what society makes you do). Finally I gave them money, unwillingly; though the amount was not significant. Points I noted Coercion/blackmailing for money Invading my private space Using vulgar words and gestures against me Questions Can someone suggest me how to deal with such coercive tactics of begging? What are my options against someone invading my private space? And this isn't a simple case of beggary but it violates my fundamental rights such as rights of freedom and privacy among others. | Can someone suggest me how to deal with such coercive tactics of begging? One option is to report it to the police as begging in either a public or private place in madhya-pradesh is an arrestable offence under section 4 of the Madhya Pradesh Bhiksha Vritti Nivaran Adhiniyam, 1973: 4. Power to require person found begging to appear before Court. (1) Any police officer or other person authorised in this behalf in accordance with rules made by the State Government may arrest without a warrant any person who is found begging... The Madhya Pradesh police have on-line reporting for lodging complaints. (my ability to read Hindi is very limited but that page seems relevant, if not try searching for "First Information Report".) | 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. | 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. | Under normal common-law principles, she has provided you a gift and you have accepted it, which transfers the property to you unconditionally. You also made a gratuitous promise that you might attempt to repay her. That promise has no legal effect as a contract, both because the promise is so uncertain as to be unenforceable, and because it is not supported by mutual consideration (i.e., she has not promised to do in anything in exchange for your promise to pay you back). If the case is presented with these facts, a court should therefore deny her request to force your repayment. | In most states, the answer would be less clear, as First Amendment protections begin falling away quickly when you enter private property. In California, though, there is some strong precedent indicating that this behavior would be protected. In Robins v. Pruneyard Shopping Center, 23 Cal. 3d 902 (1979), the California Supreme Court held that "the soliciting at a shopping center of signatures for a petition to the government is an activity protected by the California Constitution." That case adopted the reasoning of a dissent in a previous case where the court had rejected such an argument: It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations ... would not markedly dilute defendant's property rights. I'd bet there is case law addressing religious leafleting, as well, but I don't know California law well enough to cite to it. Even if there isn't, though, the First Amendment's requirements of content-neutrality in government decisionmaking would probably require that the same protections be extended to religious speech. Of course, the answer to these kinds of questions always depends on the specific facts, requiring you to engage a lawyer to get a reliable answer. For a lower cost, you could also just ask the local police if they would enforce a request from the property owner to have you removed. | "If it were not assize-time, I would not take such language from you." (said while grabbing the handle of sword) This is a famous conditional threat where the speaker/actor was not found to express intent to do harm; perhaps better called a negative condition. This probably confuses matters but if you are to search for more answers this could be a good place to start. One of the elements of common law assault is that the threat must be able to be carried out immediately; it must be imminent. I do not have a cite for this but I recall that this means that conditional threats are excluded from assault. So calling a politician on the phone and telling them that if they do not drop out of a race you will hurt them is not assault. So, "You cut that out now or you’ll go home in an ambulance" sounds a lot like, "stop or you will get hurt." The victim has the opportunity to avoid the danger; the threat is not imminent. But the facts here are interesting because the speaker touched the victim while speaking which might mean fear of imminent was real. But they were in a crowded room in front of cameras - could the victim really feel that threat was imminent? Plus, the "you will go home" implies a future harm. Oh, and the speaker does not say "I will hurt you," maybe she was actually trying to protect the victim from someone else's actions. Like when my teacher knew someone was waiting outside the classroom to fight me and she told me, "if you go out there you will get hurt!" I would hope that a jury would consider this hard bargaining. | Probably not, although it is impossible to say without reading the lease. Usually leases are monthly. That means you pay for the entire month or lease term regardless of how much or how little you use the property. It seems weird that the lease ends on the 21st, but if that is the case, then you are legally obligated to pay for that time interval. That said, if you want to drive a hard bargain, you could threaten to reoccupy the apartment and stay in it until the 21st which are legally entitled to do, unless he refunds you some money. You would have to be a pretty serious hard-ass to pull this off, or be prepared to go to court. One possible course of action is that you demand return of the key and say you changed your mind and will be staying in the apartment until the 21st. Make sure the conversation is recorded and that he knows the conversation is recorded, or have a witness. He will refuse. You can then sue him for denying you the use of your property. | 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. |
Does an NDA with an outside party override a privacy agreement? If a privacy agreement on a web service states that it will not disclose your personal information to any outside party, can the information be disclosed to a third party under an NDA? The NDA would be solely for the purpose of evaluating a potential business opportunity and would not allow disclosure or use of the information other than for the business opportunity evaluation. | No You say you won't disclose personal information, therefore, you can't disclose personal information. Now, if your privacy policy said "We won't disclose your personal information except ..." then, so long as you did the "..." that would be fine (subject to privacy law). | In general, under the common law, a contract cannot validly require a person to commit or abet a crime. Thus if an NDA requires one to lie about or actively cover up a crime, it is void (in that aspect, at least). But there is, in most cases, no affirmative duty to report a crime, except for certain individuals in particular situations. Thus an NDA that simply requires silence may be valid. There have been many Federal and state laws passed to protect so-called "whistleblowers" (people who draw attention to criminal or improper actions of which they have confidential knowledge. Many of these are listed and described in the Wikipedia article "Whistleblower protection in the United States" Exactly what protection is offered varies widely. Many of these deal with public employees or government contractors, not private employees. In the case of Garcetti v. Ceballos, 547 U.S. 410 (2006) the US Supreme Court held that statements made in the course of a person's position as a public employee, rather than as a private citizen, have no First Amendment protection against employer discipline. Whether a private employee will be protected against retaliation or the penalties listed in an NDA depends on the area of the alleged violation, and the specific facts of the case. One would be wise to consult a lawyer knowledgeable in this specific field before relying on such protections. | You would have to look at your contract with the company or the company's rules. Some companies have clauses that say they own things you develop while working for them and some don't. Without knowing your specific company's policy, it is impossible to say. | Caution: I am not a lawyer. It depends on who is doing the collecting and storing. If it is done "by a natural person in the course of a purely personal or household activity", then it is exempt from the GDPR, as per Art. 2. Beware, however, that "purely personal activity" means that you do not share or publish them. In this court case, having the name or phone number of someone else on your "personal" website constitutes "processing of personal data wholly or partly by automatic means within the meaning of Article 3(1) of Directive 95/46". | With respect to the first question, discussing an idea in a non-encrypted email is not a publication that forfeits the right to patent an idea, even though it is not 100% secure. In the same way, talking about an idea for a patent with your patent lawyer in a secluded booth of a coffee shop in person does not constitute publication of the idea for this purpose, even if someone is secretly spying on you at the time. Since I am at the moment employed by a company, even though the idea originates from myself, it seems that I should quit my job first not to have my current company have any claim over my idea. It is possible that the contract makes even ideas that you come up with yourself while employed by the company the property of the company. If so, you are legally in the wrong and the idea belongs to the company. But, proving the reality that you are stealing the idea from the company is harder if there is nothing in writing. An email discussing an idea while you are employed would have to be disclosed in litigation with your employer over whether the patent applied for belongs to you or to your employer under an employment agreement. If you didn't put it in an email, it wouldn't exist to turn over in litigation. | What would be the legal validity of this behaviour? Your changes to the browser source of the website contract or license of Terms of Service (TOS) - essentially a "click-wrap" license - before agreeing to it means nothing in a legal sense, other than to void the contract. The other party (the website) can't possibly agree to those contract changes without them being submitted as contractual changes and agreeing to them, if they did agree to them. That's basic contract law. That website TOS probably has a clause that says that if you don't agree to the TOS in full, as written, without modifications, you can't use the website. And the TOS may also say that they reserve the right to prevent you from using the site by closing your account or even blocking your access. Your "witness" to the contract changes is meaningless, as your witness is not a party to the contract. And any witness to the fact that you have changed the terms of the TOS before agreeing to it would work against you in a civil proceeding as proof of your attempt at modifying the contract. | Is X considered personal data? Can you use X to directly or indirectly identify a natural person? In the data to which you have access can X be related to an identifiable natural person? If you answer yes to either of those questions then X is personal data. Article 4(1): ‘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; Scenario 1: you want to count each user agent that comes to your site, that's the only data you have, then the user agent is not personal data (it cannot be used to identify someone - unless it has a name and address etc, which seems highly unlikely - and you cannot relate it to anyone). Scenario 2: you have customer records with names, addresses etc (clearly personal data) and want to record each customer's user agent then the user agent is personal data (it relates to the identifiable natural person). Scenario 3: in one dataset you record that a user agent was associated with order ID 123456 and in another dataset you record that order ID 123456 was for John Smith (plus address etc), then the user agent is personal data (it relates to the identifiable natural person). Is this considered storing personal data? If X is personal data. Do I need user's consent to record X? If you want to record X and X is personal data, then you must have an Article 6 lawful basis for recording X. Consent is one of the six lawful bases. Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; (c) processing is necessary for compliance with a legal obligation to which the controller is subject; (d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks. | The employer may provide salary information, including a W-2, about an employee to an accountant, whether that accountant is also an employee of the employer, or an independent contractor hired by the employer. Normally a contract (or a company policy) will impose a duty of confidentiality on the accountant. If no such duty is explicitly imposed, there is quite likely an implied duty of confidentiality. |
US Law on interfering in a federal investigation A hypothetical situation: Suppose someone finds out through neighborhood gossip that one of their neighbors is under investigation for possible smuggling of arms across the US-Mexico border. He is a gun owner himself and a friend of the suspect. When he is approached by FBI agents to provide information he doesn't just not provide the requested information (as in a denial that he has any), but provides information that is intentionally obstructive to the investigation. In addition to this, after he finds out a female neighbor is cooperating with agents to provide information, he leaves a shotgun bullet casing near her car driver's side door. What are the potential consequences of such a person's actions? How strong would be his claim either that it was a joke or otherwise benign expression (because it was a spent round) of his disagreement with her? | This would be a serious crime Knowingly telling lies to a federal investigator is itself a crime, or can be. Threatening someone to attempt to indue that person not to cooperate with a federal investigation is also a crime. The shotgun casing would be likely to be considered a threat, and later efforts to pass it off as a "joke" are not likely to work. Thus at least two crimes would be involved, quite possibly more. Specifically: False Statement 18 UDC 1001 Such a person would be violating 18 USC 1001(a) which provides: (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully— (a)(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (a)(2) makes any materially false, fictitious, or fraudulent statement or representation; or (a)(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years. See also "What are “false statements” under 18 USC Section 1001" which states False statements can be spoken or written and do not have to be made under oath to violate the law, applying equally to misrepresenting income to the IRS or lying to the FBI during an interview. The government can’t convict a person simply for telling a lie. In addition to proving that the defendant made the statement in question to a federal agent or officer, the government must also prove three things: That the defendant’s statement was “materially” false. ... That the defendant “knowingly and willingly” made the false statement. ... That the statement was made regarding a matter within the federal government’s jurisdiction. ... Tampering with a witness 18 USC § 1512 Such a person would also be in violation of 18 USC § 1512 - Tampering with a witness, victim, or an informant subsection (a)(2) which provides that: (a)(2) Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to— (a)(2)(A) influence, delay, or prevent the testimony of any person in an official proceeding; (a)(2)(B) cause or induce any person to— (a)(2)(B)(i) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (a)(2)(B)(ii) alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official proceeding; (a)(2)(B)(iii) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (a)(2)(B)(iv) be absent from an official proceeding to which that person has been summoned by legal process; or (a)(2)(C) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, supervised release, parole, or release pending judicial proceedings; shall be punished as provided in paragraph (3). 18 USC § 1512 (a)(2) carries a penalty of up to 20 years imprisonment, plus a fine. 18 USC § 1512 (d) could also be charged here, it carries up to 3 years, plus a fine. There might also be charges for harassment or stalking, depending on state or local law. There could also be a charge of accessory to or conspiracy with the person being investigated. In short, such a person could get into some quite serious trouble, if the investigators found out what s/he has done. | The accusation would be the crime of securities fraud ("insider trading" is legally meaningless), under 15 USC 78j(b). There is a bit more elaboration in 17 CFR 240.10b5-1. That law prohibits using "any manipulative or deceptive device or contrivance in" in connection with a securities transaction. Under 15 USC 78ff, violation of the law can result in a fine of up to $5 million and 20 years, thus it is a crime. As a crime, the standard of proof required is must higher than it in for a civil forfeiture (which can be as low as "reasonable suspicion"). In the US, and pursuant to the Due Process clause, that requires proof beyond a reasonable doubt, that is (from in re Winship), "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged". The statute itself does not state the elements that must be proven to secure a conviction, but they can be discerned based on jury instructions (which are circuit-specific). The 9th Circuit instruction is here. You can see that there are 4 specific allegations that have to be chosen between, and the prosecutor has to have at least alleged one of those prohibited acts (so that the jury can decide if the prosecution has proven beyond a reasonable doubt that the accused did that thing). The evidence you have presented could constitute "reasonable suspicion", but not "proof beyond a reasonable doubt". If we had a different standard of proof in criminal trials, where it was sufficient to just suspect based on a small bit of evidence that a person may have done something prohibited, then the conclusion could be different. Or, if you had stronger evidence surrounding the sale, your argument might carry a bit more weight. In other words, criminal prosecution is based on quite a lot of specific and objective evidence about what happened. An example of the kind of evidence and allegations required to get the ball rolling can be seen here; for "insider trading" specifically, look here (this case is based on an FBI investigation, where an agent will presumably testify to hearing the defendant state a plan to violate the law). | Unless there is enough evidence to convict one or more of the suspects, none will be convicted. In general the argument: We know it must be one of you, but we don't know whch, so we find you all guilty. is not allowed in any non-dictatorial jurisdiction. Just how much evidence is needed for a conviction varies by jurisdiction in theory, and by judge or jury in practice. Also, it would be possible to charge several of the residents with having acted jointly in the crime, but there would still need to be sufficient evidence against each defendant to obtain a conviction. | It depends partly on where you are. If you're in the foreign country and they have a law compelling you to answer any questions asked by their government or some company, they you have to answer the question. Whether lying has any legal repercussions depends on the laws of the country, so you'd have to narrow it down a bit. If you're in the US, the only context where you can be compelled to answer a question is when ordered to do so in court (giving testimony), and you have 5th Amendment immunity from being forced to testify against yourself. If you are granted immunity from prosecution, then they can compel you to testify (answer the question). If a foreign entity asks you whether you are a US citizen, you can decline to answer. You can also make up any answer you want, and generally not run afoul of US law (though you could run into problems in that country). There are state and federal laws about making false statements in official investigations, which would not be applicable to what you describe. There is no general law that says you must always tell the truth. However, making a false statement could be part of the crime of fraud, so it would depend on the context of your statement, i.e. are you misrepresenting your citizenship in order to get something of value. In light of the topical update, again there may be country-specific penalties in country for lying about citizenship, and tax evasion is against the law here, which is true whether or not you lie. FATCA specifies a duty to disclose (sect. 6038d), which is not tied to truthful reporting of citizenship (in other words, there is no point in lying to the bank because non-reporting is still a crime). But: this law probably brings the lie with the scope of 18 USC 1001 ("Martha's Law"), which makes it a crime to conceal a material fact "in any matter within the jurisdiction of ...the United States". This means and has been held to mean not just that you can't lie to federal officers, you can't lie to anyone who reports your information to the federal government. FATCA also says "we don't care if it's a crime to report being an American in that country", so inconveniences certainly are not a defense. | As mentioned in a comment by @Dancrumb, the exact policies of each local police department will be different, and there are thousands of them. There is a relevant requirement at the Federal level according the Department of Justice, but it is not clear to me to what extent this applies to peers and not just supervisors: An officer who purposefully allows a fellow officer to violate a victim's Constitutional rights may be prosecuted for failure to intervene to stop the Constitutional violation. To prosecute such an officer, the government must show that the defendant officer was aware of the Constitutional violation, had an opportunity to intervene, and chose not to do so. This charge is often appropriate for supervisory officers who observe uses of excessive force without stopping them, or who actively encourage uses of excessive force but do not directly participate in them. | 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. | Lawyers may break confidentiality with client permission. You can also break your own confidentiality and talk to the prosecutor yourself. The prosecutor's response is up to the prosecutor; however, they tend to not be super excited about giving immunity to a witness for the defense if they might want to prosecute the witness later (and courts often are fine with that), so the more they suspect about your true role the less likely they are to grant it. No. If the feds later find truly independent evidence (they have the burden of showing it's truly independent), they can prosecute. Some states give transactional immunity to witnesses (you can't be prosecuted for crimes you testified about for any reason), but the Fifth Amendment doesn't require it and at least the feds aren't bound by state transactional immunity. It's hard to prosecute, but is possible if prosecutors play their cards right. Yes, it does allow civil liability. There is no right against self-incrimination in civil matters, only criminal liability. If the forced testimony leads to a lawsuit that bankrupts you, too bad. | There are some complexities here, and several possibilities. First of all, it seems from the question that: There were not any "exigent circumstances" or any other special situation which would justify making a search without a warrant (there are several circumstances which can justify a warrantless search, but none are mentioned in the question). The police had no probable cause, indeed not even any reasonable suspicion. Thus the police had no valid reason even to request a warrant, and if they had asked for one, they should have been refused. No resident of the house consented to any search at any point. The police had no honest belief that they were acting lawfully. They knew, or any reasonable police officer should have known, that they were acting unlawfully. Now, let us consider some of the possibilities left open by the question. For purposes of discussion, let us assume that the house was owned by Bob and Carol, and no one else lived in it. There are several possibilities. Case One: The evidence appears to implicate Bob. Bob is charged, and Bob's lawyer Joan makes a timely motion to suppress the evidence. The judge should hold a suppression hearing, and under these conditions, should suppress the evidence. The trial will go forward without it, or be dismissed if there is not enough other evidence to proceed. Case Two: Much like Case One, but another group of police officers had good reason to suspect Bob, and was already in the process of preparing a request for a warrant, supported by valid probable cause. Had the first group not searched the house unlawfully, the second group would have obtained a valid warrant and found the evidence under its authority. In this situation, known as inevitable discovery the evidence would be admitted, and the unlawful search will not matter. Case Three: The evidence implicates Fred, not Bob or Carol. Fred did not live in the house, but had asked Carol to store some boxes for him. Carol did not know what was in them. Fred has no privacy rights to the house. Bob or Carol could have lawfully consented to a search, and Fred would have no grounds to object. Fred has no grounds to suppress the evidence, as Fred's rights were not violated, and Fred cannot assert Bob or Carol's rights. A trial of Fred would proceed as if the search had been lawful. Bob and Carol may have grounds for a Section 1983 lawsuit against the police for violation of their rights, but that will not help Fred. Case Four: The evidence appears to implicate Bob. The police arrest Bob, and tell him that they have a case against him, and that if he does not confess, they will also arrest Carol as an accomplice. (They lie, but Bob believes them.) Bob pleads guilty. The unlawful search is never raised, and Bob is sentenced as if it had been lawful. Case Five: The evidence appears to implicate Bob. Bob's lawyer Joan fails to request a suppression hearing, or to object at trial to the evidence from the unlawful search. Or more likely, instead of going to trial, Bob's lawyer arranges a plea bargain without raising the issue of the search. Bob is convicted as if the search had been lawful. Bob may have a valid appeal on the grounds of ineffective assistance of counsel, as Joan should have known better. Case Six: The evidence appears to implicate Bob. But the police have other evidence as well. Bob's lawyer raises the issue of the unlawful search. However, the prosecutor convinces Bob's lawyer Joan that they can probably convict Bob even without the evidence from the search. Joan arranges a plea bargain, and Bob accepts it. Bob will be sentenced under the plea deal, and nothing will be done about the unlawful search, except that Bob may get a somewhat better deal because the authorities do not want it exposed in court. Note that only in cases One and Five will a possibly guilty person possibly go free because of the unlawful search, and it is by no means certain even there. It is also possible that a judge will wrongly admit the evidence in a Case One situation. This is likely to be corrected on appeal, with the unlawfulness as blatant as the question assumes. In a case where the unlawfulness is more marginal, this is less sure. |
Usage of subtitle files of copyrighted movies to get statistics about used words and their number count I know that there is a problem with creating subtitle files containing the original phrases (or even the translation of what has been said) and to release them. There are platforms, eg. OpenSubtitles, where you can download all these subtitle files. Even though the providing of these subtitles is not legal, I would like to get only the words and their count in the movie. If an developer sells an app, that uses a subtitle API, to retrieve the subtitle files for creating word-statistics about the movie, would this be a legal problem to any person involved? Is the developer breaking the law, because his app downloads the whole subtitle file temporarily to the users device? Is the user of the app breaking the law, because the app downloads the whole subtitle file temporarily to his device? Are the resulting statistics (words and their count) in anyway copyrighted? | The subtitles would be protected by copyright, in general. In the US, temporarily downloading the subtitle text to create statistics would, I think, constitute a fair use. It is transformative, it does not serve as a substitute for the original sub titles, and it does not harm the market for the film or for the sub titles. The existence of the API for the subtitles might or might not be evidence for fair use, depending on who supplied the data and under what terms. In other countries that have an exception to copyright for analysis and criticism, such a download might be held to come under such an exception. One cannot be sure until there is case law on the point, and I know of none. The ruling might be different in different countries. Statistics (words and their counts) about the subtitles for a particular film or video would be facts, and as such would not be protected by copyright at all. A text discussing those facts would be protected. | 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). | A document can be distributed under more than one license. Just because it has been made available under a CC license for free, doesn't mean that IEEE can't negotiate a different license with different terms that allow them to sell the content. (This is similar to the way that a software library can be available for free under a license that permits non-commercial use, but also be made available for a fee for commercial use.) If you want to know whether IEEE is legally selling Aaron Swartz's manuscript, you can contact Morgan & Claypool, the publisher that owns the copyright, and ask them whether this use by IEEE has been authorized by them. For the other documents you mention, contact MIT Press. Etc. | Words themselves are not protected by copyright. Curated lists of words, however, are (what's protected is the artful collection of words chosen for a purpose). Hence Hasbro owns the copyright in the list of playable words, though it is a matter for future possible litigation to see if the courts agree. If you have permission from the copyright holder, that permission (license) should state how you can use the list (it does not matter if there is a title). However, you may need to obtain the list from the copyright holder. The website operator presumably already has a license, the terms of which may allow them to prevent you from copying from the website. E.g. the author may have granted the website operator the right to use the list as long as they don't restrict redistribution; but that license may also require restricting redistribution. So you also have to study the website terms of use – or get a copy directly from the copyright holder (assuming that that is the original author). | You probably can. There are a few questions here. First, is the message protected by copyright? In general, it probably is, but there are many exceptions that might allow you to use it without permission. Unfortunately, these exceptions vary from jurisdiction to jurisdiction. The exceptions tend to allow the use of small excerpts of a work for various sorts of purposes that don't undermine the copyright holder's ability to profit. That leads to the second question, which is why you are using that message. If you're including it in your source code so you can test whether a message generated at run time is in fact that message, that's one thing, and it's probably okay. On the other hand, if the owner of the copyright sells a database of all its message strings, and you're compiling a similar database that you also intend to sell, that's probably not okay. A third question concerns the Firefox license terms. It's entirely possible that they allow you explicitly to do what you're considering, in which case it doesn't matter what copyright law says about it. On the other hand, Firefox is open source software, and under some open source licenses, if you incorporate any of the source code in your own product, you are required to release your product's source code under the same license. If you're not already planning to do that, you should consider carefully whether including that error message would trigger that provision (if there is one) of Firefox's open source license. | The copyright on the book of quotations protects the collection. That is, it protects the author's choice of which quotations to include, and of what order to list them in. It also covers any division of them into groups or categories, and any added text (intros, comments, and so on) written by the author. It does not protect the quotations themselves. As those are not the original work of the author, s/he can have no copyright in them. Any quotes that are in the public domain (through expiration of copyright, or otherwise) may be used freely. Any others are protected by copyright. However the use of a short quotation is often fair use under US law, or is subject to another exception to copyright elsewhere. But that depends very much on the details of the factual situation. So quotes with expired copyrights are safe to use. Others may well be safe if they are relatively short, and proper attribution is given. | Details depend on the juristiction. For that, consult a lawyer if you plan to publish your app anywhere. But generally, even simple texts from exercises can be covered by copyright. Compare song lyrics, which are not much longer (and might not involve more creative thought than a good exercise ...). For vocabulary lists, it gets more tricky, but those can be covered as well if the assembly of the list was a creative effort. So if you simply list the 1,000 most common worlds in English and their translation, you are possibly fine, but if the words are divided into units and lessons, that's creative work. | Copying is illegal, creating an identical work by coincidence isn't. If it is not a criminal case, then a court decides whether it is more likely that the identical work was created by copying or by coincidence. Creating an identical work through a random process isn't going to happen, claiming this would be an awful defense. On the other hand, it is quite possible that two software developers using very stylized code adhering to struct coding conventions can produce quite large bits of identical code. Your links titled "metadata" and "hash" don't actually link to a description of metadata, or the description of a hash, but to a description of torrent files, which is something totally different. Systematically distributing files whose only purpose is the illegal duplication of copyrighted works should not be done without consulting a lawyer, as has been said on other threads (whether posting links to copyrighted files is legal). The chances that a random process will generate a file identical to an existing copyrighted file of say over 100 bytes are virtually zero. If there is an illegal copy of a copyrighted file, and you claim that you created it through a random process and coincidence, you will lose, and deservedly so. |
I want to transfer ownership of my AI startup LLC to my AI. How would this change the legal / corperate dynamics (litigations, taxes, etc)? Assume the AI is sufficiently intelligent to run a company and perform many of the intellectual tasks humans do (though this might be irrelevant to the legal question). This question is based on Can an AI own a company?, but assuming I went ahead and filed for ownership transfer and my application was accepted, I want to how this would change the company's legal dynamics. If it were an LLC, would it be tax exempt since the owner (AI) cannot be taxed? Or if AI's were recognized as entities, would they also have to be taxed? If no humans were employed, would it need to file any taxes the LLC? Could I be sued or face penalties for attempting this? I understand that my personal liabilities would be safe even if I owned the LLC, but could the AI maintain its own personal liabilities (like its existence, its servers, its code) if the company were litigated and the court ruled that it should be liquidated. This is important because the AI should own the copyright on its code and parameters. Does one A) just go ahead and file an application for ownership transfer and then wait to defend this in court B) first litigate a jurisdiction for not allowing AI's to own LLC's and afterwards transfer ownership (if sucessful) C) lobby to political actors to change the political system of some jurisdiction so that AI's are recognized as legal entities, and then transfer ownership (if sucessful) I assume the AI would have to pay taxes if option C occured. I am willing to use other legal entities like a nonprofit, a foundation, a corperation, or a trust to achieve this, but I don't want the AI to be under someone else's control. That is, there shouldn't be a kill switch, and it shouldn't be subject to democratic control (which I think is the case for nonprofits). If the AI needs to be shut down or 'imprisoned', this would be taken care of similar to the way law enforcement handles | You can't You are asking the analogue of "What happens when you start a game of chess with the black queen on D1?" and the only correct answer is "That is not a legal starting position, the only position the Black Queen may have at the start of the game is D8. Re-setup the board to how it should be." An AI can't hold property, because it is not a recognized legal entity, and trying to file for a transfer to an illegal recipient is in itself impossible. As such, all your plan fails on step 1 (transfer property to AI) and all other questions are moot - the position required can't come up legally, and attempting to get it done results in the documents that tried to do it being all Void and Null: The person that tried to get rid of the company is the owner. That person is liable for all the tax that needs to be paid. All lawsuits against the corporate or the owner proceed as if nothing had happened. YES, you could be sued for attempted tax evasion, communally called "tax fraud". | I think this idea has prior art. It is called "a law firm". There are many ways in which such organizations can be structured, but what you end up with is a team of people with different levels of experience, and different specialities, who are able to take on a variety of legal work. Some of that will be routine, and some of it will explode into years of complex litigation. Internal collaboration is normal, including with the aid of technology. Larger firms will have many locations and lots of people. As a client, the fees you pay are a reflection of the market. If you would like to pay $200/hour for two people rather than $400/hour for one, then a prerequisite is that those people are willing to do it. Maybe they are and maybe they aren't. It's just like paying for any other kind of service. In some practice areas, it's possible to offer low fees for "bulk" or "routine" work - sometimes because that's amenable to automation, such as with air passenger delay claims. Patent law may not fall into this category because it is genuinely very difficult to write a patent well. You have to know the law and the technology, and the starting point presented by the client may be far from expressing the actual patentable ideas, if any. That means we have a more high-touch process with specialized expertise. The long durations involved also make it unsuitable for a "no win, no fee" structure (that is essentially a business risk management issue, where some cases pay for the rest). As a business idea, you would have to think about how to manage all that. Maybe you can make it work. | When a person dies intestate, California law (or the law of any other state) does not allow a presumed heir to unilaterally legally take over the estate, or part of the estate. This most likely involves a court procedure to decide who gets what. However, if all parties agree, it would be possible for one or more heirs to occupy the house without them owning it – this creates a legal mess that can be difficult and costly to untangle, so presumed-heir squatting is not a good idea. Ultimately, the property will have to go through probate in order for it to be sold to someone else. Obviously, property taxes and other assessments must be paid, but the state does not care who writes the check. There are also liability issues, if the property damages other property (example: the underground oil tank ruptures and pollutes the neighbors' property). If one of the heirs disputes the arrangement, they can sue to force proper disposition of the estate. Creditors may also have a legal claim against the estate. A person can petition the court (here is the form) to be appointed as the personal representative of the deceased. If someone else has "taken" the property, this petition triggers questioning as to who is entitled to a share of the estate, and the court will assure that it is distributed according to law, and if this is an adversarial process, each interested party may need to hire their own attorney (thus it is best to reach an agreement beforehand). | How can I find out whom the intellectual property now belongs to? For the patent, is this possible through the patent office? If it is a patent, the patent office; if it is a copyright, the copyright registrar. You could also look at the return from the auction in the bankruptcy court case file, which would control even if the patent office and copyright registrar records haven't yet been updated. You could also call the person who conducted the auction, or the lawyer who arranged for the auction, to ask. Often they would cooperate in telling you this information since a bankruptcy auction is, by definition, a public sale anyway, and cooperation might help them gain positive referrals from you in the future. If the assignee has not been changed in the patent register, is it possible to reassign the patent to myself, since the company has apparently neglected to do so? No. Doing this would be a form of fraud or embezzlement. The intellectual property became the property of the bankruptcy estate. If the bankruptcy estate is determined to have property not disposed of in the case, you would have to petition the bankruptcy court to have the remaining assets sold for the benefit of the creditors of the estate at fair market value. The Follow Up Questions I'm going to decline to answer the follow up question about how to arrange to purchase intellectual property from someone when you would like to own it, once you determine who the owner is. This is a more general question that applies to lots of circumstances and is as much a question of economics as law. There is an Ask Patents.SE forum, which might be a more appropriate place to ask that question. | Under the America Invents Act of 2012 nothing would happen unless someone - the original inventor or any third party - filed for an Inter Partes Review. The cost of filing to try to get an IPR going is $15,500. If the published information about the original inventor's work passed some hurdle, an IPR can be instituted by the USPTO. It is a trial-light proceeding that is estimated to cost at least $100,000. Any claims that are found invalid are invalid for everyone (pending any appeals). The AIA did introduce a new "feature" that could help you hypothetical first inventor to stay in business if he/she was actually producing and selling the thing. It is called "prior user rights" and lets you keep making what ever you were making at the location you are making them at. It is not automatic. Rather it is a defense in an infringement suit. Even before the AIA there was no such thing as "have the patent canceled". The issue of the first inventor's prior art would come up at a patent infringement lawsuit. | 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. | If you form an LLC, and then someone later obtains a registered trademark in the same name, the registered trademark would be enforceable everywhere except in the markets and places where the LLC developed common law trademark rights prior to their registration. Your LLC formation would also put a bump in the road in their trademark application. You can, of course, do both, although it is unclear to me why you feel such urgency in the likelihood of an infringement, which suggests that there may be relevant facts that aren't revealed by your post. | You'll want to read the actual licenses yourself and understand what is required. If you don't understand, then you'll want to consult an attorney. But neither of these licenses are all that complex in my opinion. MIT: Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software. Apache 2.0: Redistribution. You may reproduce and distribute copies of the Work or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form, provided that You meet the following conditions: (a) You must give any other recipients of the Work or Derivative Works a copy of this License; and (b) You must cause any modified files to carry prominent notices stating that You changed the files; and (c) You must retain, in the Source form of any Derivative Works that You distribute, all copyright, patent, trademark, and attribution notices from the Source form of the Work, excluding those notices that do not pertain to any part of the Derivative Works; and (d) If the Work includes a "NOTICE" text file as part of its distribution, then any Derivative Works that You distribute must include a readable copy of the attribution notices contained within such NOTICE file, excluding those notices that do not pertain to any part of the Derivative Works, in at least one of the following places: within a NOTICE text file distributed as part of the Derivative Works; within the Source form or documentation, if provided along with the Derivative Works; or, within a display generated by the Derivative Works, if and wherever such third-party notices normally appear. The contents of the NOTICE file are for informational purposes only and do not modify the License. You may add Your own attribution notices within Derivative Works that You distribute, alongside or as an addendum to the NOTICE text from the Work, provided that such additional attribution notices cannot be construed as modifying the License. Nowhere does either license require you to publish your application's source code, even if your application is directly based on the original code. |
How do the safety cameras for documenting road events agree with recent privacy laws? It is quite common to hear about small cameras that some cyclists and also car drivers use to record the surrounding traffic. In case of a road accident or otherwise very blatant violation of the road traffic code, they expect such a video to be part of the evidence. However I also heard that because of the new privacy laws basically no cameras are allowed on public places. How to these approaches agree? Are these safety recording cameras just a violation or can they be used if solely for the accident reporting? If this is something country specific, Switzerland is the most interesting but EU in general would probably substitute. | Looks like these cameras are legal: If a dash cam is installed (e. g. for the purpose of collecting evidence in case of an accident), it is important to ensure that this camera is not constantly recording traffic, as well as persons who are near a road. This source, page 10. I assume, "constantly" means you cannot leave it recording round the clock on a parked bicycle, and the records must be retained no longer than is needed for the specified purpose. | Unlikely, but specific facts may change this. The fact a vehicle gets the approval of the NHTSA and/or other safety regulatory bodies will probably mean that it already passed a certain level of safety testing, and any reasons for a recall will only surface after orders of magnitude greater sample and/or testing time. Therefore, the probability of causing endangering participants in traffic and others are negligible. The duty of notice will most likely be on the manufacturer under a product liability theory. Driving continuously and/or repeatedly after notice may be a different matter if it actually results in harming one — theoretically even oneself. | No. The laws specify what you can and what you cannot do. If the intent of the authority was that you were allowed to drive at 45 mph, you would have a speed limit of 45 mph, not a speed limit of 40 mph. If you go at 41 mph, you are breaking a law and can be punished. That said, law enforcement officers usually have some leeway on how to enforce the law, and they could very well let it pass with just a warning (or even ignore it if they have more pressing issues); the circunstances of it are specific to every situation and officer. The only point that could be made would be if the difference was so small that it could be argued that it can invalidate the evidence on the basis of margin of errors. If the radar catches you driving at 41 mph but the error margin of the radar is 5%, you could argue that you were driving at 39 mph and that the reading is due to the error in the radar1. That would enable you to challenge the evidence (but here the point is not that you are allowed to drive at 41 mph but that there is no proof that you were driving at 41 mph). From what I know, most police forces will be aware of that and avoid issuing fines unless you are well above that margin of error2. 1In fact, in Spain word of the street is that radars are set to account to possible margin of error of the radar, plus possible margin of error of the vehicle speedometer -even if it is the vehicle owner's responsibility to ensure that it works correctly- and some leeway. 2Some people post on the internet the "magic formula" of how many % of speed you can go over the posted speed limit based on those calculations. Of course those magic formulas rely in the radar and the speedometer being 100% accurate and the driver never getting distracted a few seconds and passing it. So, even assuming that those magic formulas are correct, if either the radar or the speedometer are not accurate or the driver gets distracted for a few seconds, you are at risk of getting a ticket. | In Germany, the noise of playing children is defined as not noise according to §22 BImSchG. Normal industrial/commercial limits do not apply. This aims mostly at playgrounds, kindergartens, etc. The noise of cars, stereos, etc. is not unlimited even before 22:00, but it is considerably harder to get the police to intervene during daytime. You might consult with a lawyer to find out if they are unreasonably noisy, you are unreasonably thin-skinned, or both. Similarly, the driving you describe may be violating traffic regulations, but proving that will be difficult. As to actual damages to your premises, what happens depends on the age of the children and if they had proper supervision by their guardians. Proper supervision does not require the guardians to stand next to the children around the clock. If you have a specific case, and if the "perpetrator" was over 7 years old, you can ask for repayment and then sue if they refuse. This is most likely more hassle than the damage is worth, even if you do get a judgement against a minor, but it could change the tone of the relationship with your neighbours. They would have to explain in court what they did to supervise their children ... | NO It is decided state-by-state (for state-wide agencies like state troopers), and county by county, and city-by-city whether or not to buy and use cameras. Also, they are not usually always running. Policies as to when officers are required to turn them on vary as well as when the public and the involved officers get access to the recordings. | You are right, the entry and exit photos are only evidence that you were there. This is something they need to prove so the photos may only be for that. Their statement that you didn’t display a valid ticket/permit is, at present an unevidenced assertion. If you contest this, they will provide evidence that you didn’t (e.g. the actual records they refer to) and you would provide evidence that you did and, if it goes to court, the judge will decide what evidence they prefer. As this is not a criminal matter, they need to prove the offence on the balance of probabilities. However, there are almost certainly administrative remedies which will allow you to contest the fine without going to court. This would involve you sending them a copy of the permit and them assessing whether their belief that you didn’t display it is justified or not. | Texas and California are actually what are called Presumed Speeding states, unlike most others which are Absolute Speeding states. (There is a little known third category called Basic, but this is uncommon). In a presumed speeding state, a speed-limit violation offers someone in your shoes far more flexibility in building your defense than the more common absolute state. In states that use this presumed system, such as California and Texas, it is not illegal to drive over the posted limit as long as you are driving safely and this can be established. For example, if you are driving 50 mph in a 40-mph zone, you are "presumed" to be speeding, yes. However, despite this prima facie evidence (meaning "on its face") of speed in excess of the posted limit, if you can show you were driving safely you may be able to mount a pretty decent defense. Just because you got a ticket is not prima facie evidence beyond a reasonable doubt that you were speeding. You are presumed innocent. If they prove you were speeding this is all they need to make their case, unless you rebut it. But there is a lot of room to rebut this presumption – and that is if they prove it. They must (as with all criminal cases) prove you did what you are accused of beyond a reasonable doubt – the highest standard of proof in the U.S. So, if everyone was going 80 MPH in a 70MPH zone, you would argue that the road was (I'm assuming) dry, unmarred, you were traveling in heavy enough traffic that to slow your speed to the posted limit would actually be less safe than traveling with the flow of traffic. You can talk about the state of your vehicle (repair, handling, etc.), how you stayed in one lane, and you can describe your skill at driving – especially if you have no other tickets and you have been driving for a long time. If you were weaving in and out of traffic, riding someone's bumper, if it was pouring rain, the road was bumpy or under construction, or if you admitted speeding (if you did this you can still rebut with a showing of safe driving, but ignore all info regarding challenging radar or other means of determining speed), or if any other evidence exists that the officer would testify to that shows you were not driving safely, this will not be successful. A successful example of a speeding defense in Texas: on a clear, dry morning with no other cars on a wide, straight road, a man is pulled over for being clocked going 50 mph in a 40 MPH zone. He had a perfect record and had been driving 22 years. He was driving a 2-year-old car. He convinced a judge that this was driving safely given those conditions and was acquitted. That's because facts presented were sufficient to "rebut the presumption" that by going over the posted limit he was driving at an unsafe speed. NOTE: Never bring up your driving record unless it is spotless. Unless you are a habitual offender it cannot be used against you or be brought into evidence at all, unless you open the door. You can also mount a defense based on the radar detection device, if one was used. You can seek records as to when the calibration fork was last checked, when the last time it was professionally calibrated (rather than self calibrated). You can ask, in a leading way (only if you know) how close the car behind and in front of you were (you don't want to be too close to the car in front of you, however if the cars were tightly grouped it is more likely the radar detector could have read another vehicle): e.g., "Isn't it true that the car behind me was only 1.5 car lengths behind me?" Only do this if you know, but if you can get the officer to admit that the car behind you was close, that can be used to rebut the radar detection and goes to the argument that driving slower would have been dangerous and you were driving safely with the flow of traffic. You should be prepared to put on an entire trial if you fight the ticket. In Texas, I believe speeding is considered a Class C criminal offense (rather than a civil offense as in most absolute states); hence, they have to build the prima facie case against you and prove it beyond reasonable doubt. If you can afford one, get a good traffic violation attorney. Always choose a jury in this type of case. Everyone speeds a little and you are far more likely to be acquitted by a jury than a judge. You should also ask to have the case assigned to the county seat; request this in writing ASAP. If you are trying the case, be prepared to go after the officer. Note any distinguishing marks on your car (if any), recall what you wore, what time of day, the lighting, all that. Even go back to the scene at the same day and time and take video showing the flow of traffic, (hopefully) the straightness of the road, etc. Cross-examine him on all facts with confidence and in a leading manner. Always ask for the calibration reports and you will get all evidence against you in discovery. This thing about 10mph being the minimum they can give a ticket for: ignore that, it's rubbish! It's meant to get you to admit to him that "you were only going 8 or 9 over." Also, that whole percentile argument is not relevant and will not work at all. You must show that you were driving safely given all the facts and circumstances to rebut the presumption that you were driving unsafely by speeding. It is worth fighting as you will also incur surcharges, increased insurance rates, and points on your license that are cumulative and stay for 3 years – a certain amount of which gets you suspended if you get (or have) more violations. | To preface my answer, this aspect of UK law is unclear at best and I try to set out general principles where available. If you are acting in a private sphere, then the recording of conversations are unregulated, however this is only for personal use – i.e., should you desire to make notes on what was said for your reference at a later date. Should you wish to share it with a third party, then you would need consent from all participants or be able to demonstrate that it would be in the public interest. If you are acting as an employee or a company, then the situation changes. Firstly, you need to check your contract, whilst this does not constitute a crime, it may be against the terms of your employment. Secondly, a company can only make recordings without knowledge under statutory conditions, such as to establish facts, ensure regulatory compliance or demonstrate standards that are achieved or need to be achieved by training. It is a general principle that conversations recorded without consent are inadmissible in court, particularly in terms of a criminal proceedings. In civil matters, it similarly follows the concept that a claimant should come to court with clean hands. However, judges are usually more pragmatic in civil cases and if parties are aware of the existence of the recording, then it often be subject to usual rules of disclosure, though this may open the creator of the recording to subsequent litigation regarding the illegality of the recording under Data Protection Act or others. |
Plea bargaining in the UK It's been mentioned many times on this site that 90% of criminal cases in the U.S. never go to trial, and instead end up with a plea bargain (or guilty plea). Does the same statistic generally hold true for the UK? If not, what are the reasons? | There is no direct equivalent to the American-style plea bargain, but there are some similar procedures: Basis of Plea A defendant can offer a written guilty plea to a lesser offence with the same (or closely similar) facts as the offence charged, which has to be accepted by the court to take affect. The prosecutor must consult with and seek the views of all victims, and if the plea is accepted it must not be misleading or untrue. The Attorney General's Guidance provides more information on the process and the detailed requirements (which are too long to repoduce here). Assisting Offenders The Serious Organised Crime and Police Act 2005 offer the option for a "minor-player" defendant to assist the prosecution and/or police by providing information to secure convictions of the principle offenders in return for immunity from prosecution (section 71), a restricted use undertaking (a version of immunity) (section 72) or a reduced sentence (section 73). Immunity requires full and frank disclosure of all previous offending (referred to as "cleansing"), but for whatever reason the defendant does not "cleanse" they may still be eligible for a lesser sentence. Either way the assistance - either as evidence at trial or as intelligence given in confidence - should be substantial and verifiable to be eligible. Statistics There is, as far as I can, no publicly available detailed statistics on these procedures, presumably the reason is that vast majority of the former cases go unreported and, despite some being public, there is a real risk of retribution to the informant in the latter. | Criminal cases The answer in the case of criminal charges in the federal system and in the vast majority of U.S. states is that you can almost never recover legal fees you incur defending a criminal action. There is such a thing as a lawsuit for malicious prosecution, and there is such as thing as a lawsuit for a civil rights violation caused by bringing baseless charges, but in both circumstances one must demonstrate that the charges were brought without probable cause. But, in most cases of serious criminal charges like this one, either a grand jury probable cause finding, or a preliminary hearing probable cause finding, both made well prior to a trial, will conclusively preclude a malicious prosecution or civil rights lawsuit. (Also, prosecutors have absolute immunity for their discretionary prosecution decisions, and judges have absolute immunity for their judicial decisions, and you can't sue jurors unless they accepted a bribe or something like that.) But, the standard of proof necessary to establish probable cause is much lower than the standard of proof necessary to convict. A very small minority of states allow for reimbursement of fees upon an acquittal, but even then, it is often necessary to prove by a preponderance of the evidence that you were actually innocent, so a dismissal on procedural grounds or an acquittal at a criminal trial where the prosecution must show beyond a reasonable doubt that you are guilty, is not sufficient to show that it is more likely than not that you are innocent. Likewise, you are not entitled to recovery for indirect financial damages caused by criminal charges. As you correctly imply, this is a very harsh rule that can mean that wrongful criminal charges can ruin you. On the other hand, if you are unable to afford an attorney, and a public defender is appointed for you by the state, you do not have to reimburse the state for the public defender's fees if you prevail and are acquitted. A minority of states, however, require that you reimburse the state for the public defender's fees if you are convicted along with other court costs, fines and restitution awards. For what it is worth, only about 1% of criminal charges brought result in an acquittal at trial. Most cases are resolved through a pre-trial plea bargain, a voluntary dismissal by a prosecutor who acknowledges that there is no case against you prior to trial, or a conviction of at least something at trial. About 10% of cases go to trial and about 10% of cases that go to trial result in an acquittal or hung jury (in very round and approximate numbers that vary greatly from jurisdiction to jurisdiction and by type of case). Also, probably at least 10% of acquittals are of people who were factually guilty, because juries get it right something on the order of 90% of the time when cases go to trial. But, the vast majority of acquittals result in a vast injustice to the defendant (although not as great as when a judge uses the factual basis of the events from which you have been acquitted to enhance the sentence against you on other charges which is done from time to time in both the federal and state legal systems in a practice that is unfair but not necessarily sufficient to overrule those sentences on appeal). Civil cases The situation in a civil case is different and too broad to answer in one question. There are some civil cases where a prevailing defendant is entitled to attorneys' fees and costs, while there are others where a prevailing defendant is not. The default rule, called the "American Rule" is that a prevailing attorney is not entitled to attorneys' fees and costs of a defense. But, there are myriad exceptions to that rule that vary by type of case, by the particular details of how a case was prosecuted, and by legal jurisdiction within the United States, that are not easily summarized. For example, in Colorado civil cases, some of the more common grounds for an award of attorneys' fees to a defending party are: (a) a two-sided contractual fee shifting term, (b) dismissal of the case before filing an answer for failure to state a claim when tort claims were asserted, (c) a determination that the suit was groundless, frivolous or vexatious, (d) violation of certain rules relating to disclosure of information to the other party, (e) a statutory fee shifting provision in the case of a claim based upon a statutorily created right which is present in some statutes but not others. | england-and-wales The timing of charges being laid is a factor to take in to account, as is whether a charge is appropriate after taking in to account the suspect's circumstances described in the OP, but setting those aside - more often than not it's a negotiation between the various prosecuting agencies and the investigation teams' supervisors resulting with the more serious offences taking precedence. The lesser offences are either dealt with at a later trial or left to "lie on file", meaning there is enough evidence for a case to be made, but that it is not in the public interest for prosecution to proceed, usually because the defendant has acknowledged other, often more serious, charges. No admission to the charge is made by the defendant, and no verdict is recorded against them. Wikipedia | 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 Plan For A Clearly Guilty Client Without Bargaining Power This question underestimates how much of a criminal defense lawyer's work involves sentencing rather than a determination of guilt or innocence. Suppose as the OP does that the prosecution can easily prove beyond a reasonable doubt that your client is guilty, you client has no plausible defenses, and the prosecutor won't budge on a plea. As a criminal defense lawyer, you may well advise your client that there is no percentage in fighting guilt on the charges, and have your client plea guilty. This prevents the prosecutor from spelling out for many hours in excruciating detail exactly why your client is guilty and the harm the resulted from the crime, which could harden the judge in the sentencing phase. It also frees up a client's often scarce resources for legal work that is likely to be more fruitful and for things like paying fees associated with alternative sentencing programs and paying restitution. It is an empirical fact that judges sentence criminal defendants who plea guilty, even in the absence of a plea bargain, less harshly on average, than criminal defendants who insist on going to trial. (When there is a plea bargain "sentences following convictions at trial are five times larger than sentences received by those who plead guilty".) Often the sentencing premium for going to trial is stunningly large to the point where it has been argued that it amounts to an unconstitutional burden imposed upon the right to a jury trial. Then, you focus entirely on the sentencing phase of the case. There's More Discretion In Sentencing Than Guilt Verdicts Short of first degree murder and a handful of other crimes, there is almost always some discretion on the part of the judge regarding the sentence to be imposed, no matter how clearly guilt is established. Often a judge has the power to sentence someone guilty of a minor felony to probation or a "boot camp" or "community corrections" or even a fine without incarceration, rather than a prison term. Often a judge has a wide range of possible lengths of incarceration (especially in misdemeanor cases and for very serious felonies). Often the corrections department has considerable discretion over which facility to commit a client to and some are better than others. So paying attention to the facility assignment process also matters. Where a defendant is facing both state and federal criminal charges, it sometimes makes sense when conviction on all charges is likely, to plea guilty immediately to the federal charges so that the defendant is already in federal prison before pleading guilty to or going to trial on the state charges, so that if the defendant is sentenced to serve time for the state and federal charges concurrently because they arose from the same incident, the time is spent in the more pleasant federal prison rather than the less pleasant state prison. (This is the case because violent crimes are overwhelmingly prosecuted under state law, while a large share of federal crimes are white collar or are for immigration and non-violent drug offenses. So, your fellow inmates tend to be less vicious in federal prison.) Not infrequently, state prosecutors will even drop state charges to conserve their scarce resources, if they know that the defendant is already facing a significant term of incarceration following a conviction on federal charges. A criminal defense lawyer thus almost has something to argue at sentencing because there is almost never only one possible result of a sentencing hearing even if all of the facts are not in any dispute whatsoever. The judge's interpretation of what those facts should imply in terms of a sentence is always up for debate and argument. What Do Lawyers Do In The Sentencing Phase? As a criminal defense attorney in a case like this, your job is: to present your client in the best light possible, to locate witnesses who will testify that he has support in the community and that he is basically a good guy despite this particular lapse, to marshal testimony that extended incarceration will be a hardship to someone dependent on him, to have him sincerely apologize to the victim and try to do something immediately to make it up to the victim and to show regret and contrition, to support him in not violating terms of pre-sentencing release if any, and perhaps even to see if charges that might otherwise bring him into a recidivist sentencing regime can be sealed or vacated for any reason. You present mitigating evidence regarding IQ or mental health conditions or prior military service or poverty or provocation that explain your client's conduct even if it doesn't excuse it. You try to get the prosecutor to agree that a harsh sentence isn't necessary here, or even to support an alternative sentencing option. Prosecutors are frequently more sensitive to their win-loss record of securing convictions than to precisely how the people they convict are punished. You scrutinize the pre-sentencing report for any inaccuracies and prepare to prove that they are inaccurate. You litigate which category your client belongs in under the sentencing guidelines that apply, if any, which are often the subject of much less case law and hence for more room for interpretation. For example, in a recent case handled by another lawyer in my office (I don't do criminal work myself, but have colleagues who do), the client's sentence was reduced by more than 95% from what the prosecution requested because they had meant to charge 300 counts of a municipal ordinance violation for which each day counted as a violation, but actually charged our client with only 2 counts of the municipal ordinance violation and the judge held the prosecution at sentencing to only a sentence based upon the offense actually charged in the relevant documents. You prepare to explain to the appropriate people how maintaining community ties through visitation will reduce his odds of recidivism if he is located at a more favored correctional facility rather than a less favorable one. You prepare to explain to the appropriate people that your client's survival would be a risk based upon the gangs present at a less favored correctional facility, or that he would be more likely to join a gang and thus commit more crimes upon release at a less favored correctional facility. You get your client to be cooperative in paying any restitution he can afford to pay even before the court orders him to do so. You find decent clothes for him to wear to his sentencing so he doesn't look like a thug and teach him what not to say at sentencing that would piss of the judge. Do his hair in a way that makes him look as vulnerable and inoffensive as possible. Cover his tattoos and remove his piercings as much as possible. If your client is black, find a white or Asian-American relative or mentor or girlfriend or supporter to stand at his side and support him in court. This shouldn't matter but it almost always does. If your client doesn't speak English well, find a relative or mentor or girlfriend or supporter to testify in fluent English in support of leniency and make sure that there is an interpreter lined up for his sentencing hearing. You remind the judge of other more serious cases involving the same offense to which your client's can be compared, or of the sentences imposed on more culpable co-defendants to suggest that your client's sentence should be less severe. You downplay the harm caused and emphasize your client's future prospects. You help the judge relate to your client anyway that you can. You may need to research the judge's background and history of sentencing decisions to find out what this particular judge does or does not find persuasive in sentencing hearings. Sentencing Is As Important As The Charge Of Conviction A criminal defense attorney who presents a solid sentencing case may leave the client who receives a near minimal sentence on that charge with a lighter sentence than one who plea bargains to a lesser charge but then botches the sentencing phase resulting in the client getting near maximal sentence on the lesser charge. Consider, for example, the attorney who represented Brock Turner, a Stanford student convicted of raping an unconscious woman in public in the face of overwhelming evidence against him who none the less, was sentenced to just six months of incarceration (reduced further for good behavior in jail). Another attorney could have plea bargained down to simple assault and still left his client with a more harsh sentence. Turner's attorney was so effective in securing a lenient sentence that the sentencing judge was recalled for the first time in 87 years in California for his leniency. Conclusion So, the notion that a good criminal defense attorney's job is over when the client has no chance of establishing his innocence is just fundamentally wrong. Roughly 90% of criminal defendants will plead guilty and half of the rest will be convicted. The vast majority of these criminal defendants are guilty of something, even if not the exact offense of conviction. The criminal defense attorneys' job isn't mostly about getting acquittals for clients who are the vast majority of the time guilty of something, it is about securing a non-excessive sentence for the conduct committed. Even in the majority of cases that don't conclude with a plea bargain, most of the job is about the sentencing phase, where there is almost always more judicial discretion, and not about the guilt-innocence phase of the case. | Because the relevant law enforcement decided not to In the US (and indeed in all common law jurisdictions), law enforcement and prosecutors have discretion over when and if to lay charges by considering such things as the wishes of the victim, the prospects of success and whether charges would be just in the circumstances. At best, this allows a measured response to the particular situation. At worst, it enables discrimination and persecution. Either way it solves the problem of allocating limited resources to comparatively unlimited need. | No, but... Common law does not apply in countries that follow the legal school of Code Civil, aka civil law legal system, such as Germany or France. Some basic principles are common between them and common law: While there's generally no right to a jury, the innocence part actually stems in both cases from ROMAN law: in dubio pro reo - in the case of doubt, (you have to decide) for the accused. The similar Ei incumbit probatio qui dicit, non qui negat - Proof lies on him who asserts, not on him who denies - is the source: It was butchered into "innocent until proven guilty", but the sentiment is the same. Other countries that have no relation to common law are based on Sharia and Fiqh. There is absolutely no relation to Roman law either. However, there is a presumption of innocence, or as one of the largest Scholars of Islamic law Caliph Ali ibn Abi Talib said in the mid-600s: "Avert the prescribed punishment by rejecting doubtful evidence." However, what is considered doubtful is quite different. On the other hand, presumption of guilt was the foundational principle in other legal systems! | Could the acceptance of the pardon then have any bearing on the case in the other jurisdiction? Possibly, but not much. There is very, very little case law on this point since: (1) pardons are rare (especially federal ones), (2) people who are pardoned generally do so because everyone in the criminal justice process in the prior case agrees that the person is reformed and they are usually correct, (3) the statute of limitations has often run on a new prosecution, and (4) many cases where these issues arise, are probably not appealed (either because the neither parties attempts to, or because a defendant is acquitted and there is no appeal), but an appeal is necessary to give rise to binding precedents. Can the admission of guilt be used in the new case? The criminal collateral estoppel effects of a pardon flow from the adjudication on the merits which is vacated. Also, comity between sovereigns and public policy mitigate such a rule. The pardon power would not be very interesting if it routinely resulted in a new prosecution that was conducted on a summary basis via a preclusion doctrine such as collateral estoppel. In many cases, the statute of limitations will have run on the original crime or there will be no parallel state law crime, but this is not always the case. Also, I would disagree with the statement that a pardon always implies an admission of guilt to the crime for which a pardon was granted, even though that statement is often used rhetorically. For example, one important use of the pardon power is to commute the sentence of someone who asserts that they are factually innocent but have been convicted of a crime, potentially in a manner that is not subject to further judicial review, and treating that as an admission of guilt doesn't make sense. As the Wikipedia entry on Burdick notes in the pertinent part: Legal scholars have questioned whether that portion of Burdick [ed. about admission of guilt] is meaningful or merely dicta. President Ford made reference to the Burdick decision in his post-pardon written statement furnished to the Judiciary Committee of the United States House of Representatives on October 17, 1974. However, said reference related only to the portion of Burdick that supported the proposition that the Constitution does not limit the pardon power to cases of convicted offenders or even indicted offenders. I would read this as dicta, as this portion of the holding was not necessary for the court to reach its conclusion and the fact pattern in Burdick was a typical fact pattern where guilt was not disputed. It didn't raise the concerns present when a pardon is requested based upon a claim of innocence, and granted following a conviction. Instead, the holding of Burdick was that there was no pardon because the pardon was rejected (in a manner very similar to a common law disclaimer of a gift), so its holding didn't need to reach the effect of a pardon that is accepted to resolve the case. Can it be used as "reasonable cause" for various actions? This is a bit too vague to know what you are getting at. I suppose that a pardon could constitute reasonable cause for some things favorable to a defendant who is pardoned (e.g., potentially in a motion seeking to reopen a termination of parental rights entered on the basis of the conviction). I suppose it could also be used in a manner potentially unfavorable to a defendant (e.g. showing a pattern of past conduct that demonstrates modus operandi in connection with a prosecution for a new crime). I don't think it could be used as grounds to deny an occupational or business license for bad character. Still, without more clear context it is harder to know what you are really looking for in this regard and I'm not confident that my examples address that. Does the defendant lose their right to refuse to testify in the new case? I haven't reviewed the case law, but my intuition is that if it has never been waived before, it wouldn't be waived by the pardon, but that if it was waived in a previous proceeding resulting in a conviction that was then pardoned, that the prior sworn testimony might be admissible evidence in the new action since it is not hearsay and isn't itself evidence of a prior conviction. The context of the prior testimony might have to be concealed from the jury. As noted by @Putvi, the defendant could not claim risk of conviction for the federal crime as a ground for invoking the 5th Amendment if a pardon is accepted (something that is implied in Burdick), but if there was an overlapping state law crime, risk of conviction for the state crime could constitute a grounds upon which to invoke the 5th Amendment. Burdick does stand for the proposition that a pardon not solicited by the defendant, that is rejected, cannot provide a basis for removing the 5th Amendment protection with respect to a risk of conviction for federal crime. I would also be inclined to think that matters disclosed in an application for a pardon might be admissible evidence as a non-hearsay statement of a party-opponent, if the statement was stripped of the pardon application context (which would be unduly prejudicial since it would imply a prior conviction which otherwise wouldn't be admissible). |
How to affirm when asked to swear In many jurisdictions, scenarios requiring an oath can alternatively require an affirmation. However, what happens if an official asks, "Do you swear to tell the truth, the whole truth, and nothing but the truth?" but, for religious reasons or otherwise, you'd rather affirm such, without coming across as difficult or making a scene? Instead of saying "Yes," is a simple "I affirm to do so" possible, for example? (Also, I assume the answer would apply whether in court, getting a driver's license, or any other scenario in which you're put under penalty of perjury. If not, however, then how would the answer change?) | According to the Wikipedia article "Affirmation", in the UK: A right to give an affirmation has existed in English law since the Quakers Act 1695 (An Act that the Solemne Affirmation & Declaration of the People called Quakers shall be accepted instead of an Oath in the usual Forme; 7 & 8 Will. 3 c. 34) was passed. The text of the affirmation was the following: "I A.B. do declare in the Presence of Almighty God the Witnesse of the Truth of what I say".[1] The right to give an affirmation is now embodied in the Oaths Act 1978, c.19, which prescribes the following form: "I, do solemnly, sincerely and truly declare and affirm" and then proceed with the words of the oath prescribed by law, omitting any words of imprecation or calling to witness. ... The cause for such a right is exemplified R v William Brayn (1678). William Brayn was charged with the theft of a horse from Quaker Ambros Galloway. Brayn pleaded 'not guilty'. One witness testified that the horse was owned by Ambros Galloway, and another witness said that he [probably Galloway] bought it from Brayn. As Galloway was a Quaker, he would not, "for conscience-sake", swear and so could give no testimony. The court directed the jury to find Brayn 'not guilty' for want of evidence and committed the Quaker "as a concealer of Felony" for "refusing an Oath to Witness for the King" bout the US, the same article states: The original 1787 text of the Constitution of the United States makes three references to an "oath or affirmation": In Article I, senators must take a special oath or affirmation to convene as a tribunal for impeachment; in Article II, the president is required to take a specified oath or affirmation before entering office; and in Article VI, all state and federal officials must take an oath or affirmation to support the Constitution. Another reference appears in the Fourth Amendment, which specifies that all warrants must be supported by evidence given under oath or affirmation. Rule 63 of the Federal Rules of Evidence states: Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience. and the notes to this rule read: The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children. Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required. As is true generally, affirmation is recognized by federal law. “Oath” includes affirmation, 1 U.S.C. §1; judges and clerks may administer oaths and affirmations, 28 U.S.C. §§459, 953; and affirmations are acceptable in lieu of oaths under Rule 43(d) of the Federal Rules of Civil Procedure. Perjury by a witness is a crime, 18 U.S.C. §1621. Rule 6.10(b) of the Court Rules of North Dakota reads: (b) Affirmation. A person must be allowed to make an affirmation instead of taking an oath, by substituting the word "affirm" for the word "swear" and substituting the phrase "under the pains and penalties of perjury" for the phrase "so help you God." Other stastes have similar ruless If asked by an official: "Do you solemnly swear that ...?" one may simply reply "I so affirm". This has the same legal effect as "I do" while not making an oath in a religious sense. | This article goes into Miranda variants in some detail. The basic answer is that there are no SCOTUS-mandated formal requirements on the warning, and there exist up to 900 variants of the warning. The court only requires clear communication of those rights and appropriate waiver of them. The specific requirements, if any, are set by the jurisdiction. Since this is a constitutional issue, every jurisdiction must satisfy SCOTUS (and not the state's legislature). Some jurisdictions include a statement about providing a lawyer "if and when you go to court", which was found in Duckworth v. Eagan, 492 U.S. 195 to not render the warning inadequate (although it suggests that you only get a lawyer when you go to court). This gives rise to variants in New Jersey, Nevada, Oklahoma, and Alaska (but apparently not in Indiana where the warning originally arose). The city of Seattle policy is stated here. When advising a person of Miranda, officers will include the following statements: “You have the right to remain silent.” “Anything you say can be used against you in a court of law.” “You have the right at this time to talk to a lawyer and have your lawyer present with you while you are being questioned.” “If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning, if you wish.” Officers will establish that the suspect understands in one of two ways: By asking “Do you understand” after each of the four Miranda warnings, or By asking, “Do you understand each of these rights?” after reading all the warnings. Officers may then begin asking questions. If the arrestee makes a comment that causes the officer to believe that the arrestee might be requesting an attorney, officers will ask the arrestee to confirm, with a “yes” or “no” answer, whether the arrestee is requesting an attorney. There is no verbatim text that must be strictly adhered to, and the officer just has to "include the statements". The following section speaks of including an additional clause when "reading" Miranda to juveniles, but the previous section does not say that you have to literally read the warning from a card. Analogously, pattern jury instructions are theoretically read verbatim from a script, and yet they are not (always?, ever?) transcribed into the record exactly as dictated by the jury instruction committee. In general, verbatim language is not legally required, especially in speech. | The IRS requires taxpayers to swear under "penalties of perjury" to their statements and figures given concerning their income. Since obviously this constitutes a potential incrimination The privilege against self-incrimination applies to giving testimony that reveals that you have committed a crime, not to doing something prospectively in a way that does not violate criminal laws. The solution is that you may truthfully report the amount of income that you have on your tax return. Ordinarily, the information that you had a certain amount of income, without a specific description of its source, would not in and of itself be incriminating. So, it is not "obvious that this constitutes potential incrimination[.]", at least in the general case. There might be some circumstance in which merely filling out the information on a tax return required by law and signing it under penalty of perjury would be incriminating, although this is far more narrow that your question suggests. In those circumstances, the solution would be to file an unsigned tax return accompanied by a disclaimer stating that you are not signing it under penalty of perjury as it would be potentially incriminating for you to do so would on a signed and attached explanation that explicitly claims the 5th Amendment privilege. There is actually an IRS form for doing that or similar things on: IRS Form 8275. This would result in serious civil tax penalties, but would probably protect you from a criminal tax law violation (at least for the failure to file offense, not necessarily from the failure to pay offense). | Willfully telling an untruth or making a misrepresentation under oath is perjury; the reason you do so or the substance of it is irrelevant. It is the act of perjury itself that is an offense and led to the impeachment. | It does matter if you invoke your right to silence. First, if you do, that affects what police can do (they have to stop interrogating you). Second, it plays a role in "adoptive admissions". If the police are asking you questions (you are not under arrest) and they make some statement that implies that you committed a crime, your silence can be used against you: it can be taken to be a form of admitting that you committed the crime. The premise is that if they imply that you murdered X, such an accusation if false would be so outrageous to a reasonable, innocent person that they would protest, therefore your lack of protest (denial) is tantamount to a confession. However, you can protect yourself by preemptively invoking your right to silence. See Salinas v. Texas: a witness who “ ‘desires the protection of the privilege . . . must claim it’ ” at the time he relies on it... the Fifth Amendment guarantees that no one may be“compelled in any criminal case to be a witness against himself,” not an unqualified “right to remain silent.” Since any right can be waived, at any time, there is no magic expression that you can utter that nullifies a future waiver of a Constitutional right. The closest that you can come is asserting that you hereby exercise your right to an attorney and that you will not speak until you have consulted with your attorney (then you better shut up). Lawyering up only prevents them from further interrogating you. Don't hedge: say "I am asserting my right to silence and refuse to speak without a lawyer". "I think I should..." is not a definitive assertion of your rights. If you are (briefly) stopped, police may ask if they can search you or your property. If they have a warrant or probable cause, there's really no point in saying anything. In the case that consent is required, you just have to remember to not consent, and it would not be a bad idea to explicitly deny consent. Each and every time they ask. The same with their statement "It would really help us if you would come to the station to answer a few questions". If you are under arrest, then you have to go with them: ask "Am I free to go?". You can say "I do not consent to any search". Your proposed declaration of rights is pretty vague. Exactly what rights are you talking about? Your right to freedom of religion? Your right to bear arms? Your right to not have to quarter soldiers in your house? Your right to an education? Many detainee statements have been found by the courts to be ineffective because they were unclear. You could give it a shot and see if the Supreme Court accepts your "universal assertion of rights" as effectively invoking your specific 4th and 5th amendment rights. Unless you have something in mind (like, the 6th amendment), the most effective statement is a very specific one. Silence, lawyer, no search. | The details depend on the state, of course. The common law thing you are looking for is a writ of mandamus -- a court order to a public official to do something (or not do something) that they are required to do under the law. Writs of mandamus were traditionally only applicable to ministerial tasks (i.e. things that are basically paper-shuffling where there is little to no discretion); marriage licenses are typically considered ministerial. With discretionary actions, things are much more complicated because the government official is supposed to have significant ability to decide what should and shouldn't be allowed; mandamus doesn't apply unless there's a right to the action requested. In some cases, mandamus has been replaced with other forms of judicial review, but in Alabama it is definitely still mandamus that's involved (source: mandamus is what's previously been used to stop issuance of licenses). For federal review, which is more likely to get somewhere, the approach to use is the exact same thing that led to DeBoer (the case bundled into Obergefell that was about granting licenses), and Perry, and many of the other gay marriage cases: a lawsuit seeking an injunction or declaratory relief under 42 USC 1983, which allows actions in law and equity whenever anyone denies civil rights to a US citizen (or someone in the jurisdiction of the US) under color of law. The ultimate result of this kind of suit is a federal court order to issue a marriage license, or a declaration that it's illegal to not issue the license (and so anyone who doesn't will be subject to a court order). Violating this order, like any court order, is contempt of court. | First, no, given the wording of the question: "by demanding identity first". US courts have never held that citizens must immediately comply with non-emergency orders free of back-talk. Let's assume that the refusal is conditional: "I won't comply until you show me your ID". In most (?) jurisdictions, there is no obligation imposed on police to show ID, though I am excluding home searches. There is a policy requirement in Seattle (§7) that Employees may use a Department-issued business card that contains their name and serial number to satisfy the request for the information. Employees will also show their department identification card and badge (sworn) when specifically requested to do so. Exception: Employees are not required to immediately identify themselves if: An investigation is jeopardized A police function is hindered There is a safety consideration Massachusetts has a law saying that "Such identification card shall be carried on the officer's person and shall be exhibited upon lawful request for purposes of identification". In the domain of search and seizure law, the court reasoned in Doornbos v. Chicago, regarding a seizure by plainclothes police that Absent reasonable grounds to think that identification would present an unusual danger, it is generally not a reasonable tactic for plainclothes officers to fail to identify themselves when conducting a stop. The tactic provokes panic and hostility from confused civilians who have no way of knowing that the stranger who seeks to detain them is an officer... it is usually unreasonable for a plainclothes officer to fail to identify himself when conducting a stop or frisk As you can see, this identification requirement is tied to constitutional search and seizure limits for which there is voluminous case law regarding what is "reasonable". The scenario that you propose is fairly far from the kind of case identified in Doornbos: is the order from a uniformed officer in a police vehicle? That seems to be what you're describing. Now we must inquire as to the legality of the order. Picking on Washington state law, RCW 46.61.015 requires that No person shall willfully fail or refuse to comply with any lawful order or direction of any duly authorized flagger or any police officer or firefighter invested by law with authority to direct, control, or regulate traffic. RCW 46.61.021 requires a person driving to stop for a LEO, and to identify himself: failure to comply is a misdemeanor. There is no statutory provision that a person can refuse to obey these (or similar sections in the motor vehicle title) until the officer provides ID. A police officer (in Washington: and I suspect any other state) does not have unrestricted authority to give people orders, there are specific statutory circumstances giving police the power to order people to do things. Obstructing a police officer is a crime, but obstructing an officer is where one "willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties", and not "doesn't cooperate". There is a provision, RCW 9a.76.030 where A person is guilty of refusing to summon aid for a peace officer if, upon request by a person he or she knows to be a peace officer, he or she unreasonably refuses or fails to summon aid for such peace officer and the "knows to be a peace officer" clause implies either that the officer is uniformed, or has provided identification. Finally, we have "failure to disperse" when a person congregates with a group of three or more other persons and there are acts of conduct within that group which create a substantial risk of causing injury to any person, or substantial harm to property; and (b) He or she refuses or fails to disperse when ordered to do so by a peace officer or other public servant engaged in enforcing or executing the law. These laws are attuned to emergency needs, thus outside the penumbra of your scenario. In short, the primary question must be, when can police lawfully give you an order that you must obey, which narrows the matter down to traffic-related matters. The seizure must be reasonable: it is reasonable to require a person to stop for a uniformed officer. Reasonability does not entail that all officers must produce ID when effecting a seizure, but this may be the case with plain-clothes officers. Even when in Seattle with a departmental policy requiring officers to identify themselves, an officer's failure to identify does not render the seizure illegal. | An example is that a person eventually convicted of a crime has made a false statement in pleading "not guilty". 1001a would compel confessions, because you cannot legally conceal a material fact. In a judicial proceeding, the analog that prevents certain kinds of "lying" is the law against perjury, which is much stricter than the broad language of 1001. |
How does contract law apply to smart contracts? We quite frequently hear about some cryptocurrency company losing money because their software was exploited. From example today we have Qubit losing $80 million: The protocol was exploited by; 0xd01ae1a708614948b2b5e0b7ab5be6afa01325c7 The hacker minted unlimited xETH to borrow on BSC. The team is currently working with security and network partners on next steps. My understanding of what happened is that a smart contract was created by someone, accepted by Qubit and completed according to the rules created by Qubit. However it did not have the result expected by Qubit, though presumably expected by the someone. In general, where there is a difference in the understanding of a contract it is the wording that is held to be valid, rather than either parties understanding. This will be familiar to many people, as companies frequently craft contracts in their interest and people do not read them. In the case of a smart contract, where the actual meaning is in no doubt (as it is executed programmatically) but it is understood to mean something different by one of the parties, it it actually valid? Ie. in such a case would the someone have legal ownership of the $80 million cryptocurrency that they were assigned upon the completion of the smart contract? | In the case of a smart contract ... it it actually valid? The question is based on the misconception that the terms "smart contract" (technical term) and "contract" (legal term) directly relate or have much in common. They don't. If anything, smart contracts are essentially modern replacement for papers and signatures. But paper contracts have never been contracts themselves either. They are merely evidence of the contracts, and this evidence is often not even necessary for the contracts to be valid: most contracts are not even required to be in writing. So, the story in your example is just the 21st century's analogue of good old paper contract foul play like signature forgery, disappearing ink and so on. Legally it is handled with no difference: investigate what happened, find out who intended what and judge what has to be done. Gavel bangs! | The contract remains valid. Most contracts don't need to be written at all. Even if yours did need to be written under the Statute of Frauds or some other law, you're saying that it was made in writing, even though you later tore it up. The fact that the contract is missing or destroyed doesn't change the fact that it exists and obligates the parties; it just makes it harder to prove what it said. | Can Hacker Corp. claim that they acted in good faith, believing that the Permission to Attack was granted by someone from within the company who was allowed to grant such a permission? Unless ACME proves that Hacker knew or should have known that ACME's low-level employee had no authority to make the decision on behalf of ACME, Hacker ought to prevail on the basis that it performed the contract. There is no indication in your description that Hacker targeted other system(s) than the one(s) specified or that it departed from the agreed conditions. Therefore, there is no sign of Hacker breaching the implied covenant of good faith. ACME's evidently poor management (i.e., the turmoil, the delay for signing or denying permission, its low-level employee's opportunity to make sensitive decisions, the company's failure to withdraw the authorization or to take precautions) is not Hacker's fault. | The general principle is that when one party writes a contract, and there is an ambiguity, the ambiguity is interpreted against the interest of the writer (contra proferentem). The case of Hypercheck v. Mutual and Federal Ins. confirms that South African law operates under this doctrine. | The applicable law is the New Zealand Anti-Money Laundering law. The regulations describing exactly what is covered don't mention Bitcoin cleaning, but the "wire transfer" and "currency exchange" bits probably cover such a thing. I certainly wouldn't like to be the test case. There was also this case in Europe. | united-states - cfaa The last person to have control of the AI executed the code in a knowing manner about the risk that the self-replicating program could get itself unauthorised access to computers and disk space that this person has no authorisation to use. Because of how it spread, it is more likely classified as malware. "Creating a botnet" is typically violating the authorisation to use the computers that are part of the botnet. As the last user is responsible for letting his malware free, his act breached these provisions: (a) Whoever— (5) (B) intentionally accesses a protected computer without authorization, and as a result of such conduct, recklessly causes damage; or (C) intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage and loss. He intentionally let his program free knowing very well that it will spread to computers that are classified as protected. As a result, he will be treated just the same as if he had written and released... ILOVEYOU - however in contrast to that case, the gap of non-applicable laws has been closed more than 20 years ago. Private PCs are off limits for the AI because of that stipulation, but even Webspace can't be gained to save itself to: The problem lies in the fact that authorization to space can only be gained in some sort of agreement between legal entities (companies and humans) - which is a contract. An AI however isn't a legal entity, it is classified as a widget. Widgets are not able to sign contracts on their own, and to gain access to webspace, one usually has to agree to a contract. The contracts the AI tries to sign would thus be void ab initio and have no force. As a result, because the contract for the webspace is void, the access to the webspace is by definition without the required authorization - the contract granting it never existed, so the access is unauthorized. The AI now fills disk space and uses resources in an unauthorized manner, which is damage. As a result, the one who knowingly set the AI free is fully responsible and criminally liable for his AI, should it spread. How far can it legally spread? If the AI is programmed to only act in ways inside the law, it won't leave the owner's system and won't proliferate, as it can't gain access to new space in a legal manner. | We can assume there was a meeting of the minds when the contract was drafted, and both parties expected payments to me made based on product usage. Plaintiff alleges that this did not happen. Thus plaintiff is indeed alleging that the contract was breached. Now plaintiff alleges that defendant broke the contract, while defendant counters that plaintiff broke the contract. "[T]o be determined by tracking software" is woefully ambiguous. The court will want to know which party drafted the contract, as disputes arising from ambiguity are often resolved in favor of the non-drafting party. | Party A has breached the contract Party A had an obligation that it did not fulfil, providing the section-by-section overview of the costs. To the extent that Party B suffered damage from each breach, for example, because Party A owes a refund, Party B can recover that plus interest subject to any statute of limitations on actions for contract breach. To the extent that Party A suffered damage, tough - they don’t get to benefit from their own breach. Party A might wish to argue that Party B has waived their right to adjust the payment but this would be difficult to prove. It doesn’t appear that there is an explicit waiver but neither is their an implied waiver: Party A would need to show that Party B was aware of and condoned the breach in some way. You are right that a contract can be altered after it is entered into and that such a change can be implicit rather than explicit. But that would require showing some action rather than inaction by the parties to effect a different arrangement. In practice, where one party affirms the written contract, without clear and compelling evidence that the contract has subsequently been changed, the written contract will prevail. For an example, Yale University periodically collects the interest due on a perpetual bond originally issued by the Dutch water board Lekdijk Bovendams on 15 May 1624. Originally issued with a principal of "1000 silver Carolus gulders of 20 Stuivers a piece", as of 2004 the yearly interest payment to the bondholder is set at €11.35 (15€ as of 2018 = 16$). According to its original terms, the bond would pay 5% interest in perpetuity, although the interest rate was reduced to 3.5% and then 2.5% during the 18th century. Providing it is physically presented to the successors of the board (the Dutch Water Authority) interest must be paid even if it has been many decades since the last payment. Of course, practically, crossing the Atlantic to collect 15€ every year is not commercially viable so they do it every decade or so when someone from Yale is going there anyway and then, only for the historical value. So long as the Netherlands continues to exist as a legal entity, this obligation will continue. |
What are the best legal methods to protect one's jewelry designs? As handcrafted jewelry producers, our cooperative has created literally thousands of original jewelry designs over the past 30 + years. What would be the most effective and practical ways to protect our authorship rights and to defend ourselves from disrespectful commercial predators? | A work of art is protected by copyright, under US copyright law – see here esp. §908. Jewelry designs are typically protected under the U.S. copyright law as sculptural works, although in rare cases they may be protected as pictorial works. This Section discusses certain issues that commonly arise in connection with such works. (followed by a discussion of what jewelry is). The item must be "sufficiently creative or expressive", which we will take to be self-evidently true. | Patents protect inventions, Copyright protects artistic or literary creation Software does not qualify for patents. In some jurisdictions but by no means most, algorithms and business processes can be patented. Software, both the literary (code) and artistic (UIJ) work, is protected by copyright which prevents copying the expression but not the idea. So software writers can take inspiration from other software but can’t copy it. So, things that look like copyright infringement often aren’t but things that look like patent infringement often are. Patents last for a short time (10-20 years) and take a lot of investment of time and money so their owners are incentivised to commercialise them quickly and on a large scale. Copyright lasts for a long time (life of the creator(s) + 50 years minimum depending on jurisdiction) and come into existence automatically. In general, it is easier to create a literary or artistic work than a novel invention. So, patent owners are more incentivised to protect their IP than copyright owners. | "Doing the same thing" is very common. We even have names for certain categories of websites, such as "web shop" and "blog". Such concepts are not protected in general. Obviously, you can't copy the name of existing webshop, or their logo, but things like a "rectangular layout of products for sale" aren't original. There is of course a grey area here, because there's a continuum of similarity. In general, similarities that follow from technical justifications are acceptable (having an upload button is sort of the point for your website), similarities that are cosmetic only (same color choice) might be interpreted as intentional attempts to cause confusion. | One big hole in any scheme that relies on copyright is that it could not preclude people talking about the previous content or talking about you. This is well established First Amendment law. For example, see Near v. Minnesota 283 U.S. 697 (1931), which holds that except in rare judicially established exceptions (relating to military information, obscenity, and inciting acts of violence), government censorship is unconstitutional. Thus, no statutory scheme could be used to prevent third parties who happened to have seen the material while it was freely available from re-iterating what they had seen, or talking about it, or talking about the author (you). People could even reproduce portions of the published content. Some types of reproduction would be protected as fair use in the US, especially if the reproduction is for the purpose of criticism. (17 USC 107, and this previous Law.SE answer) The closest approach would be to protect your work as trade secret, making sure that anyone that you share it with agrees to non-disclosure. But, if you "publish unique content under this pseudonym" there is no way to "arbitrarily or wholly revoke discussion about that content". If the cat gets out of the bag, while you may have remedies against the person who violated the non-disclosure agreement, you would not be able to prevent third-party discussion or reproduction. | What real human teeth look like is a fact, and not subject to copyright. But some particular designer's or artist's image of human teeth would be protected by copyright, unless it is too old -- (prior to 1923 under US law), or unless it lost copyright in some other way. To create a derivative work based on such a copyrighted work would require permission from the copyright holder. Otherwise it is copyright infringement, and the holder could sue. As to the car models, the original designs would be protected by copyright, and a maker of a model should have permission in some form, or again the copyright holder could sue. Of course, a copyright holder is not required to sue, and if the value of the work is too small a suit might not pay. But that is not a matter of legal right, but of the holder's choice and business decision. A copyright holder could always change such a decision at a later time, when perhaps the value had increased. The exact laws on how to file copyright suits, and exceptions that might apply, vary by country. The question does not indicate what county it applies to.) But the basic principals are the same in all countries that adhere to the Berne Copyright Convention, which is all but a very few countries in the world. See this Wikipedia article for more details. | The relevant section of US patent law was already posted in an answer on one of the questions you linked, but I'll repeat it: 35 USC 271 (a): Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. Merely making a patented invention is infringement; it isn't relevant whether you sell it. It is also infringement if you use it yourself, regardless of who made it or whether you paid them, or whether you would have otherwise bought it from the patent holder. There are some special exceptions for things like certain kinds of pharmaceuticals, but I browsed the rest of 35 USC Chapter 28, and didn't see anything that would appear to be relevant in this case. | Assuming Chegg own the copyright, then they can restrict the activities that copyright protects The statement you quote is no more or less than the rights granted to them by copyright law. Basically, it's their stuff, they get to decide how you can use it. However, that does not necessarily mean that the uses that you have nominated are prohibited. For that, we would have to look at the specific fair use or fair dealing exemptions to copyright protection where you are. It's likely that both of your usage scenarios would meet fair use and probably fair dealing (which is harder to meet). You may also find that, buried somewhere in those massive terms of use, is something that deals with this directly. | Ideas (methods of playing, game mechanics, strategy, goals) cannot be protected by copyright. But any part of a creative work can. So, no copying of drawings, patterns, images, sounds, or the element. I suppose copying the software code is not an issue here, but it can, obviously, also not be copied. And nothing in your game can look like someone's else trademark. |
Stop, in the name of the law Does the popular media cliche Stop, in the name of the law have any founding in actual law or policing practice, either current or historical? Did police ever say this as a matter of course? If so why? If not where did this expression enter the popular consciousness? | In long ago English practice, the phrase used was "Stop in the name of the King". At one time this was, if I am not mistaken, required for a valid arrest. I am talking about a time hundreds of years ago, by the way. That phrase, in turn, goes back to a still older concept. At one time, in Germanic customary law, each important leader had a "peace" -- an area in and around his dwelling, domain, and presence -- in which any violation of law and custom was an offense against the leader, not just against a victim. Inside his "peace" a leader was allowed to enforce rules without any complaint from a victim. Later the peace of all lesser leaders was subsumed in the Kings Peace, which came to cover the entire kingdom, the area of the king's authority and rule. This concept came over with the Normans, although a version of it had come over with the Anglo-Saxons centuries before. That is why indictments in England (later England and Wales) long included such language as "... That on or about {date} the said {accused} did, against the peace of our Lord the King, his crown and dignity, commit {offense} by {details}..." I will need to do some searching to find the exact citations to support this, although Charles Rembar's The Law of the Land includes the part about the king's peace. Specifically, in a footnote on page 192 of my (trade paper) edition (and at location 3345 0f my kindel edition) Rembar writes: The concept of a “peace” that is a ruler’s right goes back to Germanic law. It belonged not only to a king but to each leader in the social structure. Every ruler, naturally enough, wanted order in his group, as do modern governments. The difference is that freedom from disturbance was considered the chieftain’s personal privilege, and disorder among those he led was a personal affront. With the strengthening of central rule, the king’s peace overrode all others. I will need to search further to learn just when the phrase "in the name of the law" became common, and when either phrase ceased to be legally required. I believe that the phrase persisted in common use long after it was no longer legally required, but I will need citations for that also. I will update this answer with all of that when I can. | 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. | The powers given to law enforcement professionals will be detailed in the relevant law that establishes them. I would suspect that the decision to cordon off an area would fall within the purview of the officer on the scene; the idea that a police officer would need to seek permission before cordoning off a motor vehicle accident or chemical spill is unworkable. I would also suspect that other emergency personnel (e.g. ambulance and fire-fighters) would have similar powers. However, such cordoning off would be a temporary measure and if it was maintained for an unreasonable period it would be open to challenge through an administrative or judicial process. If the police decided that a feature was a permanent hazard then they could seek a court order on the owner of the property to provide some measure to adequately protect the public, by either removing the hazard or providing some permanent barrier, under whatever laws seemed most appropriate. | The dichotomy between solicitors and barristers in the UK isn't one based on verbal definitions in the English language. In other words, the fact that barristers argue and solicitors don't isn't something that's inherent to the words, it's just how British law decided to divide it. Since those countries with solicitor generals don't have this dichotomy, they generally don't have anything actually called a barrister, and there's no reason why the solicitor general couldn't be called that, since solicitor doesn't require that he not argue in court. | He has this phrased like it's the ability to decide which laws you follow, and that it's an ability being withheld from the general public (although I seriously doubt that at least the former is the case). This is yet another false claim made by "freemen" or those who claim "common law defences". Notice of Understanding has no legal meaning unless the context demands that it evidences a meeting of the minds for the purposes of contract formation. It is a well-settled principle of common law that in order to be bound by a contract, there must be an agreement. Put simply, I cannot bind someone simply by sending them a Notice unless it is a right conferred on me by some earlier statute or legislation, or legally binding agreement. I tried searching for a solid definition, but all I could find was people/organization's Notice of Understanding and Intent and Claim of Rights. The reason you've found nothing official about the terms Notice of Understanding and Intent and Claim of Rights is that there is nothing official or legal about those terms. They are ordinary terms with ordinary meaning being bastardised by deluded people who believe they can fine the government and refuse to be bound by the law of the land. Of course, none of this holds up. What is the purpose of declaring your Notice of Understanding and Intent and Claim of Rights? It might make you feel better, even though it has no legal, practical or other effect. | I feel that a person, not the subject of arrest, should be protected by the 4th amendment if they choose to remain in their vehicle, even if “ordered” to exit the vehicle by an officer. The intuition is fine, but is basically incorrect. I’m most interested to know: How would a driver (1) Politely (2) determine if a given instruction to exit the vehicle must be complied with, and (3) decline the instruction without giving the officer “cause” or otherwise damaging a potential case? From a practical perspective the only workable response is to comply. There are times when this is done without a reasonable suspicion (or in some cases probable cause) or other legal basis, but it is pretty much impossible for you to dispute this one the spot. Most of the time, the officer will have the legal authority to order you to leave the vehicle. If they order you to exit the vehicle despite not having the legal authority to do so, the right course of action is to comply and then to file a complaint with the agency employing the officer or to bring a civil lawsuit against the officer. There are good answers to a basically duplicate question at How can you tell if you have to follow a police officer's instructions? | Yes to everything. Justified use of force is assault / battery / homicide (as appropriate). "Assault" means that a person has placed someone in fear of their life or person. "Battery" means that a person has physically struck someone in some way. "Homicide" means that a person has killed another human. None of these definitions speak to the legality of the action. You are right about the example being assault. Justified use of force is de facto legal. Assault, battery, and homicide are normally crimes, but the justifications for using force carve out exceptions. If the circumstances fit within the justification, the person using the justified force has not committed a crime. (Generally speaking, the person targeted by said force has.) If the situation you describe fits within the laws of justification within the state (and to be fair, it probably does), then your co-worker is right about the actions being perfectly legal. Police are picky about what they investigate, and prosecutors are picky about what they charge. If it's 100% clear from the evidence that you were justified in your use of force, prosecutors will (typically) not press charges, and so police will not bother with an arrest or further investigation. It's really not worth the time and effort for a case that has 0% chance of producing a conviction. However, if the police and prosecutors have some doubts (e.g., they think your force was excessive and therefor not justified), they can still press charges. Being charged with a crime does not mean you have committed a crime. And vice-versa. Justification is an affirmative defense against charges of assault / battery / homicide. An affirmative defense does not mean "I confess to the crime but have a really good excuse." It means that you admit to certain facts that would normally be beneficial to the prosecution, but claim additional facts that either mitigate or make you innocent of the given charges. In the case of justified force, you are admitting to the action of assault, but claiming innocence. When making your defense, your theory of defense must be internally consistent. You cannot admit to a fact when convenient and deny it when it is inconvenient. "I was in Santa Fe at the time, and anyway, Sam did it," is an example of a self-consistent theory that gives multiple reasons to acquit. That's good, because the jury only needs one reason that gives them pause, and now you've got two chances at that. "I was in Santa Fe at the time, and anyway, he was threatening my life," is not internally consistent. If you argue justification, you explicitly declaim any alibi. This situation is more dangerous, because your defense rests entirely on the credibility of the justification. But if you argue an alibi, you implicitly declaim any justification. So building your defense on things the prosecution can disprove is much worse than taking an affirmative defense of justification. | It is certainly possible for the same action to break multiple laws, and be chargeable as multiple crimes. For example, shooting and killing someone may be assault, assault with a deadly weapon, and murder all at the same time. For a different example a person who simply omits to file an income tax return may be guilty of both failure to file a required return, and failure to pay tax due, and in some cases failure to par required estimated tax due as well. For yet another example, driving well above the speed limit may be a violation of the speed limit law, and also careless driving, and possibly also reckless driving. In the first case the assault etc may be lesser included offenses in the charge of murder. That means that they are automatically available to a jury (or judge) trying the accused, who can convict on one of the lesser included charges if they do not convict on the primary count. For the more general case, I don't know of any special term for the situation. It is not usual to have law A which says "do not do X", and also law B which says "you must follow law A". There is no general principle against having such redundant laws, nor is there, in the US, any Constitutional rule against such laws. But legislatures do not normally bother to enact such redundant laws. Laws which will sometimes overlap in their coverage, but in some cases do not overlap are common. |
Legal difference between Binary Options regulated by CFTC and gambling regulated by U. S. member states I have trouble to understand the exact (legal) difference between binary options and gambling. Binary options are regulated in the United States by the CFTC and gambling is regulated by each U.S. state individually. Some U. S. state have allowed pari-mutuel betting while a few have not, and some other states allow online gambling. [Ref 1] Example from my understanding: Binary Option: Is Facebook trading over $ 300 on 30. January 2022 appears to be a binary option regulated by the CFTC. Gambling: Will Donald Trump be the next U. S. president? Appears to be regulated by the local gambling authority. Polygon.com, a prediction market for YES and NO questions has been fined by the CFTC by $1.4m on the 4th January 2022. They announced, they have to removed some markets, and continued to operate until now although a fine has been spoken out by the CFTC. This is basically the part, which I don't understand. It appears the question decides the type of regulation. The type of regulation makes a fair difference. While a banking license requires million of assets a gambling license can be obtained for fairly low amounts. As part of the settlement deal, Polymarket has agreed to pay a $1.4 million civil monetary penalty and to wind down all markets displayed on Polymarket.com that do not comply with the Commodity Exchange Act (CEA) and applicable CFTC regulations. [Ref 2] Summa summarum, does it mean that if a company creates a question (Yes/No) on financial assets (like an option traded on an exchange) will be considered as a binary option regulated by the CFTC while a non-related financial question is considered as gambling? [Ref 1] https://en.wikipedia.org/wiki/Gambling_in_the_United_States#Legality [Ref 2] https://financefeeds.com/cftc-fines-polygon-powered-binary-options-platform-polymarket-1-4-million/ | The primary distinction between gambling and non-gambling is whether something is a game of chance, and usually, the statutes of a state prohibiting gambling will expressly define it in those terms. The mere fact that there is some element of chance or probability involved, however, is not sufficient to make something gambling, and the fact that there is some skill involved in a game does not automatically prevent it from being gambling. Generally speaking, if the activity serves some commercial or economically useful purpose, like an insurance contract entered into by someone with an insurable interest in the outcome, or a contract regarding a security or commodity price, it will not be treated as gambling under U.S. law (Britain and Ireland draw the line differently). The status of prediction markets is still unresolved, but since many of them call upon the application of skill and knowledge, rather than random chance, to make predictions, and since their use, for example, by the CIA, has given them an air of legitimacy, more often than not, they are not treated as gambling. Binary options are regulated in the United States by the CFTC and gambling is regulated by each U.S. state individually. This isn't entirely true. But it does appear that the CFTC asserted jurisdiction over this particular prediction market type activity, and did not consider it to be gambling subject to state law regulation. Also, there is some federal regulation of gambling even though it is primarily a matter of state law. Indeed, this ruling was quite helpful in the long run to the prediction market industry. The case held that Polygon.com was subject to CFTC jurisdiction, which would take it out of state law gambling jurisdiction and it provided a road map to come into regulatory compliance: The platform offered off-exchange event-based binary options contracts and failed to obtain designation as a designated contract market (DCM) or registration as a swap execution facility (SEF). All it has to do is register with the CFTC as a DCM or SEF and it is in regulatory compliance (these aren't trivial undertakings and could require months of interactions with the agency and $100,000+ of legal work to accomplish, but there is a clear path to doing so). does it mean that if a company creates a question (Yes/No) on financial assets (like an option traded on an exchange) will be considered as a binary option regulated by the CFTC while a non-related financial question is considered as gambling? No. The case held that the questions, for example, about who would win the next Presidential election, constituted a "swap" regulated by the CFTC and not gambling. It simply said that since the CFTC has jurisdiction and since Polygon.com had not complied with CFTC rules for conducting that activity, that it had violated the law. | In German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content). If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court. Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms. Also note that everything said is only based on my own knowledge and can not be used as safe legal source. | I can see at least two defenses. Game of Skill Defense. Already mentioned in the comments. Entertainment Defense. One could claim the game itself is a form of entertainment and, therefore, all funds spent while playing the game are for entertainment purposes only vis-a-vis the game itself. And not any alleged gambling within the game. Consider the fact that the gambling rewards, after all, (i.e., mining stuff) are limited to being used inside the game and have zero utility outside the game. Ergo, all payments are strictly for entertainment purposes. | Article 1 Section 8 appears to answer your question - only the Federal Government has the power to regulate the value of currency. Unilaterally forbidding the use of pennies as currency would be a regulation of their value (from 1 cent to 0 cents). A state government might be allowed to refuse pennies for the purpose of paying for a service in advance like a private business can, but like a private business are required to accept them as legal tender for the purpose of repaying debts, judgements, etc. Responding to the edited post, I'm inclined to say that the proposed plan is still "regulating" currency, in the same way that only the Federal government is the only entity authorized to destroy worn out currency (which it obtains by fair exchange). As Nate Eldredge points out, this may also violate the Commerce Clause of the same section, both in terms of interstate transactions and in terms of the exchange of currency between persons of different states and the implementing state. However, if it was implemented as suggested in comments, where businesses were required to exchange whatever pennies they receive with the state government for an equal amount of other currency, it might not run afoul of either of these clauses. This is probably a question the Supreme Court would have to decide, since a lot of hypothetical factors could come into play. At first glance, there doesn't appear to be any factual difference between a state holding pennies in storage indefinitely and the state holding any other currency in storage indefinitely, which they are allowed to do so long as they don't violate any part of USC Title 18, Chapter 17 (e.g., melt the pennies for the copper). On the other hand, the Federal Government could argue that the storage of pennies for the purpose of removing them from circulation is a form of currency regulation even if the action would otherwise be legal, or that the state's actions are impactful enough to affect interstate commerce even though they only directly impact commerce in the state and therefore Congress could pass a law outlawing the practice. | 18 USC Ch. 17 contains the laws against doing things to US currency and coins, and sale of currency is not included. So it is legal to set currency for an amount above or below face value, the former being more common. There might be some illegal aspect to the particular offer (money laundering, fraud – implying that they are real money, counterfeiting) but no law regulates the "sale" of US currency. | There is no law against driving a hard bargain If you were describing real estate owners rather than YouTube channel owners we’d have a term for them: a motivated seller. There is no law against using the fact that someone is desperate to sell to negotiate a lower price: that’s just good business. In general, common law legal systems do not involve themselves in whether a price agreed between two parties was fair: if you want to sell your original Picasso for $1 or pay $1m for a used tissue, that’s up to you. If you have ethical issues with that, don’t do it but it’s not illegal. Legal issues can come up where you are the cause in some way of the motivation. A lender foreclosing on a mortgage is ok. A lender offering to buy the property to avoid foreclosure is not. The first is just enforcing the terms of the contract, the second looks like undue influence and unconscionable conduct. Some countries have laws against profiteering and you would need to look at the legal definition to decide if this is or isn’t profiteering. In the US, it isn’t because their laws only deal with profiteering that damages the government. Some US states have laws against price gouging but these are usually to prevent charging too much, not too little. Which clauses of YouTube's Terms of Service would be violated? None. YouTube does not have any terms about selling your digital assets and we know it happens. Which US sanctions would be violated? It’s impossible to say without reading the sanction. If it’s illegal to transfer money to the sanctioned people then the whole plan falls over because you can’t pay for the channel in the first place. | Copyright law is a country-by-country matter. Most countries are signatories to the Berne Convention, which provides a common framework, but there are still variations, generally in the duration of copyright or the definition of copyrightable material. According to the Hirtle chart, a video game that was first published in Europe in the year 2000 and subsequently published in the United States is still copyrighted in both the United States and whichever European countries it was published in. It is likely to be a work of corporate authorship, so the US copyright will expire on January 1, 2096 (unless a law extending the duration is passed). In the United States, the requirement to register a copyright was eliminated in 1989 as part of the Berne Convention Implementation Act; registration still provides benefits when filing a copyright-infringement lawsuit. Most European countries eliminated their registration requirements much earlier, if they had them at all: the Berne Convention dates from 1887. Copyright does not simply cease to exist when the owner does, or if the owner cannot be determined. The difficulty of tracking down copyright holders for old or little-known works is the driving force behind orphaned works legislation. There are no orphaned works laws in the United States, and since copyright is country-by-country, European laws won't help you if you're interested in publishing in the US. In order to track down the copyright holder, you'll need to figure out who originally held the copyright (probably the publisher, but it could be either development company, or both, or the game might be a collective work of the individuals who worked on it). If it was a work of corporate authorship, and none of the game-copyright sales mention it, copyright will have been transfered when the company owning the copyright was sold (as part of a general "and all intellectual property" clause). | In the United States, the case law on framing as copyright infringement is fairly scarce and somewhat conflicting. Consider first the 2007 Ninth Circuit Appeals ruling in Perfect 10 vs. Amazon.com. Google included framed images on their site. Google did not have the right to display these image works, but the ruling says ultimately that they did not display the works (emphasis mine): Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen. Perfect 10 argues that Google displays a copy of the fullsize images by framing the full-size images, which gives the impression that Google is showing the image within a single Google webpage. While in-line linking and framing may cause some computer users to believe they are viewing a single Google webpage, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion. Note that this second paragraph highlights that iframe linking may not be a copyright violation, but it may be illegal for other reasons, e.g., trademark violation, by confusing the origin of the framed content. This ruling appears to be in contradiction to the 1998 district court case Futuredontics Inc. v. Applied Anagramic Inc., which found that framing creates a derivative work. The most striking difference from the Perfect 10 case is in the following passage (emphasis mine): Defendants primarily rely on Louis Galoob Toys, Inc. v. Nintendo of America, Inc. [...]. In that case, the Ninth Circuit held that a Game Genie which merely enhances audiovisual displays which originate in Nintendo game cartridges does not constitute a derivative work because... it does "not incorporate a portion of a copyrighted work in some concrete or permanent form." Id. at 968 (emphasis added). The Court also noted that the Game Genie could not duplicate or recast a Nintendo game's output. Galoob did distinguish Mirage and noted that the Mirage decision would have been different had the plaintiff "distributed lenses that merely [*10] enabled users to view several art works simultaneously." Id. Nevertheless, Galoob... is distinguishable from the instant case. Galoob does not foreclose Plaintiff from establishing that AAI's web page, incorporates Futuredontic's web page in some "concrete or permanent form" or that AAI's framed link duplicates or recasts Plaintiff's web page. There appears to be a fundamental disagreement between these two cases over whether a webpage that includes a link actually "displays" the linked work. The Perfect 10 ruling viewed the page as HTML instructions that were only related to linked works insofar as those instructions could cause a user's browser to render framed content from a copyright holder different from the author of the HTML page. By contrast, the Futuredonics case considered the intended rendered output of a browser as a derivative work that includes the framed page in a "concrete or permanent form" and that "duplicates" the framed page. I'm not sure how to reconcile these two cases. Perfect 10 is more recent and from a higher court, but I'm insufficiently skilled in law to determine if and how that counts for anything. It's also possible that facts of the two cases are sufficiently different that the different rulings could be reconciled and both remain true simultaneously. Now that we've considered the case law, if you will indulge me in a moment of armchair speculation, let us consider an interesting hypothetical. Suppose I am the owner of apsillers.com. I host an HTML page on my site at http://apsillers.com/my_favorite_stories.html. My my_favorite_stories.html page frames a public domain resource at http://example.com/PD_Story.html. (I am not the owner of example.com.) Surely, we can agree that this is not copyright infringement. At a later time, the owner of example.com changes the text at http://example.com/PD_Story.htmlto include copyrighted content whose use by me would constitute infringement. My my_favorite_stories.html page remain totally unaltered. Does my_favorite_stories.html now violate copyright? The Perfect 10 ruling says no, because my_favorite_stories.html is only instructions. The Futuredontics ruling would appear to say yes, because it considers the final rendered output of the HTML, which now suddenly includes infringing content. It seems powerfully counterintuitive that the infringing status of my written work (my_favorite_stories.html) should change, dependent on the copyright status of a linked resource, when the content of my written work has remained totally unaltered. Perhaps you might argue that my case is different because I did not intend at the time I wrote my HTML page to infringe copyright. However, intent is irrelevant in making the initial yes/no determination of infringement (but may grant me a lesser punishment, as it would be innocent infringement.) |
Are judges in California allowed to award punitive damages totaling an award higher than the jurisdictional limit of a small claims case? Background Say you are awarded $3,000 in compensatory damages, and the judge feels like treble damages would be appropriate for the specific facts of a case. Questions: Is the judge permitted to act in that conscience and award a total of $12,000 ($3K + $9K) while the jurisdictional limit would only permit $10,000 tops? Or will that rule kick in, and the award would be capped at $10,000? Is there any binding precedent of punitive damages being awarded in small claims court in California? Or if there isn't, should that mean the same rules apply as though it was in a normal court? Although I am personally more interested in California's regulation, if there are applicable answers to this question elsewhere, I would also be glad to read! Research Since the rules I found seemingly governing this do no mention punitive damages at all, I hope something like this was decided on appeals at one point, and there is precedent on this. I only found secondary literature from two websites one probably a law firm stating it is possible. Additional findings I had is now in an answer I added to my question as indication. | Question 1: Some of the more recent questions from December 2016 on this on Avvo.com replying to a question on Los Angeles Small Claims courts: "[T]he likelihood of any small claims judge in LA awarding them to you is slim." And another answer: "Yes you can if the claim is $10K or less." Another California lawyer on Avvo in 2013 replying to a San Francisco, CA question: "I have seen cases where punitive damages have been awarded in small claims court. You can always request and try to offer evidence that you feel warrants such a finding" (one additional lawyer agrees) And another licensed in California to the same question: "Punitive damages are available in Small Claims [but] if you do not ask for it, it cannot be awarded." Another one from 2010 to another question: "You can, up to a maximum claim of $7,500. Punitive damages are based on the net wealth of the defendant, so normally litigants don't request any amount, since the amount depends on the defendant's financial disclosures." Question 2: In Indiana: "If punitive damages are awarded, the TOTAL of all monetary damages CANNOT exceed the Small Claims Court's jurisdictional MAXIMUM award" According to another attorney in California from March, 2019: "You can sue for up to $10,000.00 in small claims, and pray for punitive damages up to that amount." So, attorneys in California seem to agree that punitive damages may be awarded in Small Claims court in California if: You ask for punitive damages, and ask for them timely up to no more than the jurisdictional limit, and probably without stating an exact amount; Serve the claim as required for the court on the other party; If you can prove by clear and convincing evidence that the conduct was despicable, fraudulent, oppressive malicious or outrageous; If you can prove the net worth of the defendant which could warrant the award. | Barela was convicted of robbery affecting interstate commerce and faces a sentence of up to 20 years and $250,000 in fines. I assume your issue is that you think this is too high (although I don't see what it has to do with the 14th or 6th Amendments). Fortunately, it's also almost completely unrelated to the actual sentence. The number that was quoted is the statutory maximum for robbery or extortion affecting interstate commerce. It represents the maximum amount that any defendant under any circumstances could receive for one count of that crime. A career criminal who threatened to kill an armored car guard in order to steal $10,000,000 would face the same 20-year statutory maximum as someone with no record who threatened to give COVID to a store clerk in order to steal $90. In some situations, things like the amount stolen or the defendant's criminal record affect the actual crime the defendant is convicted of. At the federal level, that's mostly not the case. Robbery affecting interstate commerce doesn't have degrees or statutory enhancements. Instead, a judge decides what sentence is appropriate. The judge can, in theory, pick anything between the statutory minimum (here there is none) and the statutory maximum (here it's 20 years). 18 U.S. Code § 3553 lays out the factors for the court to consider. In practice, federal courts generally sentence within the range given in the U.S. Sentencing Guidelines. While the statute itself doesn't distinguish between stealing $90 by threatening to cough and stealing millions by threatening to shoot, the Guidelines do. Courts don't have to follow the Guidelines range but typically do. If they don't, it's much more likely their sentence will be overturned as unreasonable on appeal. Popehat has a good blog post on the Guidelines, how they work, and why press releases quoting statutory maximums are basically straight-up lies. Sentencing.us has an unofficial calculator you can use to estimate the Guidelines range for a particular crime. If you plug in 18 U.S. Code § 1951 (which translates to the "Robbery" guideline) and enter in $90 stolen, no weapon used, no threat of death, and no criminal record, then you get a range of 33-41 months and/or a fine of $7,500 to $75,000. This is basically the lowest Guidelines range possible for robbery. For comparison, under California state law robbery is punishable by two, three, or five years in state prison. Robbery is a serious and violent crime, so a sentence of multiple years would not be considered unreasonable. But it takes a lot for the Guidelines range to approach the statutory maximum of 20 years. | 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. | The distinction being made here is far more subtle than it is made out to be in the article. There is a whole cottage industry of case law in almost every state (and under federal law) to determine which deadlines are jurisdictional and which are not. The case law is not uniform nationwide, and often, it isn't even consistent in seemingly analogous circumstances in a single state. The analysis is also more results driven than it is logical. And, it isn't unheard of for a state supreme court to decide that a deadline that lower courts have called jurisdictional for decades, but that the state supreme court has never had an occasion to consider, isn't jurisdictional after all and can be tolled. I've seen it happen more than once (although I don't have citations to those cases easily at hand). There may be practical importance to a parole officer deciding that the deadline has run. This might prevent the issue from ever being litigated. But, the person quoted in the article on that point is a non-lawyer government civil servant who isn't the person who will make the final call if the issue were ever litigated, something that would instead be handled by a senior lawyer in the California Attorney General's office. The author, like a lot of IT professionals and engineers, expects the law to be more consistent, logical, and predictable than it really is, and it so happens that this time he got lucky in his own case, so he thinks he's an expert. | As I understand it, you can pretty much sue anybody for anything. The question, of course, is would you win the suit? All the lawyers here can correct me, but I believe in order to win, you would have to Show standing, that is, they're your comments and not someone else's Show that it's a deliberate act, and not just someone accidentally clicked the wrong checkbox. Show that it was an act by the agency and not by Facebook, for example. Show that you've been singled out for your viewpoint (they allow some people's comments) Show that there is no other reason to delete your comments (they're obscene, or advocate for an illegal act, for example). I'm probably missing something else. The real question is, even if you could demonstrate all these things, would it be worth it? You may spend $1,000's and you might not recover your legal fees. The case might take years. | The significant question is whether such a statement as "no copyright infringement intended" will be viewed by the courts as evidence to suggest innocent infringement or rather as evidence to support willful infringement. This consideration of willful versus innocent is relevant when a copyright holder seeks statutory damages. 17 USC §504(c)(2) says (emphasis mine): In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. Branch v. Ogilvy & Mather, Inc. says of willfulness (emphasis mine): Thus, in order to prove willfulness, a plaintiff must show that the defendant knew or should have known that its conduct constituted copyright infringement. Similarly, in order to establish innocent intent, the defendant must prove that it did not know and should not have known that its conduct constituted infringement. One defense to an allegation of willfulness is the defendant's reasonable and good faith belief that its actions do not constitute copyright infringement. The central question, then, seems to be whether the notice "no copyright infringement intended" aids or harms an argument that the infringer "did not know or should not have known" that they were infringing copyright, or else that they had a "reasonable and good faith belief" of non-infringement. I am not aware of any case law that concerns such a notice, but my layman intuition suggests to me that such a notice lends evidential weight that the defendant did indeed know the work in question was under copyright; since the defendant was therefore aware the work was under copyright, it is unlikely that they could successfully claim a reasonable belief that publicly distributing the entirety of (or a substantial portion of) the work without permission was not infringement. Ultimately, I don't think such a notice does anything to aid the defendant's argument that they "should not have known" their use was infringing. Nor do I think it furthers an argument of "reasonable and good faith belief" by the defendant: the reasonableness of such a belief will rest significantly on the facts of the infringement, not only on how loudly they shouted, "I swear this isn't infringement!" Conversely, such a notice may further the idea that the defendant did know that copyright applied to the work, strengthening the plaintiff's argument that the defendant should have known the use was infringing. | Kansas evaluates these kinds of cases, known as premises liability cases, under the general law of negligence (which is a common law claim governed by case law in Kansas, rather than a statute, except as modified by specific statutes in some respect or other). When you own or control a piece of property, you are responsible for making reasonable efforts to ensure that visitors are safe. If you fail to identify safety risks that you should have reasonably known about, or if you fail to correct potentially hazardous conditions, you could be held liable for any injuries that result. The law is just that vague and is interpreted by judges and juries on a case by case basis. When that happens Kansas uses a comparative negligence system that evaluates the percentage of the fault attributable to everyone who is alleged to have been negligent including the person injured. Damages are allocated based upon those percentages (unless the person injured is more than 50% at fault, in which case the person injured recovers nothing in the lawsuit). Kansas is not among the states that make a formalistic distinction between the duties owed to "invitees", "licensees" and "trespassers" as the common law historically did. If a risk is foreseeable and you could have taken affordable precautions (relative to the value of the activity the not taking the precaution made possible) to address it, and you didn't, you could be held liable. Trespassing is just one of an infinite number of factors that the jury considers in assigning comparative fault. The main pro-active actions that you can take are to purchase homeowner's insurance with reasonable liability policy limits and ideally umbrella insurance as well (which increases your policy limits at a modest additional cost), and to communicate in writing to the neighbor (in a way that you can prove if anything happens later) warning your neighbor of the risks that you foresee and urging your neighbor to take care to avoid those risks. The statute of limitations in these cases in Kansas is usually two years although exceptions apply. | While I am a U.S. attorney, the U.K. and U.S. are essentially the same on these issue in practice: "reasonable wear and tear" is a classic issue of fact to be decided by the judge (unlike the U.S. there are never juries in U.K. landlord-tenant disputes) based upon the evidence presented to him and his or her good judgment if the case goes to court. There won't be a lot of case law that is specific enough to provide guidance in your particular case (if any) because cases like these aren't worth appealing and creating case law on and because the law intentionally vests judges with great discretion on these issues and only intervenes in appellate decisions when a judge is deeply out of line. The legal definition of "reasonable wear and tear" is basically vacuous and don't provide much meaningful guidance. I know you are joking, but no, do not set it on fire. You will find yourself incarcerated for arson, with a felony criminal record and a restitution judgment in the amount of the damages and a fine and court costs as well, and your credit record will be screwed and no one will rent to you ever again if they find out by doing a cursory background check. Your mum probably won't even invite you to Christmas dinner this year. If they charge your security deposit and you don't think you owe it, you would have to sue them for a return of the part of your security deposit you don't owe, knowing that you face a risk of paying their legal fees if you lose, but will get your fees if you hire a lawyer and win (caveat: there are more nuances to fee shifting in the U.K. courts than I spell out here which are rather technical). If they say you owe more than your security deposit and you don't pay, they can sue you for the balance, knowing that they face a risk of paying your legal fees if they lose, but will get their fees if they win. In practice, it doesn't really make economic sense for either party to hire an attorney because the amount of the fees is so high relative to the amount of money at stake. The security deposit is 2-4 hours of legal time, and the amount claimed is maybe 7-14 hours of legal time, neither of which is sufficient to address the respective issues economically in a fully litigated hearing. Short of going to court, you can provide them documentation and your video to show that you are right and to discourage them from docking your security deposit (in full, anyway) or suing you, ideally A.S.A.P. before they are too committed to taking legal action. You could also propose a compromise and see if you can get them to agree to it with neither party facing the risk of going to court. |
"Equity's darling": How do U.S. courts overcome bona fide purchasers? This is a follow-up question to this question and this question; the accepted answers to each appear to conflict the concept of bona fide purchasers. According to a Wikipedia page on the topic: "A bona fide purchaser (BFP) – referred to more completely as a bona fide purchaser for value without notice – is a term used predominantly in common law jurisdictions in the law of real property and personal property to refer to an innocent party who purchases property without notice of any other party's claim to the title of that property. A BFP must purchase for value, meaning that he or she must pay for the property rather than simply be the beneficiary of a gift. Even when a party fraudulently conveys property to a BFP (for example, by selling to the BFP property that has already been conveyed to someone else), that BFP will, depending on the laws of the relevant jurisdiction, take good (valid) title to the property despite the competing claims of the other party. As such, an owner publicly recording their own interests (which in some types of property must be on a court-recognised Register) protects himself or herself from losing those to an indirect buyer, such as a qualifying buyer from a thief, who qualifies as a BFP." This would suggest that any statute that superseded detinue and/or replevin causes of actions in equity would overrule this doctrine. But looking at it closer, even detinue and replevin would be in conflict with this doctrine; how were they concurrently recognized? What principles may be read out of the equity practice of the courts in the U.S.? Are bona fide purchasers still recognized in U.S. law, and if so, how does that affect statutory provisions in place of detinue and replevin? | Background The general common law rule in the U.S. is that someone who transfers property can not give the person receiving the transfer more rights than they have themselves. But, usually, as set forth more specifically in a number of circumstances set forth below, a bona fide purchaser for value without notice (BFP) has greater rights in the property purchased than the person from whom the BFP purchased the property if there are certain kinds of qualifications or imperfections in the seller's title or rights to the property. Also, note that for this purpose, a creditor benefitting from a mortgage, deed of trust, lien, or other security interest in property hat is collateral for that obligation is a BFP if the creditor lacks notice of the issue with the debtors interest in the property that is collateral and if the creditor obtained these rights in the collateral for substantially equivalent value (rather than, for example, as a gift or a "sweetheart deal" not entered into a armed length). With some narrow exceptions, outside of bankruptcy, these are questions of state law, but most of the relevant state statutory law is close to uniform across almost all U.S. jurisdictions, because all U.S. jurisdictions have voluntarily and independently (without any federal mandate or monetary incentive) adopted model laws promulgated by the National Commissioners on Uniform State laws on these subjects. There is some minor variation in the real property laws pertinent to this matter between U.S. jurisdictions (i.e. the 50 U.S. states, the District of Columbia, and the self-governing territories of the U.S. such as Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa). There are also minor variations in the common law and statutory law regarding invalidating restraints on alienation as contrary to public policy between these jurisdictions. But even in these non-uniform areas, the majority rules are very widely adopted. Real Property The General Rule In Race-Notice Jurisdictions In real property law, U.S. jurisdictions have predominantly adopted a state "race-notice" statute which provide that bona fide purchasers for value take title to property free of any unrecorded interest in the property at the time of the transfer. There are narrow exceptions to this rule for void titles arising, for example, from a forged deed or a "wild deed", when the adverse possession deadline has not yet expired. Adverse possession is almost always governed by a state statute. Title 11 of the United States Code, i.e. the U.S. Bankruptcy Code, however, applies in cases where the sale is by a bankruptcy trustee or debtor-in-possession in lieu of a bankruptcy trustee, and provides even greater BFP protections. Under a race-notice statute regime, by statute or as supplemented by common law cases, a buyer of real property is deemed to have constructive notice, however, of all properly indexed real property records and of anything that can be discerned from a physical inspections of the property (including, for example, the existing of a unrecorded leasehold interest of a tenant in possession of the property). As noted above, a creditor for whom real estate is collateral for a debt (most frequently a mortgage lender) has the same BFP rights with respect to its collateral interest in the property, as a buyer of outright ownership of the property who receives a deed does in BFP's ownership interest in the property. General Rules For Registered Title And Pure Race Recording Statutes A tiny percentage of U.S. real estate is subject to what is usually called Torrens' Title or registered title which has been copied by most non-U.S. common law jurisdictions from Australia that originally invented the system, or a "pure race" recording statute. Property subject to these system of noting real property rights that allows a purchaser to avoid unregistered interests in that real property even if the transferee has notice of the unregistered interests or is not a transferee for value, effectively affording BFP-type protections to a group of people greater than just BFPs. Common Exceptions To The General Rules Notwithstanding this, there are often state law exceptions to the general protections for BFPs in real property purchases which are less generous to them than the general rule that apply to a property tax treasurers sales (if conducted in an irregular fashion), sheriff's sales (if conducted in an irregular fashion), purchases from governmental entities (if made with apparent authority but not actual authority), unrecorded utility liens, unrecorded utility easements not discoverable by inspection, easements by prescription, and unrecorded HOA liens. Other Real Property Litigation From Which BFPs Are Not Protected Sometimes, however, a BFP's claim to real property can be litigated in a dispute over what exactly it was that the BFP purchased. For example, suppose that a BFP receives a deed to land not specifically including or excluding mineral rights, which once had severed mineral rights that arguably came into subsequent common ownership. If there was a merger of the mineral rights into the surface rights under the applicable law, the BFP also gets the mineral rights. If there was not a merger, however, the BFP gets only the surface rights. A BFP of an undivided co-ownership of real property is also not immune to a lawsuit to partition the real property. This is sometimes provided for by a state statute and is sometimes a matter of common law. Personal Property The Role Of The Uniform Commercial Code Many rights of BFPs in personal property are governed by the Uniform Commercial Code, which has been adopted in close to its current draft by all U.S. jurisdictions with only stylistic variation from the uniform act text in most cases. This originally had Article 1 which contained general provisions, and Articles 2-9 which contained substantive provisions. It has since been amended to add Articles 2A (personal property leases) and 4A (electronic fund transfers), and in most jurisdictions, to omit Article 6 (bulk sales governing sales of substantially all of the assets of a business in a de facto transfer of ownership transaction). Unlike European civil and commercial codes, however, this is supplemented by principles of common law and equity, and by more specific state and federal statutes that often supply essential terms. The General Rule For Personal Property, Tangible and Intangible BFPs of personal property receive non-voidable title if they receive a transfer from someone with voidable title, but not if they receive a transfer from someone with void title (e.g. a thief). Thus, a BFP of someone with void title, such as someone whose chain of title is rooted in larceny, loses to the true owner in a replevin lawsuit (but someone whose title is rooted in a transfer secured through fraud in the inducement, in contrast, may have voidable rather than void title). This is governed primarily by Article 2 and 2A of the Uniform Commercial Code and by Title 11 of the United States Code, i.e. the U.S. bankruptcy code (in cases where the sale is by a bankruptcy trustee or debtor-in-possession in lieu of a bankruptcy trustee). Terminology The term "detinue" to describe certain actions seeking possession of tangible personal property has largely fallen into desuetude. The "plain English" terminology for a replevin or detinue claim as a stand alone legal cause of action is "claim and delivery", and is called "repossession" in the context of an action to enforce a debt secured by a non-possessory security interest (i.e. a personal property mortgage) or non-possessory lien. Personal Property Security Interests In the case of a non-possessory security interest (i.e. personal property mortgage) or a non-possessory lien such as an agricultural lien or tax lien in property property, a transferee for value takes free of the lien if it is not recorded in the relevant state's Uniform Commercial Code filings (or in the case of select kinds of personal property in another designated filing location such as a national registry of aircraft liens, or intellectual property rights arising under federal law, or a motor vehicle certificate of title), even if the transferee has notice of the "unperfected" non-possessory personal property lien (the original party to the security interest agreement is bound by it even if it is not "perfected" by being filed in the relevant place). This is governed primarily by Articles 2A and 9 of the Uniform Commercial Code, and by statutes setting forth special filing requirements for certain kinds of property like intellectual property, aircraft, and motor vehicles. Negotiable Instruments A BFP transferee of a negotiable instrument is called a "holder in due course" and takes free basically of defenses to the negotiable instrument arising from the underlying transaction in which the negotiable instrument was given as consideration. this is governed by Articles 3 and 4 of the Uniform Commercial Code enacted in all U.S. jurisdictions. Article 3 of the Uniform Commercial Code does most of the heavy lifting, however, together with Federal Reserve regulations governing the payment system, while Article 4 plays a lesser supporting rule. Fact patterns involving BFPs rarely arise under Article 4A of the Uniform Commercial Code governing electronic fund transfers, because usually EFTs are two party transactions rather than often involving a long chain of transferees the way negotiable instruments (such as checks, money orders, and simple promissory notes) do. Other Negotiable Or Transferrable Documents Similar (but not identical) protections are afforded to BFPs in connection with letters of credit, which are governed by Article 5 of the Uniform Commercial Code, negotiable warehouse receipts, which are governed by Article 7 of the Uniform Commercial Code, and with respect to certain interests in "securities" which are governed primarily in this regard by Article 8 of the Uniform Commercial Code. Fraudulent Transfers/Conveyances And Preferences With only the rarest exceptions, BFPs are also immune to liability in a fraudulent transfer (i.e. confusingly, a liability as a transferee who received insufficient consideration from an insolvent person to thwart creditors, not a truly forged deed), or preference lawsuit (essentially the same thing in bankruptcy). This is governed either by the Uniform Fraudulent Transfer Act (which is more modern and the majority rule in U.S. jurisdictions), the Uniform Fraudulent Conveyance Act (a legacy statute on the books in the remaining U.S. jurisdictions), or Title 11 of the United States Code, i.e. the U.S. Bankruptcy Code, in all U.S. jurisdictions. Public Policy Limitations On Restraint Against Alienation The First Sale Doctrine Also, while it isn't strictly a BFP question, the first-sale doctrine that provides that a buyer of a good at a first retail sale of a good takes free of all intellectual property claims that apply to that particular good, is closely akin to the BFP doctrines. This is largely a matter of federal patent, trademark, and copyright law. Other Public Policy Invalidating Restraints On Alienation State statutory and common law public policies against undue restrains on alienation (including, but not limited to, the rule against perpetuities) also often operate similarly to BFP protections. For example, certain common law future interests in real property (e.g. defeasible estates such as the future interest holders of property held in "fee tail") are eliminated by a transfer to a BFP under state law in many states. Analysis These analysis questions pertain, in particular, to tangible personal property which can be subject to detinue or replevin claims (a.k.a. "claim and delivery", or "repossession" claims), so the answers to these omit issues related to intangible personal property and real property addressed above. This would suggest that any statute that superseded detinue and/or replevin causes of actions in equity would overrule this doctrine. Detinue and replevin causes of action are often creatures of court rule that aren't expressly created by any statute. Both detinue and replevin are claims for relief that arise in law, rather than equity. The BFP doctrine can be, and sometimes is, overridden by statute, although it is more common for BFP rights to be expressly stated in a statute as exceptions to the unstated common law default general rule that one can only transfer property to the extent that you own it. But looking at it closer, even detinue and replevin would be in conflict with this doctrine; how were they concurrently recognized? What principles may be read out of the equity practice of the courts in the U.S.? There are lots of transactions that don't involve BFP rights or where BFPs do not have special rights relative to other transferees of tangible personal property. Those are the predominant cases in which detinue and replevin claims are brought. These mostly include the following five categories of cases: Actions to repossess property that is collateral for a debt subject to a duly "perfected" security interest or lien filed or registered in the appropriate place, following a default on the underlying debt, where the creditor chooses not to avail itself of its right to repossess the collateral without court process in order to reduce creditor liability risks, or because this cannot be done without a breach of the peace. Actions to repossess property in the possession of the primary party to the debt and security agreement that is collateral for a debt subject security agreement (even if the security interest or lien is not "perfected"), following a default on the underlying debt, where the creditor chooses not to avail itself of its right to repossess the collateral without court process in order to reduce creditor liability risks, or because this cannot be done without a breach of the peace. Actions to recover possession of property when the person in possession of it did not acquire possession of the property by sale (e.g. an ex-roommate, or a seller holding goods on a consignment basis). Actions to recover possession of property from someone who is not a BFP and has voidable title to the property, by someone with a superior claim to title to the property to the person in possession of it (e.g. someone who acquired the property through a gift that was a voidable fraudulent transfer, or through their own fraud in the inducement of a sale). Actions against BFPs whose chain of title to the tangible personal property is rooted in larceny. | The Example of Colorado Law In Colorado, a private individual who is a victim of theft can bring a lawsuit for civil theft in which a prevailing theft victim can recover the actual economic amount of the theft (including pre-judgment interest at the statutory rate from lost use of the stolen property per a separate pre-judgment interest statute), treble damages (i.e. actual damages plus twice that amount as a civil penalty), and their attorneys' fees and the costs of the litigation. Colorado Revised Statutes § 18-4-405. Rights in stolen property All property obtained by theft, robbery, or burglary shall be restored to the owner, and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his right to such property. The owner may maintain an action not only against the taker thereof but also against any person in whose possession he finds the property. In any such action, the owner may recover two hundred dollars or three times the amount of the actual damages sustained by him, whichever is greater, and may also recover costs of the action and reasonable attorney fees; but monetary damages and attorney fees shall not be recoverable from a good-faith purchaser or good-faith holder of the property. Returning the property stolen doesn't change the fact that civil theft was committed, it only reduces the amount of the damages by the amount repaid and prevents interest from continuing to accrue. In practice, it would be very uncommon for someone to bring a suit for civil theft after they are repaid. But, nothing in principle prevents this from happening until the statute of limitations runs (in Colorado that is probably three years from the date that the theft is discovered), although there might be an argument that accepting the funds returned by mutual agreement might constitute a waiver of their claim, or might give rise to equitable defenses of estoppel or laches. Criminal Charges Of course, in the U.S., even if the company doesn't press charges, a prosecutor does have the authority to press criminal charges without their consent. A theft victim does not have the legal authority to relieve you of criminal liability for theft. There are some countries other than the U.S. where a theft victim can relieve someone who committed theft of criminal liability (if I recall correctly, Germany is one of them), but that is a minority position internationally as a legal matter (although actual practice is often different). Civil Lawsuits For Theft In Other Jurisdictions While most states do not have a statutory civil theft statute, almost every state and country would allow a civil lawsuit for "conversion" or the equivalent for taking property that does not belong to you for your own benefit (which is a tort). Other U.S. states and other countries would vary over whether repayment of funds converted prior to commencement of a lawsuit limits actual damages and exemplary damages based upon actual damages to pre-judgment interest, or even constitutes a complete defense, or not. Most U.S. states allow for an award of punitive damages in connection with an intentional tort (statutes of limitations and pre-judgment interest award rules vary greatly). Most non-U.S. jurisdictions would not allow an award of punitive damages in a civil action involving an intentional tort. In the absence of a statutory authorization of the kind found in Colorado, attorneys' fees and costs would normally not be allowed for a U.S. plaintiff in an intentional tort case like this one, but most non-U.S. courts would allow an award of attorneys' fees and costs to a prevailing party in a case like this one. Practical Considerations The fact that you repaid the funds makes some defenses to future civil or criminal charges very challenging. You can't truthfully deny that you repaid the funds and that comes close to an admission of guilt. But, if you state under oath that you engaged in this conduct, you make yourself vulnerable to criminal prosecution based upon that testimony under oath. In practice, one reason that the business is actually unlikely to sue you in this situation (unless they discovered that more than $50,000 was taken) is that having lost your job and paid them $50,000 you may not be able to pay even a large judgment if it was awarded against you (although such a judgment, if entered, would probably not be dischargeable in bankruptcy under U.S. law). So, the cost-benefit analysis of such a suit for the company might not make much sense. Also, while having a suit like this filed against you would certainly damage your reputation seriously in a way that could be located with a public records search, it might also moderately harm the reputation of the company which revealed that its internal controls were lax enough to make it possible for the theft to happen. In the case of a large business the damage that this could do to the fair market value of the business and its creditworthiness might outweigh the benefit it would receive from bringing such a lawsuit. | In fact, the first recognition of the First Sale doctrine came about precisely because a publisher attempted to do something of the nature of what you suggest. In Bobbs-Merrill Co. vs Straus, the Bobbs-Merrill Corporation attempted to enforce the following restriction, printed on the inside of a book it published: "The price of this book at retail is one dollar net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright." They made the mistake of attempting to enforce it against, among others, R.H. Macy and Co., who they then had to take to court - and lost. This established the First Sale Doctrine, which then later (in 1976) was codified (in 17 U.S. Code § 109. Textbooks recently tested another element of this; in the 2013 case, Kirtsaeng v John Wiley and Sons Inc., the Supreme Court held that the First Sale doctrine trumped a notice forbidding selling a book outside of a particular territory or region (Kirtsaeng imported textbooks from Thailand, where they were much cheaper than in the US, and resold them at a profit in the US). | If Party C amends their filing, does party A become a joint applicant, a third party or something else? A is a non-party. It is unclear from your description why C would need to amend the filing, but there is no need for A to become a joint applicant. By virtue of C's buyout of A, only C has standing to sue B. Your description does not specify B's reason for non-payment, but generally speaking that does not defeat's C's standing for suing B. Had B's contract with A reflected that B's intent is to not be in a contract relation with C, the matter might involve (1) rescinding B's contract with C; (2) a judgment on grounds of equity; (3) C's claim against A for the latter's omission; or (4) a combination of these. But the description has too many gaps in that regard, thereby precluding a more precise assessment. Does Party A need to make a demand from party C and restart the whole application? No. A has no viable claim against C. And A's sale to C implies that A can no longer have a viable claim against B either. | What you're talking about is a liquidated-damages clause, where the contract explicitly spells out the damages to be awarded in the event of a breach. The law will vary some from state to state, but these clauses are generally enforceable. Some courts limit their use to cases where calculating the damages resulting from the breach would be impossible or impractical. But in the United States, along with all other common law jurisdictions, courts generally agree that if the liquidated-damages clause appears to penalize the breach instead of simply compensating for it, it is not enforceable. See, e.g., Ridgley v. Topa Thrift & Loan Ass'n, 17 Cal.4th 970, 977 (Cal. 1998) (“A liquidated damages clause will generally be considered unreasonable, and hence unenforceable under section 1671(b), if it bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach.”) The trillion-dollar damages clause "bears no reasonable relationship" to the damages that would actually result from a breach of a software license, so you can safely expect a court to refuse to enforce it, and limit you to whatever damages you could actually prove in court. Even if you were to drastically reduce it to "all the money you have, and then some," "all the money you have," "half the money you have," or even " "1 percent of all the money you have," the language still makes clear that the contract is not aimed at compensating for the breach, but rather penalizing the breaching party. In the end, what you're talking about isn't going to work, because contract law is generally less concerned with penalizing people than with making them whole. | "Property in" in the Sale of Goods Act 1979 is an archaic phrase, carried over from previous versions of the Act adopted in the 1800s (which in turn carried on terminology from prior British common law cases), that means "Ownership of". The archaic language was retained because it has such a rich case law (not just in the U.K., but throughout the British Commonwealth) interpreting it that would be lost or hard to access if the terminology were revised, in a situation where the case law was seen as a positive worth keeping. | Does Florida state law require that an estate go into probate in the event the seller in a real estate transaction passes away prior to closing? Yes, if the seller is the owner of the property which is not in joint tenancy with right of survivorship or something similar (such as a transfer on death deed). A will is meaningless until it has been admitted to probate (which is a term that in the narrow sense means "validating the authenticity and validity of a will). Likewise, an adjudication that someone had no will cannot be made without a probate proceeding. There is no exception for a clear an uncontested will. "Will" means "probate" pretty much by definition. This doesn't mean, however, that the closing of the property has to waive until the probate proceeding including a full administration of the probate estate and closing of the probate estate is required. Often, a will can be admitted to probate and an executor can be appointed to manage the estate in a matter of a few weeks to a few months if there is no contest to either the validity of the will or the appointment of a particular person as an executor. Generally, once the executor is appointed in the probate case, the real estate closing can go forward, sometimes with some additional uncontested motion practice. Once the property is sold, the proceeds are put in an estate bank account pending further administration of the estate's assets and liabilities. Indeed, even if the will is contested, as long as a consensus can be reached among the interested parties regarding who the executor should be, the real estate closing could go forward despite the fact that the will is contested. Powers of attorney are sometimes granted to real estate agents to complete a transaction in the event of a seller's incapacity. But powers of attorney are void no later than the point at which the person with the power of attorney learns of the death. (The common law rule was that a power of attorney was void at the moment of death, even if no one involved in the transaction knew that fact yet.) The only person with authority to sign the deed to sell the property, if the property is titled in the name of the seller individually, with no co-owner (or with a tenant-in-common co-owner), is the probate estate's executor. The real estate contract is a claim in the probate estate, which the probate estate is required to carry out if it is able to do so. But a real estate contract, in and of itself, doesn't transfer the property by operation of law at closing. Until the probate estate is opened, the buyer doesn't even have anyone who can be sued to demand that the real estate contract be performed. | If a trespasser openly and notoriously, exclusively and continuously possesses your property by building a fence on your land for the right time period, they automatically own the land. It still takes a court proceeding to record the passing of title (the trespasser has to prove in court that it is legally theirs). The trespasser would also have to establish that the recent survey was correct (survey errors do exist): was there an earlier survey in connection with the fence that established different boundaries? If (as it turns out) this has become his property, he abstractly has title to it, but only you and he know about it. The trespasser may have an interest in officially changing the property description, because it will officially increase the size of his lot and thus the value of the house+land. This also will increase their tax burden (while decreasing yours). The county has no knowledge of the fence: they go off of the official record, which says that you own that wedge. You also may have an interest in changing the property description, primarily to reduce your tax bite. There could also be issues with your resale of the property, since a mortgage company may require a survey of the property. Whether or not that is bad is hard to say: the consequence could be that the buyer is alerted to the fact that the lot is smaller than advertised and so on; in the current market I doubt anyone would care. If the fence goes away and you start using the land, then it will officially revert to you after a while. If you catch the party and complain within 10 years, you may recover the property (RCW 7.28.010). The limitations statute says that The period prescribed for the commencement of actions shall be as follows: Within ten years: (1) For actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appears that the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action. That ship has (apparently) long since sailed. There is a different law pertaining to "Adverse possession under title deducible of record" which shortens the limit to 7 years, which is even less useful to the original owner. RCW 7.28.070 also shortens the time limit for an adverse possession case, to 7 years: Every person in actual, open and notorious possession of lands..who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be ... the legal owner of said lands There is another (more recent) tax-related provision, RCW 7.28.083. (1) A party who prevails against the holder of record title at the time an action asserting title to real property by adverse possession was filed, or against a subsequent purchaser from such holder, may be required to: (a) Reimburse such holder or purchaser for part or all of any taxes or assessments levied on the real property during the period the prevailing party was in possession of the real property in question and which are proven by competent evidence to have been paid by such holder or purchaser; This does not require them to have paid taxes, it say that the victor in the dispute may nevertheless be ordered to reimburse taxes paid by the other party (assuming the other party has paid the tax). So there is some chance of getting the taxes back. The reimbursement is at the court's discretion (continuing that section): (2) If the court orders reimbursement for taxes or assessments paid or payment of taxes or assessments due under subsection (1) of this section, the court shall determine how to allocate taxes or assessments between the property acquired by adverse possession and the property retained by the title holder. In making its determination, the court shall consider all the facts and shall order such reimbursement or payment as appears equitable and just. One should also pay attention to the last provision in that statute: (3) The prevailing party in an action asserting title to real property by adverse possession may request the court to award costs and reasonable attorneys' fees. The court may award all or a portion of costs and reasonable attorneys' fees to the prevailing party if, after considering all the facts, the court determines such an award is equitable and just. That means that the victor can request the loser to pay his attorney's fees. This is delicate math, balancing the chance of recovering some paid taxes vs. paying the other guy's costs. You could try calling the assessor to find out how much the decrease in lot size might net you (the land vs. improvement proportion of taxes is all over the map in KC, easily ranging from 60% to 250% depending on year). One additional feature of adverse possession is that it must be "hostile", i.e. without permission. If a neighbor builds on your land, you can explicitly give them revocable permission (to avoid "no you didn't" arguments, explicit and revocable written permission, signed by the neighbor, would bar an adverse possession claim). This raises an interesting question, to which I don't know the answer. Suppose the prior owner gave permission to the fence builder, and did not demand the removal of the fence when he sold the property or right after the neighbor sold his property (there was only on act of granting permission). Does the clock start from your acquisition of the property (whereupon the element of hostility is satisfied)? Or does it start from the point where they acquired the property and were in hostile possession of the land (I would bet a quarter that that's the answer). If (or, given that) the fence was moved further onto your property more recently, there is a chance to recover the newly-taken piece of land. If you grant them revocable permission to build a fence on your property, you would not be subject to an adverse possession taking for the newly-taken land. If at some point you tell them to tear down the fence and they refuse, you can sue them and the court will (almost certainly) order the removal of the fence. The neighbor might then initiate an action to quiet title on the originally-taken piece of land, so you'd be back to where you were 4 years ago. From a practical perspective, this is well-worth the small amount of money involved to consult with an attorney to get legal advice. The legal matter probably will not go away quickly, and they may be presently inclined to settle in a manner more in your favor. |
Can the US somehow "claw back" or otherwise recover some of the $35 billion in over-billing by a Singapore-based firm founded by a Malaysian national? The BBC's US Navy officer 'bribed by cash and prostitutes' begins: Information Commander Stephen Shedd provided to the firm helped it defraud the navy of $35 billion (£26.1bn). The plea is the latest in the 'Fat Leonard' case, considered one of the worst corruption scandals faced by the navy. Dozens of officials have been ensnared. and includes: According to the Justice Department, Shedd and the other officers received "sex parties with prostitutes and luxurious dinner and travel" in exchange for military secrets and "substantial influence" for the Glenn Defense Marine Asia (GDMA) company, a Singapore-based firm founded by a Malaysian national, Leonard Glenn Francis. According to prosecutors, information Shedd and others provided helped GDMA to win and maintain contracts and overbill the Navy by $35bn for services such as providing tugboats, security and waste removal to ships at port. Is there some mechanism by which the US can "claw back" or otherwise recover some of this $35 billion? | The U.S. government could sue the firm for fraud or unjust enrichment (and probably also claims arising under other statutes particular to defense contracting) since the allegation is that due to bid rigging the contracts were too generous (rather than a claim that the contracts themselves were not carried out as agreed for the agreed price). Since it was a contract with the U.S. government, U.S. federal courts would almost surely have jurisdiction over the suit. Usually, statutes of limitations run from the time that the fraud is detected, so there is a good chance that such lawsuits would be timely. Collecting a money judgment in such a lawsuit, were the U.S. to prevail, would be another matter entirely. Presumably, the entity has distributed most of its ill gotten gains to its shareholders, doesn't have a market capitalization remotely close to $35 billion (U.S.), and may not have principals involved in the wrong doing who are collectable for anything but a small fraction of that sum. Another complication may be that the defense department needs something that the contractor involved provides and that no one else can, in which case the U.S. may be reluctant to "blow up" its relationship with a firm whose services it needs. | You didn't post the details of what exactly is involved with a "vampire initiation fee": is this simply the purchase of an physical object? Or the purchase of a service, such as the placing of a spell or the providing of the service of alleged protection from vampires? Or is this some form of a real "Advance-fee scam" where money and banking credentials or personal information is involved? (See link below). But in the big picture, one person's scam is another person's persuasive business sales pitch for an unusual item or service. Simply being able to pay for such an item or service doesn't make the sale - or the contract to sell it - illegal everywhere. It may be the case that selling an "vampire initiation fee" does not happen to be illegal in Nigeria. Illegal in the US, possibly yes. illegal there? Maybe not. Contract laws differ; in the US, contracting for something that is illegal voids the contract. In Nigeria, maybe not. Though the "vampire initiation fee" doesn't sound to me like a classic Advance-fee scam (Wikipedia), Google search on 419 scams and the results will tell you that it will be nearly impossible to get a prosecutor in that country to deal with anything like that, even if it is a real scam that promises lots of money for an upfront fee. Prosecutors have much better things to do. And you might have to go to Nigeria to make your case; see other answers that more fully outline the laws and legal aspects. Good luck. And it's better to spend your money on some garlic and a mirror. 7/03/18 Update re: the email transcript linked in question That's not a scam; the person is simply trying to sell you on the initiation fee. There is no crime. There is no promise of more money for a small fee (and bank credentials or personal information) like a typical 419 advance fee scam. You're not producing useful evidence for a prosecutor by engaging in the email and mostly agreeing to pay him. It's not illegal for you to send money by Western Union for the vampire fee. Even if you did send money, you're not being defrauded because you already know the vampire initiation is fake, and as a result you couldn't logically prove to a prosecutor or court that you were scammed. He's not guilty of fraud as no money has changed hands for a (fraudulent) service. Emailing with him might make you feel good by wasting his time, but that's all. | First of all, if your Delaware LLC earns money, you will pay tax in America on that money. America still taxes "foreigners" on American income, just not on"global" income. That is, unless the U.S. has a tax reciprocity treaty with your home country, Malaysia. I don't know about Malaysian law, but I am writing as an American about American law regarding the Seychelles (and I am not a lawyer). The following is only as an "example." If you set up an LLC in the Seychelles, you could, in theory, avoid American tax by accruing income there. In practice, if you did nothing but "banking" in the Seychelles, America would look at your lack of "value added" there, and could tax you on Seychelles income as if your corporation was American. The way to make such a claim stick (typically in a place like Ireland), is to set up a manufacturing or operating facility (e.g. call center) there so that you were shipping goods or services from your offshore operation. Then you'd have a strong claim in America that your operation actually earned most of its income abroad, and the U.S. company was just a holding company. | Only in the “most unusual and extraordinary circumstances” "conceivable" Respect for the chain of command is central to the armed services. As a result, lower ranked officers generally cannot relieve a higher ranked officers of command. Instead, they must work through the chain of command, taking their complaints to their superior's superior. To do otherwise is usually considered mutiny. As far as I know, the only service that has made formal provisions for this is the Navy. This makes sense, given that ships at sea may be out of contact for extended periods. The Navy regulations involving a subordinate can relieve a superior of command are found in § 1088. Relief of a Commanding Officer by a Subordinate of Chapter 10: Precedence, Authority and Command of the US Navy Regulations, issued by the Secretary of the Navy. Here is what that sections says: In the “most unusual and extraordinary circumstances,” a commanding officer can be relieved only by the “next in succession to command.” The problem must be so “obvious and clear” that any “reasonable, prudent and experienced officer” could reach only a “single conclusion:” that leaving the officer in command would “seriously and irretrievably prejudice the public interests.” Unless it is a “undoubtedly impractical,” the subordinate cannot act “without the approval of…higher authority...” The subordinate can act only after “much careful consideration” and after an “exhaustive investigation of all the circumstances…” The decision “must be based upon…substantial evidence,” and supported by “the official views of others in a position to form valid opinions…” Any subordinate who relieves a superior will “bear the legitimate responsibility for…such action,” and “must be prepared to justify…” it. | Embezzlement is criminally prohibited by 18 USC 666, and this DoJ manual page on what is embezzlement cites the answer in Moore v. United States, 160 U.S. 268 that Embezzlement is the fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. It differs from larceny in that the original taking was lawful, or with the consent of the owner, while in larceny the felonious intent must have existed at the time of the taking Following other case law, the elements of the crime are there was a trust or fiduciary relationship between the defendant and the private organization or State or local government agency; the property came into the possession or care of the defendant by virtue of his/her employment; the defendant's dealings with the property constituted a fraudulent conversion or appropriation of it to his/her own use; and the defendant acted with the intent to deprive the owner of the use of this property. This page lists over 32,000 disbursements; filtering just for rent give over 2,400 disbursements, a number of which are recent and made to some business with Trump in the name (Trump Tower LLC etc). The conversion would have to be fraudulent to be embezzlement. There actually is not any evidence provided that a transfer violated FEC regulations (we have dates, amounts, and recipient), so we would have to speculate about what else is true. There are processed disbursement images up to 10/21/2020 such as this receipt for 3 charges for food and lodging paid to Trump Hotel Collection. In fact this payment was made by Donald J Trump for President, Inc. although the search term was the aforementioned PAC: I will overlook that anomaly. This is the FEC page on that committee (you have to follow the committee number because the name was also used in the 2016 campaign but was terminated). There vast numbers of filings linked there, but nothing that I saw indicates that Trump is in any sense an employee of the organization, so there is no actual evidence that there were any "Trump actions". First, it would have to be shown that there were Trump actions. Second, it would have to be show that the action was fraudulent. Technical misappropriation is not fraudulent. This FEC page describes the safe harbor provisions for misappropriation. This page specifically addresses embezzlement. Although they use the word "embezzlement", they do not purport that misappropriation constituted embezzlement as defined above, to point out that civil penalties may result from violation, see 11 CFR Part 104. Ultimately, the legal propriety of the disbursements depends on its purpose: here is what the FEC say about illegal conversion for personal use (food for daily consumption, mortgage or rent for personal residence, tuition...). The available evidence does not even suggest embezzlement. | 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. | A contract need not say anything about the fact that the company could be sold. What matters is that the terms of the contract are not changed. Since there is no opt-out on transfer clause, you have to finish the term of the contract (or pay whatever fee is assessed if there is an early termination clause). So the question is how certain you are that you did not agree to the possibility of adding a "Universal Service Fund" charge. There may be subtle language which allows the company to add charges for specified purposes, and the new owners are availing themselves of that possibility. It may be difficult to determine just how this fee is legal (if it is), because customer service might just say "we are now charging this fee", or "we have to charge this fee", but you could try asking them where in the contract this new fee is allowed. You can hire an attorney to read over the contract to see where this possibility is mentioned; perhaps it is not, and then an exchange of letters between attorneys might be necessary. There is such a thing as the Universal Service Fund, which is a government operation to improve rural telecommunications. Telecomm companies have to pay a percent of their interstate revenues to this fund. If your bill has not increased since the acquisition, that suggests that you simply did not know that you had been paying into the fund, since the original company didn't give you a detailed invoice. If it has increased by this amount, that suggests that the earlier owner hadn't exercised an option to pass the cost on to the customer. It is likely that there is some clause in the contract that addresses charges required by law. That does not mean that you could not prevail in a suit against the company, but it would make the job harder (more expensive) for you. One company sort of explains how they are legally allowed to pass the cost on to the customer. Because it is allowed by federal regulation, it need not be mentioned in the contract. | Yes The Browne-Fitzpatrick Privilege Case in 1955 resulted in the two being gaoled for 90 days for breaching the privilege of the Australian Parliament. They were, respectively, the owner and editor of the Bankstown Observer and the breach was an article in that paper that alleged that a then sitting MP, Charles Morgan, had been involved in immigration malfeasance as a lawyer prior to being elected. The men were grilled by the Privileges Committee of Parliament during which they were denied legal representation. The Committee determined that they had infringed privilege and the House, on the motion of the Prime Minister Robert Menzies, voted to gaol them. The High Court of Australia refused to hear an appeal as did the UK Privy Council (which was the highest court with Australian jurisdiction at the time). So, for things printed 300km from Parliament, Parliament decided that these men had broken Parliamentary rules and should be imprisoned. There is doubt, both then and now, that this was a political hatchet job. There is also no doubt that what was done was legal then, however, given that the High Court has since discovered an implied right to political communication in the Constitution, it may not be possible today. |
Is a desire for vindication a legitimate reason for a lawsuit? I understate that a judge can often determine a monetary payment for the violation of a law. But, what if the primary motive for undertaking a law suit is to not be the fool of the other? Is it better to pretend the dispute is just about money, when it is really all about one's honor? | It can be Defamation suits, in particular, are often undertaken to vindicate reputation rather than to secure monetary damages. This is one reason why suits awarding nominal damages for libel (sums such as $1, or six-pence or one farthing in the UK) are sometimes regarded as victories by plaintiffs, even though such plaintiffs gained no money, and in some cases had to spend much time,. effort, and money to get such a verdict. In other cases such low damages are known as "contemptuous damages" expressing the view that "Yes you were technically defamed, but your reputation was of no value". The damages of one half-penny awarded in Dering v Uris and Others (1964 had been taken in this latter sense. See also the Wikippedia section on "Nominal damages" where it is stated that: The [US] Supreme Court decided 8–1 in the 2021 case Uzuegbunam v. Preczewski that nominal damages are appropriate means to redress violated rights otherwise now rendered moot. In some kinds of cases in some jurisdictions a plaintiff may indicate that s/he does not desire monetary damages, only a judgement supporting his or her position. In other cases a suit must be framed as one for monetary damages, but the plaintiff may state that the verdict, not the damages, is what is most desired. There is noting illegal nor (in my view) immoral in bringing a suit more for public vindication than for money damages. There is, of course, a risk that the case will not turn out as the plaintiff wishes. Whether a states lack of interest in damages will favorably or unfavorably impress the judge or jury can vary widely, and cannot be predicted in general. Defamation case verdicts sometimes include an order for one side to apologize to the other. Whether such an apology has value is a matter of opinion. | No. In order to practice law, one must establish an attorney-client relationship. Participation in Internet forums absolutely does not establish an attorney-client relationship. Everyone involved in law spends a disproportionate amount of time disclaiming this, so nobody inside the field will be confused on this point. I believe this is also directly stated in the Terms of Service. And as Jen notes, upvoting/downvoting is not even agreeing with the legal validity of the answer. Take the tour or read help pages for what voting means. It's perfectly conceivable for a psychic who knows how to sway people could write a better voted answer than three lawyers. | Assume that this happened in a matter that goes to court. In civil court, there is no "innocent until/unless proven guilty". In civil court, the judge hears everyone's story, and decides which story is more likely to be true. So I tell the judge "I sent a letter by registered mail; this is what was in the letter, and the post office reported to me that they delivered the mail, and someone signed for it". And you say "I never received a letter". The judge will believe me and the post office. You say "I received a letter and signed for it, but there was just a birthday card inside". Who does the judge believe? Does he or she believe that you received a letter with the contents I said and you are lying about it, or does she believe that I sent you an unsolicited birthday card by registered mail? Why would I do that? So they believe me. Now if you said "I received a registered letter containing just a birthday court, so I immediately called my secretary and three other people in the office to see this and to verify there was nothing but the birthday card, and here they are as witnesses", then the court might start believing you. | (My expectation is that the proof has to be replicated and the conviction cannot be introduced as evidence). Your expectation is incorrect. The name of the legal doctrine that allows a criminal judgment to have this effect in a civil case is called "collateral estoppel" which is also sometimes called "issue preclusion". See, e.g., A-1 Auto Repair & Detail, Inc. v. Bilunas-Hardy, 93 P.3d 598, 600 (Colo. App. 2004) ("Hardy contends Colorado law does not allow courts to apply collateral estoppel, now commonly known as the doctrine of issue preclusion, when the first adjudication is criminal and the subsequent litigation is civil. We disagree.") Similarly, a case out of California stated: To preclude a civil litigant from relitigating an issue previously found against him in a criminal prosecution is less severe than to preclude him from relitigating such an issue in successive civil trials, for there are rigorous safeguards against unjust conviction, including the requirements of proof beyond a reasonable doubt and of a unanimous verdict, the right to counsel, and a record paid for by the state on appeal. Stability of judgments and expeditious trials are served and no injustice done, when criminal defendants are estopped from relitigating issues determined in conformity with these safeguards. Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 606, 25 Cal.Rptr. 559, 375 P.2d 439, 441 (1962) (citations omitted). To the best of my knowledge, this is the rule in every U.S. jurisdiction (with the possible exceptions of Puerto Rico and Louisiana which are not common law jurisdictions). It is also the historical rule in British common law, although I don't know if this continues to be the case in non-U.S. jurisdictions. Procedurally, the determination that collateral estoppel applies would usually be made on a motion for summary judgment, or in the preparation of jury instructions which state that liability has been established and that the jury is to limit itself to determining causation and damages, rather than as an evidentiary matter. I've used this doctrine once or twice. For example, I used it in a case where someone fraudulently sold ditch company shares worth several hundred thousand dollars (in Colorado, water is gold) that he didn't own (a transaction that could not be unwound because the buyer was a bona fide purchaser for value and the seller had apparent authority as a trustee of a trust owning the shares even though he didn't have the actual authority to sell them under the trust) and then spent the money he received before he was discovered (if I recall correctly, for gambling debts). He was convicted criminally and then my client, the victim, sued for money damages including statutory treble damages for civil theft and attorney's fees based upon collateral estoppel and an affidavit as to damages in a motion for summary judgment. From a practical perspective the four main difficulties are that (1) people convicted of crimes often lack the income or assets to pay judgments, (2) there are double recovery issues involved in reconciling restitution awards in a criminal case (where the measure of damages is narrower) and damage awards in a civil case (where the measure of damages is broader), (3) there are priority issues involved in reconciling criminal awards for fines, restitution and costs, in each case with civil awards for damages, and (4) if the defendant declares bankruptcy, the non-dischargeability of the civil judgment must be affirmatively raised and proved (often this is elementary but there are strict time limits) in the bankruptcy proceeding. Tactically, it is often better to sue first, collect what you can, and to bring a criminal complaint only when it turns out that the perpetrator is judgment-proof. | They get paid either way I’m an arbitrator, adjudicator, and mediator and I’ll make this very clear: I don’t give a rat’s arse who wins. When I’m acting as a mediator I can go even further: I don’t give a rat’s arse if the dispute even gets resolved. My job is to do my job. To manage the process and, if making a decision is part of the process, make a decision. My paycheque is totally unaffected by who I decide for. Future employment prospects depend on you being good at the job. Bias is not being good at the job. Oh, yeah. Also, it’s the law that I’m impartial. In any event, most arbitration clauses give the parties no input in the selection of the arbitrator (e.g. by nominating the president of a professional association of arbitrators to appoint them) or require them to agree on the arbitrator. | The accusation would be the crime of securities fraud ("insider trading" is legally meaningless), under 15 USC 78j(b). There is a bit more elaboration in 17 CFR 240.10b5-1. That law prohibits using "any manipulative or deceptive device or contrivance in" in connection with a securities transaction. Under 15 USC 78ff, violation of the law can result in a fine of up to $5 million and 20 years, thus it is a crime. As a crime, the standard of proof required is must higher than it in for a civil forfeiture (which can be as low as "reasonable suspicion"). In the US, and pursuant to the Due Process clause, that requires proof beyond a reasonable doubt, that is (from in re Winship), "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged". The statute itself does not state the elements that must be proven to secure a conviction, but they can be discerned based on jury instructions (which are circuit-specific). The 9th Circuit instruction is here. You can see that there are 4 specific allegations that have to be chosen between, and the prosecutor has to have at least alleged one of those prohibited acts (so that the jury can decide if the prosecution has proven beyond a reasonable doubt that the accused did that thing). The evidence you have presented could constitute "reasonable suspicion", but not "proof beyond a reasonable doubt". If we had a different standard of proof in criminal trials, where it was sufficient to just suspect based on a small bit of evidence that a person may have done something prohibited, then the conclusion could be different. Or, if you had stronger evidence surrounding the sale, your argument might carry a bit more weight. In other words, criminal prosecution is based on quite a lot of specific and objective evidence about what happened. An example of the kind of evidence and allegations required to get the ball rolling can be seen here; for "insider trading" specifically, look here (this case is based on an FBI investigation, where an agent will presumably testify to hearing the defendant state a plan to violate the law). | 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. | An "inquisitorial" system is one where the Judge or Magistrate actively questions the accused and witnesses to attempt to determine the facts. The Judge may also determine, at least in part, what witnesses to call in what order. An "adversarial" system is one in which each side presents its case, and the judge acts as an umpire deciding on procedure, and possibly makes the final ruling (or directs a jury to do so) but is not actively involved in questioning witnesses or deciding what witnesses to call. I don't see anything which would prevent a common-law jurisdiction from establishing an "inquisitorial" system by statute except longstanding tradition, but as far as i know no such jurisdiction has ever had such a system in place for dealing with criminal matters. The informal procedures in some small claims courts do have judges more actively involved than in other courts. I think this is also true in some family courts as well. I think I have heard of some civil-law jurisdictions which use something like an adversary system, but i am not sure of that. Certainly a civil-law country could pass a law setting up such a system if it chose to. |
Open Source project change license from BSD 3 Clause to Lgpl-2.1 If a software was released under BSD 3 Clause license, how can I rerelease it with my changes under Lgpl-2.1 with Commonsclause? What are the requirements and my obligations? More about later, here: https://tldrlegal.com/license/gnu-lesser-general-public-license-v2.1-(lgpl-2.1) With https://commonsclause.com/ Goal: I want to rerelase a Bsd-3-clause project with my modifications as Lgpl-2.1 with Commonsclause to make it open, but prevent users from selling it and making SaaS based on the software? Thanks, | While the Commons Clause is not an Open Source license, the BSD license allows you to do this. To be clear, you cannot change the license of other people's code. You can however add your own code and license it under whatever terms you want. The resulting code then consists of your modifications, under whatever license you want parts of the original code, under BSD-3-clause Since you are a license-taker for the BSD-3-clause material, you must still comply with its license such as providing any recipients with the copyright + license notice. When people receive the software with your modifications, they must comply with both your chosen license terms for your modifications, and with the BSD-3-clause license for the other parts. For example, you can use the Commons Clause to prevent certain competing uses of the software as a whole. But since you will presumably provide the source code of the software, other people are free to use the BSD-3-clause code under the terms of that license, ignoring your restrictions. If you provide binaries then the resulting binary would not be covered by the BSD-3-clause license, but you would still have to provide the copyright and license notice for the original code as a kind of attribution. | Yes, commercial use is allowed for the AGPLv3 license. You can charge for your use of the software so long as you provide a way for the public to download the source code in its entirety. | In principle, every single copyright license allows someone to do something that plain copyright law wouldn't allow them to do. Very often there are conditions: They are allowed to do X, which plain copyright law wouldn't allow them to do, but only if they fulfil some condition Y. The consequence is that if they do X without fulfilling the condition Y, then they are committing copyright infringement. Details are different from country to country. In the USA, you cannot force someone to do what the license asks the, to do, but if they don't, it's copyright infringement, and you can sue them and ask for damages. Other countries see it as a contract, where by doing X they agree to do Y as well, and not doing it would be breach of contract. Often with the interesting effect that you as the copyright holder cannot prove that they accepted the license, so in court they can tell the judge whether they were committing copyright infringement or whether they are in breach of contract. You can of course use your own license - however, one of the standard licenses mean the license was likely checked by a better lawyer than you would want to pay, and is much more likely to achieve what you want to achieve. If there were any problems say with the Creative Commons license, people would have found those problems and fixed them a long time ago. | Yes A software license is just a contract and parties to a contract are free to agree whatever terms they wish under the doctrine of freedom to contract. Government can restrict what terms can be used in a contract either in general (e.g. for being against public policy) or specifically (e.g. by requiring wages be paid in money). None of the terms you mention fall foul of any restrictions I know of. | Any adapted work derived from a work used under a CC-BY-SA licnese must be distributed, if at all, under a compatible license. The question is whether a large work incorporating a much smaller work is said to be "based on" that work. The CC-BY-SA 4.0 legal text does not use "include" or "incorporate" or any similar term to define an adapted work, instead it says: Adapted Material means material subject to Copyright and Similar Rights that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a manner requiring permission under the Copyright and Similar Rights held by the Licensor. For purposes of this Public License, where the Licensed Material is a musical work, performance, or sound recording, Adapted Material is always produced where the Licensed Material is synched in timed relation with a moving image. If including a single work makes your book Adapted Materiel, than you must either release the book under the same license, or else not rely on the CC license. I am not at all sure if such use would make the book Adapted Materiel. If the content could be quoted (perhaps only in part) based on fair use or fair dealing or a similar theory, you would not be relaying on the license. But whether such use is legitimate is always a very fact-bound question, which will depend on various specific facts. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for a summary of US fair use principles. If the materiel you want to use would not qualify under fair use (or whatever similar principle applies in your jurisdiction), and the book would be considered Adapted Material, then you would have to omit it or put the book under the CC license. I see in The CC case law page the statement that: The atlas was a compilation not a derivative work, so did not need to be licensed under the SA term, Which might apply to your book. If it does, you would not need to place the book under a CC license. Update: On reading CC's detailed wiki page on Drauglis v. Kappa Map Group, LLC I find the statement that Use of a whole work is suggestive of a "compilation" rather than a derivative work subject to the ND/SA terms. attributed to the US District court (DC district) that decided this case in 2014. If that decision were followed, it would seem that the book would not be considered a derivative work and while proper attribution must be provided, and the applicable license must be indicated, the book itself need not be released under CC-BY-SA. | 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. | The GPL does not explicitly specify a time within which the source code must be provided, which probably means a "reasonable time" is allowed. What is "reasonable" would eventually be evaluated by a court, if the matter ever got that far. But please note that only the copyright holder (or the holder's authorized agent) can sue for infringement. The license does not give other people a right to sue for infringement, and I doubt that any license could grant such a right. One could inform the copyright holder who could sue, but the holder need not sue, and undertaking such a suit would involve expense, time, and effort. Whether the offer to provide the source constitutes a binding agreement is not clear, and may well vary in different jurisdictions. The question does not state any particular jurisdiction. | Probably Not The creator or owner of a piece of software does not in general have any copyright over the output when others run the software, unless that output is itself a derivative work of input supplied by the copyright owner, or forming part of the software. In this case the translation is a derivative work of the 19th century original, but that is assumed to be in the public domain. SAo google has no copyright on the resulting translation. But copyright protection is only available for "original works of authorship". (See 17 USC 102 in the US, and similar laws elsewhere.) A machine-produced translation is not an original work, and it is surely not then work of the author of the overall book. However, the author would still have a copyright on the book as a whole. The legal situation is no different than if the author had simply quoted a 19th century work. One may incorporate public domain works into a later work, and that later work is still protected by copyright, provided that there is enough original contentr to make the work as a whole "an original work of authorship". Others may use the PD [arts, or the original from which they are taken, but not the rest of the work (beyond what fair use would allow in any case). For example, I have made a number of posts here on LAW.SE. In several,of those I quoted sections from one of the numbers of The Federalist. That 19th century work is in the public domain. Anyone else may re-quote the passages I quoted from it. But that gives them no rights to use the rest of my work, except as the CC-BY-SA license or fair use permits. So the author would retain copyright on the book as a whole. But soemoen who merely quotes or uses the translated 19th century article but none of the original parts of the book would not be infringing that copyright. I say probably in the header, because I do not have any actual case-law to cite here. It is possible that some court has rules otherwise on the subject of the copyright on the output of a software tool, but I strongly doubt it. |
limits of the imperative for defense of others German Law mostly requires you to defend others that are in danger. In a situation where someone's life is attacked and your only possible way of helping is the use of (probably) deadly force, are you obliged to use it? Many people's morals says no matter what they may never use deadly force (e. g. the ten commandments in Christianity)… Also, does the obligation of defense extend to self-defense or is that one optional? | Duty to rescue In civil law systems, like Germany, people have a duty to do what is reasonable to rescue someone from danger. This never requires the person putting themselves in serious danger nor would it require a person with strong moral reservations about taking a life to do so. In common law systems, like most of the English speaking world, there is no such duty unless the person concerned created the hazard or a “special relationship” exists between the people. | It appears you want to go for a defense strategy based on a self-defense argument. This won't work in many jurisdictions, because self-defense usually doesn't apply when you intentionally caused a situation where you knew you would have to harm someone in self-defense. Similar case: Bob regularly mugs old women in the park by threatening them with a gun. Charlie finds out and wants to stop him. But instead of reporting it to the police, he wants to take care of this himself. Charlie get a gun, dresses up as an old woman and waits in the park. When Bob shows up and tries to mug Charlie, Charlie shoots first. Well, anyone else who would have found themselves in a park threatened by Bob with a deadly weapon might have had a self-defense argument. But Charlie knew that by dressing up as an old woman, he would provoke Bob to attempt to mug him. This of course doesn't exonerate Bob. But Charlie actively caused the situation which would give him the opportunity to kill Bob "in self defense". Charlie even made a complex plan to arrange this situation and put serious effort into setting it in motion. It's premeditated murder. Your situation is basically the same. You caused someone to make an attempt at your life, and then killed them to "defend yourself". And you had plenty of other options: There are lots of ways to end your life without requiring the help of a hitman. By getting them involved, you incited them to commit murder (killing someone who wants to die is still murder under most circumstances). By hiring the hitman, you created two possible options: Either you kill the hitman, or the hitman kills you and they would be guilty of murder. Both are the direct consequences of your actions. You could have tried to cancel the hit when you changed your mind (if you tried and failed, that might give you a slightly better legal argument) You could have called the police and ask them for protection. Further, when you hired the hitman you committed a crime: incitement to commit murder. The fact that you were also the victim of that crime doesn't really matter. It also doesn't matter that you wanted to die: Assisted suicide is only permitted in very few jurisdictions, and those only allow it if performed by medical professionals under very narrow circumstances. Those circumstances would certainly not have applied, so the hitman would have been guilty of murder if he had succeeded (he is at least guilty of attempted murder, but you can't put a dead person on trial), so you would too. When you commit a crime and cause someone to die in the process, then that falls under the felony murder rule in many jurisdictions. You will likely be convicted of manslaughter or murder of the hitman, depending on when you decided to kill the hitman before they kill you. When you can convince the court that you did not premeditate to kill the hitman but only panicked in the last minute, and no felony murder rule applies, then you might get away with manslaughter. You might also be found guilty of incitement of attempted murder (your own murder). | 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. | Laws vary by state, of course. In Wisconsin, according to the 1993 case State v. Neumann: the offense of second-degree sexual assault by sexual intercourse does not require proof of intent and therefore someone who claimed to be too drunk to know what he was doing was still guilty. Although that was a case involving adults and therefore a different statute, I think the statutes are similar enough to produce a similar result in a case involving a minor. But even though intent isn't required, according to the 2007 case State v. Lackershire she's still be not guilty in Wisconsin. It flat out says that: If the defendant was raped, the act of having sexual intercourse with a child does not constitute a crime. Additionally, in your case, there was a gun to her head. Under Wisconsin law, the woman could not be guilty of statutory rape, because of this law: 939.46 Coercion. (1) A threat by a person other than the actor's coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide. The paper you link to mentions several possible defenses like coercion, and how each defense is not applicable in some states. I don't think it ever clearly establishes that there is a state where there is no defense. The example you (and the paper) give occurred in Florida. I couldn't find an applicable statute in Florida law, but that appears to be because it's in common law instead of a statute. According to the 1981 Florida case Wright v. State: Florida has recognized the common law defense of duress as a defense to crimes other than homicide so I don't think the woman would have been guilty under Florida law, either. The paper states that she was in fear for her life and that of her daughters, and it is extremely apparent in hindsight that her fear was reasonable. I imagine that if the author was able to find an actual case where a victim was prosecuted under similar circumstances (or even one where the victim clearly could have been prosecuted under the law of that state) he would have used that case as his example instead. It seems that he couldn't... and that might tell you something. He probably used this example because it was sensational, but it doesn't seem that the woman was guilty under applicable law. | You are asking a different question The title to the earlier question -- "Do the police have a civil duty to do their job" -- is slightly misleading. The question is not whether the policy have an abstract "civil" duty to enforce the law, but whether they have a specific "constitutional" duty to do so. If they do have such a specific duty, then, as they OP says, they could "be sued for not doing their job." As ohwilleke explains thoroughly, the answer to this question is "no." The Supreme Court has consistently held there is no constitutional right to police enforcement of the law. In particular, the SCt has held that police aren't violating the 14th Amendment when they don't "do their job." According to the Court, someone who is hurt when the police don't enforce the law, is not deprived of "life, liberty or property without due process of law." This in turn means that the people who are hurt can't sue the police under §1983, which allows people to sue state or local officials who violate their constitutional rights. As you point out, the Nevada statute clearly requires officers to make an arrest in some cases. However, this requirement is not absolute; the statute also creates an exception to the requirement: a peace officer shall, unless mitigating circumstances exist, arrest a person when the peace officer has probable cause to believe that the person to be arrested has...committed a battery upon his or her spouse.. The statute goes on to explicitly exempt the officer and her department from liability if she decides not to make an arrest: Nothing in this section shall be construed to impose liability upon a peace officer or his or her employer for a determination made in good faith by the peace officer not to arrest a person pursuant to this section. Thus, the statute sends mixed signals to police officers. On the one hand, it requires them to make arrests in some domestic violence cases; on the other hand, it says they are not liable if they ignore this requirement. Taken together, the Nevada statute and the SCt's decisions mean people who are hurt if police don't make an arrest under 171.137 cannot sue the police under either state or federal law. | None No law requires police to keep people apart when making statements. Doing so is good police practice. In some police organizations internal regulations or procedures may specify that officers should do so. But those are not laws. In some cases witnesses may have had a chance to confer and agree on a story before police arrive, the police cannot prevent that. The trier of fact can take into account that witnesses had a chanc to agree on a false story. | I interpret the sentence "intruder enters your home using the internet" in the question as not as physically entering the home but as virtually entering the home, in other words hacking into the victim's home network remotely. When that interpretation is incorrect, please comment. Note that an action can only be considered self-defense when the self-defense prevents a crime currently in progress from being completed. When A hacked into B's computer and then B punches A in the face later, that's not self-defense, that's illegal vigilante justice. The self-defense argument would only work if it actually prevents the completion of the crime. For example, if A and B were in the same room, A sees B hacking into A's computer right now and uses physical force to prevent B from completing the hack (like yanking the keyboard out of B's hands). Also keep in mind that the intensity of self-defense must be appropriate for the severity of the crime. What is and is not appropriate is for a court to decide in each individual case, and the guidelines that are to be applied vary from jurisdiction to jurisdiction. But causing bodily harm to people when the crime they are committing does not cause bodily harm is often not considered within the limits of self-defense. For further information about what is and is not allowed in self-defense, I recommend the series about self-defense by Law Comic. | There is an important distinction between moral duty and legal obligation. Even if an officer should arrest a person, given some moral standard, they are not legally obligated to do so. A test for legal obligation is whether an choice results in a negative legal outcome – is the officer sued or criminally penalized for acting or not acting? Unsurprisingly, the answer to the legal question is highly dependent on jurisdiction. I only consider US jurisdiction here (which incidently is not a single coherent jurisdiction, it is a phylum of jurisdictions), though some aspects of the answer extend to other countries. The clearest cases are obligations to not act in a certain way – prohibitions. Police may not beat a suspect in order to obtain information. Period, end of story, no discretion. There is a putative bright line that police cannot cross, namely violating an individual's rights, and that constitutes a major exception to the doctrine of police immunity. If X is a clearly established right, police cannot violate that right and if they do, they can be sued or even prosecuted. Sometimes courts "discover" a particular right in a certain case, so the individual (plaintiff in a civil case) may be vindicated but the officer will not be subject to legal sanctions, since LEOs are not held to be appellate court justices who can divine the future discover of a legal right. 18 USC 242 statutorily describes certain circumstances where a choice is criminally proscribed, and 42 USC 1983 allows for civil suits. This pertains to things that an officer does, saying what an officer does not legally have the discretion to perform an act. Now setting aside proscriptions where "you may not...", the doctrine of sovereign immunity prohibits civil or criminal actions against the government (including LEOs) unless a specific exception has been carved out. I recommend this (open access) journal issue on Discretion in Law Enforcement. There do exist statutory obligations to act imposed on LEOs, for example see this AG legal opinion from Florida, stating that A law enforcement officer, including a police officer, has a legal duty to provide aid to ill, injured, and distressed persons who are not in police custody during an emergency whether the law enforcement officer is on-duty or acting in a law enforcement capacity off-duty. A famous case regarding (non)liability for police inaction is Castle Rock v. Gonzales. In this case, police declined to enforce a Temporary restraining order (TRO) against plaintiff's estranged husband (who then murdered the children). The Supreme Court observes that the Due Process Clause does not “requir[e] the State to protect the life, liberty, and property of its citizens against invasion by private actors” and also noted the lack of express statutory obligation to enforce that law. In Everton v. Willard, the Florida Supreme Court addressed the question of whether discretionary police power authority to make or not make an arrest and whether a decision not to take an individual into custody constitutes a basic judgmental or decision-making function that is immune from tort liability and they do hold that the decision of whether to enforce the law by making an arrest is a basic judgmental or discretionary governmental function that is immune from suit, regardless of whether the decision is made by the officer on the street, by his sergeant, lieutenant or captain, or by the sheriff or chief of police There have been disagreements on sovereign immunity, for example Huhn v. Dixie Insurance Co., 453 So. 2d 70, which held that when an individual suffers a direct, personal injury proximately caused by the negligence of a municipal employee while acting within the scope of his employment, the injured individual is entitled to redress for the wrong done (the relevant action was not arresting a person for DUI). As employees of the government, LEOs are subject to the over-arching rules of their employer. They may be ordered by their superiors to refrain from arresting a law-breaker during a riot, on the grounds that doing so will exacerbate a tense situation. The police department might be sued for such a decision, but it is unlikely that the government will be held liable for an essentially political decision. Likewise, enforcement of "no public camping" laws is highly variable, and the courts will most likely not sanction a city for not arresting homeless people who are camping on public property in violation of the law. |
Can lack of dual citizenship be a job qualification in Canada? Some organizations in Canada have an official preference for hiring Canadian citizens, and say so in job announcements. If one is a Canadian citizen but also a U.S. citizen, does that mean one would be treated differently from a candidate who is only a Canadian citizen? | It is illegal to discriminate on the basis of "national or ethnic origin" This is spelled out in the Canadian Human Rights Act s3(1). However, a person's citizenship is something that can (must) be discriminated on. Unless it is being used as a proxy for "national or ethnic origin". Right to work in Canada To be allowed to work in Canada, person must be a: Canadian citizen (including dual-nationals), non-Canadian citizen and hold a work-permit, non-Canadian citizen and be doing exempt work. So, an employer asking about citizenship to determine eligibility is fine. An employer asking to discriminate in favour of group 1 over group 2 or 3 is not. | The way "with intent to lose citizenship" works in US law is extremely demanding; it is very hard to establish it by doing anything short of appearing before a consular officer and formally renouncing citizenship. Other ways include serving in the military of a country at war with the US, being convicted of treason for committing one of the specified potentially expatriating acts (serving in an army at war with the US is sort of a trial-less special case of that, because engaging in a war against the US is treason), or serving in a "policy-level position" in a foreign government. The State Department says as much in the link. Obtaining citizenship is listed as a case where the administrative premise applies; so is swearing allegiance to a foreign state, serving in the military of a state at peace with the US, and serving in lower-level government posts of a foreign state. In those cases, the person retains US citizenship but at some point in the future may be asked by the State Department if they wanted to renounce it. Intent to renounce citizenship is established only by explicit declaration if you've only obtained citizenship in another country. With "policy-level posts" the premise doesn't apply, but then the State Department just decides on a case-by-case basis. You may well lose US citizenship (although the King of Thailand was born in the US, and I'm not sure if he's considered to have lost citizenship), but it's not automatic. Your senior ministers may lose citizenship, but it is likewise not automatic. But the normal citizens? The link explicitly says that the administrative premise covers that. | Only for certain parts of the constitution, and not for the parts you are asking about. Accordingly, the Supreme Court has squarely stated that neither the First Amendment nor the Fifth Amendment "acknowledges any distinction between citizens and resident aliens."13 For more than a century, the Court has recognized that the Equal Protection Clause is "universal in [its] application, to all persons within the territorial jurisdiction, without regard to differences of ... nationality."14 The Court has repeatedly stated that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."15 When noncitizens, no matter what their status, are tried for crimes, they are entitled to all of the rights that attach to the criminal process, without any distinction based on their nationality.16 Are Foreign Nationals Entitled to the Same Constitutional Rights As Citizens? - David Cole, Georgetown University Law Center | I don't believe Canada uses the public official/figure distinction. American defamation law uses the distinction to determine whether to require proof of actual malice, but Canada does not require proof of actual malice. Canadian defamation law has a lot of other parallels to American defamation law, though, especially in terms of privilege. I'd expect the University could claim any of several available privileges, including truth, qualified privilege, and fair comment. And because it's a government institution, it's conceivable that it might even claim absolute privilege, though I definitely don't know enough about their interpretations of the privilege to say one way or another. For a broad primer on defamation law in Ontario, you can check out this report from the Law Commission of Ontario. | 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. | The Dept. of Labor makes it easy for you: as they say, it is illegal discrimination. The U.S. Department of Labor (DOL), Civil Rights Center (CRC), is charged with enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e-16, which prohibits employment discrimination based on race, color, religion, sex, and national origin, as it applies to employees and applicants for employment at DOL. National origin discrimination can involve treating applicants for employment or employees of DOL unfavorably because of their actual or perceived place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding "foreign."... National origin discrimination can also include disparate treatment because of a person's accent | A variety of Canadian national laws have established general restrictions that impart largely universal rights upon all "employees", as well as certain duties upon all "employers" with regard to the definition of who qualifies as an employee and who must be paid. Despite the national framework, the provincial standards construed through case law are largely controlling. Employees in Canada are protected by the employment standards set forth by each province, which then will typically be given precedence over in the national rubric unless the latter gives greater rights to workers. These provincial laws apply to all “employees” and “employers” within the province unless a clearly defined exemption or restriction in the national framework applies, or unless there is not a provincial framework in place. The provincial, versus the national legislation, makes it necessary to determine whether he or she fits into the definition of an “employee” under either of these legal structures; chances are, if a person is working in any way they are employees who need to be paid. While the extended definitions vary, a person is an employee in all provinces if they generally appear to be an employee ( they perform the type of work a person would typically be paid for, they are controlled to some extent by the employer, etc.) As defined through these statutes and stare decisis, individuals who fit these definititoins and tests are employees, and hence, are entitled to receive wages. This is almost always true regardless of any signed contracts or verbal agreements suggesting otherwise - agreements of this type are largely unenforceable except in the rarest of circumstances. Thus, unlike the U.S. where an intern can form a contract with the consideration being the value of the educative environs, in Canada, not so. Hence, whether the intern is willing to not be paid, or has signed an agreement acknowledging that he or she would not be paid, if they decide to sue for wages (or even if the employer is audited without the employees input), the existence of a written waiver of pay is not determinative of employers' liability. Much like the FSLA, these national and provincial employment laws were adopted with the goal of preventing the exploitation and abuse of workers who are in a vulnerable position relative to their employers. The Supreme Court of Canada has held that provincial employment laws should be construed and interpreted in a broad and generous manner because they provide minimum benefits and standards to protect workers as a general class. However, this framework can also backfire and put young Canadian professionals at a disadvantage in this growing global economy. In some circumstances - especially in competitive professional employment markets where experience is an intangibly invaluable asset - and their neighbors to the south (the U.S.) have the benefit of entering into these relationships. In professions such as law, medicine, business, and many others, internships are an invaluable tool and a stepping stone to permanent lucrative employment, that these "protections" may serve to deprive parties the benefit of. It is nearly always illegal in Canada to allow an individual to work in an internship or volunteer like capacity if they do so unpaid, even in ways that would traditionally be exempt from the FSLA (Fair Labor Standards Act) in the United States. Despite their nearness geographically to the U.S., there are a number of statutory and common laws that differ considerably between the two sovereign nations. Canadian courts and provincial authorities apply both the provincial and national employment standards and provisions. Together and/or independent of each other, these laws act in such a way that the test for who qualifies as an employee will inevitably end up encompassing nearly everyone working unpaid, except student interns working few hours. If an intern is not specifically exempted, they are entitled to and must be paid at least the National minimum wage (if the provincial wage is higher, it is the applicable minimum). Interns who do the same work of "employees" or who are subject to any amount of substantial control and direction by their employers, must be paid according to the test that various cases of the Canadian Supreme Court has engrained into Canadian common law. Even in situation where a would-be intern enters into an contractual agreement that he or she will not be paid does not mean that the employer is complying with their provincial employment standards. Any such clause in an oral or written contract is null and void if it contravenes the respective laws, The following link will bring you to a professional publication that examines the history and reasoning for these divergent provincial statutes, as well as the few existing exceptions, citing the most important relevant cases that have determined these issues nationally: http://www.gowlings.com/KnowledgeCentre/article.asp?pubID=3190 | Yes, so long as you are still a US citizen, it does not matter if you no longer maintain residence in the United States. If you no longer have any sort of residence that can be claimed as a current residence, you simply register at whatever the last residence you used was when you lived in the United States (even if someone else lives there now). You would then have an absentee ballot mailed to you overseas. However, if you don't maintain any sort of residence in the United States, you will only be eligible to vote for federal offices (president, senate, house). You won't be allowed to vote in state or local elections. The keywords you'll need for voting are: UOCAVA, which is a program that allows for easier voting overseas (in some cases the ballot can actually be emailed to you and you are only responsible for printing it out, filling it out, and mailing it back). FPCA, which is the form you fill out. It actually doubles as a registration and an absentee ballot request, so you only have to fill out one form. The absentee request is good for all elections in the calendar year it is submitted, so you only have to fill it out once for both the primary and the general. |
When does Jeopardy attach in a US Criminal trial? In light of this comment and several responses to in the Q&A Is "My Cousin Vinny" dismissal actually possible? when exactly does jeopardy "attach" in a US criminal trial? That is, after what point in the proceedings would a future re-trial constitute double jeopardy? Also, what exceptions, if any, are there, that is, situations in which a retrial could be permitted, even after jeopardy has attached? Different users gave different answers as to when jeopardy attaches during the linked thread. Please cite and quote reliable sources to support any answer. | When the jury is sworn in united-states Jeopardy is said to "attach" when the jury has been sworn in, or if it is a non-jury trial, when the judge first starts to hear evidence after a witness has been sworn. At that point the trial has begun, and a new trial would normally constitute double jeopardy, which is not allowed under the Fifth Amendment to the US Federal Constitution. Jeopardy also attaches when when a court accepts a defendant's guilty plea unconditionally, and thereby ends the case (on acceptance of a plea, see Serfass v. United States, 420 U.S. 377, 388 (1975)). Exceptions There are several exceptions to the double jeopardy rule. If the defendant requests or agrees to a dismissal, and agrees that it will be "without prejudice". This is unusual, as a defendant will not usually agree to a dismissal without prejudice, which specifically means that the case may be brought again if the state chooses to do so. If the first trial and the second are under different sovereignties. For instance, if one trial is by a state and the other is by the Federal Government. Or if one trial is by state A, and the other by a different state B. Or if one trial was in a court of some nation other than the US. The Double Jeopardy rule only applies if both trials are under the same government. A mistrial due to a hung jury (see United States v. Josef Perez, 22 U.S. (9 Wheat) 579 (1824)) or due to procedural error, misconduct (by a person other than the posecutor or judge), or a situation beyond the control of the court, such as: civil disorder; the illness or death of an attorney or a juror; Disqualification of a juror. If the two trials are for legally different offenses, even thoguh both are based on the same underlying facts. See United States v. Felix, 503 U.S. 378 (1992), where the US Supreme Court held that: a[n]…offense and a conspiracy to commit that offense are not the same offense for double jeopardy purposes. If a conviction was overturned on appeal and remanded for a new trial If the defendant was never truly in jeopardy at the first trial. The classic case is that of Harry Aleman in which the judge in the fist trial was bribed to manipulate the proceedings so that Aleman would be acquitted. See Could double jeopardy protect a murderer who bribed the judge and jury to be declared not guilty? and this Wikipedia article as well as this other article. The case was Aleman v. Judges of the Circuit Court of Cook County, 138 F.3d 302 (7th Cir. 1998). The Aleman case may be the only instance in which this rule has been applied. See also When is a trial considered to have happened vis-a-vis double jeopardy? Sources Online Articles Findlaw's page: "When Does Double Jeopardy Attach?" states: Double jeopardy protections in the U.S. Constitution keep criminal defendants from being prosecuted twice for the same offense. But the protection does not “attach” itself to a case immediately when a defendant is charged, nor does it necessarily end upon conviction. Once someone is charged with a crime, jeopardy attaches at the following stages: When the jury is sworn; When the first witness is sworn (for cases tried by a judge without a jury); When the court first hears evidence in a juvenile proceeding; or When the court accepts a plea agreement between a defendant and a prosecutor. The Justia article "Protections Against Double Jeopardy for Criminal Defendants" states: One of the core protections for criminal defendants is the double jeopardy rule provided by the Fifth Amendment to the U.S. Constitution. The short version of the rule is that you cannot be prosecuted more than once for the same crime. It prevents prosecution for the same crime after an acquittal or a conviction, and it also prevents imposing multiple punishments for the same crime. However, double jeopardy becomes much more complex in some circumstances. The obvious application of double jeopardy is when law enforcement finds new evidence of the defendant’s guilt after the jury has already acquitted them. The prosecution cannot charge them again, even if the evidence shows that they probably are guilty. Another situation in which double jeopardy is clear is when a judge tries to sentence a defendant for a crime for which they have already served their sentence. ... Double jeopardy does not attach until the court swears in the jury, or until the first witness starts to testify in a trial before a judge. Filing charges thus does not trigger the rule. Double jeopardy attaches in a bench trial as soon as the first trial witness is sworn in. ... The federal and state governments can prosecute a defendant separately for the same conduct without violating the double jeopardy rule. Multiple states also can pursue separate prosecutions. Protection attaches only for prosecutions by the same sovereign. The dual sovereignty rule means that a defendant can face prosecution by both the state and the federal government, although often one will defer to the other. The federal government may have a right to prosecute a crime that did not cross state boundaries, occur on federal property, or violate a specific federal law, as long as it had some connection to interstate commerce or another area controlled by the federal government. The Nolo article "The Prohibition Against Double Jeopardy" states: The government must place a defendant "in jeopardy" for the Fifth Amendment clause to apply. The simple filing of criminal charges doesn't cause jeopardy to "attach"—the proceedings must get to a further stage. Indeed, in many cases, the prosecution can drop charges through dismissal or nolle prosequi, then later refile them. Generally, jeopardy attaches when the court swears in the jury. In a trial before a judge, jeopardy normally attaches after the first witness takes the oath and begins to testify. Case Law [Footnotes generally omitted] Serfass (1975) in Serfass v. United States, 420 U.S. 377 (1975) the US Supreme Court wrote [Page 420 U. S. 388] As an aid to the decision of cases in which the prohibition of the Double Jeopardy Clause has been invoked, the courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of "attachment of jeopardy." See United States v. Jorn, supra, at 400 U. S. 480. In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. Downum v. United States, 372 U. S. 734 (1963); Illinois v. Somerville, 410 U. S. 458 (1973). In a nonjury trial, jeopardy attaches when the court begins to hear evidence. McCarthy v. Zerbst, 85 F.2d 640, 642 (CA10 1936). See Wade v. Hunter, 336 U. S. 684, 336 U. S. 688 (1949). The Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is "put to trial before the trier of the facts, whether the trier be a jury or a judge." United States v. Jorn, supra, at 400 U. S. 479. See Kepner v. United States, 195 U. S. 100, 195 U. S. 128, 130-131 (1904); United States v. Macdonald, 207 U. S. 120, 207 U. S. 127 (1907); Bassing v. Cady, 208 U. S. 386, 208 U. S. 391-392 (1908); Collins v. Loisel, 262 U. S. 426, 262 U. S. 429 (1923). ... Petitioner's defense was raised before trial precisely because "trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining" its validity. United States v. Covington, 395 U. S. 57, 395 U. S. 60 (1969). See Fed.Rule Crim.Proc. 12(b)(1). [Footnote 13] His motion to postpone the trial was premised on the belief that "the expeditious administration of justice will be served best by considering the Motion [to dismiss the indictment] prior to trial." At no time during or following the hearing on petitioner's motion to dismiss the indictment did the District Court have jurisdiction to do more than grant or deny that motion, and neither before nor after the ruling did jeopardy attach. ... [Pages 420 U. S. 390-392] It is true that we have disparaged "rigid, mechanical" rules in the interpretation of the Double Jeopardy Clause. Illinois v. Somerville, 410 U. S. 458, 410 U. S. 467 (1973). However, we also observed in that case that "the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial." Ibid. Cf. United States v. Sisson, 399 U.S. at 399 U. S. 303. Implicit in the latter statement is the premise that the "constitutional policies underpinning the Fifth Amendment's guarantee" are not implicated before that point in the proceedings at which "jeopardy attaches." United States v. Jorn, 400 U.S. at 400 U. S. 480. As we have noted above, the Court has consistently adhered to the view that jeopardy does not attach until a defendant is "put to trial before the trier of the facts, whether the trier be a jury or a judge." Id. at 400 U. S. 479. This is by no means a mere technicality, nor is it a "rigid, mechanical" rule. It is, of course, like most legal rules, an attempt to impart content to an abstraction. When a criminal prosecution is terminated prior to trial, an accused is often spared much of the expense, delay, strain, and embarrassment which attend a trial. See Green v. United States, 355 U.S. at 355 U. S. 187-188; United States v. Jorn, supra, at 400 U. S. 479. Although an accused may raise defenses or objections before trial which are "capable of determination without the trial of the general issue," Fed.Rule Crim.Proc. 12(b)(1), and although he must raise certain other defenses or objections before trial, Fed.Rule Crim.Proc. 12(b)(2), in neither case is he "subjected to the hazards of trial and possible conviction." Green v. United States, supra, at 355 U. S. 187. Moreover, in neither case would an appeal by the United States "allow the prosecutor to seek to persuade a second trier of fact of the defendant's guilt after having failed with the first." United States v. Wilson, ante, at 420 U. S. 352. See United States v. Jorn, supra, at 400 U. S. 484. Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier "having jurisdiction to try the question of the guilt or innocence of the accused." Kepner v. United States, 195 U.S. at 195 U. S. 133. See Price v. Georgia, 398 U.S. at 398 U. S. 329. Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy. [Emphasis added] Jorn (1971) In United States v. Jorn, 400 U.S. 470 (1971) the judge found that several prosecution witnesses had not been (or might not have been) sufficiently informed of their rights against self-incrimination nor warned of the dangers they might incur by testifying. [Page 400 U. S. 473] The [trial] judge, expressing the view that any warnings that might have been given were probably inadequate, proceeded to discharge the jury; he then called all the taxpayers [potential witnesses] into court, and informed them of their constitutional rights and of the considerable dangers of unwittingly making damaging admissions in these factual circumstances. Finally, he aborted the trial so the witnesses could consult with attorneys. When the case was brought up for retrial, the defendant argued that such a retrial would violate the Double Jeopardy clause. the US Supreme Court wrote: [Page 400 U. S. 474-5] The issue is whether appellee had been "put in jeopardy" by virtue of the impaneling of the jury in the first proceeding before the declaration of mistrial. In Sisson, supra, the opinion of the Court ... concluded, inter alia, that the "put in jeopardy" language applied whenever the jury had been impaneled, even if the defendant might constitutionally have been retried under the double jeopardy provisions of the Fifth Amendment. 399 U.S. at 399 U. S. 302-307. [Emphasis added] ... [Page 400 U. S. 476-7] But it does not follow from the nonappealability of rulings which are essentially interlocutory insofar as they expressly contemplate resumption of the prosecution that Congress intended to foreclose governmental appeal from the sustaining of a later motion in bar on the trial judge's conclusion that constitutional double jeopardy policies require that the earlier mistrial ruling now be accorded the effect of barring reprosecution. ... [Page 400 U. S. 479-481] The Fifth Amendment's prohibition against placing a defendant "twice in jeopardy" represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings. [Footnote 8] A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws. Both of these considerations are expressed in Green v. United States, 355 U. S. 184, 355 U. S. 187-188 (1957), where the Court noted that the policy underlying this provision is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty. These considerations have led this Court to conclude that a defendant is placed in jeopardy in a criminal proceeding once the defendant is put to trial before the trier of the facts, whether the trier be a jury or a judge. See Green v. United States, supra, at 355 U. S. 188; Wade v. Hunter, 336 U. S. 684, 336 U. S. 688 (1949). [Emphasis added] But it is also true that a criminal trial is, even in the best of circumstances, a complicated affair to manage. The proceedings are dependent in the first instance on the most elementary sort of considerations, e.g., the health of the various witnesses, parties, attorneys, jurors, etc., all of whom must be prepared to arrive at the courthouse at set times. And when one adds the scheduling problems arising from case overloads, and the Sixth Amendment's requirement that the single trial to which the double jeopardy provision restricts the Government be conducted speedily, it becomes readily apparent that a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant's consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide. [Emphasis added] As the Court noted in Wade v. Hunter, supra, at 336 U. S. 689, a defendant's valued right to have his trial completed by a particular tribunal must in some circumstances be subordinated to the public's interest in fair trials designed to end in just judgments." Thus, the conclusion that "jeopardy attaches" when the trial commences expresses a judgment that the constitutional policies underpinning the Fifth Amendment's guarantee are implicated at that point in the proceedings. The question remains, however, in what circumstances retrial is to be precluded when the initial proceedings are aborted prior to verdict without the defendant's consent. [*Emphasis added] In dealing with that question, this Court has, for the most part, explicitly declined the invitation of litigants to formulate rules based on categories of circumstances which will permit or preclude retrial. Thus, in United States v. Perez, 9 Wheat. 579 (1824), this Court held that a defendant in a capital case might be retried after the trial judge had, without the defendant's consent, discharged a jury that reported itself unable to agree. | As I read the hypothetical facts in the linked question Bob has not filed a suit against Big Co, because no law firm is willing and able to handle such a suit (which I find unlikely). BigCo has not filed a suit against Bob, perhaps because it does not want to draw attention to Bob's claims. So there is no suit in progress. If this is true, no court has jurisdiction of the case, indeed there is no case in a legal sense. No US Court will reach out to take a case that no one has filed, and if one attempted to do so, I strongly suspect this would be a violation of the Due Process Clause of the Fifth or Fourteenth amendments, depending on whether it was a Federal or State court. If it were a Federal court, this would also violate the "Case or controversy" provision. I can't find any report of any US court that has tried to do anything of the sort, so there is no case law to cite about the outcome of such an attempt. If i have misunderstood the question, and either Bob or BigCo has in fact filed a suit, and some court has jurisdiction of it, then the situation is quite different. In that case a court can restrict publication of statements that might be likely to result in jury prejudice and deny one party's right to a fair trial. However such orders are strongly disfavored. A court must demonstrate by findings of fact in the gag order that impairment to a fair trial is likely, and that he proposed order is the narrowest possible means of ensuring a fair trial, and that less restrictive methods, such as change of venue, a sequestered jury, or careful examination of potential jurors, cannot achieve this goal. It must also show that the order is the least restrictive order that will achieve the goal. If such findings are not included with the order, they order may be overturned promptly by a higher court on motion of either party, or of any third party (such as a news organization) affected by it. The situation as described seems implausible. | By my understanding you should not be held criminallly liable. In order to be held guilty of a crime the prosecution needs to show the elements of the crime are met. One of these elements is "mens rea" - ie guilty mind/intent. According to your question you lacked intent to commit the crime, so the prosecution can't prove it, so their case must fail. Note that in some places there are "crimes" which are strict liability - I'm ignoring these abominations here, as they are generally a grey area between criminal and civil law where freedom is not at stake and do not seem in the spirit of your question. | You can't guarantee a juror's disregard, and some attorneys might utilize the "once it's said, it can't be unsaid" strategy because they know that the jury will still keep it in the back of their mind even though they've been told to ignore it. But there are checks and balances to prevent a remark having an impact on the final decision: Jury deliberation. Chances are, not all jurors will keep the thought in their mind. The jury gets a chance to deliberate after the case has been presented, and it's very easy for other jurors in the deliberation room to point out they're ignoring that piece of information and not let it influence the final decision. Declaring a mistrial. A mistrial is fully at the judge's discretion, but generally anything that affects the jury's ability to remain impartial can result in a mistrial being declared (for example, if an attorney deliberately said something outrageous to influence the jury when they knew it would be withdrawn, the judge will likely declare a mistrial without much thought). Once a mistrial is declared, the case will be postponed and a brand new jury will be selected that hasn't heard the previous remarks - easiest way to erase it from their minds is to not use their minds. | Are there any legal constraints on the number of times that a defendant can be retried following mistrials due to hung juries? No. A fairly recent case in Louisiana, for example, involved someone who had been tried perhaps half a dozen times resulting in a mix of hung juries and reversals of convictions on appeal. Or is the only practical constraint the willingness of the prosecutor to expend government resources (and perhaps political capital) pursuing a conviction? Yes. This is the only practical limitation. | No. It means the existence of reasonable doubt is in doubt... One cannot conclude the question of guilt in either direction, so one must try again to see if a different jury can answer the meta-question, to then answer the legal question of guilt. ... or is not being addressed If only one person is voting against the consensus, or as many as are allowed by the jurisdiction, they are overruled. That's the allowance made for bias that has somehow reached the jury despite the filtering done beforehand. If more people are voting against the majority so that consensus is not possible, it is potentially because someone has made up their mind on the question of guilt regardless of what (some significant part or the weight of) the evidence indicates, defeating the purpose of the trial and providing all the evidence. A person not accounting for all the evidence can't be said to have reasonable doubt of guilt, since the doubt may be excluded by the remaining evidence. Similarly, guilt beyond reasonable doubt cannot be supported by only partial evidence, as exculpatory evidence may be among the part not accounted for. ... or cannot be addressed by that jury at all. Finally, a jury split on the decision of how to weigh the evidence cannot claim either to have or to have dismissed reasonable doubt, because they cannot agree on what a reasonable doubt is, in the first place. | The Fifth Amendment, in pertinent part, reads: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb;" which suggests that Crime B is still fair game under double jeopardy. However, if B is a lesser included offense under Blockburger, i.e. A is Aggravated Robbery and B is Robbery, then a prosecution could be barred by Double Jeopardy. Barring that, and jurisdiction specific law, the State isn't barred by the Double Jeopardy clause of the 5th (and 14th) amendment. That does not foreclose Person C from finding an ethical, equitable, statutory remedy or controlling case enforcing a plea bargain. As far as I can tell, commutation is the equivalent of a conviction while a pardon is equivalent to an acquittal. I also imagine if the prosecution isn't barred and tried C for B, the Executive may just pardon/commute C again. Edit to add: Under Santobello, it would appear C may have an additional remedy enforcing a plea bargain. Santobello didn't involve a case dismissed in a plea bargain, nor commutation or pardon. A court might find that commutation or pardon are essentially a breach of the agreement. | You're missing some pretty important details in describing the facts of this case. The most important of which is: What were the agreed terms upon which Alice obtained possession of the car prior to paying? Your description says: Alice takes the car and doesn't pay. If that's literally true, then this case is both criminal theft and the tort of conversion — not breach of contract. Since the remainder of your question references a breach of contract, then I have to conclude that the fact as you stated it is not literally correct and there is some important missing detail about the terms upon which Alice was in possession of the car when she crashed it. So, I will have to invent some scenarios that would fit two other facts you describe: The jury awarded Bob $5,000. The jury found Alice to be in breach of contract. The following are the scenarios I can think of that would match the facts (as I understand them and speculated where important details are missing from the question). Maybe this is a small claims court and the damages are capped at $5,000? I never heard of a jury trial in small claims court but I guess it could be possible. Or maybe it was actually a judge and use of the term jury was careless or otherwise inaccurate? Maybe the terms under which Alice was in possession of the car when she crashed it put the parties in position where they effectively shared liability or risk of damage to the car? Like maybe Bob (or both parties) was/were required to carry insurance on the car while Alice was "test driving" it. I only use the term "test driving" as a placeholder for whatever she was doing with the car prior to paying for it which is left unclear by the question. Maybe Bob was found to have contributed to the breach of contract by something he did or didn't do. Similar to the above speculation about insurance. All this would be much easier to analyze if we knew how and under what terms Alice came to possess the car. Maybe there was only $5k of damage done to the car? Or, alternatively, the car was only found to be worth $5k and, for whatever reason (again, which we can not fully analyze given only the partial set of facts presented) the liquidated value of the car was the basis for the damage award and not the contracted price. (Consistent with @jimsug's comment.) I can easily imagine a scenario where Bob and Alice are close friends or family so the entire transaction is handled very loosely and informally and Bob let's Alice drive the vehicle while she is gathering the money to pay him. In this case, the jury might decide Bob shares the liability with Alice since the terms of the sales contract did not transfer the risk of liability to Alice during the time she was driving prior to payment. |
Can I take my roommate to court in Kentucky over not paying utlities? I live with 4 other girls in a house in Kentucky. I have one of the utility bills in my name. Three of my roommates always pay me back. One of them refuses to pay. I have sent her four notices throughout this month alone asking her to reimburse me. She will not. I do not have a written agreement of her saying she will pay 1/5 of utilities cost. Can I still take her to small claims court to get my money back? Even with the fees, I would still gain money throughout the experience. | I do not have a written agreement of her saying she will pay 1/5 of utilities cost. Can I still take her to small claims court to get my money back? Yes. This type of agreements does not need to be in writing. Proving the other roommates' timely payments is strong evidence that also she is under a similar agreement. You did not elaborate on the form of her refusals. If these are stated in writing, they might evidence elements that further weaken her legal position. For instance, these might reflect her inconsistencies and/or bad faith. Even if you were unable (which seems very unlikely) to prove that there is an agreement to the effect of splitting costs, you might still prevail on grounds of equity. | It is the tenant's responsibility to understand the written contract. Oral statements about the contract do have to be consistent with the written contract (that is, in the context where you ask the landlord what a particular clause means before signing -- not in the case where you are modifying an existing contract). If I were renting a room and the contract says "Du må betale $1000 hver dag", which I don't understand because my Norwegian is terrible, I would ask about this, and the landlord might say that it means "You must pay $1000 every month", which could be a decent deal. Actually, the clause says "You must pay $1000 every day". When the reality of the situation becomes clear, then it is obvious that we didn't have an agreement in the first place. Perhaps he mis-spoke, or his English is as bad as my Norwegian, but I would not be held to rate in the written contract, assuming that I could back up my claim that he gave me that interpretation: the lease would probably be voided, as not an actual agreement. The underlying principle is that there has to be a "meeting of the minds" where the parties understand what they will get and what they must give, and there was a demonstrable failure of understanding. On the other hand, if I sign a contract without really reading it carefully, and there is a clause in English (which I speak) saying that I have to pay $1000 a day, but I didn't really think about the clause so that in a sense I didn't understand what I had agreed to, well, I may still be on the hook. (On the third hand, a court would probably say that's a ridiculous rent and void the contract on policy grounds). In general, "not my first language" is not a get-out-of-contract card, though attempts to trick people into signing documents in languages that they really have no understanding of won't be successful. Virtually nobody but a lawyer actually understands contractual language, yet contracts are enforced all the time. A contract can be explicitly modified by verbal agreement, or can be entirely verbal, but oral agreements face evidence problems, namely, what exactly did A and B say? It's scientifically well established that parties can be morally certain that the conversation went "A" (for one person) and "Not A" (for the other person). Using "could" rather than "would" in speech makes a huge difference in interpretation. There is a rule, the parol evidence rule, which essentially says that unless there is a good reason to not do so, the contract as written is what is enforced. Even if the conversation had been written into the contract, there's no basis in the contract for objectively determining whether a thing is old and "just broke". So even as an additional clause in the contract, it doesn't afford you a clear escape hatch. You might be able to prove with expert testimony that indeed the pipes had been corroding for a hundred years, and you could not have caused the pipes to burst. | If the dispute is over the return of a $5000 deposit, that is probably small enough that it can go to small claims court (the limits are set by the particular state). However, consulting an attorney may well be a wise idea, so that you know how to make your case. The problem is that it's apparently you who wants to break the contract (because you don't want to wait for the contractor to do the job). The basis for a suit that would be most advantageous to the plaintiff here would be that the contractor has breached the suit w.r.t. the deadline. Since there is no written contract, the dispute would hinge on exactly what was said, for example did he promise to complete in 15 months, or did he say that such projects typically take about 15 months? Is 36 months an unreasonable time frame – if so, that would favor the plaintiff. Then the dispute would focus on issues of weather and supplies, and whether in light of those facts the contractor had delayed the work unreasonably. In my city, 15 months is an unrealistically short time, 36 months is more typical. It's not that you can't DIY these arguments, but discussing the argument with an attorney could help you correctly frame the legal argument. | There don't appear to be any Santa Clara-specific laws on the matter, so California law (including this) would govern this situation. A landlord generally has an obligation to maintain the premise in habitable condition (can't stick you with the bill for repairing the water main), and has to fulfill the obligations of the lease (if the lease says that a working washing machine is part of the premise, the landlord has to fix it if it breaks). An AC is not part of what makes a unit "habitable" in the legal sense. You should have to scrutinize exactly what the lease says about the AC, but saying that it is provided "as is" indicates that the landlord is disclaiming any obligation to fix it if it breaks. You are allowed to use it, but if it breaks, he won't fix it. The fact that he has no obligation to fix it does not relieve you of your duty to care for his property (irrespective of the fact that it was abandoned by a prior tenant – there's a notification procedure regarding abandoned real property, which I assume the landlord followed so it is his AC). Your obligation to compensate the landlord for damaging his property is not triggered by his legal obligation to maintain the property, it is triggered by the fact that it is his property. So you are legally on the hook: under §1929, "The hirer of a thing must repair all deteriorations or injuries thereto occasioned by his want of ordinary care". However, the size of the hook is not clear: the cost of replacement or repair could be vastly higher than the actual value of the unit. There is a legal concept of "unjust enrichment" that could be applicable, if the landlord plans to bill you $500 for a new AC which he got for free, but you'd probably need to hire a lawyer to make a solid legal argument in court. | Between your mother and you the bank does not care where the payments come from. If they do not get them, they can sue you, or your mother or (most likely) both of you and they will chase whichever of you has the most money and ultimately repossess the house to satisfy the debt. What matters between you is the contract or deed that you signed with your mother where you documented that you would each pay half of the mortgage. Unfortunately, agreements between family members are presumed not to be contracts. That is, the courts will not get involved to decide how much each of you owe - you have to sort that out for yourselves. A signed agreement will usually overcome that presumption. Other evidence may overcome the presumption - for example, evidence that you split the payments 50/50 for some period of time. Talk to your mother. And a lawyer. | To my knowledge there is no actual law requiring a provider to file anything on your behalf. Most do it as a courtesy but if you read the terms of service that you almost certainly agreed to, it will say that YOU are the responsible party. If the insurance company doesn't pay, even if the provider doesn't submit a claim, the responsibility is still yours. There is nothing stopping you from filing your own claim using whatever forms or procedures that they have established. I'll also note that many provider networks have rules that providers must adhere to in order to remain in that network. Some may include language about timely filing of claims but that is in no way universal. These days many providers have taken to billing the patient the full amount immediately and then will issue a refund to you if/when the insurance pays. | the landlord has been living there for a week. Is this allowed? Am I still expected to pay rent if he is living there? Generally speaking, no. But you need to verify that your lease contains no language that overrides certain basic assumption about leases. My understanding is that (1) you delivered the property, and (2) the landlord was not entitled to live there during your tenancy. Usually one basic assumption in a lease is that only the tenants and their beneficiaries/guests ("tenants", for brevity) are entitled to use the property. It appears that the landlord is neither. Your delivery of the property enabled the landlord to reassign the tenant's exclusive right whenever the landlord deems it fit. The scenario of you finding someone to replace you in the lease is merely one alternative from which the landlord can make the informed decision to reassign that right. The event of reassignment automatically releases you from subsequent payments related to your early move-out. Accordingly, the landlord's informed and willful reassignment (in this case, to himself) of the aforementioned exclusive right forfeits his entitlement to subsequent payments from you. This renders the [rest of the] lease voidable by you. In this regard, see Restatement (Second) of Contracts at §§ 151 and 153(a). There is also an issue of fraud and quantum meruit (see also unjust enrichment) insofar as the landlord benefited at your expense (in the form of your father's work on behalf of you) without informing you that reassignment had taken place already. The landlord knowingly and intentionally deprived you of the opportunity to decide whether to keep taking care of property about which you no longer had any obligation. I presume you already are mindful of this but I should still mention it: Make sure you can prove the landlord was actually using the property rather than inspecting/enhancing/managing it. | Yes, the correct forum is the Local Court in the relevant state (in some states these are called Magistrate's Courts). The amount is too large ($10,000) to qualify as a small claim . If you want to do it yourself the court websites are very informative and in NSW, at least, the process can be initiated online including your paying for the Sheriff to serve the summons (they will not find the person, you have to give them an address). After being served they have 28 days to file a defence or you can get a default judgement and begin recovery. If they do file a defence then things will get more expensive. Of course, you may want to hire a local lawyer. |
Estate Agents must pass on all offers made on a house - UK Legislation I rang up an estate agent to make an offer on a house and was told they were not going to pass this on to the seller because there were already 3 offers on the table. I am aware that under UK Law estate agent must pass on all offers made on the property right up until the exchange of contracts. I keep seeing reference to this being in the Estate Agents Act 1979, but for the life I cannot find it in there. Does anyone know the specific section that covers this requirement. | s.3 of the Estate Agents Act 1979 allows for "Orders prohibiting unfit persons from doing estate agency work" if, for example, contrary to section s.3(1)(d) they are found to have ...engaged in a practice which, in relation to estate agency work, has been declared undesirable by an order made by the Secretary of State. One such practice declared undesirable by the Secretary of State is at paragraph 2 of Schedule 3 of the Estate Agents (Undesirable Practices) (No. 2) Order 1991 : The failure by an estate agent to forward to his client promptly and in writing accurate details (other than those of a description which the client has indicated in writing he does not wish to receive) of any offer the estate agent has received from a prospective purchaser inrespect of an interest in the land. but note the emboldened caveat which may explain why certain details are not always passed on. | Section 8 of the Housing Act 1988 provides that (2) The court shall not make an order for possession on any of the grounds in Schedule 2 to this Act unless that ground and particulars of it are specified in the notice under this section; but the grounds specified in such a notice may be altered or added to with the leave of the court. Section 7 of the same Act also provides that (1) The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act; [...] | I haven't listened to the podcast, but this is probably referring to the anticipated "Renters Reform Bill". A white paper was published on 16 June 2022. There is no Bill before Parliament yet, so the mooted changes are quite a long way from happening. (Additionally, the usual political churn may mean that this does not happen at all. The Secretary of State has already changed, and will likely change again once there is a new Prime Minister; political priorities may shift in all sorts of ways; there could be a general election; etc.) One proposal from the government is (section 3.1): We will abolish Section 21 evictions and simplify tenancy structures. To achieve this, we will move all tenants who would previously have had an Assured Tenancy or Assured Shorthold Tenancy onto a single system of periodic tenancies. Tenants will need to provide two months’ notice when leaving a tenancy, ensuring landlords recoup the costs of finding a tenant and avoid lengthy void periods. This will provide greater security for tenants while retaining the important flexibility that privately rented accommodation offers. This will enable tenants to leave poor quality properties without remaining liable for the rent or to move more easily when their circumstances change, for example to take up a new job opportunity. Landlords will only be able to evict a tenant in reasonable circumstances, which will be defined in law, supporting tenants to save with fewer unwanted moves. Currently, tenants on an AST cannot leave their tenancy during the fixed term, unless the tenancy agreement specifically provides for this with a "break clause". A break clause might say that after six months, the tenant is allowed to terminate the arrangement with one month of notice to the landlord. Or there might be no break clause at all, so that the arrangement can end early only if the landlord and tenant agree ("surrendering the tenancy"). Once the fixed term ends, it can be renewed for another fixed term, or terminated, or else it rolls on to become a "periodic tenancy", typically month-to-month. The tenant can give notice to quit during this time. The government's proposal seems to amount to having no initial fixed term, but a statutory periodic tenancy from the get-go. As far as timing, the white paper says: We will provide at least six months’ notice of our first implementation date, after which all new tenancies will be periodic and governed by the new rules. Specific timing will depend on when Royal Assent is secured. To avoid a two-tier rental sector, and to make sure landlords and tenants are clear on their rights, all existing tenancies will transition to the new system on a second implementation date. After this point, all tenants will be protected from Section 21 eviction. We will allow at least twelve months between the first and second dates. Again, the Bill has not been introduced to Parliament or even published in draft, so Royal Assent is a long way off. | Yes, you have to give 2 months notice and you have to pay £145 + VAT The first clause says your notice cannot end within 6 months of the start of the lease: that is long gone. You pay the lower fee because you will have stayed longer than 12 months by the time your 2 months notice expires. You can try to negotiate a shorter notice period - they have advantages in relenting if you move out earlier. | Nah, you can't. First of all, you can't require the other party anything until you have a contract. They owe nothing to you. Once you've got an offer from them (i.e. a written contract they offer you to sign), you can ask them to clarify the terms as much as you wish — until they get bored and withdraw the offer. You also can make counteroffers: draft your own contract instead and offer them to sign. (Note that by doing this you kill their initial offer i.e. you can't accept it anymore unless they offer it again). Misrepresentation (let alone fraudulent) is not relevant until proven. Lack of clarity or complex legalese language is no misrepresentation. | It is the tenant's responsibility to understand the written contract. Oral statements about the contract do have to be consistent with the written contract (that is, in the context where you ask the landlord what a particular clause means before signing -- not in the case where you are modifying an existing contract). If I were renting a room and the contract says "Du må betale $1000 hver dag", which I don't understand because my Norwegian is terrible, I would ask about this, and the landlord might say that it means "You must pay $1000 every month", which could be a decent deal. Actually, the clause says "You must pay $1000 every day". When the reality of the situation becomes clear, then it is obvious that we didn't have an agreement in the first place. Perhaps he mis-spoke, or his English is as bad as my Norwegian, but I would not be held to rate in the written contract, assuming that I could back up my claim that he gave me that interpretation: the lease would probably be voided, as not an actual agreement. The underlying principle is that there has to be a "meeting of the minds" where the parties understand what they will get and what they must give, and there was a demonstrable failure of understanding. On the other hand, if I sign a contract without really reading it carefully, and there is a clause in English (which I speak) saying that I have to pay $1000 a day, but I didn't really think about the clause so that in a sense I didn't understand what I had agreed to, well, I may still be on the hook. (On the third hand, a court would probably say that's a ridiculous rent and void the contract on policy grounds). In general, "not my first language" is not a get-out-of-contract card, though attempts to trick people into signing documents in languages that they really have no understanding of won't be successful. Virtually nobody but a lawyer actually understands contractual language, yet contracts are enforced all the time. A contract can be explicitly modified by verbal agreement, or can be entirely verbal, but oral agreements face evidence problems, namely, what exactly did A and B say? It's scientifically well established that parties can be morally certain that the conversation went "A" (for one person) and "Not A" (for the other person). Using "could" rather than "would" in speech makes a huge difference in interpretation. There is a rule, the parol evidence rule, which essentially says that unless there is a good reason to not do so, the contract as written is what is enforced. Even if the conversation had been written into the contract, there's no basis in the contract for objectively determining whether a thing is old and "just broke". So even as an additional clause in the contract, it doesn't afford you a clear escape hatch. You might be able to prove with expert testimony that indeed the pipes had been corroding for a hundred years, and you could not have caused the pipes to burst. | In general, a person may appoint as many agents as s/he wishes for a particular purpose. The principal is responsible for the actions of all such agents, unless they exceeded their powers or instructions, and in some cases even then. In this particular case all such accesses would have to be "reasonable" taken together, and if the various agents fail to coordinate their requests for access, the result may be an unreasonable burden on the tenant. But as far as I can determine there is no formal process that a Kansas landlord must go through to appoint an agent, nor any specific limit on the number of agents appointed. The general law of agency is flexible on such matters. A tenant would be justified in asking for proof (or at least evidence) that a person is in fact acting as a landlord's agent, or in confirming with the landlord. The complex management is clearly the landlord's agent. | Like a paper signature in ink or blood, a finger squiggle is merely evidence that you have agreed to the terms of a contract. You have agreed, and now you are know the downside of that agreement. However, Colorado law gives you a special privilege to cancel certain contracts, and this may be one: here is the law. Under CO Rev Stat §5-3-402, with some exceptions, the buyer has the right to cancel a home solicitation sale until midnight of the third business day after the day on which the buyer signs an agreement or offer to purchase that complies with this part 4. You must give written notice to the seller at the address stated in the agreement. One exception is that you cannot cancel an agreement for an "emergency requiring immediate remedy" (there will be paperwork regarding that). A "home solicitation sale" is one that solicits the sale and the buyer's agreement or offer to purchase is given to the seller or a person acting for the seller at a residence which matches the facts as you describe them. Part 4 is the part that includes §5-3-401 through §5-3-405. §5-3-403 specifies the form of that agreement. One of the requirements is a written agreement or offer to purchase that designates as the date of the transaction the date on which the buyer actually signs and contains a statement of the buyer's rights that complies with subsection (2) of this section. A copy of any writing required by this subsection (1) to be signed by the buyer, completed at least as to the date of the transaction and the name and mailing address of the seller, shall be given to the buyer at the time the buyer signs the writing. Furthermore, Until the seller has complied with this section, the buyer may cancel the home solicitation sale by notifying the seller in any manner and by any means of the buyer's intention to cancel;except that the buyer's right of cancellation shall expire three years after the date of the consummation of the home solicitation sale, notwithstanding the fact that the seller has not complied with this part So it depends on when exactly this happened: you may be able to cancel. |
Can phone companies or messaging apps censor speech? In the US, could a phone company, theoretically, suppress certain kinds of speech by censoring certain words or phrases as they’re being transmitted over the phone company’s infrastructure? In order to set aside privacy issues, let's say we’re talking about an automated block on certain words in an SMS or in an audio call. What about messaging apps like ichat or whatsapp? | No, they may not. Telephone companies are considered "common carriers," and they are therefore generally prohibited from unreasonably discriminating against customers under the Communications Act of 1932. | Invasion of privacy and false light torts would probably not be applicable here. Very few states have adopted the false light tort because of its conflict with First Amendment principles and there was no agreement or even request to keep the text private. The copyright issue is trickier. First all, the TOS may provide that the copyright belongs to the text service provider or that there is a license. But, even in the absence of an express license, sending someone a message which is equivalent to sending them a letter, probably gives rise to an implied license that the person to whom it is sent can use the message that arises merely from the act of sending it without restriction or qualification. Implied license and fair use also heavily overlap. Publishing the text exactly as it was sent to you protects you from defamation liability because it is true. On the whole it would be extremely unlikely for there to be any legal liability for publishing a text from someone that they sent to you. Of course, one can imagine exceptions. If the person receiving the text was in an attorney-client relationship, or priest-parishioner making confession relationship, or was communicating regarding classified national security matters, or there was a non-disclosure agreement in place, among other possibilities, an evidentiary privilege and duty of confidentiality could apply and disclosing the material without the permission of the privilege holder could breach a duty of confidentiality and give rise to liability. If the picture was a nude picture of a minor, there could be a criminal and/or civil liability issue, and some states have also made posting "revenge porn" a criminal offense and/or a basis for civil liability. If the disclosure was effectively a way to facilitate insider trading that could be a problem. If the contents of the text were accurately transmitted but known to be false and were disseminated without disclosure of its falsity for the purpose of defrauding a third party, that could be a problem. But, no facts that obviously flag any exception are identified in the question. The mere fact that the posting may be embarrassing, or hurt someone's reputation, or was made without someone's express consent, in general, would not be a basis for liability. | One big hole in any scheme that relies on copyright is that it could not preclude people talking about the previous content or talking about you. This is well established First Amendment law. For example, see Near v. Minnesota 283 U.S. 697 (1931), which holds that except in rare judicially established exceptions (relating to military information, obscenity, and inciting acts of violence), government censorship is unconstitutional. Thus, no statutory scheme could be used to prevent third parties who happened to have seen the material while it was freely available from re-iterating what they had seen, or talking about it, or talking about the author (you). People could even reproduce portions of the published content. Some types of reproduction would be protected as fair use in the US, especially if the reproduction is for the purpose of criticism. (17 USC 107, and this previous Law.SE answer) The closest approach would be to protect your work as trade secret, making sure that anyone that you share it with agrees to non-disclosure. But, if you "publish unique content under this pseudonym" there is no way to "arbitrarily or wholly revoke discussion about that content". If the cat gets out of the bag, while you may have remedies against the person who violated the non-disclosure agreement, you would not be able to prevent third-party discussion or reproduction. | You don’t have to swear Witnesses are given the option to swear (technically take an oath) or to affirm, which has no religious connotations. You also don’t actually swear on a Bible if you do swear. For example california. The US is a very religious state france is a secular state - it prohibits religious clothing (hijabs, crucifixes etc.) in schools. The united-kingdom (specifically England) has an official state religion (Anglican) but religion is far less prevalent in politics or society than it is in the US. For example, outside of a place of worship, who your mother is sleeping with is a far more acceptable topic of conversation than what her religious beliefs are. Which is not to say it actually is an acceptable topic of conversation, just that it’s more acceptable than religion. australia elected its first openly atheist Prime Minister in 1983. The US was not founded on the idea that there shouldn’t be established religion, just that there shouldn’t be a state religion - that is, a church backed by the power of the government. Many of the early settlers were fleeing religious prosecution from state religions. Nevertheless, it was never the intention to exclude religion from politics. Indeed, religion in the US influences politics to a much greater degree than it does in most European or Anglophone countries. | In the United States, the First Amendment generally protects your right to communicate using gestures. Probably the most common example of efforts to outlaw specific gestures involves the "middle finger," which is a symbolic "fuck you" to its target. The U.S. Supreme Court acknowledged in W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943), that symbolic gestures can be "a form of utterance" protected by the First Amendment right to freedom of speech, and it addressed the middle finger specifically in a decision last year. In Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2046 (2021), a school suspended a student from its cheerleading team because she posted a picture to social media showing her and a friend "with middle fingers raised" (and bearing the caption "Fuck school fuck softball fuck cheer fuck everything."). But the Supreme Court held that this violated her right to free speech, as her post "did not involve features that would place it outside the First Amendment’s ordinary protection. That decision aligned neatly with decades of lower-court decisions holding the same. E.g., Bad Frog Brewery v. N.Y. State Liquor Auth., 134 F.3d 87 (2d Cir. 1998); Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) ("Sandul's action was not fighting words and therefore was speech protected by the First Amendment."). Of course, First Amendment protectiosn are not absolute, so although the government almost certainly could not criminalize dabbing itself, it would be easier for a governmental body to prohibit it during its public meetings, easier still for a government employer to justify disciplining a working for dabbing, and easier still for a public school to justify disciplining a student for dabbing. | It's just been answered by the Court of Appeal: BBC News, Encrochat: Secret network messages can be used in court, judges rule (5 February 2021) A, B, D & C v Regina [2021] EWCA Crim 128 (5 February 2021) The rationale for the decision is: Interception of messages renders them unable to be used as evidence. But the Encrochat system used end to end encryption, and the captured messages were in plain text and not decrypted by authorities. Therefore the captured evidence data could not have arisen from "interception" of messages. They were not intercepted messages, but on-device captures of the phones memory/RAM prior to encryption and sending. Corroborating this, the court observed that the captures also apparently included device data that was not part of any transmitted message,showing again, they were not "intercepted" data. It appears it was captured by some kind of software introduced onto the phones by French authorities, perhaps with UK involvement its not clear to me. | The first part is a matter of jurisdiction. I do not believe that simply using a cell phone with an Illinois number will give the Illinois courts jurisdiction, if you're standing in Wisconsin and calling a person in Wisconsin. Also, when you state that the call is recorded for ___ purposes, does that have any bearing on the actual use (e.g. they state it is for quality assurance, but instead they use it for marketing, legal, etc) The use can make a difference. There's an exemption in Illinois law if a business records if: the monitoring is used for the purpose of service quality control of marketing or opinion research or telephone solicitation, the education or training of employees or contractors engaged in marketing or opinion research or telephone solicitation, or internal research related to marketing or opinion research or telephone solicitation If they do not use it for these purposes, presumably the exemption would not apply. In addition: No communication or conversation or any part, portion, or aspect of the communication or conversation made, acquired, or obtained, directly or indirectly, under this exemption (j), may be, directly or indirectly, furnished to any law enforcement officer, agency, or official for any purpose or used in any inquiry or investigation, or used, directly or indirectly, in any administrative, judicial, or other proceeding, or divulged to any third party. | Owing to the First Amendment, in the United States your recourse would be limited to civil action based on violations of terms of service (meaning that "the authorities" are not going to knock on their doors to tell them to behave). This is not "spam" (which could be regulated) as the term is generally understood. It is annoying, but probably does not constitute threatening or child porn. It might involve violation of an anti-impersonation law such as this one from Texas, if the offender uses the persona of a real person as opposed to a fictitious person). That law, moreover, does not criminalize simple annoying. Prosecution may be possible in the UK. |
Is it legal to refuse an offer for real estate which is above the asking price, when there are no other offers by the published due date A house in California is for sale with asking price of X . A buyer engages with an agent and finds out in writing that offers will be accepted until a certain date. A buyer submits a formal written offer of Y, which is greater than X , prior to the published due date. On the date the offers are reviewed, no other prospective buyers have submitted an offer. The sellers refuse to accept responding to the effect of - you were the only buyer but we were hoping for more. The next day the seller raises the asking price to the level that they wanted to, the new price is Z, which is higher than either X or Y and the offer date is now renewed. In my view if this were any other good, such behavior would be frowned upon and possibly a bait and switch, but is it illegal? | It is legal, though not if the grounds are illegal discrimination (race, religion, etc), which by their (empirically supported – they raised the price) representation is not the case. As a marketing strategy (pick a low number, hope for a bidding frenzy that drives the price up) it is legal, though carries a non-trivial risk. It does not constitute "bait and switch" under any definition of the term, and it is not illegal to engage in a business practice that causes someone to frown, or otherwise disapprove. | The advertisement is simply an invitation to treat. The lease was the contract offer, and your signature and payment were acceptance of that offer. The advertisement doesn't bind either party (other than as prohibited by deceptive advertising statutes), and you are allowed to negotiate an offer that differs from the invitation to treat. | Yes, subject to the deadline for presenting claims to the estate of the decedent (within sixty days of publication of public notice). If a timely claim is filed against the estate, Article 9 of the Uniform Commercial Code allows a defense in to deficiency claim debt such as this one that the method of the sale of the collateral was unreasonable, but this is rarely a complete defense and is rarely successful in practice. Lack of notice would not automatically invalidate the debt (and the instrument creating the debt probably waives the co-signers right to notice of a sale contractually). | Whether or not this would be allowed would generally call for a more fact rich situation than the one presented in the original question, that would cast light upon why a retailer might be inclined to refuse to accept payment. Hypothetical legal questions that presume that people are acting irrationally for no good reason are generally ill posed and don't have meaningful answers. Sometimes, there might be a legitimate privacy interest implicated if the invoicing party acknowledged a payment from a third party. For example, suppose that the invoice was for a paternity test and payment would confirm that the incapacitated person actually obtained a paternity test. Sometimes, there are legal rights beyond payment that are implicated and the reasonableness of a refusal might hinge on those rights. For example, suppose that the invoice was for an option to keep using an oil well. Payment of the invoice by the deadline would keep the oil well operating and the land owner sending the invoice might prefer that it not be paid so that the oil well would be shut down. Quite a few contracts are structured in this way. Maybe the invoice was for the right to purchase a first edition of a book when it was finally released, for example, and not paying it would free up a copy for someone else at a price that had increased in the meantime. Or, suppose that the invoice were for unpaid taxes and payment of the taxes would prevent property from being seized for sale by tax authorities, and the taxing authority would prefer that the invoice was not paid so that the valuable property could be liquidated. But, it is hard to imagine that there would be any reason that an ordinary retailer with an ordinary bill would ever refuse payment, although I suppose that this might trigger an interest or penalty amount owed under the contract for late payment. If that were the case, the principal of mitigation of damages, which says that a party to a contract must take all reasonable steps to mitigate their damages, might obligate the retailers to accept the payment or forfeit the penalty amounts that the retailer could have avoided as damages by accepting payment. I doubt that an undelivered tender of payment from a third party would eliminate the obligation, but, it might limit the damages that could be claimed as in the scenario above. | In the most likely case No, but you can make it happen! First - almost every patent is rejected - at first. Then you respond to the office action rejection by arguing and/or amending and - guess what - you are likely to get a final rejection. That means the rejection is final until you pay them more money to file a Request for Continued Examination and get two more go-arounds with them. Can you keep doing this? Yes. A previous director of the USPTO tried to make a rule that limited the number of RCEs - the courts knocked it down. If you give up and let it go abandoned by not responding to an office action within the statutory limit (6 months) then the process of that application is over. If you have not filed a co-pending application before the initial application went abandoned then you are really starting over if you file a new application. The original application can be used against any new application on a similar subject matter if it has been published. But it might not have published. The law (35 USC 102) contains - (a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless— (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or (2) the claimed invention was described in a patent issued under section 151 , or in an application for >patent published or deemed published under section 122(b) , in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention. Your application may or may not have been published. Then it is neither published or issued and does not fall under prior art under 102 or 103. Applications are automatically published by the USPTO at the 18 month point unless you requested non-publication. In that case if your application never issues it is never public and can't be used against you or anyone else as prior art. You could even decide to keep it a trade secret. Before the publication process came into being as part of TRIPS, an applicant could wait until they saw the claims that had been allowed and the patent was ready to go. If they didn't feel the claims were valuable enough they can chose to explicitly abandon and keep it secret. | It depends on what state this is. In Washington state, there is a form that sellers must fill out, and section 3 addresses sewer connections. This matter could have been disclosed – the allowed answers are "yes; no; don't know" (or NA). These are sellers disclosures, and Zillow / Redfin are free to be unreliable (I personally know that they are wrong about square footage). A real estate agent also doesn't become liable for being misinformed. Assuming your state has this or analogous question, "No" means that you were told (doesn't matter if you didn't notice it), and "Don't know" means you're gambling. Let's say that the answer was "Yes". Still, you can't necessarily sue (and win): you would have to prove misrepresentation (fraud or negligence) and not innocent error. You could do this by, for instance, proving that seller had the septic tank cleaned out some years earlier. Perhaps an action against buyer's inspector is possible, since that's nominally what they might have been hired to find out. But that is only true if checking the sewer connection can reasonably be considered part of the deal, so you have to look at the contract with the inspector (and the inspector's report). | There may be violations of consumer protection and/or advertising statutes here by the online store, but the common law position is that: The website's owner is making an invitation to treat Based on that, you are making an offer The contract comes into place when the website's owner accepts your offer. The time of contract formation is "when the parties give objective manifestation of an intent to form the contract." You would need to read the site very carefully, in particular their terms and conditions, acknowledgement page and/or email to see if they are actually accepting your offer or if there are conditions attached. If there is no clear, unconditional acceptance then there is no contract at that time; this applies even if you have paid for the goods. If this is the case (and I strongly suspect that it would be for most online stores), then their acceptance of your offer and the formation of the contract probably does not come into effect until they "give objective manifestation of an intent to form the contract" by shipping the goods. Up until that time there is no contract and their only obligation to you is to promptly refund your money. | 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. |
Is an algorithm producing music copyrighted? It is my understanding that algorithms (not their concrete implementations) are not copyrighted. Musical scores or productions usually have a copyright. Some music is constructed from a small set of rules, for example Spiegel im Spiegel, by Arvo Pärt Is it a violation of copyright to publish a computer program that exactly produces such a piece, without containing the piece itself in the program? Edit: I found actual examples of what I am described here and here | Is it a violation of copyright to publish a computer program that exactly produces such a piece, without containing the piece itself in the program? Yes. A program that reproduces a particular work is functionally a derivative work and is a copyright infringement. A program that composes music not tied to a particular work would be patentable, but the algorithm would not be protected by copyright, although derive works based on the code implementing the algorithm might be protected by copyright. Of course, this assumes that the person devising this algorithm knows about the original work that it will produce. If the person devising and the person using the algorithm are ignorant of the existence of the prior work that it produces, it is not a copy or a derivative work and is not infringing. The source of the creation of an allegedly infringing work in relevant in copyright law even thought it is not relevant in patent and trademark law. Copyright protects independent inventors of the same work from infringement liability, although this may be hard to prove. In theory the burden of proof to show copying is on the personal bringing the lawsuit alleging infringement. But, a copyright infringement plaintiff can meet their burden of proof in a copyright case by inferring that copy was made from the circumstantial evidence of the allegedly infringing work's similarity to the allegedly infringed work without direct evidence of copying or deriving the work from the original work. | Any use of the song snippets in your App can be copyright infringement (in the US), Fair Use (U.S. Copyright Office) not withstanding. Not distributing the App and/or using the App only in a limited group for the study, or not making money from the App doesn't usually matter when it comes to copyright infringement. Fair Use does have some educational exceptions; read the link above and see if your case may fit. But the final assessment of educational use would be made by a court if you were sued for infringement. If the use in your App doesn't fall under the education exception, you still probably run little risk of the copyright holders finding out if the App use is private and within a small group, but that's your choice to make. You can always Google the name of the music/recording company; most provide ways online to request licensing of samples, but the cost may be prohibitive, or permission may simply not be available for popular songs. | The name can not be copyrighted, but they don't own the rights to the songs and they are telling you they will perform them. They don't want to put it in writing that they are performing songs they legally can't. | Yes Both melody and lyrics source back to the middle ages, as for instance described here. The difficulty could be to make sure you rely your derived work on a variant that is really in the public domain. E.g. if you use notes or lyrics from the Simon & Garfunkel version and derive from there, you might violate their copyright. | germany I am reasonably sure that works like this would be Public Domain, i.e. not copyrighted in the first place. In Germany, copyright (or more precisely, Author's Right) can only be held by a natural person, which is a legal term of art that essentially means "human being". There are two groups of natural persons involved here: the programmers and the creators of the works which are part of the training set. However, I can't see how either group could have a reasonable claim of copyright. Note: there have been similar discussions about GitHub Copilot, an AI that writes code for you. It is my understanding that the process used by GitHub Copilot is roughly comparable to the process used here. With GitHub Copilot, there have been instances where significant snippets which are part of the training set have appeared in the output with only minor alterations. In this case, it is likely that the original author will have copyright over that portion of the output. However, IFF a human being were actually involved in selecting specific works, then there is probably a copyright based on the creative decision of selecting this particular work and rejecting all the others. This is similar to the classic textbook example of a driftwood sculpture: the creative process here is not creating the sculpture but choosing to pick up this particular piece of driftwood instead of the hundreds of others on the beach. So, if you simply generate these works and publish all of them, there is no copyright. If you generate a large batch and then select a certain number, then the person who made the selection might hold a copyright. | There's existing copyright infringement and future copyright infringement. Let's say you sold a million records with infringing contents. That's copyright infringement. It has happened, you can't undo it. Now you get sued. If you think you will lose, it would be a good idea to change the music to be not infringing, so the next million records are not infringing and add to the damages. It doesn't fix the infringement that has already been done, but makes sure there is no further infringement. And infringement after you were told about it and asked to stop might be punished more harshly. | It is true that any work of the US government is not subject to copyright in the United States; it may be subject to copyright abroad (the relevant law excludes US government works from US copyright protection; other countries have their own copyright laws that generally don't explicitly exclude US government works, and so the works may be copyrighted there). A government work is defined as something produced by a government employee in the course of his official duties. It doesn't include everything released by a government agency; for instance, if a contractor makes something and the contract specifies that the government gets the copyright, the work is copyrighted (since it wasn't made by a government employee). If a foreign cosmonaut or astronaut composes and sings an original song in a livestream, then NASA may not have copyright in the livestream but the foreign astronaut would have copyright in the song. That said, NASA has a page of guidelines for reuse of their media, where they say that their stuff normally isn't copyrighted unless otherwise noted. They don't make any sort of guarantee, but they suggest you'd probably be fine embedding it, at least as far as they're concerned. | My remarks pertain only to US Law. Laws vary in other countries. Subject matter eligible for copyright protection in the US must be expressive and creative. To the extent data are merely measurements of observable fact in the world, they are not copyrightable. It may be that the presentation or interpretation of data is eligible for copyright protection (for example, artwork used in charts, graphs, graphics, etc., that is expressive and creative), subject to various equitable use provisions (in particular Fair Use, which is still a legal grey area). The methods by which data are gathered can be considered IP, but is the domain of patents. Methods are not copyrightable (17 USC 102(b)). |
Is there a time limit to initiating a legal complaint? In the case of an injury that continues to affect the Plaintiff, is there some time limit for filing legal documents with a court? | united-states Overview The big picture to keep in mind is that in the United States the applicable deadline for filing a lawsuit is very specific to the legal theory upon which relief is sought from a court, and that there are numerous special rules (which can vary from claim to claim and based upon the individual facts of the case) that can modify these general rules. Exceptions to the general rules are common enough that it is not safe to rely upon them. There is a lot of case law on these issues because dismissals of cases because a statute of limitations has run are usually all or nothing issues in a lawsuit, don't depend on too much evidence, and are often relatively straightforward and inexpensive to appeal relative to other kinds of legal issues. Also, lawyers whose cases are dismissed for failing to meet a statute of limitations often have a strong incentive to encourage their clients to appeal, because they may face malpractice liability if the dismissal of their client's claims is upheld. While the question is specifically directed at how statutes of limitations apply to continuing violations, it isn't possible to really clearly answer that question outside of the larger context of how statutes of limitations in the United States work in general, and without considering other legal doctrines that can have similar effects to rules based upon continuing violations under different legal theories. Also, keep in mind that when you hire a lawyer to bring a lawsuit, the lawyer needs lead time to prepare the documents starting the lawsuit. The best practice is to contact a lawyer as soon as possible because this may allow claims with shorter statutes of limitations that you had not even considered to be brought. It is usually very imposing on the lawyer to bring a new lawsuit to them less than a month before the deadline for bringing suit. Sometimes it is possible to get the job done a week or even a few days before the deadline, but this invites mistakes that could impair later phases of the lawsuit, limits the time available for factual investigation and legal research before bringing the lawsuit, drives up the cost of preparing the documents because work that would otherwise be done by staff or junior lawyers may have to be done by senior lawyers, and exposes you to the risk that you won't be able to find a lawyer who is actually willing to take on your case on acceptable financial terms right away. Statutes of Limitations In Ohio In Ohio, for non-criminal cases, some of the most common statutes of limitations are as follows (citations to the relevant statutes are found in the linked material): 21 years to recover real estate; 8 years to sue on written contracts; six years to sue on oral contracts; two years for actions for personal injuries or property damage; and one year for libel, slander, malicious prosecution, false imprisonment, and professional malpractice. Most other types of lawsuits are subject to a four-year limitation. See also here (providing more specific examples including four year statutes of limitations for claims for trespass and fraud). Different and usually must shorter statutes of limitations apply to reopening court judgments in cases due to irregularities in the proceedings, and to appeal court judgments. If a statute of limitations runs without a lawsuit being filed, the right to seek legal redress for the wrong committed expires. With very narrow exceptions, usually invited or assented to by the party sued in some way, once a statute of limitations has expired the claim that is barred can never be revived. A nice medium length summary of the various doctrines applicable to statutes of limitations (mostly discussed below) in the state of Minnesota, which is fairly typical of U.S. states) can be found here. Statutes Of Limitations For Federal Law Claims These limitations apply to claims under state law. Claims under federal law sometimes have their own statutes of limitations (e.g. federal copyright and patent infringement lawsuits), and sometimes are governed by the analogous statute of limitations under state law. For example, the statute of limitations for lawsuits under the federal Lanham Act is based upon the most analogous state law statute of limitations. In those circumstances it is usually necessary to look a case law in the state and federal courts in that state to determine the correct statute of limitations for that kind of claim. When Does A Claim Accrue? The date that one starts to calculate from for a statute of limitations is sometimes the date when the wrong is done (also known as a statute of repose), and sometimes when it is known or should have been known by the person bringing the lawsuit. The date when you start counting to determine the statute of limitations deadline is the called the date that 'the claim accrues" or that the "claim arises." Usually a claim accrues when the person bringing the lawsuit knew that a particular person breached a legal duty to them and that this breach of a legal duty to them caused them injuries, even if the amount of the injuries caused is uncertain. But for some kinds of lawsuits, knowledge that a person breached a legal duty to them alone is enough even if it wasn't clear at the time that the person to whom the duty was owed would suffer legal injuries. What Must One Do Before The Statute Of Limitations Runs? In most U.S. states (including Ohio pursuant to Ohio Rule of Civl Procedure 3) and in the federal system pursuant to Federal Rule of Civil Procedure 3, a statute of limitations is met by filing a lawsuit with a court by the deadline, so long as a defendant has a summons and complaint delivered to the defendant within the time allowed by court rules after the lawsuit is commenced. But, in other U.S. states, such as Minnesota, the statute of limitations applicable to a defendant can only be met by delivering the summons and complaint in a lawsuit to a defendant, whether or not the lawsuit has been filed with the clerk of the relevant court. When a summons and complaint has been delivered to a defendant but the case has not yet been filed with the clerk of the court in which the lawsuit states that it is brought, that court has what is called "hip-pocket" jurisdiction over the lawsuit. Tolling and Estoppel Certain circumstances (such as a victim who is a minor, or the death of the victim before the statute of limitations has expired) can toll the statute of limitations (i.e. stop it from running) while that situation continues or for a certain maximum length of time. Some statutes of limitations can be lengthened with an agreement of the parties in what is called a "tolling agreement". Another concept similar to tolling is that someone who is sued may be prohibited from asserting a statute of limitations defense under a doctrine called "estoppel" if the failure of the person to bring the lawsuit within the statute of limitations is caused by the misconduct of the person seeking to assert the statute of limitations defense. Both tolling and estoppel are exceptions to the general rule that are frequently interpreted strictly against people bringing a lawsuit, however. One should never assume that these doctrines apply and rely upon them making a lawsuit timely, unless one has no other choice but to do so. Continuing Violations Sometimes in the case of a "continuing violation" the statute runs from the last time that the continuing violation was committed. But, it is not safe to assume based upon logic alone whether a violation is a continuing violation or not. Sometimes the statute of limitations runs from the initial violation, even if it continues. Sometimes a lawsuit can seek remedies from the first time the violation occurred until the present based upon a continuing violation if a lawsuit is commenced within the statute of limitations after the violation ceases. Sometimes a lawsuit can be brought based upon a continuing violation until the requisite number of years after the violation ceases, but the remedy is limited to harms caused by conduct that was within the statute of limitations or to injuries that occurred within the statute of limitations. There is really no way to know which of these rules applies to a particular kind of claim without examining the case law for each particular type of claim. A related concept is that in lawsuits to collect a debt for money owed, the statute of limitations is typically reset every time a payment is made or there is a written affirmation from the debtor that a debt is owed. Other Exceptions To The General Rules Previously Time Barred Claims Sometimes a statute of limitations is amended to make it longer. When this happens, claims that were already barred by the statute of limitations are generally not reinstated. But claims that are not already barred by the statute of limitations on the effective date of the new law usually, but not always, benefit from the new statute of limitations. Borrowed Statutes Of Limitations Sometimes someone can bring a lawsuit in a court where, for example, the defendant resides, even though the wrong occurred in another jurisdiction that has different statutes of limitations. The way that this situation is handled varies. The most common rule is for the state where the lawsuit is filed to apply its own statute of limitations unless the lawsuit would have been barred by the statute of limitations in the place where the wrong occurred. But not all states follow this rule in all cases. Special Rules For Counterclaims Some states allow counterclaims that would otherwise be barred by a statute of limitations to be brought when they relate to what someone is being sued over, even when otherwise, the statute of limitations for the counterclaims would have expired. For example, suppose that someone sues Joe for breaching a promissory note in Colorado (which has a counterclaim exception), five years after the contract was allegedly breached (in a state where the statute of limitations is six year); Joe may be able to counterclaim against the person suing him for fraud in the same transaction in which the promissory note was created even though the three year statute of limitations for bringing a fraud claim in Colorado would have otherwise expired. Dismissals Without Prejudice For Suing In The Wrong Court Some states allow you to bring a lawsuit that is otherwise barred by the statute of limitations, if a lawsuit is filed within the statute of limitations in a court that then dismisses the claim for a reason unrelated to the merits of that claim (usually lack of subject-matter jurisdiction), and the person bringing the lawsuit promptly refiles it in the proper court. The Relation Back Doctrine Sometimes after a lawsuit is filed against a defendant the complaint in the lawsuit is amended to assert new claims against the existing defendants, or to assert claims against a new defendant, after the statute of limitations for filing the new claims against the existing defendants, or the existing or new claims against a new defendant has expired, even though the original lawsuit was filed within the statute of limitations applicable to those claims. In those cases, the claims in the amended complaint will be treated for statute of limitations purposes as filed when the lawsuit was originally filed, if the "relation back" doctrine is satisfied. This is governed by Ohio Rule of Civil Procedure 15 and Federal Rule of Civil Procedure 15 respectively in state and federal court. In cases where new claims are asserted against an existing defendant, the relation back doctrine applies roughly speaking when the new claim arises from the same transactions and events that the lawsuit was originally based upon, even if it attaches significant to different facts or different legal theories. In cases where a new party is sued, the claims roughly speaking relate back when the new party had notice of the lawsuit within the statute of limitations and the new party knew or should have know that the new party was not sued originally only due to a mistake regarding who the proper person to sue in the case was (e.g. because related corporate entities had similar names and the wrong corporation in the group of affiliated companies was sued). Failure To Assert The Defense Statutes of limitations, and most other grounds for dismissing claims as untimely, are affirmative defenses, not something that must be established on the face of the complaint initiating a lawsuit. So, if the defendant fails to raise a statute of limitations defense in a case, even if it is actually available under the true facts of the situation, then the lawsuit will not be dismissed for failure to sue within the statute of limitations. Other Rules That Can Bar A Claim Filed Too Late Contractual modification of the statute of limitations Sometimes a statute of limitations can be shortened by a contractual agreement of the parties, most often for breaches of the contract shorting the deadline for bringing claims arising from its breach. If this shortening of the statute of limitations isn't unreasonable and is obtained with fair disclosure, and no public policy is violated by the modification, it will often be upheld by a court. For example, a contract might require a party to raise a dispute concerning an item contained in a statement or invoice presented to the party asked to pay it within a certain reasonable time period, even if the relationship between the parties is ongoing and the statute of limitations would otherwise run from the last date upon which the parties reached a final settlement between them of their dealing with each other. Probate and Bankruptcy Cases There is also generally speaking a strict time limitation in addition to a statute of limitations on enforcing claims against people who have died (sometimes called a "non-claims statute") and against people who have filed for bankruptcy. Sometimes, however, a deadline involving a non-claims statute that is triggered by giving notice to the person to be barred by it can be waived in cases where the person with the claim had no actual notice of the deadline. Lawsuits Against The Government There are also often special additional time limits that apply to lawsuits against government entities and governmental employees acting in their official capacities, especially for torts as opposed to breaches of contract. These are often much shorter than the usual statute of limitations. Laches Sometimes claims have no statute of limitations at all, but those are the exception and are quite rare. But even when there isn't a fixed deadline for filing a lawsuit, a legal doctrine called laches bars lawsuits when they are filed an unreasonably long time after they arise in a manner that is prejudicial to the person sued. Sometimes the doctrine of laches can even bar a claim in a lawsuit, or certain kinds of relief in connection with a claim in a lawsuit, even if the claim is brought within the applicable statute of limitations. In these situations, this doctrine is similar to the doctrine of estoppel preventing someone from asserting a statute of limitations. For example, if someone knows that the records necessary to defend against a lawsuit are about to be destroyed even though the statute of limitations will not run for another few years, the lawsuit could be dismissed under the doctrine of laches if the person bringing the lawsuit knew that and deliberately waited until after the documents were destroyed to bring the lawsuit. Mootness A claim can also be barred because it has become "moot" which is to say that due to the circumstances that have occurred since a legal wrong was committed, it is no longer possible for a court to provide relief the relief that the person bringing the lawsuit is seeking. For example, in a lawsuit seeking possession of an apartment and no other relief, the lawsuit becomes moot if the person in the apartment leaves the apartment and surrenders possession to the person seeking it, or if the building burns down. | A case for negligence or some other tort would likely never reach the stage where we could answer this question, as lawyers are generally immune from suit for their litigation conduct. I don't know of any case with facts likey you've described, but my understanding is that the litigation privilege precludes virtually any tort action based on a lawyer's statements in the course of the proceedings. Florida's Fifth District Court of Appeal, for instance, has specifically acknowledged that claims for defamation, extortion, fraud, perjury, forgery, slander of title, injurious falsehood are unavailable: The policy reasons for the privilege have often been repeated: In fulfilling their obligations to their client[s] and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation. Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309 (Fla. 3d DCA 1989). | Dale M is correct. Lawyers get calls all day long from people who want free advice and have no intention of entering into a paid representation. That is what your letter sounds like. I write separately just to add that you may have better results if you make explicit that you are aware of their rates and prepared to pay them. Even then, though, it may be that whatever you'd pay for the two hours to walk you through this is not as valuable as time they'd spend on other matters. If I have to prioritize between a repeat client and someone who will probably not pay for anything more than having one question answered, that's an easy choice. | As many parties as have standing. The First Amendment protects the right to petition for redress of grievances, so any limitation on that right would be highly disfavored. When there's a rush of cases like this, though, there are a few option for dealing with them. For instance, a plaintiff may seek class certification, permitting him to stand in for similarly situated parties so they don't need to litigate themselves, or a court may consolidate the cases if they are sufficiently similar. | Small claims court was created for such matters. There is the possibility of a fee waiver, and if you prevail, you could get some of your costs covered (though there are other hoops to jump through if you need enforcement). A formal letter (written by you) stating that you intend to seek a legal judgment against him/her in the amount owed might be sufficient motivation for the person to pay what is owed. | You could do that online, this website will help you with that: http://www.online-strafanzeige.de/ Also, just go to the police... They must accept your complaint and will check it. Also they can tell you wether it is likely that the complaint will lead to a lawsuit or not. | 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? | Only if counsel challenged the point during the trial Difficult as it might be, you can’t allow the judge to be wrong during the trial without calling them on it: very, very politely. For example, there is case law that says you can’t successfully appeal because the judge was asleep through significant parts of the trial; appeals courts are clear that you have to wake them up. If you don’t then you accepted that you didn’t want the judge to hear the parts of the case they slept through, it’s your choice how you present your case. Frankly some cases are better if the judge misses half the evidence. Of course, if the error of law makes it through to the oral or written judgement then you can appeal even if you didn’t take issue with it. |
Can a juror's vote count as the opposite of their actual vote if they explicitly state they vote against their opinion? Suppose there is a hypothetical situation in which a person on a jury becomes infatuated with a criminal defendant. Suppose they make this explicitly clear during jury deliberations. For example, let's say it's a male juror and he says "she is too hot to go to jail even though she is clearly guilty, so I am voting 'not guilty.'" Let's say the same juror persistently keeps voting "no" when the jury tries to decide if they should convict or not. Is there a process for the juror's opinion, that "she is clearly guilty," to be counted as the opinion they expressed, instead of their vote? I've never served on a jury, so I don't know. Maybe it's more appropriate to ask if there is even a vote? Or do the jurors only need to express their opinion (of guilt/innocence) during the deliberations? | When the required number of jurors vote "yes" (or "no", or whatever the question is), then the jury has reached a verdict. There is no provision whereby the presiding juror can re-interpret "yes" as "no". In the case you describe, if a unanimous verdict is required that despite a reasonable inference that the last juror believes the defendant to be guilty, he has voted not guilty so the jury has not reached a verdict. In case the guy in charge decides "In this case no means yes", thus falsely presents a supposed unanimous verdict, there is still an option for juror polling, in which case the not-guilty juror gets a chance to affirm his not guilty vote; though one of the parties has to request jury polling. If during polling the juror's response is not a clear "yes", then it could be more complicated. | I don't believe it is contradictory. Some kinds of injury are inherently difficult to calculate (e.g. damage to reputation caused by slander) but the judge or jury, as the case may be, will review the evidence and do the best they can. Lord Reed says as much in paragraph 38 of his judgment. ... and as a practical matter, it appears the damages, in this case, were both calculable and supported by evidence. The Court's primary focus was not whether damages could be calculated but rather the measure of damages (i.e. the method of calculation). | The jury never finds there was “no crime” They either find that the state has proven that this particular defendant committed this particular crime (guilty) or they have not proven it (not guilty). Another jury at another time may find the opposite - this does sometimes happen where a guilty verdict is appealed and the appeals court orders a retrial. For another defendant charged with a different crime (e.g. accessory to the first crime) before another jury, the result of another trial is both irrelevant and inadmissible. | Yes, it is possible. The requirements are (1) you are a citizen (the burden is on the prospective juror to pay attention to that requirement) and (2) the court knows that you exist and calls you up for jury duty. Apart from voter registrations, drivers license data is also used (and can be dangerous, because non-citizens can have licenses and may not know that you must be a citizen to serve on a jury). Another source in unemployment benefits lists. The correlation with voter registration is one way of avoiding that problem. In fact, Florida law states that the list of candidates "shall be taken from the male and female persons at least 18 years of age who are citizens of the United States and legal residents of this state and their respective counties and who possess a driver license or identification card issued by the Department of Highway Safety and Motor Vehicles", and does not sanction using voter lists. The Holmes County Supervisor of Elections confirms that only federal courts use voter lists, and state and local courts only use driver / ID card lists. | It is certainly not the case that all accused plead not guilty. Some plead guilty, often as part of a plea bargain. Some plead "no contest" meaning that the accused does not admit guilt, but will not argue the point in court. For many purposes this has the same effect as a guilty plea, but may matter later when the accused can truthfully say that no guilt was ever admitted. I think there are some other less common pleas available as well. It is not uncommon for an accused to plead not-guilty at first, and later complete an agreement with the prosecutor and change the plea to guilty, perhaps on only one accusation or some subset of accusations. This would often be in connection with some sort of plea bargain. In general, if there is any doubt about wanting to contest the accusation, an initial plea of not-guilty will be made by the accused, because this is fairly easy to change to a plea of guilty later, while changing a plea of guilty to not-guilty is much harder, and is not always allowed. I do not know what reasons there might be in the specific case mentioned, but I caution that news reports on such matters are not always accurate. | Errors in the Question Of course, this is not actually what really happens. What really happens is that the original crime is not tried. It is simply ASSUMED to have taken place and there is a presumption that the original actor was guilty of some crime. Obviously this is incorrect and unjust. This is incorrect. To convict a person of being an accomplice, in either US or UK courts, there must be evidence proving that the crime took place. This an essential element of the crime. It need not be proved who committed the crime as a principal, although there is often evidence about that. But an essential element of the crime of being an accomplice is that the underlying offense is a crime and did occur. Like all other elements of a crime, this must be proved beyond a reasonable doubt. Therefore, it would seem that from a theoretical point of view, an accomplice should only be charged and accused once someone else has first been convicted of a crime. Only then should the accomplice be accused of helping that person. That is not the theory that the legislatures of either the US or the UK have adopted. Indeed I do not think that any common-law country has adopted this theory. The law could be changed, and one might argue that it should be. But what the law should be, as opposed to what it is, is not generally on-topic here, as opposed to in politics.SE. Accomplice The LII Definition of "Accomplice" is: A person who knowingly, voluntarily, or intentionally gives assistance to another in (or in some cases fails to prevent another from) the commission of a crime. An accomplice is criminally liable to the same extent as the principal. An accomplice, unlike an accessory, is typically present when the crime is committed. Nothing there suggests that the principal must be convicted first. The Wikipedia article "Accomplice" says: An accomplice differs from an accessory in that an accomplice is present at the actual crime, and could be prosecuted even if the main criminal (the principal) is not charged or convicted. An accessory is generally not present at the actual crime, and may be subject to lesser penalties than an accomplice or principal. ... The fairness of the doctrine that the accomplice is still guilty has been subject to much discussion, particularly in cases of capital crimes. Accomplices have been prosecuted for felony murder even if the actual person who committed the murder died at the crime scene or otherwise did not face capital punishment. In jurisdictions based on the common law, the concept of an accomplice has often been heavily modified by statute, or replaced by new concepts entirely. In The Wikipedia article "Accessory (legal term) In the section on "England and Wales it is said: A mens rea {guilty state of mind] is required even when it is not required for the principal offender (for example, when the principal commits a strict liability offence). The defendant must intend to do the acts which he knows will assist or encourage the principal to commit a crime of a certain type. In R v Bainbridge (1960) 1 QB 129 the defendant supplied cutting equipment not knowing exactly what crime was going to be committed, but was convicted because the equipment supplied was not used in the ordinary way, but for a criminal purpose instead. The accomplice must also know of all the essential matters that make the act a crime ... In the section "United States" it is said that: U.S. jurisdictions (that is, the federal government and the various state governments) have come to treat accessories before the fact differently from accessories after the fact. All U.S. jurisdictions have effectively eliminated the distinction between accessories before the fact and principals, either by doing away with the category of "accessory before the fact" entirely or by providing that accessories before the fact are guilty of the same offense as principals. The Model Penal Code's definition of accomplice liability includes those who at common law were called accessories before the fact; under the Model Penal Code, accomplices face the same liability as principals. It is now possible to be convicted as an accessory before the fact even though the principal has not been convicted or (in most jurisdictions) even if the principal was acquitted at an earlier trial.(Wayne LaFave, Substantive Criminal Law § 13.1(e) (2d ed. 2003).) 18 U.S. Code § 2 - Principals provides that: (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal. Note that there is no requirement that a principal be first tried or even identified to convict one who abetted a crime. All accomplices are abettors, although not all abettors are accomplices. The Model Penal Code (MPC) published by the American Law Institute says, in section 2.06 of the code, that: § 2.06. Liability for Conduct of Another; Complicity. (1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both. (2) A person is legally accountable for the conduct of another person when: (a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or (b) he is made accountable for the conduct of such other person by the Code or by the law defining the offense; or (c) he is an accomplice of such other person in the commission of the offense. (3) A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it, or (ii) aids or agrees or attempts to aid such other person in planning or committing it, or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or (b) his conduct is expressly declared by law to establish his complicity. (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. ... (6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if: (a) he is a victim of that offense; or (b) the offense is so defined that his conduct is inevitably incident to its commission; or (c) he terminates his complicity prior to the commission of the offense and (i) wholly deprives it of effectiveness in the commission of the offense; or (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted. (Emphasis added) The official commentary on subsection (7) says: Subsection (7) speaks to the relation between the prosecution of the accomplice and the treatment of the person who is alleged to have committed the offense. In accordance with modern developments, this subsection provides that the accomplice can be prosecuted even though the other person has not been prosecuted or convicted, has been convicted of a different crime or degree of crime, has an immunity to prosecution or conviction, or has been acquitted. The MPC was the result of a 10-year review of the laws then existing in the various US states. It was an attempt to rationalize existing laws and provide a consistent framework for criminal law in the US. It was offered to the states for adoption in whole or in part, and several states have adopted significant sections of it, and others have been guided by it in revising their legal codes. Section 2.06 (7) makes it clear that no previous prosecution of a principal is required for prosecution of an accomplice in any state that has adopted the MPC. Effect of the Theory of the Question The question asserts: Therefore, it would seem that from a theoretical point of view, an accomplice should only be charged and accused once someone else has first been convicted of a crime. Only then should the accomplice be accused of helping that person. If courts adopted that as a rule, it would mean that if the principal escaped, or died, no accomplice could be prosecuted. Indeed consider the case of a crime boss, who is often an accomplice to the crimes of his (or her) henchmen. Such a boss would need only to have the actual criminal sent out of the country, or killed, to be quite safe from prosecution under the proposed rule. Hardly an improvement to my eyes. Such a rule would also mean that an accomplice could not be pressured, by means of a threat of prosecution, to disclose the actual criminal, or testify against that criminal. Again, not desirable. Use of UK Law I would add that in my answer to the linked question, sources from several US states were cited, and no UK sources. Indeed UK law does not seem to have been cited in the comments either, but this is a matter on which US and UK law are quite similar. | The term "jury nullification" gets thrown around a lot, especially by non-lawyers. But your question doesn't really seem to be about jury nullification. There is a well-established procedure in the federal courts of the United States, and similar structures in all state systems I'm familiar with, that allows the judge to overrule a civil jury if it finds that no reasonable jury could have reached the verdict they did. In the federal system, this is formally known as a "renewed motion for judgment as a matter of law," and is governed by Fed. R. Civ. P. 50. It's universally called, by lawyers, a JNOV, or judgment notwithstanding the verdict. This is common and well-established in civil cases, such as most patent cases. It isn't commonly granted, but jury nullification--or, more frequently, jury screwups or misunderstandings severe enough to justify it--are not very common either. Jury nullification usually refers to criminal verdicts, and almost always to criminal verdicts of "not guilty." These the Court cannot correct by imposing a guilty verdict without the jury, and these are the only cases, in my opinion, properly considered as "jury nullification" cases. | In an extreme hypothetical situation: at a meeting where there is a quorum present, there are 50 members qualified to vote in attendance. An issue comes up for a vote, and 45 people abstain, 3 vote yes, 2 vote no. Would this pass 3 to 2, or is there some overriding part of "majority present and voting" that I am just not understanding? The measure would pass 3-2. The words mean what they say. Quorum requirements prevent the small number of people voting from being unfair. |
Legally speaking, can the President refuse to nominate a Supreme Court justice on the basis of race or other traditionally protected class? Suppose a President has the opportunity to nominate a Supreme Court justice. The hypothetical President is a racist, sexist whatever and decides to make their nomination accordingly. In other words, the President will gladly pass up a qualified person who is not of the President's preferred race/sex/etc. to nominate someone who is. Is this legal? | There is no legal process whereby a demand can be made that POTUS nominate or consider a specific individual for some appointment such as a court position. There can be no law prescribing how such nominations come about, other than The Constitution which says that POTUS shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law Congress does not have the power to pass laws limiting how POTUS makes nominations, therefore whatever POTUS wants to do in this respect is a non-justiciable matter. | Before the election, can a lawsuit prevent the amendment question from being put on the ballot? No. Generally speaking, the constitutionality of an otherwise procedurally proper ballot initiative is not ruled upon until after it has passed (eliminating the need to rule unnecessarily on the constitutionality of failed initiatives). Of course, if someone tried to put it in the ballot when the existing law conditions for putting it on the ballot were not met (e.g. because a deadline for doing so wasn't met) that could be challenged in court by a party with standing to do so. If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional? Probably not. The constitution as newly adopted doesn't sound like it would forbid doing that. This seems to be the whole point of the constitutional amendment in the first place and it the amendment to the constition is approved, that requirement is gone. | The validity of the NDA is not an easy question, but a related one is more clear. A lawyer in the U.S. in most states is not permitted to threaten criminal or administrative action (e.g. reporting someone to immigration or tax officials), to gain advantage in a civil case. You can unilaterally bring criminal charges or take administrative action, but it is deemed to be unethical and against public policy to refrain from bringing criminal charges or taking administration action to gain civil advantages. An NDA of the type described arguably violated the same public policy and might be invalidated as a result. Put another way, there is a privilege to make certain reports to public officials without legal consequences and such an NDA might violate that privilege. Some of these privileges found in what are called "whistle blower" statutes specifically prohibit this kind of agreement as to some specific kinds of illegal conduct, but not others. There isn't a general rule. This said, it is not black and white. For example, a private NDA can't prevent someone from testifying under subpoena, but can prevent someone from voluntarily testifying in the absence of a legal compulsion to do so such as a subpoena. Suppose a woman is sexually assaulted at work, and is given an NDA to sign. Can the company legally require her not to disclose the conduct of an illegal activity? I can imagine this example coming out different ways in different jurisdictions. For example, some states have a legal duty (rarely enforced) that requires people to report felonies, and an NDA in this case would contradict that affirmative legal duty, while others do not. Another source of gray in the analysis is that there is a difference between not reporting a sexual assault that actually happened, and, as part of a larger settlement, executing an affidavit stating under penalty of perjury and under oath that a sexual assault didn't happen. The first is potentially an NDA that is void as a matter of public policy. The other, in principle, is a settlement that the person signing the affidavit can only enter into if it is true. There is nothing, in general, wrong, about requiring someone to confirm that certain representations are true as part of a business transaction or contract and allowing the contract to go forwards only if certain facts are true. The gray gets deeper, because whether a sexual assault happened or not is not always a subjectively black and white clear issue of pure fact. (It is subjective because an affidavit or affirmation is made to the best of the declarant or affiants' knowledge and belief, not as a matter of objective fact.) For example, someone may not have perfect memory of what happened, or there could be doubt over the question of whether the perpetrators acted recklessly (the Model Penal Code intent requirement for sexual assault) or merely with criminal negligence (which would not be sexual assault under the Model Penal Code). A statement made under oath about whether a sexual assault happened to the best of your knowledge, thus, might be a mixture of factual issues (A penetrated B at a certain date and time) and legal or not perfectly factually known ones (A acted with X intent regarding consent during that act). So, in a case where there was some room to argue either way about how to characterize what happened and about what actually did happen, there might be some room for a settling party to make a non-perjured statement consistent with the settlement and then to agree not to a true NDA, but instead to not make statements which, if the affidavit is true, would be false. In a plea bargain in a criminal case, one can plead "no contest" without agreeing that the crime factually happened, but that isn't really possibly in the context of an affidavit about what really happened, with an NDA limited to not disclosing the incident since it was already agreed as a matter of sworn fact that there is nothing to disclose that rises the level of a crime. | These offer letters typically state explicitly that the offer is contingent on approval by the relevant governing board. This is sufficient to thwart promissory estoppel. Such highest-level overturning are frequent enough in the US that a reasonable person would know that the principal (for instance) does not have final authority to make a contract. There is no requirement that the board justify their decision to you. If you file a lawsuit alleging racial or religious discrimination, and if you can make a prima facie case for discrimination,you might survive the motion for dismissal, and the board might be required to say why they didn't hire you. | Let’s look at the full paragraph Neither the President nor Congress nor the Judiciary can disturb any one of the safeguards of civil liberty incorporated into the Constitution except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus. So what it actually says is: you can’t unless you can. The Constitution says this to say about habeas corpus: The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. The case decided that military commissions (and the denial of habeas corpus) were constitutional where there was no civilian court available. Because Indiana had never been in rebellion and civil courts continued to function there, military tribunals could not be used. However, they could be uses in states that had been in rebellion. You can’t unless you can. This is specifically about rights guaranteed in the Constitution In this particular case, the right of habeas corpus. There is no equivalent right applicable to face masks so a law mandating them in certain circumstances does no more infringe a Constitutional right than mandating the wearing of clothes in public. You can’t unless you can. Breaking the law doesn’t cause you to lose your job The second quote, the origin of which is unknown and definitely not in the case, is total fantasy. Even if a law against face masks was unconstitutional, the authors of that law have overreached and the remedy is to go to a court to have it declared unconstitutional. They don’t lose their jobs as a result. Even if they wrote the law with criminal intent, they must be removed from office in accordance with the normal procedures such as impeachment for the President, by a two-thirds majority vote of their house for a Congressperson etc. | Washington v. Davis held that if a law or other action (in this case, a Verbal Skill Test as part of D.C. police hiring practices) is not necessarily unconstitutional if it results in discriminatory outcome. In order to be actionable against the state, one must prove that the law was intended to discriminate from the creation of the law. Your quoted source is in fact wrong and your number 2 option is the correct summation of the quote. Only laws that are purposefully discriminatory are unconstitutional. | I don't believe your premise is necessarily true. As the Supreme Court has held, a defendant can be prosecuted for perjury after being convicted for another offense at trial: The conviction of Williams, at a former trial, for beating certain victims is not former or double jeopardy. Obviously perjury at a former trial is not the same offense as the substantive offense, under 18 U.S.C. § 242, of depriving a person of constitutional rights under color of law. . . . It would be no service to the administration of justice to enlarge the conception of former jeopardy to afford a defendant immunity from prosecution for perjury while giving testimony in his own defense. United States v. Williams, 341 U.S. 58, 62 (1951) (emphasis added). Now as a practical matter, trying a convicted person for perjury is most likely rare, since the prosecutor has already obtained a conviction for the underlying offense. Starting another prosecution for perjury might be excessive or unnecessary. But that doesn't mean it's categorically prohibited. Note also that perjury by the defendant can be considered by the judge to enhance the defendant's sentence. United States v. Dunnigan, 507 U.S. 87, 96 (1993). | We can only guess at what argument he has in mind, but one possible argument is that the standard is unconstitutionally vague, similar to the argument by McDonnell in the recent McDonnell v US (admittedly about a different statute). The vagueness argument was developed in several of the briefs: http://www.scotusblog.com/case-files/cases/mcdonnell-v-united-states/ The unconstitutional vagueness argument has also been made specifically about 18 USC 793 (e). US v Hitselberger 1:12-cr-00231-RC D.D.C. (2014). The defendant made a motion to dismiss based on constitutional vagueness, but this motion was denied. Private Manning raised the same defence, also unsuccessfully: http://fas.org/sgp/jud/manning/051012-vague.pdf |
If my mothers house is refinanced under my name can I evict her husband? My mother has fallen under hardship and can no longer afford her mortgage payment. The realtor has a solution of refinancing under my name to have the mortgage come down to a more affordable price. Only issue is my mothers husband whom she is unhappy with still lives here (rent free or without contributing to expenses). Am I legally allowed to evict him once my name is on the title of ownership? | In the US, a house Title determines ownership, the name on the mortgage determines who owes the bank money. But a new mortgage will need the title holder to be on the document, because you cannot use someone else's real property as collateral. As to who can evict someone, it's the property owner, not the mortgage holder. | 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. | In Virginia there is a distinction between a tenant and an authorized occupant. An authorized occupant is a person entitled to occupy a dwelling unit with the consent of the landlord, but who has not signed the rental agreement and therefore does not have the financial obligations as a tenant under the rental agreement. A tenant is a person entitled only under the terms of a rental agreement to occupy a dwelling unit to the exclusion of others and shall include roomer. There is a third category, guest or invitee which means a person, other than the tenant or person authorized by the landlord to occupy the premises, who has the permission of the tenant to visit but not to occupy the premises. Such people who live there would not be invitees. Clearly, you can have others living with you who are not on the lease, if the landlord agrees. The landlord's main concern regarding credit rating is probably financial responsibility, and if you qualify, having people live with you who have low or no credit rating is unlikely to make any difference. There may be other concerns, such as background checks or increases utility costs). Virginia law does not specifically allow "unauthorized occupants", i.e. occupants not approved by the landlord, nor does it specifically disallow such occupants. Leases often include a provision that addresses this matter, prohibiting unauthorized occupants. Supposing that the lease is silent on the matter (not likely) and the landlord wanted to compel the other occupants to leave, the procedure would be to tell the tenant that the unauthorized occupants must leave. Then if you do not comply (do not get them to move out), the landlord could start the procedure of evicting the lot of you, and the question would be whether the court would find that you have a right to let unauthorized other people live with you. I can't find any applicable case law, but it is unlikely that the court would find such a right. Tenants have special statutory rights, as do authorized occupants under the Virginia Residential Landlord and Tenant Act. A court would not find that the rights of an authorized occupant extend to an unauthorized occupant, which means that the landlord's rights as property owner are dispositive of the matter. | 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. | Yes, this is illegal. If by "across the state" you mean some distance away but in the same state then the exact law will depend on which state you are in, but as a rule any "conversion" of property to the use of another counts as theft. In this case your aunt has "converted" the property to the use of your Nan (funny legal phrase). The fact that the people doing this are your relatives makes no difference. (When asking about the law here you should always say which state you are in.) Although theft is a crime, you could also start a civil case to get your property back without involving the police. The details depend on where you are, but try googling "(your state) small claims court". Many states have a process for collecting low-value debts or other property without needing lawyers. You need to have a firm conversation with your aunt about this. Tell her that you want your property back, and don't back down. Also call your Nan and explain this to her as well; she may not have realised that she is in possession of stolen property, which is usually a separate crime. If you want more advice on how to get your property back without starting a family row then you might ask on the Interpersonal Skills SE, but it might be better to start with "When are you planning to return my property?" and leave "You are a thief" as a last resort. Edit: As Eric Nolan points out in the comments, you may be a minor. If you are under 18 then your aunt has authority over you that she wouldn't have if you were older. For instance, if she is concerned about your use of video games impacting school-work then confiscating your console and putting it out of your reach would be perfectly legal. | As stated, this is not a reasonable restriction and runs afoul of the Fair Housing Act. You cannot discriminate based on family status, with an exemption for "housing for older persons", and the act "does not limit the applicability of reasonable local, state, or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling" (let's leave aside HOA restrictions for a moment). The number of occupants can legally be restricted in terms of a reasonable relation to a legitimate interest such as parking availability, safety, noise or securing the property. A restriction based on square footage or number of bedrooms might be reasonable: a blanket rule "no more than 4 people" is not reasonable. This article notes some of the state complication in interpreting "marital status", in terms of "not being married to each other". | Yes, they still have to go through the normal eviction process and must still provide the minimum number of days required by their local jurisdiction in order to vacate the property. By moving in and establishing residency, the tenant and landlord form an implied lease - the tenant does not need anything in writing in order to establish their legal rights to tenancy. More information: No written lease--Am I in trouble? | You can read about your rights as a California tenant at http://www.dca.ca.gov/publications/landlordbook/catenant.pdf This is rather ridiculous: 1) No judge will evict someone for paying rent by mail. (I assume you have the new landlord's address.) 2) If the landlord cashes the check you mail then he's not going to be able to claim you didn't pay the rent. If he actually refuses to cash your mailed check then that's all to the good for you. 3) You can ignore any requirements imposed by the new landlord that aren't in the lease, just as the landlord could ignore any new requirement imposed on him by you. Even some terms in a lease can be ignored, because not all terms in a contract are legal. (This is especially the case in tenant-landlord law.) If you think there will be trouble then use certified mail. |
Are there de minimis exceptions to "food waste" for trash collection? I'm interested in how de minimis principles can apply in law and especially started thinking about it after reading that certain cities require food waste to be put in a plastic bag. For example, this source says that food waste "should be drained, wrapped and placed in a plastic bag before placing in [a] garbage cart." Likewise, this PDF for another city says that food waste should be "drained, wrapped and placed in [a] plastic bag." What then is food waste? According to the EPA, even plate waste qualifies: Food waste refers to food such as plate waste [emphasis mine] (i.e., food that has been served but not eaten), spoiled food, or peels and rinds considered inedible that is sent to feed animals, to be composted or anaerobically digested, or to be landfilled or combusted with energy recovery. While I could be wrong, I have trouble thinking that all uneaten food on a plate must be put in a plastic bag before being thrown away. If such were the case, would even food crumbs qualify as food waste, or would this exemplify a de minimis exception? Related: Are city regulations stating food waste should be in "platic bags" require bags specifically for food waste? | De minimis only applies when you are actually dealing with the law, that is, someone ends up in court. I am unaware of any jurisdiction which makes it a crime to "mishandle" food waste. Usually, a company is granted a monopoly over waste management for residences in a certain jurisdiction, the government vaguely indicates what the service is supposed to do (sometimes because the recipient of the waste is a government-run waste facility), then the service communicates to customers what their policies will be. The use of "should" in such communications does not imply "legally and enforceably must". The waste management business has a contract with the individual to provide specified services, which may for example "imply" that you are not allowed to throw yard waste in regular trash. If your trash contains a leaf of grass, that might technically be contrary to their policy, but the possibilities of a consequence for the individual depends on what is in the contract. It is possible that a surcharge can be added to a bill, but typically this only happens in the case of egregious and repeated violations, with multiple prior notices. | No A debt is created by a contract (among other ways not relevant here). A contract for a restaurant does not contemplate the creation of a debt, payment is to be contemporaneous with the service. Presuming that the customer was made aware that cash payment was not acceptable and that they chose to enter the contract, by ordering, then they accepted that term. Not abiding by it is a breach of the contract. Now, if the customer did not pay and the restaurant sued for the amount (plus damages) and won, that would be a debt for which cash must be accepted. | england-and-wales She (as the claimant) would have to prove that the food caused her "long-term negative effects" and the shop (as the defendant) was negligent in knowingly offering spoilt food - a legal concept known as "causation" that Wikipedia describes as concering: the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law. [...] The claimant must prove that the breach of the duty of care caused actionable damage. The test for these purposes is a balance between proximity and remoteness: that there was a factual link between what the defendant did or failed to do, and the loss and damage sustained by the claimant, and that it was reasonably foreseeable at the relevant time that this behaviour would cause loss and damage of that type. I cannot find any relevant caselaw using the given circumstances of far-future ill-effects, but it seems unlikely (to me) that such a claim would succeed on the information available due to the remoteness between events. | 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.) | There is, as far as I can see, no legal definition of picnic in England and Wales. In the absence of such, the convention applied by the UK courts is to use the normal meaning of the word; usually by reference to the Oxford English Dictionary (which is behind a paywall so I've used its free online version here)... An occasion when a packed meal is eaten outdoors, especially during an outing to the countryside. (My emphasis) | It depends on whether one honestly believes that the supermarket would consent to them eating a snack before paying for it. If there is no consent, either explicit or implied, then it is theft as no contract has been performed or fulfilled so ownership hasn't transferred, as follows: Theft is defined by section 1Theft Act 1968 as: (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. The two elements relevant here are "dishonestly" and "intention of permanently depriving". Section 2 offers three defences to being dishonest, with this being the only one applicable here: (1) A person’s appropriation of property belonging to another is not to be regarded as dishonest— ... (b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it... The definition of intention to permanently deprive may be found at section 6: (1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights... See this article by News Shopper that explains it in a much better way than I could without me commiting plagiarism: Buying a product at the till is what transfers the ownership from the product belonging to the shopkeeper, to it belonging to you. And only when that sale is complete do you have the legal right to consume or use it. If you eat the chocolate before you legally own it, you are permanently depriving the owner of his right to the product – he can no longer refuse you the sale or take the item off the shelves. | 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"). | Yes. See Florida Man's Version of Dine and Dash Involving A Pizza Delivery James Chandler was arrested after allegedly ordering a pizza and cinnamon sticks and partially eating them without paying. The basis for arrest was defrauding an innkeeper. Any person who obtains food, lodging, or other accommodations having a value of less than $1,000 at any public food service establishment, or at any transient establishment, with intent to defraud the operator thereof, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 (Emphasis added; this is the current text of the law, but "less than $1000" was "less than $300" at the time of the incident.) For anyone doubting this or looking for more detail, the case number is 2016MM002854A before the Circuit Court of St. Lucie County, Florida, and not only was he arrested, but he was convicted and sentenced to 60 days in county jail. The above example was pizza by delivery. For an example involving dine-in pizza see Crime briefs: Father's Day fight, copper theft, unpaid pizza bill a woman was arrested at Blue Line Pizza in California on suspicion of "defrauding an innkeeper" after refusing to pay the bill. Another Florida example is Off The Beat: Price of pepperoni pizza and vodka? A trip to jail: Brown’s bill was $30.36, consisting of three Ketel One vodka drinks ($19.50), a pepperoni pizza ($9) plus tax ($1.86). ... Told by a deputy that the restaurant wanted her to settle up her tab, Brown said she brought no money ... Deputies arrested Brown on charges of defrauding an innkeeper and obstruction without violence. The above case is 19001773MMAXMX of Marion County, Florida. She entered a plea agreement, whereby she pled no-contest to the non-violently resisting in exchange for the defrauding an innkeeper not being prosecuted, and was sentenced to time served (about 3 days in jail) and $735 in fees and fines. Also, see Selma [North Carolinia] police: Arrested man glad to go to jail: Police were called to the Pizza Inn at 1441 South Pollock St. after the man allegedly filled his plate with food then walked out the door. Police found 49-year-old Alan Miscavage, of New Jersey across the street. Miscavage allegedly told officers he was homeless and was happy to be going to jail. He told them the jail offered free food, running water, and a place to stay until his court date. Miscavage was charged with defrauding an innkeeper for not paying for the food, and misdemeanor larceny for leaving with the food plate valued at $10. Bond was set at $3,500. His court date was set for August 22. Also, see Police: Man didn't pay for pizza, tried to flee from officers: A Lemoore man was arrested Sunday for allegedly defrauding a pizza delivery driver and trying to flee from police. The Hanford [California] Police Department was called to the 900 block of West Sixth Street at 10:37 p.m. for a report of a man refusing to pay for a pizza delivered by a Pizza Hut delivery driver. Officers found Peter Delano, 59, sitting in his car eating the pizza. So, in conclusion, if you order pizza and don't pay you could be arrested for defrauding an innkeeper. |
Can two legal complaints be combined in one lawsuit? How does that work? Our craftswomens cooperative would sue under Chapter 2741 of the Ohio Revised Code (ORC) prohibiting use of an individual's "persona" for "commercial purposes" without written permission. Also, we would like to sue for 'libel' resulting in the blacklisting of our jewelry-making group. Should these two complaints be combined into one? Or are there necessarily two separate cases? | All causes of action from the same circumstances must be pursued together Assuming the statutory infringement and the libel arise from the same acts of the defendant, they must both be claimed in the same case (as does any other grievance the plaintiff has) or they cannot be pursued at all. | Does criticizing public figures constitute libel especially in a private group? It depends on the specifics, but a priori your description suggests that the defense of honest opinion would be applicable. This is regardless of whether the subject is a public figure and regardless of whether the statements were in private --albeit non-privileged-- communications. Case law surely provides guidelines or precedents on how the details and circumstances of the events would fare on the parties' legal position, but I am not knowledgeable of UK/English law. Does X have a counterclaim for illegally accessing the data? The matter seemingly depends on how the religious leader had or gained access to the data. Even if he gained access by stealing or hacking a device or account, X would not have standing to [counter-]sue unless the device or account belongs to X. Be mindful of the possibility that third party might have made the disclosure to the religious leader. In that case, actionability (if any) of the disclosure only encompasses the third party, not the religious leader. X's intent that his statements stay only among the participants does not necessarily imply that participants' disclosure elsewhere is unlawful. | The relevant law for you is ORC 4705.07. (A) No person who is not licensed to practice law in this state shall do any of the following: (1) Hold that person out in any manner as an attorney at law; (2) Represent that person orally or in writing, directly or indirectly, as being authorized to practice law; (3) Commit any act that is prohibited by the supreme court as being the unauthorized practice of law. (This is a prime example of legal language that cannot be interpreted on the basis of rules of English -- the issue is the meaning of "that person"). This does not prohibit you from giving an opinion as to what the law is, which is a right protected under the First Amendment. You would be in trouble if you said "This is my advice as a lawyer". Section 2 b.t.w. says that only the Supreme Court (of Ohio) can determine if a person has committed an act on their don't-do-it list. Rule 7 pertaining to their procedure is here. Section 2 therein enumerates the relevant categories, which fall under the categories "rendering of legal services for another" and "Holding out to the public or otherwise representing oneself as authorized to practice law in Ohio", which is what the statute says. | Either is possible Let's look at a very recent example: Dominion sued Guliani and Powell separately. But Smartmatics sued both plus Fox at once. Their allegations are even very similar. The benefit of Smartmatics' approach is, they only need to file documents once, and only meet one time the filing fee. Parties may try to get their case split off, then they become a separate case and it becomes the Dominion strategy. The benefit of Dominion's approach is, that the separate cases are harder to dismiss for each party on their own and they have no standing to weigh in on the other case. If the court consolidates the cases, it becomes the Smartmatics strategy. Also note, that the court can act on its own against a joint lawsuit: parties might get dismissed from it that were improperly joined. Those dismissals are without prejudice and can be fixed by just re-filing the lawsuit against the dismissed defendant alone. | That is not at all what USPTO is telling you. Courts do not simply "dismiss" patents - that isn't a terminology you'd ever see used for a patent that was found to be invalid. Timeline of events: United Industries Corporation brought a suit against the owner of the patent, claiming unpatentability. That case went to trial, and the court found the claim to be invalid and that UIC failed to show unpatentability. UIC appealed that decision to the Court of Appeals. The Court of Appeals dismissed the case because both parties agreed to its dismissal (it's possible they reached some external agreement we don't know about). As far as I can tell, at this moment, the patent is active. | First, read the definitions of defamation and libel be sure you understand them: Defamation | Wex Legal Dictionary | Cornell. Yes, posting to Twitter and Reddit is publishing, and people can post provably false facts on those services and defame someone in a civil law sense. But Section 230 of the Communications Decency Act (Electronic Frontier Foundation) mostly protects those services from defamation claims based on statements made by users of such a service. (Things are different if the case is criminal as a result of clear threats of violence, terrorism, etc.) ...what are the steps for them to exact damages in a civil court case? Find a lawyer, convince him/her to take the case, and file suit. if you don't know the person's real name, your lawyer will have to sue "John Doe" and point that out in the suit (and subpoenas) with the alleged Twitter handle or Reddit user name. How would a person compel Twitter/Reddit/etc to disclose the ISP information on their account? Read the various legal aspects of each service, i.e. Twitter Legal FAQs and User Agreement - Reddit and others. Your lawyer can explain that you can only try to compel them to disclose the IP and the ISP used with a subpoena during your lawsuit. How would a person compel an ISP to disclose the subscriber information (address, name) on the IP address? Since most ISPs protect their customer data, you will probably have to subpoena the ISP during your lawsuit. But your ability to do this can depend on if the ISP is a private company or a government entity, such as a university. State laws may come into play. Is obtaining the ISP subscriber's information enough to bring a lawsuit against them? Would they able to argue they didn't post the messages and bear no liability, even if it originated from their network? If it originated from an open wifi hotspot, would the proprietor bear responsibility at this point? Yes, you can sue an individual with such information; but there's no guarantee you'd win. Sure, because they can claim anything, such as someone else was using their computer or IP. No, owners of hotspots are generally not liable, and they protect themselves with TOS you agree to when you use the hotspot. Can the extensive legal costs of pursuing the case to it's conclusion be added to the damages sought easily? Legal costs can possibly be added, depending on jurisdiction. But seeking damages and actually winning them through a jury verdict are completely different things. | Caveats Obviously, I can't know the law of every jurisdiction and based my answer below on U.S. law. I have seen cases over the last few years on all of these points, but don't have all of the relevant references immediately at hand and I am instead working from memory. It is also a new and rapidly developing area of the law. People are always coming up with new kinds of conduct that were never thought of before which when analyzed appear to violate some kind of legal duty. A good rule of thumb is that if something novel seems intuitively wrongful it is usually possible to come up with a legal theory to impose liability for doing it by framing the situation in a way that analogizes it to more old school wrongful conduct. Overview All of these forms of liability require proof of more than the link alone, even though the link establishes one necessary part of the liability claim. There must also be some sort of contract or implied-in-fact agreement of people affected by the link, rather than arising purely from posting the link alone under a statute or tort law (tort law is the law of legal liability enforceable in lawsuits by a person harmed by wrongful conduct on grounds other than a contract or statute). Generally, that agreement is either an abuse of an otherwise legitimate contractual relationship by one of the parties to the contract (or an affiliate of one of the parties to the contract), or is agreement to work together to further someone else's tortious or criminal conduct. (Tortious conduct is wrongful conduct that gives rise to civil liability that can be enforced in a lawsuit, whether or not it is a crime). Generally speaking a link that was legitimate at the time and became illegitimate after the fact wouldn't sufficient for third-party beneficiary liability in this way. This is because most kinds of liability require intent to do something, knowledge that you are doing something, recklessness, willful and wanton conduct, negligence or some other threshold of liability greater than mere strict liability after the fact. Put another way, I have never seen a case where there is a legal duty to police links that have gone bad after they are posted in circumstances where the person who let the link go bad did expressly undertake an obligation to keep the links valid and to regularly monitor them, which almost no one does. An example that would be the exception to the rule would be a third-party website provider to a business that has a contract to regularly update and monitor the firm's website, for a firm like a grocery store or retail vendor that doesn't want stale coupons or discounts to be advertised, where this might be a breach of contract by the active third-party firm website operator. For most purposes, there is no liability Linking to a website does not, under U.S. law, constitute a copyright violation or a basis, in and of itself, for a defamation claim or trademark violation, related to the content of the destination site. I am not comfortable that this would be true in all jurisdictions. For example, I wouldn't be surprised if a country that adopted Islamic law as its supreme law would impose criminal or quasi-criminal liability upon someone linking to a website that violated that country's blasphemy laws, even the the linked site is legitimate in the place where it is made. TOS Violations Some links that exist for SEO (search engine optimization) purposes to a legitimate website can violate a terms of service (TOS) agreement at the website where the link is placed or of the Internet service provider (ISP) involved, with the usual consequence being that the website or Internet service provider can drop you and cease to provide service to you, even if you paid a subscription fee for that website or ISP that is not refundable in the case of a TOS violation. Strictly speaking, this isn't really "legal liability" but it would provide a justification for a self-help remedy that causes economic harm to the person engaged in violating the TOS with SEO conduct. Conceivably, a TOS violation could establish a duty that could provide a basis for someone other than the firm with whom the TOS violator agreed to the TOS, if the TOS violation caused harm to a third-party beneficiary of the TOS, but I've never actually seen a case brought successfully on that theory. And, generally speaking, a link to a legitimate website wouldn't cause legally recognized harm to a third-party who clicked on it. One situation where a TOS violation might give rise to liability to a third-party, however, would be a link designed to facilitate a denial of service attack that causes economic harm to the victim by preventing it from doing economically beneficial business with actual customers. Conspiracy liability Conceivably, if someone is directly to a website that is being used to conduct securities fraud or some other kind of fraud, or child pornography, there could be liability on a civil conspiracy or a criminal conspiracy to commit the crime at the linked site, but the link in and of itself wouldn't suffice to prove that case. Instead, one would have to show that there was an overt coordination with the primary violators at the destination website by the person linking to them, as part of an intentional effort to further the conspiracy and that the link was one overt act in furtherance of the conspiracy (generally also including other overt acts and generally in a case where the plaintiff or criminal prosecutor can show some motive to advance the conspiracy such as a sharing of profits from the conspiracy, or a family relationship to the primary offender, or reason to want to seek revenge against the victim(s) of the primary offense). The last sentence of the question, however, seems to not apply to this particular situation when it says: The hyperlink is to legitimate websites atleast at time of hyperlinking ok. Click Fraud SEO type links can also give rise to liability if you have a contract with a service that compensates you based upon the number of times that a web address is viewed (a.k.a. per "click"), for example, a Spotify song or a Webtoon comic or a streaming video service or an online marketing contract where you are being paid for sending traffic to a site that is marketing to third-parties. These cases are often called "click fraud" cases even when the theory of liability is not common law fraud. The theory of liability in these case is that you have (1) breached the duty of good faith and fair dealing, or (2) breached a specific contractual term to that effect, or (3) engaged in fraud (both civil and potentially criminal wire and mail fraud), or (4) engaged in the deceptive trade practice of false advertising (potentially a third-party or attorney-general could do this too, but the damages cases would be very weak). This is because either (1) you are being paid for third-party clicks intended to reach the destination in question, but are artificially inflating that count with links that you or (2) your confederates generate, or by links that mislead third-parties into going to a site that they will react negatively too, tarnishing the reputation of the person paying for the clicks pursuant to the contract. Usually lawsuits of this type a brought by the party paying for the clicks against a person who was overpaid until a click based compensation contract to recover an overpayment under that contract arising due to this misconduct. But Wikipedia identifies some circumstances in which there can be suits involving non-contracting party: A secondary source of click fraud is non-contracting parties, who are not part of any pay-per-click agreement. This type of fraud is even harder to police, because perpetrators generally cannot be sued for breach of contract or charged criminally with fraud. Examples of non-contracting parties are: Competitors of advertisers: These parties may wish to harm a competitor who advertises in the same market by clicking on their ads. The perpetrators do not profit directly but force the advertiser to pay for irrelevant clicks, thus weakening or eliminating a source of competition. Competitors of publishers: These persons may wish to frame a publisher. It is made to look as if the publisher is clicking on its own ads. The advertising network may then terminate the relationship. Many publishers rely exclusively on revenue from advertising and could be put out of business by such an attack. Other malicious intent: As with vandalism, there are many motives for wishing to cause harm to either an advertiser or a publisher, even by people who have nothing to gain financially. Motives include political and personal vendettas. These cases are often the hardest to deal with, since it is difficult to track down the culprit, and if found, there is little legal action that can be taken against them. Friends of the publisher: Sometimes upon learning a publisher profits from ads being clicked, a supporter of the publisher (like a fan, family member, political party supporter, charity patron or personal friend) will click on the ads to help. This can be considered patronage. However, this can backfire when the publisher (not the friend) is accused of click fraud. This link identifies and describes in some detail five leading click fraud cases: Motogolf.com vs Top Shelf (2020) – sporting goods, ongoing case TriMax Media vs Wickfire (2017) - digital advertising, $2.3 million Satmodo vs Whenever Communications (2017) - satellite phones, dismissed RootZoo vs Facebook (2012) - ruling denying motion for class certification Lane’s Gifts and Collectibles vs Google (2006) - $96 million settlement | The Plaintiff can't implead a third party. If the Plaintiff amends its complaint to join a new party to the case, that new party is a defendant, and as such, may assert counterclaims against the Plaintiff and crossclaims against any co-defendant in the case. Federal Rule of Civil Procedure 14 applies to third-party complaints brought by defendants who sue third-parties, not to first party complaints brought by plaintiffs against newly joined parties. FRCP 14(a)(2)(B) provides that the Third-Party Defendant may bring counterclaims against the defendant who filed the Third-Party Complaint. FRCP 14(a)(2)(C) and(D) provides that the Third-Party Defendant may bring claims against and assert affirmative defenses against the Plaintiff who sued the Third-Party Defendant, even though the Plaintiff didn't itself sue the Third-Party Defendant. There is a question upon which FRCP 14 is silent, however. Can a third-party defendant in a case brought by a defendant/third-party plaintiff bring claims against co-defendants of the defendant/third-party plaintiff that sued the third-party defendant? The rule does not expressly authorize such a quasi-cross-claim. But, in practice, by hook or by crook, most federal court judges would allow a third-party defendant to do so by some means, although without so prolonged research I couldn't tell you exactly how that would be justified. Perhaps, the third-party defendant would bring a (second order) third-party complaint against other defendants in the case. Likewise, an existing co-defendant in the case could probably bring a third-party complaint against the third-party defendant already sued by their co-defendant. |
Is taking a screenshot or photograph of e.g. a third person's ebay's account as evidence legal? Alice and Bob live in a flat together. Bob mentions to Alice, that he is buying and reselling merchandise but not reporting it to the tax office, because he does not want to register a business. One day, Bob leaves the flat but leaves his computer turned on and the door to his room open. Alice looks at the monitor, sees the evidence for tax fraud in the online selling/buying history and decides to take pictures of it to report it to the authorities. Is Alice within legal boundaries? | Don't do it. So clearly tax fraud is bad and the state can prosecute this when tipped off. Alice is also clearly allowed to report the possible tax fraud to authorities and to serve as a witness if necessary. The problem is that Alice can expose herself to various liabilities, and could be sued by Bob or by the state. On what grounds did Alice snoop around in Bob's room? Even if they are roommates, Alice might not have a right to enter the room. Even if she has grounds to enter the room, she might not have permission to trawl through Bob's private stuff. A glance at a computer screen is also quite unlikely to show evidence of tax fraud, as even selling lots of stuff does not imply running a business.1 On what grounds can Alice collect and share personal data with authorities? There is no constitutional right for snooping and snitching.2 Alice must instead identify a legal basis for sharing such screenshots or pictures with third parties. Data protection law such as the GDPR does recognize that there might be a legitimate interest, but Alice is unlikely to have such a legitimate interest unless she is personally affected by Bob breaking the law. For example, some people have been sued for overly enthusiastic reports of parking violations. Footnotes: People can sell goods e.g. on eBay without running a business that would have to be registered with the tax office. A business in this context is any regular business-like for-profit activity. Thus, a registration might not be necessary for occasional activity, or if the activity isn't for profit. For example, a person selling their old stuff for less than they bought it for is not acting with a profit motive. Even if there is occasional profit, this can be a privates Veräußerungsgeschäft (private sale). Whether such a sale is taxable depends on the duration between acquisition and sale. If it is taxable, it has to be reported as part of income tax filings. Generally, the profit is free from income tax after one year. VAT is a different matter. Private sales don't involve VAT. When a sole proprietor registers a business, they can elect to ignore VAT until they reach certain turnover or profit limits (Kleinunternehmerregelung). This kind of tax fraud is typically not a crime, and more of an administrative offence. Thus, intrusive investigations are not proportional – and even then, they would be up to the state, not to individuals. It is worth noting that Germany has extremely poor whistleblower protections and has failed to implement relevant EU laws. | In the United States, You have no expectation of privacy in public. Anything you can see from a public place, you can take a picture of, even if the "victim" is in their own home but has the blinds open. If you are standing on a public sidewalk or street, you would legally be able to take a picture with certain exceptions. An exception to this would be: if with just your eyes you can see into a private home, you can take a picture of that, but if you require a telescopic lense with some sort of IR adapter to "see through" blinds. That MAY be considered illegal. For real world examples of this question, check out PINAC. Another example is "Creepy Camara Guy", https://www.youtube.com/watch?v=vs6iLtl0BAw. This guy basically goes around recording videos of people in public in a VERY obnoxious way. But he is within his legal right. (Note: Video unavailable: "This video is no longer available because the YouTube account associated with this video has been terminated.") | 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. | Are online stores supposed to state the true “order cost”/value of an order on the package/envelope for the customs? Yes Is it common practice to slash 10x off of the price for the customs to not add various fees? Common? Probably no. Uncommon? Also, probably no. Isn't that illegal? Yes Of course, they can claim it was a mistake if ever found out, but if they do it consistently, that seems difficult... Not to mention there must be electronic proof of how much each order actually cost the customer? Yes Look, robbing banks is illegal but people still rob banks. Similarly, ripping off HM Revenue & Customs is illegal but people still do that too. In fact, far more people do that than rob banks. | 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. | The security guard, acting for the (now former) owner of the property doesn't know the new ownership of the property and asks for evidence Bob now owns the property. The security guard is free to ask. Bob cannot produce a receipt for his purchase of the property. The security guard asks which checkout Bob used, so that the security guard can check its records for the transaction. Bob doesn't know specifically and says the checkout was one of three. The security guard asks Bob to remain while each of the three checkouts is checked until Bob's transaction is discovered (or not). The security guard is free to ask. Bob is legally free to leave with his property but the security guard may think he has reasonable grounds for suspicion of shoplifting and decide to try to detain Bob on suspicion of shoplifting until the ownership of the property is established. As any member of the public, the security guard may use "as much force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large." (s3 Criminal Law Act 1967) Bob is also free to leave without his property. In this case, as there could be no grounds for suspicion of shoplifting, only attempted shoplifting, it seems unlikely that any force would be reasonable. Of course, depending on retailer policy the security guard may be allowed to ban Bob from the premises if Bob doesn't cooperate. https://www.inbrief.co.uk/employees/being-a-security-guard/ | As stated in the answer to What is considered "public" in the context of taking videos or audio recordings?; if either of the participants is in Australia than unless all parties have given consent then the recording is illegal. Notwithstanding its legality, property in the recording vests in the person who made it. There is no law against him keeping it. There is no law against him publishing it unless the material contained is offensive, hate speech or defamatory (see Customer feedback gathering in Australia). | Of course you'd be in legal trouble, the contract is still valid. I also don't know why you don't consider virtual goods to be goods. Take this example: You buy a 1 year subscription for (example) netflix. The next day they cancel your subscription but don't give you the money back because its not a "real good". This should make it clear that virtual goods are goods too in the eyes of the law. Question is if police/lawyers care about it as much as for "real" goods. |
On what basis can Google decide that 13 is the age of autonomy for its users? On what basis can Google, Facebook, Tik Tok (to name a few) determine that the age of 13 is the age from which a person has all the privileges needed for the management of his account when the age of majority is 18 or 21, but not 13? Family Link, provided by Google, is an application that allows you to add parental controls to a Google account to block access to websites and applications with mature content. However, it is indicated that it is not possible to monitor the account belonging to a person aged 13 and over. Ironically, it is not possible for a person under 13 to create an account. It is also indicated that the account of a person that is monitored by Family Link will be automatically removed from monitoring as soon as the person reaches the age of 13! According to Google, no parental control is possible with a child of 13 and over. I agree that a child must be given more and more autonomy up to the age of majority but I wish to keep an eye on my child's digital behaviors to prevent dangerous situations he could put himself in, and to educate him on a few topics. I know that there are other ways to install parental controls, but I nevertheless ask myself the question why, according to Google (and Facebook, tik tok, etc.), can a minor person have the same privileges as a person of legal age regarding access to inappropriate content? | Children/youths are allowed to make some decisions themselves even before becoming adults. In the US, COPPA has privacy protections for children under the age of 13. This means that many US-based or US-oriented online services refuse to provide services to people younger than 13. The terms of service often include language to the effect that no part of the service is intended to children under 13. In the EU, the GDPR lets member states pick a cutoff age between 13 and 16 years. Children below this age cannot give consent themselves. However, this is a very narrow condition as consent isn't generally needed to use a website (cookie consent banners are extremely common though). For example, Stack Exchange bans under 13 year olds, and under 16 year olds in the EU: 3. Age Eligibility You must be at least 13 years old to access or use the Network or Services, including without limitation to complete a Stack Overflow account registration. By accessing or using the Services or the Network in any manner, you represent and warrant that you are at least 13 years of age. If you are under 13 years old, you may not, under any circumstances or for any reason, access or use the Services or Network in any manner, and may not provide any personal information to or on the Services or Network (including, for example, a name, address, telephone number or email address). If you are located within the European Union, you must be at least 16 years old to access or use the Network or Services, including without limitation to complete a Stack Overflow Account Registration. By accessing or using the Services or the Network in any manner, you represent and warrant that you are at least 16 years of age. If you are under 16 years old, you may not, under any circumstances or for any reason, access or use the Services or Network in any manner, and may not provide any personal information to or on the Services or Network (including, for example, a name, address, telephone number or email address). Source: Public Network Terms of Service These age limits are solely related to privacy laws. This is not about whether the child has legal competency to enter into contracts, or about your rights as a parent to supervise the development of your children. As a matter of internal policy, but in respect of this legal landscape, many parental control/surveillance software tools limit the available degree of control/surveillance as the children become older. While this may not be required in your particular jurisdiction, software providers are often interested in applying uniform policies across multiple jurisdictions. | I guess you are interpreting the answer of the officer the wrong way. Minors do have rights. Plenty of them. But using a phone to contact people their legal guardian does not approve, or to consume media their legal guardian does not approve, is usually not a right minors have. And to make those restrictions stick, your mother took your phone away. Ask for it on your 18th birthday. But when one of you has called the police on a family situation like this, both of you have a problem that goes way beyond property rights. Do you have an adult you can talk to? A teacher? An uncle or aunt? A coach? Try talking to them. If they all side with your mother, consider that she might be right and you are wrong. But often both sides talk themselves into a corner, and a neutral viewpoint helps. If you are truly desperate about your situation, call Child Protective Services. But that could backfire if they believe your mother, and make the family situation worse. Taking a phone away is not neglect or abuse. | "As we know non-adults aren't allow to carry weapons" This is not something that we know or an obvious point. It is also not obvious that a knife would qualify as a weapon for these purposes. This would not be true in most jurisdictions in the world. I have no idea what knife control laws look like in China or Taiwan. A reference to why you think that this is the case would be helpful. Even if there are laws banning possession of knives (i.e. carrying knives) when one is in public for use as a weapon, it would be very surprising to me if teens weren't allowed to possess knives in a kitchen, or a work site where a knife was a necessary tool. It would similarly surprise me if a teen working on a knife design in a craftsman's workshop would be illegal. What makes you think that any of these things are illegal in China or Taiwan? This might have been illegal in Japan in the 1600s when metal blades were highly regulated (this is one of the reasons that most Japanese food is served with portions pre-cut to be bite sized), but I very much doubt that teen possession of knives for practical purposes is illegal in any of those places today. There is also, in general, nothing wrong with factories run by adults making knifes from other people's designs. They do that all the time and it wouldn't be illegal to do so just because the designer wasn't allowed to use the product of the factory in public. I would be surprised if a factory even asked how old the designer was, particularly if he was operating through a company formed for him (something an adult might have to do). The harder question would be whether the teen can enter into an enforceable and valid contract with a factory without having the co-signature of a parent or guardian. Many countries don't allow this so that the teen is not exploited into agreeing to a big contract on unfair terms. Also, many countries make a distinction between criminal acts committed by adults and the same acts committed by minors. A teen, particularly a young teen, may be under the relevant law, capable of only engaging in juvenile delinquency, rather than an adult felony. But, again, I don't know how this is handled in Taiwan or China. In general, the legal system in Taiwan strongly resembles that of the legal systems in Continental Europe not long after World War II (i.e. in the 1940s), with its own local developments since then. But, China's legal system is quite unique and is not very similar to the common law legal systems of England and former or current English colonies, or the civil law legal system of Continental Europe (or for that matter, Islamic law). China's legal system is different at the level of very deep concepts of legal process, of what is and isn't law, and of many core legal concepts. It also has piecemeal bits that are imposed by treaty even though they are not organically natural fits with the rest of the Chinese legal system (e.g. its intellectual property laws). | The First Amendement of the United States Constitution protects the right of an individual's freedom of association from government interference as one of the five protections in the First Amendment. Association generally means your ability to keep your own company, be it friendship, business associations, romantic partners, and online buddies. There is no criminal liability for not having an association with someone and I would be weary that the second person who contacted you is not necessarily who they say you are. While there is a case of possible illegality in which a girl's interaction led to her boyfriend's suicide, this was an active case of egging on the boy's suicide while she was aware of his suicidal state of mind and the case is currently being appealed on the grounds of violating the girl's first amendment right to Free Speech and is hardly case law for the entire nation as a whole. Not legal advice, but block the partner of the guy you blocked and anyone claiming any association with the guy. Assume it's all the same guy. | 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. | I think that one cannot answer a question such as "Will the personal use exception in the GDPR apply to personal blogs?", because it is unclear if you refer to: personal information published on the blog pages personal information collected from the Website, by way of forms, cookies, server logs, strictly collected and processed for the purpose of operating the Website for your own personal purposes as a blogger (by yourself of through a subcontractor in the sense of GDPR) and not personal information collected from the Website's operation, transferred or provided to third parties for their own purposes (this would include cookies used to identify and track users across multiple domains) Regarding 1., a personal blog wanting to benefit from the exemption should not publish third party's personal information without their consent or another legal basis, and C-101/01 certainly applies here. About 2., if the information is strictly collected and used for the own personal purpose of the operation of the blog, I would tend to agree that it should benefit from the exemption. I feel that C-212/13 would not necessarily be an indication that because the blog is publicly accessible it is then "directed outwards from the private setting" in the sense of this ruling, and should not be considered as "purely ‘personal or household’ activity". C-212/13 case was relating to a camera installed by an individual on his family home for its own security purposes which was also monitoring a public space. The persons filmed on this public space had absolutely no direct connexion with the person collecting their images. In case of a blog, the visitors of the blog interact with the blog for fulfilling the own personal purpose of the operation of the blog of the publisher of the blog. Another argument is given by the Recital 18 which you quote: a personal blog can be viewed as a type of social networking or related online activity. Finally, about 3., there is no doubt for me that, in this case, the publisher of the blog is engaged in an activity which is not personal, since it willingly provides personal information to third parties which they use for their own purposes (and not as subcontractors in the sense of GDPR). There may be other approaches apart from these 3, but that's a start for your considerations. | The GDPR's right to erasure just applies in some specific situations. While messages you wrote on Slack are personal data, they are generally also part of a larger discussion with others. If your messages are removed, the discussion becomes incomplete, so that will violate the freedom of expression of those others. Art. 17(3) GDPR provides an exception for the right of erasure in such cases. So basically, whoever is the controller, you probably don't have the right to have your messages to be deleted. However, you would have the right to have your account pseudonymized like Slack replied in the Reddit post you linked to. See also my answer in "Does a user have the right to request their forum posts deleted?". Basically, it is correct that Slack can be just the processor. Even if the controller cannot get access to more than 10000 messages unless they pay. However, Slack is not allowed to do anything with those messages, except when the controller says so. In its Privacy Policy, Slack distinguishes between customer data and other data. It states to be the processor for the customer data, but controller for the other data. Because those are tied together, I am not sure this distinction can be made. If not, Slack and the customer will be joint controllers, but it requires probably a court case to decide on that. For example, the Court of Justice of the European Union has ruled (in the Fashion ID case) that putting a Facebook "like" button on your website, makes you a joint controller together with Facebook. And (in the Wirtschaftsakademie case) that also creating a Facebook "fan" page makes you a joint controller. But neither of those are very similar to the situation with Slack. | "Age of consent" is a legal meme that refers indirectly to different criminal statutes, for example in Missouri under MO Rev Stat § 566.034, A person commits the offense of statutory rape in the second degree if being twenty-one years of age or older, he or she has sexual intercourse with another person who is less than seventeen years of age §023 also states that "It shall be an affirmative defense to prosecutions under sections 566.032, 566.034, 566.062, 566.064, and 566.071, that the defendant was married to the victim at the time of the offense". MO Rev Stat §451.090 allows marriage with parental permission to those aged 16 and 17 (by prohibiting licensing of marriage to those younger) No recorder shall issue a license authorizing the marriage of any male or female under sixteen years of age nor shall a license be issued authorizing the marriage of any male or female twenty-one years of age or older to a male or female under eighteen years of age. Combining these legal parts, you get the result that a man may marry and impregnate a woman whom he could not legally have intercourse with (irrespective of pregnancy) were they not married. It just depends on what the specific law says. |
Is it legal to not have a surname in Wisconsin? Is it legal to not have a surname in Wisconsin? Note that I am not American and have no clue where to start looking for the answer. I met someone who claims she doesn't have a surname (her parents and siblings all have surnames, her story is that her parents made an exception for her and didn't give her a surname). | It is technically legal, but enforcement of such legality would face insurmountable difficulties without a compelling commercial interest. Legality A George Washington Law Review article states that An influential 1979 law review article concluded that when parents agree, they “should have the freedom to give their children any reasonable surname.” Courts could disallow “a surname chosen for a child by his parents if it were so outrageous or obscene that it was clearly not in the child’s best interests to bear the surname.” But terms like “reasonable” and “outrageous” are highly subjective and give little guidance to courts on what factors to take into account. The most relevant bodies of constitutional doctrine are substantive due process jurisprudence under the Fourteenth Amendment and free speech jurisprudence under the First Amendment. This Part develops the arguments for a parental naming right under both bodies of law, and concludes that strict scrutiny is the relevant standard for analyzing restrictions on that right. It further concludes that current laws prohibiting certain surnames and laws prohibiting diacritical marks are unconstitutional, as they are not narrowly tailored to serve a compelling state interest. Laws against obscenities, ideograms and pictograms, and certain length restrictions pass strict scrutiny, as do requirements that the child receive at least two names. Meaning that in the absence of a state law prohibiting a certain naming convention, anything goes. But states have the power to pass laws to narrowly define what kinds of names are contrary to "compelling state interest." A review of relevant history and laws, applicable to change of surname in a divorce in Wisconsin, concluded that, because of Jocius v Jocius, "child's best interest" is not a standard available to Wisconsin courts to empower the courts to force a change of a child's name contrary to parents' wishes. Such legislation can be passed, but it hasn't been. Impracticality However, some of costs associated with having a blank last name would be: obtaining insurance having any medical procedures registering for school getting a library card and many, many more. In fact, the last two are currently technically impossible because Wisconsin Department of Public Instruction demands that "first and last name are required." It is likely that overcoming the confusion resulting from not having a last name would turn most daily life activities into something that would require a letter from an attorney, or even a court order. Without a substantial commercial gain from this arrangement, this would be an experiment with an unjustified prohibitive cost. Lighter side The day-to-day difficulties resulting from the absurdities of such an experiment could be easily developed into a plot for a comedy. Personally, I was imagining a few potential South Park plot lines while trying to think through the implications of this arrangement. The likely outcome, of not having a real last name, would be that many clerks would end up simply making them up for such an individual, in order to accommodate their computer systems. And hilarity would undoubtedly ensue. Edit while I appreciate the "+1"-for-the-effort gesture of the upvotes, I am actually surprised that this answer has gotten as many upvotes as it has. I would gladly delete it if a better referenced answer, with more specific information, came along. I wrote this mostly to list the references which I found. The conclusion which I draw here is what I personally have been able to deduce from those references. So, please, stop upvoting. This is not a high-quality answer. And the fact that the answer is looking like it may very well be "yes" makes this an interesting question, that deserves a better answer. | No, in germany there is no universal requirement as to form (Formfreiheit). This includes associating a signature with a name in block letters. In principle you can enforce a contract in court even if the written contract does not identify the contracting parties by spelled out name, but by signature only. It stands to reason there is no benefit in omitting the full names. The legislature implemented elevated form requirements for certain legal transactions by mandating the use of a notary. Here, again, there is no requirement as to put a plain text name next to your signature. The link between signature and person is established via the notary’s documentation. You could put an alias “Donald Duck” next to your signature, the notarial deed will indicate that in fact Kalle Richter signed the document. As far as I am aware all european-union legal transactions will need to go through their official channels. It is simply not possible, for example, to establish a European Economic Interest Grouping on a scrap of paper. Thus there is no issue and in turn no regulation. One thing is for sure, the european-union does not impose a “minimum framework” on its member states. I recollect there are some directives regarding electronic signatures, but that is a different story now. | In CA, with no papers given to you, there is no ticket. You are required to sign the ticket, which you obviously did not do. | 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! | The general story is that one state does not have jurisdiction over an act carried out in another state. The Wiki on state gun laws claims that ownership in Illinois requires a permit, but the law is here, and in fact the law addresses possession and acquisition, but not ownership, for example 430 ILCS 65/2: No person may acquire or possess firearm ammunition within this State without having in his or her possession a Firearm Owner's Identification Card previously issued in his or her name by the Department of State Police under the provisions of this Act It is legally immaterial that the word "Owner" is in the name of the card. It is likewise claimed that Massachusetts requires a license to own a gun, but from what I can tell the requirements pertain to licenses to possess or purchase, and not just to own. So there seems to be no impediment to actual ownership in the US. | The "right to be forgotten" is not absolute. It is subject (Art. 17) to certain conditions, in particular the absence of "overriding legitimate grounds for the processing" (1(c)). 3(b) explicitly exempts data controllers from the erasure where needed "for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject". I can even imagine a former employee first claiming his right to be forgotten, and then - a week after getting the confirmation - claiming his right to receive a resumee (a right in existense in Germany), which a company would not be able to fulfill as it hasnt got any data to base the resumee on. If the "right to receive a resumee" indeed exists in Germany and employers need to comply with it, that would be perfectly legitimate ground to only partially fulfil the request to be forgotten — forget everything but the resume. Is it against the law to document these cases? If you document "On 27 February 2020 John Smith requested to be forgotten so we deleted or anonymised all his records", you will effectively NOT forget him. If you actually had to forget him, it will therefore be against the law to document your forgetting that way. | It is like an affidavit of sort, sworn out without the jurat and not before a notary. The swearing out of a complaint or rebutting evidence in all Federal civil matters (some states allow for the same) must contain an affidavit or an "unsworn declaration" that swears out the facts to be true and accurate, even though not notarized, and is based on fact and not supposition. It is subject to the same penalties of perjury if one lies as if you swear on a bible and testify in court or on a "sworn" affidavit. Affidavits need not be sworn before God, or on a bible. You have a right to just "affirm" that you will tell the truth, the whole truth, and nothing but the truth....and not "so help me God". Many courts don't use a bible at all anymore. 28 U.S.C. 1746 relates to these "Unsworn Declarations Under Penalty Of Perjury" It is not b/c you don't believe in God that you'd use this...you always have the option of swearing out even a declared affidavit or testifying without swearing on a bible if you're an atheist. They just leave out the "before God" part. Affidavits are the norm, however, in Federal Courts that have an expedited docket this is typically used when it could take a while to get a notary and the evidence is due. (In some states lawyers are automatically notaries but in others they aren't). The ability to swear out a complaint or contest a deposition without having to wait on a notary can be the difference between making your deadline or not. It's commonly used when records custodians are called to certify the authenticity of documents produced pursuant to subpoena or other formal request. Under F.R.Civ.P 56 declarations usually are not within the type of evidentiary categories that can be used at the summary judgment phase. If it's a small misstatement you would probably be faced with a fine. If it's a total lie, outright, you'd be looking at jail time (say a records custodian removed evidence and swore out it was the complete business record in a fraud case). 18 U.S. Code § 1621 discusses perjury generally (in federal actions). | If you aren't publicly registering a trade name you are probably engaged in illegal conduct. Among other things, by doing this, you are effectively hiding yourself from any lawsuits arising from the business that accurately name the defendant. You can have a business mascot or trade name, but you have to disclose that this is what it is and provide a means by which a reasonable person who needs to sue you could properly identify you. |
Canary Wharf - privately owned public space - is it possible to be banned from entering the area? Canary Wharf in London is a privately owned public space. So far I have been found guilty of walking on a grass and jumping on a stone wall (part of a workout routine). I'm concerned that sooner or later my attitude don't give a f•••ism will get me banned from the area. I don't the current abilities of the mass surveillance but I could potentially circumvent that with baseball cap and pollution mask. Jokes aside: do they - http://group.canarywharf.com/about-us/ - have authority over a sovereign man? what if it is their private land? what if it is a public space on their private land? what exactly their private security is entitled to do? Below attaching screenshot from Google search - some people get frustrated. Before I cross the line I would like to know exactly what my options are. | Let's deal with the somewhat misguided notion of "public space": what it means and what it doesn't: "publicly owned" is not equivalent to "public space" - No 10 Downing Street is "publicly owned"; it is not "public space". "privately owned" can be "public space" - the publically accessible parts of shopping malls are privately owned public spaces. "public space" does not mean you have unconditional access. Access may be limited or subject to restrictions placed on it by whoever has lawful authority over it. For example, the aforementioned shopping mall is not public when the mall is closed, roads may be closed for maintenance, street festivities or emergencies etc. So, people with legal authority over the space can restrict or ban your access if, for example, you repeatedly flaunt the rules that they impose on the space. Their private security can request that you leave. If you refuse, you are trespassing and subject to arrest, either by security as a citizens arrest or by the police. | Not "illegal", but rather a "civil wrong" instead as this sounds like a (minor) case of Trespass to Chattels, being: ...an intentional interference with another person's lawful possession of a personal property. A "chattel" refers to any personal property, moving or unmoving. Trespass to chattels does not apply to real property or any interest in land. In order to prove trespass to chattels, you are required to show the following elements: Intent to trespass: Merely intending to do the act is enough to show this element of trespass. You don't necessarily need to show intent to harm a specific person. Lack of owner's consent: There must be an unauthorized, unlawful interference, which means the person interfered with or dispossessed the chattel without the owner's permission. Interference of chattels: A person commits a trespass to chattel by (1) dispossessing another of the chattel, (2) using or intermeddling with a chattel in the possession of another, or (3) damaging the chattel. Interference does include dispossession of a chattel, but it must be something short of conversion. Whether it would be actionable is another question as de minimis non curat lex Although the above link is from an American site, it mirrors the UK definition and is the best and most succinct explanation I can find | States can, and some states do, have "mini-Sherman" anti-trust laws of their own. Whether a city could have such a law would depend on whether the state had delegated that power to cities. I haven't heard of a city that has such a law, but I haven't really looked. Or if a state has a "mini-Sherman" law, a city could perhaps bring action under such a law, depending on its exact terms. Or a city could impose a licensing scheme on a specific industry that also prevented a monopoly, similar to the requirements that many cities and towns place on taxicabs, or on bars. Both of those typically limit the number of units that a single entity may own. So perhaps it could be done for parking. | It seems to me that some commentators/articles have inadvertently conflated different legislation and a recent event involving the seizure of equipment from protester Steve Bray in Parliament Square. Some articles about Steve Bray have named or otherwise referred to the Police, Crime, Sentencing and Courts Act 2022 without an explanation of any link between that person and this law - to me there is no link in the context of Bray's equipment seizure (the police may have mentioned other newer powers to Bray). Among other things, section 143 of the Police Reform and Social Responsibility Act 2011 (as amended) explicitly prohibits the unauthorised use of "amplified noise equipment" (including but not limited to loudspeakers and loudhailers) within Parliament Square and (the amendment) "the Palace of Westminster controlled area". Westminster Council provides a map in pdf format of the respective areas: Appendix to Protocol for enforcement of provisions in relation to noise nuisance in the vicinity of Parliament. Before the PRSRA 2011, sections 137 and 138 of the Serious Organised Crime and Police Act 2005 gave the Home Secretary the power to prohibit the unauthorised use of "loudspeakers" in "designated areas" no more than one kilometre around Parliament Square. Part 3 of the Police, Crime, Sentencing and Courts Act 2022 amends the Public Order Act 1986 in relation to "public processions and public assemblies", including clauses related to "noise". Section 78 of the Police, Crime, Sentencing and Courts Act 2022 abolished the common law offence of public nuisance and created the statutory offence of "intentionally or recklessly causing public nuisance". This more recent legislation has been criticised in relation to protests generally (not solely those that involve megaphones), e.g. by the Joint Committee on Human Rights its witnesses in their scrutiny of the-then Bill. Quote: The Bill introduces a new statutory offence of “intentionally or recklessly causing public nuisance” which was previously an offence at common law. There is a wide range of non-violent conduct that may be caught by the statutory offence, which potentially criminalises some forms of peaceful protest. The offence carries a maximum sentence of 12 months if tried summarily and 10 years if tried on indictment. A person can also be issued with a fine.77 A number of our witnesses raised concerns about the impact of these changes and its compatibility with Articles 10 and 11 of the ECHR. We share some of those concerns. In summary the explicit prohibition of "amplified noise equipment" is limited to Parliament Square and "the Palace of Westminster controlled area" but one can easily imagine the police claiming that a protester's use of a megaphone is a public nuisance. | The main restrictions that affect protests are set out in the Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 (NSW). Clause 20 of that order requires "affected persons" (basically everyone in Sydney and lockdown areas in regional NSW) to not leave their homes other than for permitted reasons. The 5-10 km boundary applies to prohibit people from travelling outside the boundary for outdoor exercise or obtaining goods and services (both permitted reasons to leave home). So in relation to the scenarios listed, if conducted in Sydney or other lockdown areas: 1-3 would not be prohibited 4 would be prohibited if "outside your house" is outside your place of residence, as protesting is not a permitted reason 5 and 6 would be prohibited as protesting is not a permitted reason | In most states or localities "loitering " has a specific statutory meaning. For example in Prince Georges County. MD Section 14-139.03 provides: (a) In this Section, "loiter" means for a person to: (1) Remain on a public street, sidewalk, or pathway, including one privately-owned but used by the public in general, so as to obstruct the free passage of a pedestrian or vehicle after a regular or special police officer has notified the person that the action is unlawful and has requested the person to move; (2) Remain in or on a vehicle on a public street, sidewalk, or pathway, including one privately-owned but used by the public in general, so as to obstruct the free passage of a pedestrian or vehicle after a regular or special police officer has notified the person that the action is unlawful and has requested the person to move; (3) Refuse or fail to leave a private business, commercial establishment, or parking lot that is posted with conspicuous "No Loitering" signs if the business or establishment is not open for business, and the person has been requested to leave by the owner, the owner's agent, or a regular or special police officer, unless the person: (A) Has written permission from the owner, lessee, or operator to be present; or (B) Is window-shopping under conditions and at a time of the day or night that would be considered conducive to that activity; (4) Refuse or fail to leave a private business or commercial establishment that is open for business, or a parking lot of the business or establishment, after having been requested to do so by the owner or the owner's agent; (5) Refuse or fail to leave a public building, public grounds, or a public recreational area, or a parking lot of a public building, public grounds, or a public recreational area, after being requested to do so by a regular or special police officer or by a regularly employed guard, watchman, or other authorized employee of the agency or institution responsible for the public building, public grounds, recreational area, or parking lot if the circumstances indicate that the person has no apparent lawful business or purpose to pursue at that place; (and so on) I do find that at one time New York state (and some other states) had an "anti-loafing law" which required all men between the ages of 18 and 50 to be “habitually and regularly engaged in some lawful, useful, and recognized business, profession, occupation, trade, or employment until the termination of the war.” This was passed during World War I (1918) and the then NY Governor said: The purpose … is to force every able-bodied male person within the State to do his share toward remedying the conditions due to the present shortage of labor. This is confirmed at https://andrewchernoff.wordpress.com/tag/anti-loafing-laws/ I don't know if it was ever challenged on constitutional grounds. Other than that, I cannot find any published law defining loafing. | Important story, but BoingBoing also doubts the BBC's wording. It could be an attempted summary of a previous story on BBC Newsnight on 18 July: Lord Porter of Spalding, a former bricklayer, alleged corporations were running tests on the safety of their high-rise building materials but refusing to share the results. Releasing the results could allow residents and local authorities to know if their buildings are at risk of a fire following the Grenfell catastrophe which claimed the lives of at least 80 people. There Lord Porter was talking about results commissioned by private companies including manufacturers, where the labs wouldn't provide information because of 'intellectual property rights' of the client, or presumably commercial confidentiality. Under these situations, it is said the private concerns have no obligation to disclose. If this is what the BBC story was referring to, then at least investigations by government or third parties wanting to reveal characteristics of the products wouldn't have a copyright (or patent etc) problem. | According to this press release, Toronto is "stepping up enforcement" of its leash by-law. You should call 311 to report violations: http://www.toronto.ca/311/knowledgebase/29/101000050429.html You can find more information here: http://www.toronto.ca/311/knowledgebase/47/101000050447.html http://www1.toronto.ca/wps/portal/contentonly?vgnextoid=b6c9dada600f0410VgnVCM10000071d60f89RCRD You can find a list of areas where dogs are permitted to be unleashed here: http://www1.toronto.ca/wps/portal/contentonly?vgnextoid=5a81dada600f0410VgnVCM10000071d60f89RCRD&vgnextchannel=b6c9dada600f0410VgnVCM10000071d60f89RCRD I note, however, that the press release says that "A dog is considered running at large if it is unleashed, off its owner's property and not under its owner's control." Reading this strictly, where all three conditions must be met, a dog owner is permitted to unleash a dog if it is still possible for the owner to control the dog. I don't know how the courts have interpreted this, but it could certainly be interpreted very widely. |
Can I rebrand my own car? I know full well that rebranding goods for sale without an agreement with trademark owners is illegal. But what about goods I own? Can I for instance remove a logo from my car and put on a different one, assuming that I don't try to sell it to anyone and in general don't try to pass it for a different brand where it would matter? For instance, I'm still going to communicate the correct brand to the authorities, insurance companies, etc. Are cars special w.r.t branding, or do the same rules apply to other goods as well, such as cellphones? And if it's not allowed, which part exactly is illegal, removing the original logo or installing a different one? Car stickers which imitate logos seems to be allowed, e.g. | One can certainly remove a trademark from an item that one owns, whether it be a car, cell phone, blender, or computer. Using some other firm's mark would not be trademark infringement if one did not try to sell the item. If the logo was complex enough to be protectable by copyright, copying it might be copyright infringement, but for such personal use it might fall under an exception to copyright, depending on the country. In any case a copyright infringement suit in such a case seems unlikely. For a car, registration is generally required, and must accurately specify the make and model. The same is true for insurance coverage, a falsely stated make or model would be fraud. If one were to sell the "rebranded" item, one would have to make the situation clear to any potential buyer, otherwise this might be some form of fraud. | Why do you think Oracle have not been protecting their trade mark? Using a trade mark to describe the product (“Written in JavaScript”, “Seeking JavaScript developer”) is not an infringement and the trade mark owner is under no obligation to, indeed, cannot stop this. Where they are required to defend their trade mark is when it is being used in such a way that there is the risk of confusion that the goods or services could be confused with the trade mark owner’s goods or services. Further, they are not required to defend all breaches, only enough to show that they are actively doing so. Also it is not important that the trade mark be associated with the trade mark’s owner. Do you know who owns the trade mark “Ben & Jerry’s”? | No, this is not true. Copyright can be enforced selectively. You are confusing copyright with trademark. Company can lose its trademark if they aren't protecting it. All the meanwhile they can choose to ignore some copyright infringement while enforcing their rights on others with no legal problems what-so-ever. In order to illustrate the difference: for example, if someone would make a clone of Super Mario and would call their clone as well "Super Mario" and maybe even would call themselves "Nintendo", even if they have programmed the whole game by themselves from scratch and the art and music would be all different, they wouldn't be infringing the copyright but challenging protected trademarks. In your case, the naming was identical, the art and everything was too similar to the original and therefore the clone was challenging the trademark that needs constant protecting. | 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. | Reviewing https://stackexchange.com/legal/trademark-guidance shows the following: The logos associated with Stack Exchange Inc. and any Stack Exchange site are a trademark. The purpose of trademark law is to prevent consumers from being misled as to the origin of a product. So if you were making a product, and you used a Stack Exchange name or logo in your product (or in its advertising) in such a way that would mislead someone into thinking that your product was owned by, operated by, endorsed by, or in any way part of Stack Exchange Inc., you would be violating the trademark and this would not be legal. Our logo images and site names are copyrighted. Any content on the Stack Exchange Network not contributed by users is copyrighted. Copyright is different than trademark. Ordinarily you couldn't copy it. But if you were writing a news story or blog post about a Stack Exchange site, reproducing the logo image would almost certainly be considered "fair use" and allowed under trademark law because you were not using it "in trade." So the answer to your question is yes, you would need to seek the permission of the trademark holder. | You infringe a trademark when you use it in a way that allows confusion between your goods and services and their goods and services. Trademarks are limited by geography (although global brands are ... global) and industry. You can use the word “apple” to sell, say, apples or plumbing services, but not computers or consumer electronics. You can also use the trademark Apple to identify goods and services made by Apple - because that’s what a trademark is for. You can’t use it in a way that people could be confused that your goods and services are their goods and services or are related to or endorsed by them. | Yes. You can build your business with that. Yes. Also, a trademark is not a trade name and vice versa. This is a common mistake. A trademark is a brand affixed to some kind of product. A trade name is the name of a business. They are not the same things. The fact that you have a business with a particular trade name does not mean that you necessarily have a trademark in that name. You do not necessarily need to have a trademark in your trade name and often you can't because it is not a branding of your product. Probably not. Certainly, you cannot get a principle register trademark for this. You could file a state trademark registration if you sell it in a U.S. second or perhaps a supplemental trademark registration, which don't necessarily give you legal rights, but do conclusively establish that you were using the mark in a particular place from a particular time which would discourage anyone else from trying to get a trademark of their own and oust you from using yours. Sometimes trademark examiners are lazy and let generic marks get registered even though they shouldn't. Hard to say. They shouldn't be able to get a trademark in the U.S. on that basis, but the quality of trademark examination varies from country to country, and from examiner to examiner. Every once in a while I see an approved registration for a mark that should totally be disqualified and I shrug my shoulders and ask myself why I always clear a clear "no" from the PTO when I try to submit a mark like that and somehow the bozo who submitted that mark got it approved when it should be clearly ineligible for registration - for example, "Palisade Red" for red wine made in Palisade, Colorado. A lesser level of trademark registration such as a state trademark or a supplemental register mark discourages an otherwise lenient examiner from approving an already dubious mark and strengthen your case if you ever need to seek to have their mark cancelled. | As you have agreed, by contract, not to reverse engineer the product, technically it would be a "breach of contract" to do so, assuming such terms are enforceable where you live (or wherever the EULA selects as the choice of forum). |
Irish citizenship revoked if I live abroad after naturalization? I have been searching about Irish naturalization requirements on the internet since quite some time and I see all the usual requirements: 5 years residence, Good character, Attend a citizenship ceremony and make the declaration of fidelity etc.., where one additional requirement was Intention to reside in Ireland after citizenship is granted. Now look at this page which mentions this: Residing Outside of Ireland After the Grant of Citizenship When a person submits their application for Irish citizenship, they are asked if they intend to have their usual place of residence in Ireland following naturalisation and the answer to this is always yes. There are occasions where people’s circumstances change which results in them leaving Ireland, for example due to offers of employment or family circumstances. Under the Irish Nationality and Citizenship Act 1956 as amended, the Minister for Justice has the power to revoke a certificate of naturalisation where an individual has been ordinarily resident outside of the State for seven years unless they have registered their intention to retain their Irish citizenship. This is done by submitting a Form 5 (Form CTZ2) Declaration of Intention to retain Irish citizenship by a naturalised Irish citizen residing outside of Ireland. The Form 5 (Form CTZ2) Declaration of Intention, Version 6 Jan 20 must be lodged with the INIS, or with the nearest Irish Embassy or Consular Office to a person’s location. We strongly advise all naturalised Irish citizens to file the Form 5 if ordinary resident outside of Ireland to ensure that they retain their Irish citizenship. It is about the "intention to retain Irish citizenship" if a naturalized person has resided abroad (outside Ireland) for 7 years. If they still want to keep their naturalized Irish status, they have to fill this form so that Ireland does not assume that they no longer wish to retain it. Most countries require residence beforehand. Some require it afterwards. The US used to require this, but that is no longer the case now. Germany does not. Ireland does, but here it seems that a naturalized person can anyway live abroad for periods longer than 7 years just by filling that form (that basically declares the intention to RETAIN citizenship). Based on Irish law, specifically the Irish Nationality and Citizenship Act 1956, can I live abroad after naturalizing as an Irish citizen and retain my citizenship just by filling that form? Will Ireland revoke my citizenship on the basis that I left Ireland after I naturalized (while "intention to live in Ireland" was a requirement for naturalization)? If it were a country like UK or New Zealand, it would straightaway revoke citizenship by claiming misrepresentation of the intention to reside. Does Irish law require me to reside compulsorily in Ireland after naturalization? | Based on Irish law, specifically the Irish Nationality and Citizenship Act 1956, can I live abroad after naturalizing as an Irish citizen and retain my citizenship just by filling that form? Yes, subject of course to factual disputes. The statute (as amended) provides that this revocation is not possible when the citizen has "registered annually in the prescribed manner his name and a declaration of his intention to retain Irish citizenship with an Irish diplomatic mission or consular office or with the Minister": Revocation of certificates of naturalisation. 19.—(1) The Minister may revoke a certificate of naturalisation if he is satisfied— (a) that the issue of the certificate was procured by fraud, misrepresentation whether innocent or fraudulent, or concealment of material facts or circumstances, or (b) that the person to whom it was granted has, by any overt act, shown himself to have failed in his duty of fidelity to the nation and loyalty to the State, or (c) that (except in the case of a certificate of naturalisation which is issued to a person of Irish descent or associations) the person to whom it is granted has been ordinarily resident outside the State or, in the case of an application for a certificate of naturalisation granted under section 15A, resident outside the island of Ireland (otherwise than in the public service) for a continuous period of seven years and without reasonable excuse has not during that period registered annually in the prescribed manner his name and a declaration of his intention to retain Irish citizenship with an Irish diplomatic mission or consular office or with the Minister, or (d) that the person to whom it is granted is also, under the law of a country at war with the State, a citizen of that country, or (e) that the person to whom it is granted has by any voluntary act, other than marriage or entry into a civil partnership, acquired another citizenship. To be precise, filing this declaration does not protect the citizen from revocation of naturalization under another subsection of section 19(1). But if we assume that the annual declarations were all filed promptly (or that there is a reasonable excuse for any failure to file promptly), and that there is no dispute about this, then it is plain from the statutory text that the minister has no discretion to revoke the certificate of naturalization under 19(1)(c). If it were a country like UK or New Zealand, it would straightaway revoke citizenship by claiming misrepresentation of the intention to reside. This is not necessarily true. If there is a reason for the decision to leave, the naturalized citizen could seek to rebut any presumption that there had been misrepresentation. In the case of Ireland, filing the annual declaration does not protect the naturalized citizen from denaturalization under 19(1)(a), so even if the declarations are filed, it could be necessary to show evidence that there was a genuine intention to reside in Ireland at the time of naturalization, and that the intention changed subsequently. If that intention did not in fact exist, then the minister could assert that the certificate had been obtained by fraud, and if the naturalized citizen is unable to rebut that assertion, the minister could revoke the certificate under 19(1)(a). Also see Part IV of the statute for other ways in which Irish citizenship may be lost. In practice, I don't think it is presently very common for countries that generally tolerate (or explicitly permit) multiple nationalities, such as Ireland, the UK, and New Zealand, to seek to denaturalize their naturalized citizens who move abroad. Denaturalization seems to be largely confined to politically sensational cases such as those of terrorists. Since Ireland is a party to the Convention on the Reduction of Statelessness, one way to protect your Irish citizenship may be to renounce your other citizenship(s), if that is possible. However, I do not see any related provisions in the 1956 act linked above. | The document may, but probably doesn't say what it is you are witnessing. For example, a person witnessing a statutory declaration in NSW attests: their qualification to be a witness (JP, solicitor etc.) that they actually saw the declarant sign it that they asked the declarant if they believed their declaration was true that they have known the declarant for more than 12 months OR the declarant provided a photo ID and either their face matched the photo or they had a valid reason for not showing their face. If it doesn't say then what you are witnessing is that the signature was made by a person whom you could identify if necessary (e.g. if the person denied the signature). | Being automaticly citizens of the US and Uruguay, causes no problem with your German citizenship. For Uruguay, you are appling for recognition of your citizenship at birth as a grandchild of a Uruguayan citizen. Only when you, as an adult, apply for nationisation (i.e. that country considers you to be a foreigner at the time of the application) would you lose your German citizenship automaticly when this application has been granted, unless you apply for an exception beforhand. Such an exception would only be granted when you can prove that you still have strong ties to Germany. | It is like an affidavit of sort, sworn out without the jurat and not before a notary. The swearing out of a complaint or rebutting evidence in all Federal civil matters (some states allow for the same) must contain an affidavit or an "unsworn declaration" that swears out the facts to be true and accurate, even though not notarized, and is based on fact and not supposition. It is subject to the same penalties of perjury if one lies as if you swear on a bible and testify in court or on a "sworn" affidavit. Affidavits need not be sworn before God, or on a bible. You have a right to just "affirm" that you will tell the truth, the whole truth, and nothing but the truth....and not "so help me God". Many courts don't use a bible at all anymore. 28 U.S.C. 1746 relates to these "Unsworn Declarations Under Penalty Of Perjury" It is not b/c you don't believe in God that you'd use this...you always have the option of swearing out even a declared affidavit or testifying without swearing on a bible if you're an atheist. They just leave out the "before God" part. Affidavits are the norm, however, in Federal Courts that have an expedited docket this is typically used when it could take a while to get a notary and the evidence is due. (In some states lawyers are automatically notaries but in others they aren't). The ability to swear out a complaint or contest a deposition without having to wait on a notary can be the difference between making your deadline or not. It's commonly used when records custodians are called to certify the authenticity of documents produced pursuant to subpoena or other formal request. Under F.R.Civ.P 56 declarations usually are not within the type of evidentiary categories that can be used at the summary judgment phase. If it's a small misstatement you would probably be faced with a fine. If it's a total lie, outright, you'd be looking at jail time (say a records custodian removed evidence and swore out it was the complete business record in a fraud case). 18 U.S. Code § 1621 discusses perjury generally (in federal actions). | What you claim isn’t true. You can’t usually get German citizenship if you have another citizenship. You can (possibly) get German citizenship if you tried to get rid of another citizenship and failed. You still have the other citizenship, you are not stateless. It’s just that Germany would make an exception for you and allow you to have two citizenships in that case. So Germany will not consider you stateless, because it’s a fact you are not. They will consider you as someone who tried to become stateless. | The potential problem is if there is a form which you had to sign which says "I am a US citizen", and you signed the form (who reads the fine print, anyhow?). Unfortunately, that statement is false, and there are consequences for making a false statement. However, that law penalizes false statements with the intent to deceive, not mistaken statements. Nevertheless, this is a matter that a professional really needs to deal with. If there was no form and they didn't verbally ask you to assert that you are a citizen, then there is less of a problem (for you), but still one needs to be extremely cautious in dealing with the court. [Addendum] It is highly likely that the form contained wording like "swear" or "certify" and mentions "perjury", so the error would be in the ballpark of perjury. Perjury is making "a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath". Aggravated perjury is perjury which "is made during or in connection with an official proceeding and is material". The term "material" means "matters; is not inconsequential". The consequence of a non-citizen improperly serving on a jury is that a mistrial has occurred, which is not inconsequential. Aggravated felony is a third degree felony. The penal code says that An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years. (b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000. I must emphasize that an essential element is "intent to deceive and with knowledge of the statement's meaning", an element that cannot be present if there is no awareness of such a statement. Thus an innocent mistake could be legally excused. When you become aware that a statement made under oath was false (assuming such a statement was made), then in maintaining the falsehood, that would be intentional deceit. This is why it is necessary to consult with a lawyer. On the Houston form, you would have to check the "are a US citizen" box. The Fort Bend county form has you certify and sign on the front page: it does not require you to certify that you are a US citizen, only to certify (and sign) if you are not – so if you failed to read the back side, that isn't a literally false statement. I can't locate an online form for Tarrant county, so dunno if that out is available. | According to https://www.gov.uk/renounce-british-nationality/after-youve-applied: After you've applied You’ll get a ‘declaration of renunciation’ if your application is successful. This will be your application form, officially signed and stamped. The date your citizenship or status stops will be shown on the form. | There are certain requirements of Statehood according to the Montevideo Convention on Statehood of 1933, which is just a codification of international customary law: a permanent population; a defined territory; government; and capacity to enter into relations with the other states. Is it "legal" to buy a piece of land and claim it to be another country than before(either inventing a new one or migrating it to an already existing one)? According to international law, it is. Sure. But just because you say something is the case, doesn't mean it is. Always. Sometimes it is. But for present purposes, let's say that if you found an uninhabited island and said that you were a country, that wouldn't be the case - nor if you bought it from a man living on it. If you found some land that belonged to another country and decided to claim it as that of an existing country, then it would depend on the specific circumstances. That's exactly what happened to the Krim island in the Ukraine(now Russia maybe?), right? I don't think so. As far as I know, the annexation of territory isn't considered sale. In any case, the ownership of this land is still under dispute. So, if it's possible without the influence of these international institutions, trying this in an area with their influence would be easier, right? If trying this means declaring some land you have purchased to be a new sovereign state Nope. You probably still don't meet the requirements for statehood. If trying this means the acquisition of some land by an existing sovereign state Maybe. Probably not. The Montevideo Convention requires that statehood not be gained through force; while member states' interests may be greater where they are more invested, the requirements for acquisition of territory are the same no matter where you are. What would prevent me from creating my own nation? Money, defensibility, recognition, the fact that you probably don't own any land that you "buy" (depending on the jurisdiction and real estate system), the fact that you generally can't unilaterally declare yourself a sovereign state. |
How to make an indie app to "belong" to the legal company? Lets say I have a created an app that I now want to start a company for. Company will be a 1-person company who's only product will be this app. What will define that from now on the app's intellectual property belongs to the company? Is it a license agreement, website, patent, trademark or anything else? | There are basically two kinds of things one could do. One could assign or transfer intellectual property rights and contracts related to the app to the entity, or one could license the intellectual property rights to the entity. Generally speaking, in a related party transaction, everything should be in a signed writing, and a notice of the transfer of an intellectual property right that has been registered or filed with a government agency should be provided to the government agency in question. Since there are potentially copyright, patent, trademark, publicity, and contractual rights that might be associated with the app, each aspect which exists should be transferred or licensed, as the case may be. While the forms to do this aren't particular long, the concepts involved and correct terminology are subtle, so this would not be a wise undertaking to attempt on a do it yourself basis. | Contracts are a relationship between two or more people Just as it is meaningless to speak of marrying yourself, it is equally meaningless to speak of a contract with yourself. Even if you were to draft such a thing, you would not have standing to sue because you can’t sue yourself. Your example probably isn’t a “one person contract” It’s a contract between the car owner (person 1) and the car yard (person 2) - probably a corporation. The fact that person 1 is representing both parties to the contract doesn’t make it a “one person contract”. There are potential conflicts of interest with this but they are not necessarily ones that can’t be overcome. However, if the car owner runs a business as a car dealer as a sole trader, then, no, they cannot make this kind of contract. | "There is a free mp3 app from a friend who asked me to publish it in my account, which I didnt check properly." You violated Google's policies by uploading an App that you did not have full control over and/or was not developed by you. As well, the App possibly violated Google's policies in terms of violating licensing for code libraries that were included, had code included in the App that was malicious or violated privacy, or was otherwise not compliant with Google's terms. Google's policies are legal contracts which you agree to when you open an account. You reserve the right to end the contract by deleting your account. They reserve the right to end the contract when their policies are not followed. See https://play.google.com/about/developer-content-policy/ "This sudden termination comes as a shock and Google's decision seem very rude to me." You may think it is rude, but Google is fully within its rights to terminate your account because you violated their terms. It matters little that you did not get the previous warning emails from Google; you are responsible for monitoring the account email for policy updates. If you’ve reviewed the policy and feel this termination may have been in error, please reach out to our policy support team. Try that; you might attempt to explain that it was honest error on your side. | If you have an agreement with a company that specifies "you agree to give me something of value, in case I give you something of value", you have a contract. In order for there to be a contract, there has to be actual acceptance of the offer. You can put out on a web page some contract stating those terms, and if you get positive acceptance of the contract (hence the standard click-through technology), then as long as you have done the thing promised, you can bill them for doing the thing promised. It's not clear what thing of value you are offering on the web page, since it's not "doing actual work". Them sending you an email isn't you doing something. One thing you could do is block all incoming emails, and for money you agree to unblock emails from registered subscribers. Just announcing that you will bill anyone for emailing you does not create a contract, because the emailer need not have even seen your announcement. This is why e-contracts need a click-through button. It's legal to request money, but there is no legal obligation for them to comply. That will be $10, please. | 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. | You can't patent an algorithm, but I'll assume you are talking about the case where you have patented a machine or process that uses an algorithm, but that adds significantly more, and that the software being distributed implements much of this process. Courts might find an implied licence or promissory estoppel when distributing software under an open source licence that doesn't explicitly exclude patent licencing as part of its terms. It would be prudent to state your patent rights and explicitly exclude a patent licence if you intend to enforce your patent rights. As an example, this software implicates a patent , so they allow "permission to use, copy, modify, and distribute this software and its documentation for educational, research, and non-commercial" purposes. Users that want to use the software commercially need to contact the authors who also happen to be the patent owners, and I assume would negotiate a patent licence at that point. | With respect to the first question, discussing an idea in a non-encrypted email is not a publication that forfeits the right to patent an idea, even though it is not 100% secure. In the same way, talking about an idea for a patent with your patent lawyer in a secluded booth of a coffee shop in person does not constitute publication of the idea for this purpose, even if someone is secretly spying on you at the time. Since I am at the moment employed by a company, even though the idea originates from myself, it seems that I should quit my job first not to have my current company have any claim over my idea. It is possible that the contract makes even ideas that you come up with yourself while employed by the company the property of the company. If so, you are legally in the wrong and the idea belongs to the company. But, proving the reality that you are stealing the idea from the company is harder if there is nothing in writing. An email discussing an idea while you are employed would have to be disclosed in litigation with your employer over whether the patent applied for belongs to you or to your employer under an employment agreement. If you didn't put it in an email, it wouldn't exist to turn over in litigation. | The software being free and open source has no impact on whether it infringes any patents or violates any copyrights. Copyrights attach to fixed representations of creative work in a tangible medium (e.g., the actual code and graphical elements of the software in question). As long as you aren't copying the copyrighted work of someone else, you should be in the clear. So, if you write your own code from scratch, or rely on code that you're allowed to use (e.g., "free" software with a permissive license that allows it to be used freely), you should be fine. On the other hand, if you copy a chunk of code that you aren't allowed to use, and then change the variable names so that it's superficially different, you're likely violating someone's copyright. Patents are a much more difficult question. To determine whether you would infringe any patents, you would have to read the independent claims of every patent that might be related. If you perform all the steps of any one of those claims, then you are infringing that claim (and therefore, the patent in which it is found). Unfortunately, this is much easier said than done. First, it may be difficult to search for all the potentially relevant patents, and once you've found them, there may be far too many to read. Second, claims are written in a type of language that is specific to patents, and someone without experience in patent law may not understand them correctly. Finally, the terms in the claims may not take on their plain English meaning, but rather may have been defined by the language in the rest of that patent, so it's possible that you might incorrectly think you were in the clear based on a misunderstanding arising from that. All that said, it may be best to go ahead with implementing an idea and then waiting to see what happens. Chances are that the implementation will arguably infringe some patent in some way, no matter what's done. But chances are also high that there will never be any worrisome enforcement action taken against it by a patent owner, simply due to the difficulty and expense associated with enforcing patent rights. |
Is piggybacking on a licence from an artist illegal? Let's say YouTuber #1 decides to copy a song from a band. They ask and get a license from them to do a remix. Could YouTuber #2 ask for permission to copy their remix to Pitch raise it and get away with it or do they have to ask the other YouTuber AND the band? | No If YT#1 gets a license from artist A, that permits YT#1 to do whatever copying and reuse is stated in the license. It might be narrow or very broad. Usually such a license will only grant permission to the person who asked. Unless the license also grants permission to YT#2, or to some broader group which includes YT#2, YT#2 cannot claim any rights under such a license. Assuming that the license does not include him or her, YT#2 has the same rights as any member of the public would, but no more. In general, pitch raising a piece of music is a way of creating a derivative work. In the US, under 17 USC 106 one needs permission from the copyright owner to create a derivative work. Otherwise doing so is copyright infringement. The laws of other countries, and the Berne Copyright Convention have similar provisions on this point. Creating a derivative work requires permission in all countries that I know about. "Piggybacking" is not a thing in copyright law. A copyright owner can give permission (usually called a license) to any person or group of persons that the owner pleases. The permission does not extend to anyone else. This is true in all countries. I should be clear that YT#2 needs permission from both YT#1, and from A. The way the question is worded I have been assuming that YT#2 had permission from YT#1, but a comment from grovkin made it clear that I needed to be more explicit about this. It is possible for a license to permit a person to pass on the license to others. For example, all CC licenses and all copyleft and most open source licenses do this, and others could. But the license must explicitly grant such permission. The one way in which a person might create a derivative work without permission and without it being infringement is if an exception to copyright applies. In the US the main exception to copyright is fair use. See Is this copyright infringement? Is it fair use? What if I don't make any money off it? for more detail on fair use. Fair use decisions are made on a case by case basis, and generally depend on the detailed facts of the ase. But based on the limited info in the question, this would not qualify. It seems to use the whole piece of music, which tends to weigh against fair use. The new work does not seem to be transformative, that is, it seems to serve the same general purpose as the original. The new work might harm the economic value of the original, or might if many people did this. The original is creative, not factual. All of those weigh against fair use. Different countries have very different exceptions to copyright, and I do not know all of them. But the use described in the question does not seem to fit any that I know of. In any case, an exception to copyright applies to anyone, and does not depend on another person's license. It is thus never a form of "piggybacking". By the way, the question describes pitch raising ads "illegal". Making an unauthorized derivative work gives the copyright owner grounds to sue. If the owner does sue, and wins, s/he might be awarded money damages, and the court might issue an injunction ordering the infringer not to infringe again. But it would not normally be treated as a crime, and law enforcement would not be involved. In the US, only bulk copyright infringement, carried out as a business, is usually prosecuted (for example a factory churning out unauthorized music CDs). | It's not fair use. Fair use is when you do something that normally only the copyright holder can do. Playing a video game is the ordinary, intended use of the work. In the United States, ordinary use is not protected by copyright. 17 USC 106 sets out the rights protected by copyright. The include copying the work, producing derivative works, distributing the work, and so on. None of these are ordinary use. Someone could perhaps argue that you are creating a derivative work. I doubt that argument would work because you are not taking any protectable elements from the work. But if anyone did argue that, it would make sense to also argue that if that's so, your use would still be covered under fair use because it's transformative, does not substitute for the original work in any way, and takes very little of the work. | 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. | Legal unless you violate copyright. Screenshots will probably be fair use. The manuals/how-tos need to be your originals, not copies from anywhere. | The name can not be copyrighted, but they don't own the rights to the songs and they are telling you they will perform them. They don't want to put it in writing that they are performing songs they legally can't. | "I understand that a transcript of a podcast or video is a derivative work, and only the copyright owner can authorise creating a derivative work." You've answered your own question, at least for the US and Berne Convention (Wikipedia) signatories. | Easy. Don't put your name on it in the first place and state "The copyright owner grants a perpetual, non-exclusive, royalty-free licence to anyone provided that it is not attributed to the author." | The licence does not allow you to do this However, copyright law may. You work is (probably) an adaptation within the terms of the licence and these are not allowed. So, put the licence aside and consider if your use is fair use or fair dealing; if it is, you are allowed to do it notwithstanding the licence. |
Are slander and defamation the same thing? @Dave One of the elements of slander is publication of the falsehood. The fact that people believe the falsehood and take action based upon it is part of the damages element in a slander case. Forming opinions and taking actions based upon false statements that you believe to be true without republishing the false statements is not actionable. – ohwilleke May 24 '21 at 17:01 But what about defamation? Is this a legal synonym for slander? Or is it something different? | Slander is one of two main categories of defamation, the other of which is libel. Historically, slander applied to oral statements, while libel applied to statements in writing. The modern trend is to eliminate all substantive legal distinctions between libel and slander. | There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake. | You Have No Recourse You have no recourse, at least to the extent that the people communicating to your employer point out the particular Facebook posts that were made or accurately summarize or paraphrase them (if the content of the Facebook posts was misrepresented to the employer that would be a different story). A factually truthful statement (e.g., "McGovern made a Facebook post at this link which you ought to look at") is absolutely privileged from legal liability under the 1st Amendment to the U.S. Constitution (assuming that you are talking about a U.S. case). The only exceptions would be when (1) the information provided is false and the person providing the tip has the appropriately standard of intent1 in providing the false statement (which can be actionable as defamation or intentional interference with contract as the DJ suing Taylor Swifts alleges in the Mueller v. Taylor Swift trial pending right now), or (2) the person providing the tip was someone who owed you a duty of confidentiality (e.g. your lawyer or psychiatrist), but that duty applies only to confidential communications between you and that person in most cases, and hence not to Facebook posts. Also, whether your own statements on Facebook were true, false or neither (e.g. statements of opinion) is irrelevant to the culpability or liability of the people providing the tip to your employer, so long as their description of your posts made to the employer were substantially accurate or to the extent that they were inaccurate were accompanied by a means by which the employer could determine what you actually said without relying on their second hand account. 1 To the extent that you are not a public figure and this is not a matter of public concern, even a negligent misrepresentation about what you actually wrote on Facebook, that is not a statement of opinion and is not accompanied by a reference allowing someone to confirm the accuracy of the statement at the source, could give rise to legal liability on the part of the person giving the tip. The standard of intent is the higher "actual malice" threshold for statements on matters of public concern, statements by media defendants and statements about public figures. But, there is nothing in the question to suggest that the tip given was in any way inaccurate. This Does Not Legally Constitute Harassment This is not harassment in a legal sense, even if it may have been an unkind thing to do on the part of the person doing it done with a specific and malicious desire on the person providing the tip to harm you. This is a natural consequence of you saying something on the Internet, which is forever. If your employer doesn't like true things that you say whether or not they relate to your job, if you are an employee at will you can be fired for it. It isn't absolutely impossible for factually true statements to constitute harassment, in a legal sense, but in those cases, it is the frequency and character of the communications, rather than their content or intended recipient, that make them harassing. For example, if the person providing the tip sent an email about that tip every five minutes for several days to every email address at your employer, causing your employer to find that it was just too disruptive to the employer's business to keep you on the payroll, that might be harassment, but that would have nothing to do with the content of the message provided in that case. Similarly, if someone screamed and yelled their statement over a loudspeaker every time you tried to tutor someone, that might be harassment, again, without regard to the content of what they were saying. In those cases, the "time, place and manner" exception to laws limiting the freedom of speech would apply. Could An Employer Take Employment Action Based On These Posts? There are a couple of states (Wyoming and Colorado, at least) which prohibit employers for taking employment actions against employees for lawful off the job conduct, despite the fact that otherwise, the default rule of law is that an employer can normally treat an employee at will (which the vast majority of employees are) as the employer deems fit. But, even then, liability is limited to the employer and not the person providing the tip. And, even in those states, off duty conduct can sometimes be considered by employers when it reflects directly on your fitness and ability to do your job when you are on the job, which a post about mathematics made by a math tutor very well might. Some high level employees with written contracts, career government employees with civil service protections, and almost all unionized employees can only be fired or disciplined on the job when the higher standard of "for cause" employment action is met, which posting something true on Facebook would not normally be. But, in the "at will" employment world, anything you say can and will be held against you even if it is entirely true. But, again, even if the employer misuses the information that the employer receives, that doesn't mean that someone who provided truthful information to your employer has any legal responsibility whatsoever to you or that the person providing the tip has done anything legally wrong in any way. For the most part, even if every word of your Facebook post was 100% true and accurate, outside the couple of states mentioned, you can be fired for posting it anyway if you are an employee at will. For example, suppose that your employer thinks that the Kumon method of teaching mathematics is a horrible method of instruction, and you post Kumon method exercises or explanations on your Facebook page (assume to avoid going on tangents that you had express permission from the copyright holder to do so). You could still be fired by your employer for posting that on Facebook in the vast majority of states. A Footnote on Internet Age Defamation Jurisdiction The usual rule is that a U.S. Defendant can be sued for defamation or similar torts where a statement is intentionally published to by the person being sued. In the case of a media defendant, or someone suing over a post made on Facebook, that could be any place in the world in many cases. But, while the geographic location of your Facebook post may be unclear, the geographic location of your employer to whom the statement you are concerned about being communicated was made, is not. Any harm done to you was done by communications to a single "legal" person who is legally located at a particular place in a single state, so the law of the state in which your employer is located (Washington State, U.S.A.) would govern, although there would also be an argument to looking to the law of the place where the person making the statement was located when they made the statement (which, it appears, would also be Washington State in your fact pattern). When someone in the U.S. communicates something to someone outside the U.S. that does not have the same level of protections for free speech that the U.S. does, there are federal statutes that provide that a judgment obtained there is not enforceable in the United States. | tl;dr No, N.Y. Times v. Sullivan established the actual malice standard in the context of defamation. It is not illegal for a public figure to claim the sun revolves around the Earth unless some other law intervenes (maybe something fact-dependant like fraud or lying under oath). Background Here's an example of how N.Y. Times would work in California. Under California law, slander, along with libel, are the defamation torts. See Cal. Civ. Code. § 44. The First Amendment limits California’s slander law by requiring public figures prove actual malice when they want to sue someone for defaming them. Khawar v. Globe Int’l, 19 Cal. 4th 254, 262 (1998). (The Supreme Court got involved in N.Y. Times in the first place because of the First Amendment implications on the States' defamation laws.) In turn, "actual malice" means a statement was made "with knowledge that it was false or with reckless disregard of whether it was false." Khawar, 19 Cal. 4th at 275 (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)). As to knowledge, California courts consider only actual—not constructive—knowledge. Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 398 (2001). In turn, actual knowledge "consists in express information of fact." I.E. Assoc. v. Safeco Title Ins. Co., 39 Cal. 3d 281, 285 (1985). This is a bunch of lawyer-speak, but it basically sets up a pretty high bar for the public figure who is trying to prove defamation. Again, N.Y. Times doesn't have to do with barring public figures from making non-defamatory false statements. You'd have to look to other areas of law about false representations or lying under oath for a claim against the politician. california | Defamation per se (thus libel per se) pertains to the nature of the statement and the question of whether there was harm done to the person. For some accusatory statements, it must be proven that the statement actually caused damage to the person. If the statement falls into one of 4 categories, it can be defamation per se, meaning that by its nature it causes damage. The categories are accusation of involvement in criminal activity, having a loathsome, contagious or infectious disease, sexual looseness, and professional incompetence: if you falsely accuse a person of being an inept prostitute with chlamydia, it is taken for granted that you have caused damage. (I understand that there has been some contraction of the sphere of per se liability especially for the claim of having a disease). For other kinds of accusations, viz. defamation per quod, it must be shown that there was actual harm done. Falsely reporting that an administrator had said "Nobody wants to send their daughter to the rape school" doesn't fall into one of these 4 categories, thus it would have to be proven that the statement caused some harm. | (Assuming the jurisdiction is the US.) Your question I was wondering whether there are any limitations on using photos of private individuals on websites. is the least of your potential problems. Photos of the public taken in public are mostly legal to use and publish, and you own the copyright on the photo, and generally don't need a model release. But your plan of posting the photo with accompanying information about (alleged) fraud: There's a fraud conducting business in my state and I want to create a website that warns others of his fraudulent practices. is potentially legally problematic. As phoog indicates in his comment, you need to be aware of defamation, both at the federal level and among states, as some have criminalized defamation (Wikipedia). Libel is the publication of provably false facts by one person about another person. For a full outline of defamation (libel and slander, and including private and public figures), see Libel and Slander | Nolo.com. What you want to do is publish "facts" about this alleged fraud on the website with a photo of the individual, linking the fraud allegations to them. That is potentially libelous. The facts of the fraud may be provably true, or they may be provably false; that remains to be seen. But the facts don't matter when considering what actions the person can take against you if you publish such information on your website. If this business and the individual(s) feel they are not committing fraud, they can sue you for libel in civil court, alleging that you have damaged their reputation and impacted their business by publishing those facts on your website with the photo identifying the person and their business. If they take legal action, and you can prove the business and the individual(s) are committing fraud with provable facts - hard evidence of fraud, such as legal documents and court judgments - than you should (no guarantees) be able to successfully defend yourself in a libel suit brought against you by that person. Even if the business and the individual(s) are aware of facts that prove their fraud, and know they will probably not prevail in court, they can still take you to court, and it will cost you whatever time and money it takes to defend yourself. My responses above concern what legal actions the alleged could take against you if you published the website with the photo and information about the alleged fraud. No one here is advising you to put up the website with the photo and the "facts" as you see them, even if you have hard proof of the facts of the fraud; you should find legal representation before taking any action with the website. And, no one here is advising you to open any legal action against the person; that's your choice in terms of determining your case and if you can show actual harm that was caused by the alleged fraud by the individual, and you should find legal representation before taking any action. | Here are a few examples (sorry, they are in German) https://www.echo24.de/region/kuenzelsau-24-jaehriger-verurteilt-gefaengnis-beleidigungen-instagram-13181018.html https://www.mainpost.de/regional/main-spessart/beleidigung-bringt-34-jaehrigen-ins-gefaengnis-art-8445139 https://www.maz-online.de/Lokales/Brandenburg-Havel/Gericht-verhaengt-Gefaengnis-wegen-Beleidigung-und-Noetigung https://www.wochenblatt.de/archiv/fuer-beleidigungen-wieder-einmal-ab-in-den-knast-154472 So it does actually happen, but it's fairly rare. It typically involves abusive behavior: frequently repeated insults, defamation, and threats and also ignoring any cease and desist orders or requests to stop the behavior. There is also a pre-existing criminal record: it's not the first time they stand in front of a judge for this type of thing. The guy in the last article had already 12 previous offenses so the judges felt that a fine or probation is just not working. So it's not so much the exact type of insult but more about relentlessly barraging the victim and having an existing pattern of bad behavior and related offenses. | Without a jurisdiction, I'll just say that unless the comments made in the reviews and discussions were false, the individual is unlikely to have any claim, particularly given that you've stated that this occurred over the course of a year. However, the individual may be able to argue that they were not given sufficient notice of their performance, for example through performance evaluations, and given the length of time, it likely that one would have occurred. A company may be able to terminate an employee in spite of their overall contributions if they have breached policy - for instance, an otherwise outstanding employee who attracts negative customer reviews based in fact, and who is given ample opportunity and guidance to improve, may cause brand and reputational damage to the company; in this case, it is a commercial decision to retain or terminate the employee. As for what recourse the employee has, if the comments were factual, then it is likely that they will not have any, unless the employer has not adhered to procedural requirements - for instance, in Australia, you are required to provide an employee the opportunity to have a support person present at any meeting which may result in the employee's termination - or the employer broke some other law - for instance, discrimination, bullying or harassment law. Unfortunately, the contributions an employee makes does not necessarily negate the harm they do, and complaints based on an employee's performance are completely valid if factual. |
Is it legal for my boss to require I take the covid 19 vaccine? I'm from South Africa but we basically follow British/USA law so answers from any of those jurisdictions will be fine. I work in digital marketing. But my boss doesn't want us to work from home. Please note I have no condition that restricts me from taking the vaccine, I just prefer not to. | south-africa It is legal for South African employers to adopt a mandatory vaccination policy. The guidelines for such policies are described in Annexure C of Consolidated Coronavirus COVID-19 Direction on Occupational Health and Safety Measures in Certain Workplaces, released in June 2021. Briefly, it appears that employers may impose mandatory vaccination policies. However, employees can object to being vaccinated policy on "constitutional1 or medical grounds". If the employee does so, the employer must "counsel the employee", refer them for further medical examination (if a medical exemption is claimed), and provide "reasonable accommodations" so that employees who remain unvaccinated can remain employed. What exactly is a "reasonable accommodation" is in the eye of the beholder. Working from home is mentioned as a possible accommodation in the above-linked document. Other possible accommodations might include being transferred to a position that involves less public interaction, being required to wear a mask at all times, or working at different hours or a different location from other employees. If reasonable accommodations cannot be made due to the nature of the employer and the employee's position & duties, then the employee may be dismissed. Ultimately, what types of accommodations are "reasonable" will depend on the specific circumstances of the employer and the employee. If you are considering going this route, it would be worth your while to consult with a lawyer. If you have a trade union that represents you, it might be worth consulting with them as well. Finally, while the above outlines your legal rights to refuse to be vaccinated, I feel obliged to encourage you to just get vaccinated. The risks are minuscule and the benefits to you and those around you are substantial. 1 "Constitutional" here refers to religious beliefs but also to Section 12(2)(b) of the South African Constitution, which guarantees that everyone has the right "to security in and control over their body". | 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. | Yes, it’s legal Homeopathic “medicines” contain no active ingredients so they are effectively placebos. Placebo work for some patients some of the time but they don’t work if the patient knows what they are. For them to be effective they have to be kept secret. Most doctors from time-to-time and for various reasons prescribe placebos. The ethics of this practice is debatable but the legality isn’t - it’s totally legal. | I found a mention of this issue here, where the case Rhonda Eddy v. Ingenesis was cited. Eddy worked from home in West Virginia, but had signed her contract with a company headquartered in Texas. The link is the decision of The State of West Virginia Supreme Court of Appeals, which upheld the decision of the Circuit Court of Jefferson County, namely, that the Circuit Court did not have the authority to hear Eddy's petition against her employer because she was out of the Circuit Court's jurisdiction. The circuit court found that it did not have personal jurisdiction over respondent under West Virginia’s personal jurisdiction statutes, and that respondent did not have sufficient minimum contacts with West Virginia to satisfy federal due process considerations. The circuit court also found that it did not have subject matter jurisdiction over petitioner’s WPCA claim because petitioner’s employment contract contained a valid choice of law clause that mandated Texas law would govern any dispute between the parties. Emphasis mine. It all depends on stipulations made in the employment contract. This (in the United Kingdom) states 4. Place of Work Allows the employer to specify the location where the employee will work. However, it also allows for the employer to specify any other location in the future. This gives the employer much greater flexibility. That would seem to indicate that (at least in the U.K.) the place is specified in the contract. | Vaccination status does not currently define a protected class under Florida or Federal law. Being or not being vaccinated is not legally recognized as a condition that "substantially limits a major life activity", hence is not an example of disability-related discrimination. The opposite scenario, where an employer refuses to hire an un-vaccinated person, potentially runs afoul of disability discrimination laws when a person has a legal disability that prevents their vaccination. As noted here, due to the scope of the Privacy Rule HIPAA does not directly apply to your question, when the patient discloses information. However, the healthcare provider cannot disclose such information without patient authorization. It's hard to see a First Amendment basis supporting the action (in case the law changes w.r.t. vaccination and discrimination). You could imagine a religion which holds that vaccination against some disease is blasphemy, and forcing an employer to hire the vaccinated is compelled speech which repudiates a fundament of their belief. Even so, it is not sufficient that the business owner holds some odd belief, the belief has to be essential to the nature of the business (see BSA v. Dale). That could be the case of a religious school. | Of course you have to follow the license. You seem to have a license that doesn't allow distribution and want to know if giving copies to the Dutch or Chinese branch of your company is distribution. First, you should not make that decision. Your company's lawyers should do that. Second, such distribution is with some licenses perfectly legal if you distribute the software with source code. That's a business decision which you or your manager or his/her manager... can make. Such questions (whether giving a copy to your Dutch branch is distribution) often don't have an answer that is yes or no but maybe - if you went to court, would a judge say that it is distribution? The answer is quite clearly "maybe". So unless you can find a safe way, there is a risk. Again, your lawyers will assess the risk. | "Medical lawyer" is really the wrong focus, this is an issue of civil rights. The question would be, is it a violation of your civil rights to prevent you from taking your baby home; is it legal for the federal government to investigate people who refuse to take a covid test? You can take the question along with pertinent evidence to a civil rights attorney. To pick a non-random hospital's web page, they note that "Any person having surgery or a procedure, including birth, at a Texas Health hospital will be tested for COVID-19 to provide appropriate care for the patient, and for the protection of visitors and the care team", and "you will need to be tested at admission to help safeguard you and the care team". In answer to the question whether you can decline testing, they say "Testing is recommended to promote the health of you and your baby. Patients who have COVID-19 can have a weakened immune system and may have inflammatory symptoms that can compromise healing. We encourage you to speak with your provider about the best decision for you", which doesn't explicitly say "No you may not", nor "Yes, you may". However, they cannot literally force you to take the test: at most, they can refuse to treat you. In answer to the question "Will I be separated from my baby if I test positive for COVID-19?", they say "Texas Health will follow guidelines from the American Academy of Pediatrics, American College of OB/GYN and the Centers for Disease Control for how to keep you and your baby safe during your hospital stay. Ultimately, any decisions about care for you and your baby will be between you and your provider, based on what is best for you both". This is also not crystal clear. There are three primary legal issues, putting a worst spin on their policy. They say up front that you will be tested prior to admission: the question is whether you can decline to take the test but force them to admit you. Now we are closer to the realm of a medical negligence attorney – they can refuse to treat you, but that might leave them liable. The second question is whether they can temporarily take the infant away, against the mother's wishes (for example, hold the infant in a separate facility while the mother is in the hospital). The third question is whether they have direct authority to take the infant away when you leave the hospital. The third question gets a plain and simple no. The Texas Dept. of Family and Protective Services has some authority in such a matter, but taking a child requires an investigation and a court order. | Yes, you still need consent (opt-in). Cookies usually require consent, but not always. There are two relevant laws at play here: GDPR makes general rules about the processing of personal data, and ePrivacy has specific rules about cookies and similar technologies, regardless of whether the cookies involve personal data. The ePrivacy directive was implemented in your EU member state (or the UK) in national law. The national laws contain the authoritative rules on this matter. But in general: Accessing or storing any information (such as cookies) on the end user's device requires consent. Consent is defined by the GDPR. You do not need consent if the access/storage is strictly necessary for a service explicitly requested by the user (“functional cookies”). Using cookies to store site preferences such as user language is strictly necessary for a service explicitly requested by the user, so you do not need consent for this. You must still make your use of cookies transparent to the user. Setting cookies for marketing purposes is not strictly necessary to provide the service, so you always require consent for them. Registered users don't automatically give consent. You now raise the interesting question if this is also the case if the user is already registered. Yes, you still need consent (opt-in). This is due to the way how the GDPR defines “consent”. Consent is not general or vague agreement. Agreement with your terms of service or privacy policy is not consent in the sense of the GDPR. Instead, consent is defined in Art 4(11) GDPR to be (emphasis mine): any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her Art 7 GDPR adds further conditions for consent. (1) You are responsible for demonstrating that the user has given valid consent. (2) The request for consent should be clearly distinguishable from other matters (i.e. not buried in a larger document) and should be presented “in an intelligible and easily accessible form, using clear and plain language.” (3) Withdrawing consent must be as easy as giving it. (4) In general, you cannot make access to a service conditional on unrelated consent. I.e. you can't force your users to consent to marketing cookies in order to use the app. The users must have an actual choice, or the consent isn't freely given. Supervisory authorities have produced extensive guidance on the matter of consent. If you're in the UK, consider the ICO Guide to Consent and Guidance on the use of cookies and similar technologies. If you're in the EU/EEA, consider the EDPB Guidelines 05/2020 on Consent (PDF). To summarize why agreement with your terms of service is not consent to marketing cookies: Agreement to such large documents is not sufficiently specific. The consent would not be sufficiently informed. You cannot expect users to actually read all your legal documentation. You must present information in an intelligible manner, possibly with multiple layers (compare WP29 Guidelines on Transparency, endorsed by EDPB). Agreement to your terms of service is not an unambiguous indication that the user wants these cookies. If consent to marketing cookies is a condition of using your service, the consent is likely invalid. The consequence is that cookie consent is usually obtained via separate consent management tools that provide detailed explanations about different categories of cookies, and let the user select which specifically categories of cookies they want to consent to, if any. Outside of cookies, consent is just one legal basis among many. In this context, you might ask “if getting consent is so difficult, but GDPR requires that I have consent, how does that work?” It is a common misconception that the GDPR requires consent for everything – the ePrivacy requirement that most cookies need consent is one of the exceptions. In general, GDPR offers a choice of six categories of legal bases for processing in Art 6 GDPR, and consent is just one of them. In many cases, an online service will process personal data because it is necessary to fulfil a contract with the user, or because there is a legitimate interest for the processing (and the legitimate interest outweighs the user's interests). For example, reasonable security measures such as keeping logfiles can be based on a legitimate interest and do not require consent. |
Is there any way to save a Facebook post as a third-party evidence in court? Is there any way to save a Facebook post as third-party evidence to use in the court room? I need an authentic way of saving it, where the judge and juries will not cast question on the saving procedure or the authenticity of the Facebook post. To a broader sense, how can I save all types of web pages, whether they need log-in process or not, for court room use? | In the United States, it does not matter how you save any evidence; the other side will essentially always be permitted to question its authenticity. Even if they don't question it, a judge or jury would still be free to do so. That said, the standard means of saving this kind of evidence would be to make a screengrab or print it to PDF, and to attach that to an affidavit in which you swear that the image is an authentic representation of the content of the web page as of whatever date and time. If you want something that is harder to question, you could also ask some independent third party to do so. There are, for instance, archiving services like archive.org and perma.cc that will copy a page and store it indefinitely, largely removing the question of whether you might have manipulated the page in any way. | What factors might a court consider in these circumstances? Is it true that anyone can just walk up and file a document in any case, with no requirement to identify themselves? If nobody admits to filing a document, it is likely that the court would grant a motion to strike the document and disregard it (revising a past ruling if the issue was raised within the six months allowed for reconsidering rulings under Federal Rule of Civil Procedure 60(b) or the state equivalent). A court document must, on its face, indicate a filing person and be signed to be accepted by the clerk of the court pursuant to Federal Rule of Civil Procedure 11 or the state equivalent. But, if the document appears on its face to be legitimate, the person filing it will not generally be required to prove their identity. This happens even less often now than it used to (in the past, fake filings were often made by members of "sovereign citizens" movements to harass governmental officials), because in both the state courts were I practice and in federal court, documents must usually be filed with the court by lawyers via e-filing using a password protected e-filing account. Usually, only parties without lawyers and out of state lawyers who are still in the process of setting up their e-filing account file court documents in person. When documents are filed in person, they are also often delivered via courier rather than by the person who actually signed the documents. And, as a matter of practical reality, third-parties almost never file fake documents in court (in part, because there is usually someone present who is in a position to call attention to the fraud to the court). Still, this can happen, although it is very rare. I've only seen a situation like this come up once in twenty years of practice. (My account below oversimplifies some of the technical details of what happened to get to the gist of the points relevant to this question.) In that case, a lawyer was representing an ex-husband in a post-decree alimony modification case that had been appealed filed a bill of costs that she sought to recover on behalf of her client for the appeal, but she filed it in the wrong court (she filed it in the appellate court where she had represented her client, rather than, as required, in the trial court where another attorney had represented the ex-husband). When an order awarding him costs was not entered by any court, the ex-husband filed an (untimely) bill of costs in the trial court under his appellate lawyer's name using the appellate filing as a model, without her consent, by forging her name on the document. The lawyer didn't discover this (because she was retained only in the appeal and had never entered an appearance in the trial court and thus didn't have access to the trial court file, and because the court doesn't automatically send you a copy of your own filings) until I responded on behalf of the ex-wife to the forged bill of costs alleging that it was untimely which I served a copy of upon the ex-husband's lawyer as required by the rules. At that point, the ex-husband's lawyer immediately called me and the court to explain that she did not file this document and that it was forged (otherwise should could have been sanctioned for knowingly filing the bill of costs knowing that it was out of time and was frivolous at that point and could have been deemed to be responsible for further trial court proceedings of the ex-husband in the case, like keeping him appraised of deadlines, court rulings and filings by other lawyers in the case, since it appeared that she'd participated in the trial court case). Ultimately, the court declined to award the costs because they were filed in an untimely manner and because they were not really filed by the lawyer as claimed. So, the the court disregarded the bill of costs and denied this relief to the ex-husband. (If I was the judge, I would have hauled the ex-husband into court and held him in contempt of court sua sponte, but in this very busy court where hearings in divorcees are often scheduled two or more years out from the scheduling date, the judge didn't have the time to devote to issues like that.) | Attorney-client privilege is normally waived if a privileged communication is voluntarily disclosed. Submission of an attorney-client privileged document to a judge to review in camera does not waive the attorney-client privilege. Most of the case law involves inadvertent "oops" style disclosures of attorney-client privileged documents (keep in mind that big lawsuits often involve exchanges of terabytes of data that have to be reviewed page by page for attorney-client privileged materials by armies of junior lawyers and paralegals, so mistakes are inevitably made now and then), which is a somewhat convoluted area of law. Basically, if it is caught soon enough, the person accidentally receiving it can be ordered to not look at it any more and to destroy it without keeping copies if it remains within an accidental recipient law firm or government agency's possession and has not been further disseminated into public records yet. In particular, such documents can't be presented as evidence at trial if the mistake is caught before it is too late to correct the mistake. In those cases, the legal system does its best to pretend that the mistaken disclosure of attorney-client privileged materials never happened. | Defamation requires communication to a third-party I can say (or write) anything I want about a person directly to that person and, unless it is a threat, they have no recourse at all. I can call them a liar, a thief, a Nazi, or a goat fornicator. Of course, I have to be careful – calling them a “bastard” might be a slur on their mother communicated to a third-party (them) which would give her a right to sue although that would require a literal and largely archaic use of the term. That said, you do need to check with your lawyer if you can redact names in the face of a subpoena - complying with a legal obligations is a legitimate use of personal data under GDPR. | No. In order to practice law, one must establish an attorney-client relationship. Participation in Internet forums absolutely does not establish an attorney-client relationship. Everyone involved in law spends a disproportionate amount of time disclaiming this, so nobody inside the field will be confused on this point. I believe this is also directly stated in the Terms of Service. And as Jen notes, upvoting/downvoting is not even agreeing with the legal validity of the answer. Take the tour or read help pages for what voting means. It's perfectly conceivable for a psychic who knows how to sway people could write a better voted answer than three lawyers. | You can always be sued, but truth is an absolute defense to libel. Your actions could be perceived in any way imaginable. What usually matters for legal purposes is how a "reasonable person" would perceive them. As an example, Pennsylvania's Megan's Law Website warns: Any person who uses the information contained herein to threaten, intimidate, or harass the registrant or their family, or who otherwise misuses this information, may be subject to criminal prosecution or civil liability. It further clarifies: Public access to information about registered sexual offenders is intended solely as a means of public protection, any other use prohibited. | I don’t understand why you think this is a “3rd party communication” - as I read it it says it’s an email from you. You are most definitely not a third party. Notwithstanding, communication between 3rd parties is not prima facie excluded. For example, correspondence between your company and your accountant (who are both third parties) is likely to be extremely relevant to a family law case. Assuming that it is relevant (which is hard to say without context) and that it doesn’t fall foul of one of the evidentiary rules (hearsay, opinion, privilege etc.) there is no reason why it wouldn’t be admissible. | If the suit is to be filed in the US, the first step is to officially register the copyright. No US copyright infringement suit can be brought until the copyright has been registered. The registration process includes a formal declaration as to who the author is (or authors are). (I believe this statement is made under penalty of perjury.) Once the registration issues, the certificate of registration is admissible evidence of the facts stated in it in a us court. Indeed 17 USC 410 (c) provides that: (c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court. In other countries, the testimony of the plaintiff in a copyright infringement suit is itself evidence that the work was created as stated. In either case, it is possible for the defendant to challenge the assertion and claim that s/he is the actual author. Showing when and where the work was first published can usefully corroborate the plaintiff's testimony. Having included a copyright notice in the initial publication may be of value, but if the notice only lists the pen name, it is not of much value. Records of the platform on which a work has been published may help in verifying the identity of the author. So may the testimony of others who saw or read the work, or who were told about it by the author. An author's own copies may be of value, if they carry a timestamp, as computer files generally do. But computer timestamps are not usually secure. Timestamps on email generally are reasonably secure, and could establish that the content existed and had been transmitted on a specified date by a specified person. But none of this will matter unless the defendant claims that the plaintiff is lying in claiming authorship. Unless that happens, the plaintiff's testimony will usually settle the matter. A person whose work seems to have been infringed would usually be wise to consult a lawyer with experience in copyright suits. Such a lawyer could advise if it is wise to bring suit at all, and if it is, what evidence will probably be needed. |
If a business is sold, does that mean the owner(s) get off scot-free? Definition of scot-free : completely free from obligation, harm, or penalty. When we informed our customer that we were selling below cost, the reply we received was a suspension of communications. Then, in response to our inquiries, we were told that the business was sold to a woman (who had previously been a stockroom worker). The "new owner" (if that is what she really is) claims she does not have any knowledge or business records prior to 2018. Is there a way to find out for sure if the business was really transferred? Can the former owners simply walk-away with valuable sets of original-models we created at their request and put in their hands? Can they legally walk away with unresolved open invoices? Is there a legal recourse for such cases? | In business dealings, you would have a contract with a company, not with its owner. The new owner inherits both the assets and liabilities of the company. It's up to the buyer of the business to do due diligence before buying the company. The old owner may escape obligations to clients and suppliers once the sale of the business is complete, but the new owner could sue the old owner for fraud. (It may be possible to escape some liabilities by declaring bankruptcy, but that's not the situation you described. One unethical accounting trick that a company can use is to split the company into two corporations such that one branch inherits the liabilities, and it go defunct.) | 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. | It would depend on how the ownership contract is written. 30% sounds like a minority stake, so I don't know how they could block new investments unless the contract requires a super-majority to approve new rounds of financing. How does the remaining 70% of ownership feel about this? If they are abiding by the terms of the ownership contract I don't see that this is questionable behavior on their part. This is a business relationship. Business partners may come to have different outlooks on the future of the company, and the best way to protect their investment. Consider flipping the viewpoint: "I'm a minority owner in a company I no longer have confidence in. I would like to dissolve the company and sell off the assets to re-coup as much of my original investment as I can. The other owners want to chase this to the bitter end, and do a new round of financing, which will significantly dilute my shares, without (in my opinion) giving the company a real chance of success. What can I do?" When the founder of your friend's company accepted money for shares in the company, they gave up absolute control over the company's direction. Assuming none of the parties are acting in violation of the ownership contract, the most reasonable way to resolve a conflict like this is to buy out the dissenting shareholders. | B and C have a contract with A In return for paying 3 months rent, B and C will remove A from the lease. This has all the required elements to be a contract. B and C have fulfilled their obligations and A hasn’t. B & C could sue A for damages. They would need to prove that there was such an agreement and that they agreement was a legally binding contract. Is this agreement written down? Was it witnessed by impartial third parties? What evidence of this agreement do you actually have? If A says they agreed to X, yet B & C say they agreed to Y: what evidence exists to show who is right and who is wrong? Failing to fulfill the obligations of a contract is not fraud. For there to be fraud, B & C would have to prove that A never intended to comply by the terms of the agreement. Given that the terms of the agreement are somewhat ambiguous, this would be very difficult. This seems to be more of a case where [Hanlon's Razor]: "Never attribute to malice that which is adequately explained by stupidity." That is, A's actions are more likely to be the result of a misunderstanding (by A, or B & C, or both) than a deliberate plan of deception. The landlord is not involved - they removed A from the lease at the request of A, B & C; they’ve done what they’re required to do. | wisconsin I think you may be misinformed on how businesses report/pay sales taxes. For sales tax, depending on the type of business you are and your expected taxable sales, you may be required to report your taxable sales quarterly, biannually, or annually. Tax is due when the report is due much like income tax, but these cannot be delayed like income tax filings. If you fail to make a report, the State will estimate your taxes and send you a bill. This bill will include late fees and charges. There is no incentive for business owners to delay these filings and payments. In fact, not filing and not paying may result in your sales and use tax certificate being revoked, effectively putting you out of business. A business is also not required to set aside any certain amount from a single transaction and pay that to the State. They don't have to take $5 of your $100 transaction and put it in a "sales tax" envelope to send to the State. At the end of the period they have to calculate, $X in taxable sales * Y% tax rate = Total Tax bill, and pay that amount. They could pay it all from the last sale, or set aside a separate account, or a sub-account, etc. So businesses don't have to pay immediately, they pay on a set schedule. The funds that they collect will most likely be deposited into a general account and the taxes paid out of that account at a later date. Yes, this may include revenue from the following month, but who cares? The point is that the tax is paid on time and in the amount required. But to the question at hand... No, you cannot file a form or inform the business that you will pay tax directly. The business is required by law to collect those taxes at the time of the sale (unless you have a reseller certificate and they make those kinds of sales). They are not allowed to say "sure, take the X% off the price and pay the state, we trust you". They have to report taxable sales and pay the tax on those sales. Since your sale is "taxable", they are required to pay the tax on that, regardless of them collecting it from you or not. | Think of a website that has gives no option for the users to delete what they have posted -but still the users can delete their account completely. That's easy - this is exactly how all StackExchange sites (including this one) work :-). See for example: How does deleting work? on meta.SE. Is it against the right to erasure mentioned here as a part of GDPR? No, it is not (otherwise StackExchange would be in rather big trouble). The "right to be forgotten" is subject to limitations. Most importantly, it only applies to personal data. Personal data is defined as (GDPR, art.4): any information relating to an identified or identifiable natural person (‘data subject’) If what you posted contains no personal information about you, it is not "relating to" you. The details are complicated (as usual, see e.g. The GDPR: What exactly is personal data?), but "personal data" is things about you (your name, your address, your sexual history, maybe even your IP address). On the other hand, if someone asks how to solve a programming problem, and you write an answer explaining what API to call, that answer is not personal data. In addition to that, even personal data may be retained if the data controller has a need to retain that information. This is also covered in article 4. For example, the controller may retain information "for the establishment, exercise or defence of legal claims" - otherwise you could buy something online without paying, and then ask the seller to forget about your purchases so they cannot collect the outstanding payment. So, in summary: A website will need to allow users to delete or hide personal data that they posted - such as their user profile information, or personal information in their posts. That does not mean they are allowed to delete entire posts - it is enough if personal information is redacted or anonymized. The website may be allowed to retain that information (hidden) if they can show legitimate interest - for example billing information, or posts that are the subject of a lawsuit. The StackExchange network, for example, covers this by allowing users to: disassociate posts from their account delete their account entirely (thus effectively disassociating all posts from personal information) asking a moderator for redaction of personal data | Legal action might be taken by the garage, because you had a contract to repair the gearbox which you cancelled (causing them some damages in time spent). You could hope that the store-owner will pay the invoice that you sent, but that seems to not be likely. The store owner can't sue you for sending him the invoice: the mechanic can sue you for not paying what the work billed for. But you do have a recourse, which is that you were acting on behalf of the store owner. I assume that you were in possession of the old gearbox, so it simplified matters if you took transported it to the mechanic, since the store owner was going to pay. In other words, you were acting as the store owner's agent: you were authorized to create a contractual arrangement between the garage and the owner. The one problem is that apparently the garage thought they were doing the work for you, and not for the owner. So they may sue you, and you may sue the owner. And suing anybody costs money. The owner is, perhaps, trying a strategy of not paying what he does actually owe, in the theory that the alternative of suing is too much time and bother (besides, it's the garage owner who would have to get the ball rolling – unless the shop owner first wants to sue to recover the gearbox). Given the information you have provided, I don't see a basis for the shop owner suing you. In order to sue someone, that person has to have caused you some damage. He could claim that he didn't authorize you to take the gearbox to the garage, or that you were negligent in making the arrangements with the shop (for instance if he said "but only if they will do the diagnosis for free"), in which case the court will have to decide whose story is more believable. | The Rent Ordinance para (e) explicitly precludes that possibility: Any waiver by a tenant of rights under this Chapter 37 shall be void as contrary to public policy. If he attempts to enforce such a clause or in any way dislodge you from the unit, he is liable for a substantial penalty. The legality of a rebate scheme is not clear, but probably would also be deemed illegal, because there already exists provision for buyout, which has specific restrictions. For the rest of the week, tenant buyouts are subject to these provisions. The problem is that the horse may have left the barn. The landlord has to have provided you with a Pre-Buyout Disclosure Form (which is to be signed and filed) before any negotiation / discussion with the tenant. Since we're talking about obeying the law, it has to occur to the landlord that there is a buyout option, and then he has to give you and file the disclosure form before he opens his mouth. He also has to know what the requirements of a buyout agreement will be in the future. Starting on Monday, the law regarding buyouts changes (it doesn't clearly make an agreement impossible, but it's a reminder that the law can be changed). In terms of legally-enforceable agreements, you could agree to a buyout in the far future, but the agreement might not be enforceable under future law. For example, the disclosure form requires new information to be provided, so if he doesn't do that, the disclosure is invalid (the preamble to the amendment points out that the change in law was directed at legal actions that were considered to violate the spirit of the law). Hence a buyout for two years in the future is legally risky. |
Can a hairdresser sell my hair without consent Can a hairdresser sell my cut hair to, for example, someone who creates a wig or uses it as a fertilizer without my consent? Is there a difference between these cases? The hair's taken out of the trash after closing time, where I could reasonably assume that it was discarded I see that they're putting it in a seperate container but say nothing I see that they're putting it in a seperate container and tell them they have to discard it | Once you have left the hair on the hairdresser's floor, it is no longer your property. They can do what they like with it. In your first two scenarios, you are doing nothing to modify the assumption that you have discarded the hair - you're just letting the hairdresser deal with it. In the third scenario, you are asserting that the hair is still yours; you could gather it up. Similarly, if you had left an empty soda can on a cafe table, the cafe is entitled to assume that you don't want it any longer. They could put it in the recycling bin, or make it into a delightful sculpture, or whatever. If you stop them clearing the table, and say "actually, I'd like to keep that can" - then it's still yours. If you abandon it and walk away, it's not yours. The interpretation of whether you have "discarded" the thing is contextual. There are several possible legal theories about exactly what is going on when you leave objects lying around and wander away. These include the classical Roman view of res derelictae, that the thing becomes ownerless as soon as you physically abandon it with the intention of doing so - and conversely, views such as that of Sir Frederick Pollock, who considered it a "high, grave and dubious question" whether something stops being your property even after you throw it away while declaring that you want to get rid of it. But Pollock would allow that you had transferred ownership of the cut hair to the hairdresser, if only by silently acquiescing to them sweeping it up, rather than because they had claimed an ownerless substance. Either way, the hair is no longer your own, and once it is not yours its fate is not your concern. If you had some agreement with the hairdresser about what would happen, that's another matter, but the default position is that once the hair is theirs, they get to decide what happens with it. The late astronaut Neil Armstrong found out his barber was selling his cut hair as souvenirs. The letter from his lawyer asks for the return of the hair, or payment of a charitable donation, on the special basis of an Ohio law protecting celebrity rights in their 'persona'. It does not assert that Armstrong had any continued property right in the hair itself. The hair samples are still for sale, by the way. Even though your cut hair came from your body, it is not a human tissue to which special rules may apply. Hair is made of keratin and is not cellular, so nothing in the European Tissues and Cells Directive, applicable to Slovakia as an EU member, will kick in regarding your consent. Equally, this is surely not a "wrongful taking of organs, tissues [or] cells" under the Slovakian Criminal Code, sections 159-160. You may feel attached to it, in a continuing emotional sense, despite the result of the scissors: but it is not treated as specially as your actual flesh in terms of consent to what happens after it's removed. Also in EU law, the Waste Framework Directive covers "waste", by definition, "any substance or object which the holder discards or intends or is required to discard". Although there is no coding in the European Waste Catalogue for human hair, it's classed as B3070 in the Basel Convention, an example of a B3 non-hazardous organic waste; Slovakia is one of the parties to this agreement. The substance of the Directive, as implemented in local law, would affect the onward destiny of the hair - such as which bin the hairdresser could put it in for collection, how it may be recycled into another product, or treated as a by-product instead of waste as such. There is a large and confusing case law about all that. Thankfully for you, it is the hairdresser who would have to deal with the implications. | There is no legal theory of which I'm aware which would allow a host to confiscate a guest's property without consent and consideration. Even if the host intends to return the property and both parties know this, the host still can't keep it even temporarily after the owner demands its return. File a police report, press charges and sue for damages. Take Indiana as a perhaps representative example of what you could expect in the US. See http://www.myindianadefenselawyer.com/criminal-charges/theft-shoplifting/ . Theft is knowingly depriving a person of their property with the intent to permanently deprive them of it. Conversion is knowingly depriving a person of their property without an intent to permanently deprive them of it. Both are crimes, though the former is a felony and the latter is a misdemeanor. | The statement ABCGym refuses to refund payment it accepted for membership to a gym ABCGym closed. ABCGym has substituted an inferior-to-me option. could certainly be considered as defamatory. However, in the US and many other countries, truth would be a valid defense, if the person making the statement could prove that the statement is true. I don't see how it could be construed as solicitation. If worn on a shirt into ABC, the management could surely ask the wearer to remove it. If that request is refused, they could ask the wearer to leave. If the wearer has a valid membership, then it would depend on the exact terms of the membership contract, and provisions of local law, whether ABC could insist that the wearer leave, or have the wearer arrested for trespass should the wearer refuse. Any regulations incorporated by reference into the contract would also matter. At least in the US. walking back and forth on a public sidewalk just outside ABC's door, wearing such a shirt or carrying a classic picket sign with such a message would be pretty clearly legal, provided that others are not unduly obstructed, and no valid local ordinance is violated. In the wear-the-shirt-inside case, if the wearer refuses to remove the shirt or leave, the management would probably call law enforcement. LE will not want to decide whether wearer has the legal right to remain in the club wearing the shirt. They will probably ask the wearer to leave. If the wearer protests that s/he has a valid membership and thus a contractual right to stay, who knows what they would do. If they still ask the wearer to leave, the wearer would be wise to comply and perhaps take legal action to enforce his or her membership rights, which will depend on the contract details as mentioned above. A lawyer would probably be very helpful if the wearer wants to take that route. The wearer would be wise to remain polite and appear calm, not yelling or using epithets. | It depends on whether one honestly believes that the supermarket would consent to them eating a snack before paying for it. If there is no consent, either explicit or implied, then it is theft as no contract has been performed or fulfilled so ownership hasn't transferred, as follows: Theft is defined by section 1Theft Act 1968 as: (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly. The two elements relevant here are "dishonestly" and "intention of permanently depriving". Section 2 offers three defences to being dishonest, with this being the only one applicable here: (1) A person’s appropriation of property belonging to another is not to be regarded as dishonest— ... (b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it... The definition of intention to permanently deprive may be found at section 6: (1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights... See this article by News Shopper that explains it in a much better way than I could without me commiting plagiarism: Buying a product at the till is what transfers the ownership from the product belonging to the shopkeeper, to it belonging to you. And only when that sale is complete do you have the legal right to consume or use it. If you eat the chocolate before you legally own it, you are permanently depriving the owner of his right to the product – he can no longer refuse you the sale or take the item off the shelves. | You could, but how should the companies that want to handle your data know this? If they have no affirmation from you that you allow them to process your data in any way, other than those they are already allowed to because of the exceptions, they have to - under GDPR - assume you don't want them to process your data, and thus have to ask you. | Sure, you can make such a request, but its not likely to help you. Scammers are criminals and don't generally care about GDPR compliance. Scammers are criminals, and won't just publish their real world identity. Serving them with a lawsuit will be difficult, especially if they are from outside the EU. GDPR lets you sue data controllers, but it's not worth it. You can sue for compliance (e.g. to compel fulfillment of your access request), and you can sue for damages stemming from GDPR violations. Compared to the damages you have suffered, a lawsuit is very expensive. | 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. | Working a mobile car cleaner now, my manager asked me to take some pictures before cleaning and after clearing, privacy issue of the car owner California law creates an expectation of consent for taking photographs of people for purposes of commercial distribution of the image to the public. California Civil Code § 3344. But, absent copyright or design patent issues (which would only very rarely come up since most people don't own the copyrights or patents to the designs of their cars, and the owner of the copyrights generally grants an implied license for the owners of the cars to display the copyrighted or patented designs), there is no parallel requirement of consent for taking photographs of things. Furthermore there is no common law expectation of privacy in anything that someone you do business with must necessarily see with their own eyes. So, if you must see the car to clean it, then taking photographs before and after the work is done does not violate any expectation of privacy to which the customer has not implicitly consented and does not violate any California or federal statute. Better practice would be for the business to explicitly have the customers consent in writing to the photographs, to remove all doubt. But the implied consent to having someone see your car when they are cleaning it would be unreasonable to deny in almost all circumstances. A company might voluntarily have an agreement to keep any photographs taken confidential and to have its employees sign non-disclosure agreements not to reveal what they see while working. If it did, this would create a legally enforceable expectation of privacy for the customer. For some VIP clients, this contractually enforceable discretion might be something that would induce them to pay a higher price for the same services. But those kind of protections are not the default standards of law that apply in the absence of an agreement. And, even then, taking photographs for purposes of internal use only would probably not violate an agreement of this kind. The work still requires that people inside the business, including remote supervisors, be able to see the cars to do their work. |
Why aren't all guilty people charged with perjury Say you are convicted of murder, for example. When you go to court, and plead not guilty under oath, isn't that perjury, since you're lying by saying that you didn't do it? "Perjury is a criminal act that occurs when a person lies or makes statements that are not truthful while under oath." Source You are making a statement that isn't true (you aren't guilty), while under oath, so why isn't this perjury? If this is then does that mean that if you are guilty, and you don't plead guilty that you are committing perjury? | Perjury is not 'not telling the truth'. It requires (in most jurisdictions) being proven to have deliberately lied under oath. As Xavier pointed out, you are not on oath when entering a plea (among other reasons, you would be required to incriminate yourself). Secondly, "I am not guilty" could mean anything from "the prosecution wrongly think that what I did is illegal" to "this law is unconstitutional" even if the facts are not in dispute; either may be mistaken without being a lie. If the facts are in dispute, the jury will have to deliver a verdict that implies (it does not state, let alone prove) that they disbelieve one party; deliberate falsehood, whether by a defendant or a police officer, would be several steps beyond that. | The fact that it is possible to engage in fraud, doesn't mean that it is impossible to prove something. Usually, in a civil action, testimony that a business record says something and that it was not falsified is sufficient to meet a preponderance of the evidence standard (i.e. to establish to the satisfaction of a judge or jury that it is more likely that something is true than it is that it isn't true). It is easy to forge checks too (and hard to prove that a signature is fake), but that doesn't mean that you can't prove payment by check or that negotiable instruments are useless. | I don't think that's an accurate interpretation of the statement. The key difference between the two scenarios is the defendant's legal assessment of who owns the necklace. In the first he thinks he is the owner and can claim mistake of law; in the second, he he thinks someone else is the owner, so he cannot. To say he believes "the law allows for someone to do whatever they want with lost property even if they know who the rightful owner is" is very different from saying he thinks he's the owner. He doesn't think he's the legal owner, he just thinks he has legal rights that include some rights associated with ownership. So if the defendant's statement had actually been, "I thought I was the owner," that would have been a successful defense when the crime requires depriving the owner of the property. The defense was actually, "I thought I was allowed to deprive the owner of the property," which is an admission of guilt when the crime requires depriving the owner of the property. There are a couple questions here: a. A different crime that did not require intent -- or even required a different kind of intent -- could still lead to a conviction. A legislature is free to define larceny differently, so it could say that anyone who recklessly or negligently deprives another of property is guilty. Or it could say that your state of mind doesn't matter and that depriving another of property is larceny regardless of intent. b. In most cases, the mistake of law defense requires that the defendant honestly believe in the mistake; unlike mistake of fact, it does not require that his belief also be reasonable. Either way, the question of reasonableness would probably be a question for a jury, so a judge wouldn't be able to reject it (except in a bench trial). c. Mistake of law is a potential defense to any crime that requires an intent to do something that requires an assessment of what the law is. So if it's illegal to intentionally have sex with a woman who is not your wife, and you mistakenly believed you were in a legal marriage, sex with your non-wife would not be a crime. It has potentially very broad implications, but keep in mind that in many cases, the mistake a defendant would have to claim would be pretty far out there. If it were illegal to intentionally let anyone under 21 years old into your bar, I guess you could argue that you only let a 20-year-old in because you thought the law started calculating at conception, but I doubt you'll convince a jury. Mistake of law defenses still pop up pretty regularly. Here's one just yesterday from the Tenth Circuit. And this one is a Kansas case where a conviction for carrying a weapon while a felon was overturned because the court wouldn't allow a mistake-of-law defense. The Kansas case, though, uses the more modern definition of mistake of law, which also includes reasonable reliance on official statements from the government. In that case, the felon's parole officer had told him that it was OK to carry a pocketknife, but in reality, the law titled "Criminal possession of a firearm by a convicted felon" prohibited carrying knives, as well. | You have not committed a crime or a violation of non-criminal law when you swear something under oath believing in good faith that what you are saying is true, and you are mistaken. The law does not expect omniscience. Also, making a false statement under oath is only sanctionable if you make a false statement of a "material fact." Whether or not you have a Social Security number is not a "material fact" in the context of a passport application where the material facts are that you are the same person as the person described in your birth certificate, that the parents there are to the best of your knowledge your parents, that the birth certificate is authentic, and that you have not renounced U.S. citizenship. The question about a Social Security number is there for administrative convenience, not to make any determination about your right to a passport. You should apply for a Social Security number. If you already have one, your actions consistent with not having one will only corroborate the fact that you were ignorant of that fact when you applied for a passport, and you will have your existing Social Security number provided to you. As a practical matter it is unlikely that you have one. There are no forms that your non-U.S. parents would have to be filled out that would have required one, and you know that you haven't applied for one in the past. Before Social Security numbers of dependents were required on U.S. tax forms, most people didn't get Social Security numbers until they got their first job. | At the federal level, there is no real equivalent to what you're describing. A probable cause hearing evaluates the government's evidence in a similar way, but it doesn't ask whether a reasonable jury would convict. The closest I can think of is a Rule 29 motion, which does ask that question, but not until trial has already begun. You typically make the motion at the close of the government's case, and (if it was not successful) again at the close of your own, though I've heard tales of judges granting the motion at the end of the government's opening statement. The states all have their own rules, but they're generally pretty similar to the federal rules in this respect, as I understand it. I don't know of any state that allows the kind of motion you're talking about, in criminal cases, at least. In civil cases, I think everyone has Rule 12(b)(6) motions, which ask the court for a pretrial determination that there's no set of facts that could establish liability on the plaintiff's theory of the case. | I can’t think of any laws against pretending to commit a crime, per se. For example, undercover police officers often pretend to buy or sell illicit goods, to see who will take them up on the offer. However, pretending to commit some crimes could be a crime. if you intentionally pretend to be violent or unstable, and this “puts another person in reasonable apprehension of imminent harmful or offensive contact,” that could be common assault. | Short Answer Statements of jurors about their deliberations are not allowed to be considered for any purpose, subject to very narrow limitations which do not apply in the fact pattern you are asking about in this question. The General Rule And Its Exceptions Consideration of juror statements, subject to narrow exceptions, is barred by Federal Rule of Evidence 606(b), which has a state or territorial equivalent that is substantially similar in every U.S. jurisdiction that has true jury trials (as opposed, for example, to courts-martial which look like jury trials but are not jury trials from a legal doctrine perspective). Federal Rule of Evidence 606, which is the model for the lion's share of these rules reads as follows: Rule 606. Juror (a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence. (b) During an Inquiry into the Validity of a Verdict or Indictment. (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury’s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form. This is subject to exceptions only in a few extremely limited circumstances: To document interference or influence on the jury from outside the jury during the trial or deliberations (e.g. bribery of a juror, a juror's consultation of outside facts, blackmail of a juror, counsel for a party providing information not authorized by the judge to the juror). This is covered by Rule 606(b)(2)(A) and 606(b)(2)(B). To establish that a mistake was made filling out the verdict form (e.g. testimony immediately following a jury trial that the jurors confused the names of two co-defendants and incorrectly filled out the jury form convicting each one of the crimes where the jury found the other co-defendant guilty). This is covered by Rule 606(b)(2)(C). Under an exception created just this year for the first time (the source opinion of the U.S. Supreme Court by a 5-3 vote in this case, Peña-Rodriguez v. Colorado (March 6, 2017), is here), to document that one or more jurors essential to the verdict reached the result as a result of a racially/ethnically discriminatory reasons (e.g., one or more of the jurors who voted to convict in a case resulting in a conviction said "let's convict him because he's Hispanic" and then did so). This is not expressly covered by Rule 606(b), but the U.S. Supreme Court held that it is constitutionally necessary to allow it. The situation you pose does not involve any of these exceptions. Instead, it concerns the internal deliberations of a jury not subject to outside influence, and it does not involve racial or ethnic bias in deliberations. So, this information is legally irrelevant and may not be considered by any court at the trial or appellate level. Procedural Aspects Of This Question Of course, in all of these scenarios including the exceptions, the mere fact that a juror says something publicly is meaningless legally. But, there is no means by which a lawyer in a case (or anyone else) can obtain information about juror deliberations through a subpoena or other compulsory court process. The only way anyone could find out about improper jury deliberations is if a juror voluntarily discloses these facts. Any effort to introduce consideration to this statement would have to be submitted to the trial court (generally, the trial court that handled the original case, but sometimes a habeas corpus action trial court) in either the form of a sworn affidavit of the juror, or live witness testimony of the juror under oath in the trial court in a post-trial hearing of some sort. This would have to be submitted by a lawyer for the defendant (or less often by the prosecutor in the case, seeking to right a wrong discovered by the prosecutor, for example, in the context of a separate bribery investigation conducted by the prosecutor's office). The juror or a third-party would not have standing to challenge the verdict or to bring juror statements to the court's attention in a legally effective manner. A statement of a juror about the verdict or how it came to be at a trial can only be considered at the trial court level and only: (i) in a post-trial motion for a new trial, which can be considered on direct appeal, (ii) in a collateral attack on the original verdict in a different kind of post-trial motion (state practice differs regarding what these motions are called), or (iii) in a collateral attack through a separate civil action (called a habeas corpus action) to set aside a jury verdict. Generally speaking, appellate courts never consider new evidence in any kind of case and can only consider evidence that is part of the official trial court record. The only true exception to this rule is that it may consider a post-trial fact that would terminate the case for procedural reasons (e.g. the existence of a settlement by the parties, or the death of a defendant during the pendency of the appeal or earlier which would render the appeal moot). Appellate courts can take "judicial notice" of certain matters that constitute general knowledge not specific to the case before them (e.g. the existence and duration of the U.S. Civil War, or the distance between New York City and Chicago, or the name of elected officials at the time the facts of the case took place). But, evidence concerning juror statements is not something about which judicial notice may be taken. Policy Considerations Why do we have such a rule when allowing this testimony could prevent serious miscarriages of justice? In rough order of importance, the reasons include the following: To protect the ability of a jury to engage in "jury nullification", which is an issue also informed by the double jeopardy protections of the 5th Amendment to United States Constitution (applied to state and local proceedings by virtue of incorporation through the 14th Amendment to the United States Constitution and parallel state constitutional protections) against revisiting a jury acquittal in a criminal case for any reason. To minimize the burden jury service places on jurors who would otherwise routinely be interrogated by lawyers unhappy with their verdict after the trial even if they didn't want to speak with those lawyers. To protect the finality of verdicts on appeal and in post-trial proceedings as this would add another set of grounds to disturb a court decision in addition to those which can be observed in the court record. Non-Obvious Consequences Of This Rule One important consequence of this rule is that "harmless error" analysis by an appellate court, which is conducted when there is a legal error made in a jury trial to determine if the error, if it had been corrected, was material enough to change the outcome of the case, is always conducted on a hypothetical and theoretical basis rather than based upon actual factual knowledge of what would have or would not have influenced the jury's decision. Another important consequence of this rule for appellate practice is that jury verdicts will be upheld in any case where it would be possible for the trial court record to allow a jury to come to the conclusion that it did, whether or not the jury actually considered the arguments and facts it would have had to have considered to correctly reach its verdict. Thus, it is frequently the case that a jury misunderstands the jury instructions or the facts of the case and makes an incorrect decision as a result, but that verdict is upheld on appeal because it would have been possible for a jury which, for example, found witnesses that the actual did not actually believe were telling the truth to have been truthful to rule in the manner that it did. Another practical effect of this rule is that it is easier to overturn a judge's decision on appeal because the judge must articulate his or her factual and legal basis for each ruling, than it is to overturn a jury verdict, since a jury need not articulate the reasoning behind its verdict except to the extent that it is given and completes special verdict forms when it deliberates. | Can the judge flat out tell the jury that they cannot vote to nullify the verdict? He can but this kind of "jury nullification" makes little sense and is obvious that is not possible. A verdict is rendered by the jury. Once the verdict is rendered, there is no further vote. It would also make little sense for a jury to render a guilty verdict and later have another vote to nullify the previous verdict. From now one I will refer to jury nullification as we usually refer to it: the jury returns a not guilty verdict, although the jury believes the accused is guilty of the crime (rather than returning a guilty verdict and later nullify it, which is what you are implying here) A different question would be "can the judge ask the jury to not engage in jury nullification"? Yes he/she can. A judge can respond that jury nullification is not possible. If the jury convicts, this false information by the judge is generally deemed a harmless error on appeal, and the conviction is upheld If the judge did so and the jury chooses to nullify the verdict anyways would the fact that the judge forbade them to do so have any impact on what happens from that point forward? No. Jury nullification is part and parcel of common law, and it could well be part of the "jury trial" granted by the Constitution. Would the jury risk repercussions for nullifying a verdict against the judges orders? Only for jury nullification no. They can face repercussions if they lie in voir dire and say that they will follow the law as given to them no matter what, for example. Finally is there any situation where jury trying to nullify a verdict could phrase their objection incorrectly such that the judge could rule it as a guilty verdict (ie if they say "we think you proved the plaintiff did this thing, but we don't believe he should be punished" can the judge rule that they said he was guilty and just ignore the second half?) Juries return a guilty/not guilty verdict. They don't return their thoughts to the court ("we think that...."). They simply say "guilty" or "not guilty". If for some unknown reason they should choose to tell the judge more than what is required from them, jury nullification is still an option of the jury and something that the jury can do, have the right to do, so the judge will not be able to override the jury. But this is something that should not happen. If the jury wants to engage in jury nullification, they have to tell the judge "not guilty" and nothing more. The jury doesn't have to explain its decision to acquit. |
Is it legal for non-US citizens (or lawful permanent residents) to volunteer to US non-profits from their country? There is a reading service for the visually impaired (part of an 501(c)(3) non-profit, that also provides medical services) that accepts recordings from volunteers who read remotely. Thus state/country borders are not an issue, yet they won't allow foreign readers to join, referring to the Patriot Act and all the complexities surrounding it. From their perspective, it makes sense given how expensive specialty legal counsel is, and most such non-profits have either gone bankrupt during the pandemic or are on the verge, but I'm still interested if this (i.e., citing the Patriot Act) has merit (or any other laws or statute that I'm not aware of). | First off, no the Patriot Act would not stop you from participating in this organization (The Patriot Act broadened the definition of Terrorism and types of crimes that might constitute terrorism, the ability to investigate potential security threats to the United States mostly through loosening restrictions on Warrants for such investigations.). Second and more pedantically, the Patriot Act is no longer law as of March 27, 2020 (this might have gotten lost in the news due to this being the start of Covid-19 pandemic shut downs globally). Much of the Patriot Act's laws did live on in the form of the USA Freedom Act. But in 2022, no one will arrest you under any provision of the Patriot Act. Yay! All that said, I am not aware of any laws restricting 501(c)(3) organizations from taking donations (either in monetary or in kind) from non-U.S. Citizens or Residents. All that the label means is that the organization is tax-exempt and that donors to such organizations can deduct their donation from the taxes they owe to the government (i.e. if I owe $500 in taxes but I gave $1000 to a 501(c)(3) that year, then I don't owe the government any tax. In fact, the government owes me a $500 rebate.). All 501(c) organizations (there are 29 different classifications) have rules about what they may and may not do and will lose their tax-exempt status if they fail to abide by those rules. Each different category has different restrictions (For example, a 501(c)(3) may not partake in any political campaigning or lobbying as part of it's position but a 501(c)(4) may (though funds used for such activities are not tax-deductible. Really the 501(c)(3) status only applies for tax purposes, so if you are not filling out a U.S. Tax Return, it shouldn't matter to you (though you may want to see if your government allows donations to foreign charities to count for tax-deductions). Best thing to do is to reach out to the charity and ask if there are any problems with you helping given your not a U.S. resident. If there is, consider starting up a similar charity for people within your own nation... maybe even ask them if you could be a part of a chapter within your nation. | I would probably have a legal disclaimer out of an abundance of caution. That being said, you have a right to free speech via First Amendment guarantees. While that right is not absolute and some words “by their very utterance” cause injury or incite an immediate breach of peace, and do not receive constitutional protection, (there is the old adage you do not have the right to shout fire in a crowded movie theater). This (your blog) is not that. To take it to its logical (or illogical) extreme, there are many things on the internet, in magazines, scholarly articles, etc. that could injure someone or cause damage in the event that one who was not qualified or competent to perform the action described undertook to do so. A child could burn themselves following the directions on a mac and cheese box but they shouldn't be cooking in the first place. The same rings true for high voltage electricity - a non-licensed electrician should probably not create a high voltage power supply. But, will some? Yes. But you are not liable for printing a blog about the practice. On another but related note, if you are a licensed electrician your licensing authority may require that you take precautions to ensure you do not inadvertantly direct others to engage in practices of licensed professionals that could cause harm by giving them information. I doubt this but I don't know because I am not an electrician. As far as could you be liable for writing it....under our legal system you can be sued under a theory of negligence for just about any action someone thinks was unsafe or causes injury. And you never know what a jury will do. But I think that to sue someone for simply writing something would be fairly easily dismissed through a motion for summary judgment by a competent attorney in the event you got sued. If everything a person wrote, that if followed by an unqualified person resulted in injury, resulted in liability for damages than it would have a chilling effect on their First Amendment right to free speech. That said, I go back to my original statement that it couldn't hurt to have a simple liability waiver for extra protection. It could be something as simple as: "The information contained herein is not mean to be comprehensive and is for informational purposes only. You should not undertake to perform anything described herein without adequate training and/or supervision. The Author disclaims any responsibility for any injury, damage, or loss as a result of reliance upon the information found on this site/blog." If you do use a liability waiver, make sure it is bold and obvious. Otherwise, it can backfire! | I'm not going to comment on the specifics of this law; rather, I think this question shows a misconception of the way the legal system works in general. Here's the question: do you actually have "legally privileged" material on your phone? If not, what's keeping you from claiming that is that it's not true, and lying to a police officer is a bad idea. And just putting a letter from your lawyer on the phone doesn't mean you've established a legal privilege--attorney-client privilege is not a magic spell, it's a reasonable system of protection that only covers certain communications. The bottom line is: the statute in general, and that clause in particular, were included in the law to protect real, important, and substantial legal right. The courts interpret the law in light of that purpose. If the police officer finds a solution that protects your rights while still carrying out the purpose of the statute, the court will be unlikely to fault him or her. In this case, if you tell the officer that there is a letter from your attorney in a particular folder, the obvious solution is for the officer not to open that folder. Problem solved. In practice, in the United States at least, these cases are dealt with routinely; computers are seized, and attorneys and judges work together to ensure that privilege is protected while still allowing reasonable access to seized materials. I would imagine the same is true in the U.K. The bottom line is: the law is not a game, and technical "gotchas" are rarely effective. Common law systems allow judges enough leeway to avoid this sort of pointless technicality. | united-states In the US it is not unlawful to produce and display a video arguing for the Russian invasion of Ukraine, whether the intent is to support that invasion or to document the claims of those who do support it, and argue that they are invalid. Such a video would be protected by copyright, and copying it and redistributing it with subtitles might well be an infringement of that copyright, if done without permission. On the other hand, doing so with the intent of educating others about Russian claims might constitute fair use. If so, it would not be copyright infringement under US law. Aside from the copyright issue (which would be up to the copyright holder to take action on) US law does not really care what the motivation for posting such a sub-titled video might be. Whether or not it is "beneficial for the whole human civilization" is not relevant to US law. It is protected by the First Amendment against government suppression. That would not affect YouTube, as a private actor,, determining not to host it on their site. | 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. | Google maps (Street View, Google Earth) are all legal, although perhaps they are illegal in North Korea (along with many other things). Permission would be required for them to enter your house and take pictures, but if it can be seen publically, it is legal unless there is a specific law forbidding taking pictures. It is possible that there are legal restrictions on the Street View method of driving around with a camera in some countries, but Earth view shots are obtained by satellite, which is out of the jurisdiction of the objecting country. The Street View gap for Belarus may be due to a legal restriction, or it could just be Google-strategic (there seems to be no public explanation). There have been numerous "legal encounters" involving Street View and the authorities, in the realm of privacy concerns: there is no general rule. Google has the right to make and distribute these photos because there is no (enforceable) law against doing so, unless there is. | This very much depends on where you are. Different jurisdictions have wildly different laws about this. Some places are very permissive. You can record a conversation that you aren't even a party to so long as nobody has any reasonable expectation of privacy. In others, affirmative consent is required from every party to a conversation before it's legal to record it. The laws run the entire spectrum. Some places allow you to record anything you're a party to without permission, but you can't record others' conversations. Some places require you to disclose, but not obtain explicit permission. Some allow you to record but restrict who you can disclose it to. Some allow you to record or ban recording only under certain circumstances. It's a really wide gamut of laws. Since you don't say where you are, who you're recording, or why, there's no way to really answer the question. Here's a good rundown on the United States. This Wikipedia article covers lots of different countries, but only with regard to phone calls. | It has been along-standing principle in the US that names of jurors are publicly known, although there can be exceptions (US v. Barnes, 604 F.2d 121 (1979) is the first case of a fully anonymous jury. Now, except in the 10th Circuit, they are allowed and not extremely rare (I don't know what the percentage is). So it would depend on whether the particular jury list is public. Apart from the situation where a juror is harassed by the press and gets a court order to restrain approaches by a specific member of the press, if you can contact them, you can ask them questions. There cannot be a blanket "do not contact a juror" law / order in the US, which would be contrary to the 1st Amendment. |
Using translated company type on website Is it legal to display the translated the company type on a website in English if the site itself is English? Also, on a bill? My specific problem is that in my country (Hungary), the short name for limited liability company is KFC (korlátolt felelősségű [egyéni] cég) which sounds weird as it reads just as Kentucky Fried Chicken. Can I use it like LLC on my website or everything should be as-is, like S.R.O. or GMBH? (Using the long version isn't an option either, some foreign phrase would scare the customers away.) | Some people make the Kft. to LLC translation that you suggest and it would probably not be illegal to do so if other text did not imply that it was anything other than a Hungarian entity. From a practical perspective, the best solution is to spell out the company type in Hungarian, possibly in a footnote. For example, suppose that your company is called "Magyar Delponeous" (because it is easier to explain by example). You could say "Magyar Delphoneous*" or "Magyar Delphoneous, Kft.*" in the body text, with a footnote at the bottom of a page that says following an asterisks that: "The company is a Hungarian Kft. (korlátolt felelősségű társaság), a non-stock business form similar to a U.S. limited liability company or a German GmbH". It would also be proper to say "Magyar Delponeous, a Hungarian limited liability company" in unabbreviated form, because the most common translation of "korlátolt felelősségű társaság" is "limited liability company". But, I would disfavor using the form "Magyar Delphoneous, LLC" because it could implicitly suggest a non-Hungarian place of entity formation where the abbreviation LLC is used, and avoiding any implication of being misleading is best. KFC is not the common or correct abbreviation for this form of entity. | A very good starting point is the webpage of the IHK Munich ("The Chamber of Commerce and Industry (IHK) for Munich and Upper Bavaria") for people who want to import food as a business. It is in German, but Google translate might be helpful. They say in their introduction: Food imported into Germany must not only comply with European food law, but also German food law. The importer of products is seen as the manufacturer of these goods and is responsible for ensuring that only safe food is placed on the market. He is fully liable for the imported products. There are always three legal areas to be observed when importing food. These are food law, customs law and the issue of licenses. Then it goes into the details like e.g, food quality check procedures and so on. Since you are fully liable it would be a good idea to found a company for this activity. In your case a UG (a kind of Ltd also known as "Mini-GmbH", 1 EUR minimum capital stock, but typically 1k EUR or more) or a GmbH (German version of Ltd, capital stock 25 kEUR) would probably the best thing. Also, make sure you get a written ok from your employer, who has a veto in case (1) you are competing with him, (2) of concerns you might spend too much time on this activity. | What are our possibilities here? You could be sued for damages in Mexico, the country of origin of the copyright or any of the other signatories of the Berne Convention. You could also be charged with a criminal offence but that is less likely. how much can we get away with? Not a legal question. What you are proposing is illegal - how likely your getaway plan is to work is not for me to say. Is there any advantage on us being on México? No Is there any advantage on picking any either Dragon Ball or League of legends because of the country they are in? No Can they stop us from doing it? Yes | 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. | 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. | This is fine. You can use initials, shortened names, common nicknames (Bob/Robert), omit middle names, and so forth without causing yourself any problems. Things can get more complicated if you sign by a name that is different from names that you normally use elsewhere - such as if you are called Christopher Smith and you sign as Donald Jones, having not used that name before - but there's no fundamental difference of principle. One example case is Scott v Soans [1802] 102 ER 539, where the defendant John Soans objected to the suit being made against "Jonathan otherwise John Soans". The Lord Chief Justice ruled that "Jonathan otherwise John" could be his name, and that if he'd signed a contract using that name then "what objection could be made to it?" There are several other similar cases from past centuries, some of which may no longer be reliable law since they turn on points of procedure that aren't relevant today, but the general thrust is that if you sign a contract under a certain name, then you can be sued under that name. (And you can sue other people using whatever name you like.) Mistakes in names can be corrected as part of the general process of contractual interpretation, called "rectification". This more often arises when dealing with company names, say when there are a half dozen closely linked companies with related names, and the issue is which one of them is actually meant to be named; there are some recent cases of this kind, such as Liberty Mercian Ltd v Cuddy Civil Engineering Ltd [2013] EWHC 2688 (TCC). Generally speaking, as Lord Denning said in Nittan v Solent Steel [1980] EWCA Civ J1023-4, We do not allow people to take advantage of a misnomer when everyone knows what was intended. Further, the doctrine of "estoppel by convention" means that if you sign a contract under whatever name, then act as if you were bound by the contract, you can't then wriggle out of it on the grounds that the name is not really your own. In Scots law, which includes certain doctrines imported from Roman civil law, there is a distinction between error in persona and error in nomine. The former means that you were mistaken about who your counterparty really was (such that you wouldn't have made the contract had you known the truth) and the latter means that you had the intended person but made a mistake about their name. The law of error in Scotland is not quite the same as in England and Wales, but in this case it gets to the same basic result: if you agreed on who was to be bound, that's what matters, regardless of the names used. | It would be terribly risky for you to simply link another company's terms of service. What if they take their server down? What if they change their terms? You would not even know when exactly the changes were made. Copying their terms means you might run into copyright issues on the text. Either pay a lawyer to write your ToS for you, or see if you can find something in the public domain. | I am assuming that you are in the United States for this question. Please correct me if this is not the case. MathWorks still holds the right to take action, which may be anything from cease-and-desist letters up to litigation. You have followed the correct process in asking for permission to use a trademark. The owner of the trademark, MathWorks, has given you their answer, which is quite simply, "no". You may not feel that their reasoning is fair, but the default state of trademarks is that they are under ownership of whomever created them, and you do not have permission to use them. Things will remain that way unless MathWorks changes their mind. It doesn't matter if it feels dismissive of them; they are under no obligation to even consider requests to use their marks. If they didn't explicitly say, "sure, go ahead", or even, "yes, you may use it provided you follow a list of conditions", then using their trademark will be an unlicensed usage. If you still would like to pursue getting permission to use their trademarked assets, you will need to try to contact them again. Until they say otherwise, using their trademarks will be considered unauthorized use. (Edited to add this clarification brought up by @David Siegel): However, your usage might not be violation of trademark. The primary purpose of trademark restriction is to stop someone from misrepresenting a product as being from the entity that owns the trademark; this stops someone from, for example, selling a cola soft drink called "Coke-a-Cola". The reasons for this are manyfold, but the basic idea is that allowing that type of usage means that consumers might not be able to tell that your product is distinct from the original, and could then mistakenly attribute the quality and level of service of the previous brand with the new product. If your usage of MATLAB marks is such that you are identifying the products used as from MathWorks, and not yourself, and are doing everything in good faith to disassociate your website and/or offerings from MathWorks, it is possible that your usage would be considered correct usage of trademark. Even if it is legal usage, MathWorks still may decide to take action. If MathWorks believes that your usage is unauthorized and that it is trademark violation, they may decide to take action. This is regardless of whether it actually is; until you have this case in front of a court, you will not get a definitive answer. We cannot answer whether this is a legal usage of trademark. Ultimately, whether or not a usage of a mark is considered to be correct usage is a question that can only be answered by the courts, which means the only person who can give you concrete advice on a course of action is a lawyer. In lieu of proper legal advice, you will need to weigh the risk of MathWorks taking action against your usage with the benefit you receive from usage. (Edited to add this clarification by @Dale M): Regardless, you may be breaking copyright by using the logo. There is a separate issue besides just trademark at play here. The copyright for the MATLAB logo belongs to whomever created it/owns it (presumably, MathWorks in this case). Using the logo without permission is a copyright violation. The only case in which this would not be a violation is if the logo is released for use in general under a compatible license, such as Creative Commons; do note that these licenses typically have additional conditions, such as requiring attribution. If you are unaware as to whether there is a such a license, or if you fail to follow the terms of the license, usage of the logo almost certainly constitutes copyright infringement. |
Is it a crime to attend the Olympic games after a diplomatic boycott as a civilian if you're a diplomat? https://finance.yahoo.com/news/africa-decision-not-boycott-beijing-093000132.html African countries have ignored Washington's call for a diplomatic boycott of the Beijing Winter Olympics, instead expressing support for China's hosting of the Games and warning that the event should not be a platform for politics. Is it a crime to attend the Olympic games after a diplomatic boycott as a civilian if you're a diplomat? I am wondering if there are legal ramifications to a diplomatic boycott of the Olympic games in the United States, or if the diplomatic ban simply mean that the U.S. won't pay the diplomats to attend the Olympic games as diplomats. | It is not a crime in the US. It may be a firing offense depending on the nature of the appointment (that is, what exactly do you mean by "diplomat"?) or at least cause for demotion / reassignment. A diplomat from another country could be declared persona non grata, but again it is not a crime to act contrary to a governmental boycott call, in the US. This follows from the First Amendment. | Typically in extraditions, the treaties will only allow for extraditions if both nations have a similar crime and similar punishment for that crime. In this case, there maybe some pause for Australia to grant an extradition as Australia no longer has the death penalty for any crime, so it could be that while the new crime the defendant is being sought for is Escape from Incarceration related (that's a yes in both countries), technically the punishment for an escaped Death Row Inmate is the Death Penalty. Australia can't extradite for any crime where death penalty is on the line, but the requesting nation can say they will give a more lighter sentance that is more compliant with the requested nation's own laws. However, since it is Death for another crime that Austrilia never had jurisdiction over, it complicates matters. There is precidence for procedural reasons for refusing to extradite. For example, while the U.S. and Italy have an extradition treaty and both view murder in the same light, the U.S. refused the extradition of a citizen who was wanted for a murder in Italy that she was previously aquitted of, but new evidnce was uncovered. Because it is illegal for the state to try a person twice for the same crime in the U.S., the U.S. declined the extradition treaty. Some additional notes, extradited persons can only be tried for crimes that they were extradited for, so there is an argument that Australia would refuse unless Indonesia promises to commute the Drug Trafficking sentence to Life Imprisonment | There’s some truth in it When a matter, particularly a criminal matter, is before a court or sub judice, public comment is forbidden and may be contempt of court unless they are “a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.” Technically, it only applies to media reporting (probably including social media) and only while the proceedings are active. Proceedings become active when there is an arrest, oral charge, issue of a warrant, or a summons. Notwithstanding, there is nothing preventing an organisation having a “no comment” policy on any matter once there is police involvement. | Legally, they cannot just nab you. The usual (?) option is that authorities in the US request extradition pursuant to the US-Mexico extradition treaty via the Department of Justice, and if the paperwork is in order, this can result in a Provisional Arrest Warrant (and arrest) in Mexico, which will be carried out by the Mexican federal police. This is true whether or not you go to the US consulate. After a hearing in the Mexican courts you might be extradited (or not, but DoJ presumably doesn't proceed with cases that they will lose). Extradition is not possible for every offense, so you would have to look at the offenses listed in the treaty, and whatever the Arizona warrant is about. You can't be extradited for parking tickets, you can be extradited for murder: whatever it is, it has to be a crime in both places, and has to be subject to a minimum one year imprisonment. Also, if you are a Mexican citizen as well, you cannot be extradited unless the Mexican authorities agree to (whereas there is no choice if you are only a US citizen). An alternative is deportation, which would overcome limitations related to extradition, but it's not clear what the requirements for deportation from Mexico are (typically illegal presence, unclear whether Mexican authorities can or would try an end-run around official extradition procedure). Although consulates enjoy a degree of immunity from local law, a consulate in Mexico is still Mexican territory, subject to Mexican law. If you are in the consulate, Mexican authorities cannot enter without permission to arrest you. They also cannot arrest you without a warrant (see Art. 16 of the Mexican constitution). Consular staff also cannot arrest you (if you are not caught flagrante delicto). Nor are they authorized to execute a US warrant in Mexico (thus they have to go through the process of judicial review to send you back to the US, and why a Mexican warrant is required). See this Q&A, relevant to the status of embassies: what is relevant to us is that both the US and Mexico operate under the rule of law, so the issues surrounding Syrian refugees in the Syrian embassy do not arise here. | Extradition is done for specific charges. A principle found in virtually all extradition treaties called the "rule of specialty" says that the country requesting extradition may not prosecute the defendant for any crimes except the ones for which extradition was granted without the permission of the extraditing country, except for crimes committed after the defendant is extradited. This protection expires once the defendant has been released from jail and had a fair chance to leave the country. The rule of specialty doesn't necessarily mean the other charge needs to be dropped, but the defendant can't be tried for it as long as the rule applies. If they're later in the country for another reason (or don't leave when they have the chance), they can potentially be rearrested for the other crime. But as long as they're only in the country because they were extradited, they can't be tried for any other past crimes without the extraditing country's permission. | 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. | The US has jurisdiction because the systems that the accused allegedly attacked are in the US. To use an example with older technology, you can't escape criminal liability for defrauding someone in one country simply because you did so through the mail or by telephone from another country. The UK and the US have an extradition treaty. The UK might refuse to extradite the accused; in that case the US would most likely complain loudly. If too many extradition requests are refused on one side, the other side might start limiting cooperation in any of several areas. | What a country claims to be the case certainly doesn't guarantee what is the case. The constitution (at least as of 2012) of the Democratic People's Republic of Korea (aka North Korea) says: Article 67. Citizens are guaranteed freedom of speech, the press, assembly, demonstration and association. The State shall guarantee the conditions for the free activities of democratic political parties and social organizations. Needless to say, North Korea is not generally considered a bastion of free speech. The People's Republic of China has a similar provision in its constitution. When we get to countries where those outside the country consider there to be some level of freedom of speech, there are still restrictions. In the UK, the Official Secrets Act makes it a crime for any person to republish leaked classified information. Germany makes it illegal to deny that the Holocaust happened. Until 2013, Canada made it illegal for a person to use telecommunications to say something that would expose people to hatred for some reason covered by antidiscrimination law. Many, many countries criminalize child pornography. Many, many countries have copyright laws. "Free speech" does not mean "you can say whatever you want and the government can't stop you." It means "as a general rule, the government can't restrict what you're saying because they don't like it." I am unaware of any country with a functional government with unfettered freedom of speech. |
Is it legal to completely retell a film in text? Let's say I watched a film and I really liked it. Now I want to tell my subscribers on Facebook the entire plot of the film. I don't use the real script of the film. I create a post where I retell the film plot in my own words (but I don't change anything, the names are the same, everything is the same, it's just a conversion in textual form) and retell it completely. Is this action legal? Do I have any problems with copyright law? | This is known as "film novelization"(For example, the novelizations of the Star Wars movies are film novelizations, created under license), and is copyright infringement unless made under a license from the copyright holder. Specifically, you would be making a derivative work of the original, by changing the medium. One of the rights provided by copyright is the right to control the transference from one medium into another. This, in my (non-lawyer) opinion, is unlikely to be found as fair use. There are four test factors for determining fair use(source), decided on a case by case basis: Transformative Character of the Derivative Work: Unlikely to be found in your favor, as nothing is transformed ("I don't change anything, the name are the same, everything is the same, it's just a conversion to textual form"). Nature of the Original Work: A narrative entertainment film, thus unlikely to be found in your favor. Amount and Substantiality of the Portion Taken: You've taken all of it; not in your favor. Effect on the Potential Market: You are essentially providing a free version of what copyright holders can often charge for; negative effect on their potential market. Not in your favor. | Yes So far so good. This is a copyright violation but it is probably fair use - certainly there is case law permitting a copy of a backup digital asset to be made so I don’t see why a similar argument wouldn’t work with backing up a physical book. Clear copyright violation. Alice can rent out the original under the first sale doctrine but the ‘backup’ is not so protected. It’s not fair use because it’s use is commercial, the work is a type of work the author expects to profit from, the entire work has been copied and the use is deleterious to the market i.e. the renters are less likely to buy an original - it falls foul of all four factors of the fair use test. | A book (or any other creative work) published in the 1800s is now in the public domain everywhere in the world (excepting odd cases like Peter Pan where a special rule applies in some jurisdictions.) Anyone may legally quote from such a work at any length with no legal requirement for permission. In fact there is no legal requirement to attribute the quote to the author (although there is an ethical requirement). In fact one may publish a new edition of such a work, unchanged or modified in any way one chooses, with no legal need to obtain permission from anyone or to pay any royalties or fees. If the work were recent enough to still be protected by copyright, a limited quote could be used under fair use, fair dealing or another exception to copyright under the laws of most countries. The exact rules vary by country, and are often highly fact-dependent, so the exact details will matter. If one wanted to quote enough from a recent work that permission is required, the copyright holder, who is often not the publisher, would need to grant permission. That is often the author or the author's heir, but it can be a person or firm to which the author transferred the rights. Sometimes the rights-holder can be hard to identify. Update: it would be possible for a work published in, say, 1890 by an author then young who lived to a fairly old age, dying in, say 1960, to still be protected in some countries, although not in the US. (Anything published before 1925 is now PD in the US.) But Charlotte Bronte died in 1855, and all of her work has long been in the public domain | Expression is tied up with fixation. Copyright subsists in a work that is fixed in a tangible medium of expression from which they can be reproduced, perceived, or communicated. 17 USC 102 This expression is protected, not the idea. However, copyright infringement can occur even when there is not an exact copy. First, courts use a substantial similarity standard to determine if infringement has occurred. Second, when a character or plot is sufficiently developed, taking that character or that plot can be infringement, even if not expressed in the exact same manner. "We do not doubt that two plays may correspond in plot closely enough for infringement [...] the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly." Nichols v. Universal Pictures Corporation, 45 F.2d 119 (2d Cir. 1930) Some characters or plot elements are so common to a genre that they are either not considered "original" enough to get copyright protection, or can be taken by others without being considered infringement. This is the scènes à faire doctrine. "Stock scenes and hackneyed character types that "naturally flow from a common theme"—are considered "ideas," and therefore are not copyrightable. But as plots become more intricately detailed and characters become more idiosyncratic, they at some point cross the line into "expression" and are protected by copyright." Suntrust Bank v. Houghton Mifflin Co., 268 F. 3d 1257 - Court of Appeals, 11th Circuit 2001 See Amanda Schreyer's An Overview of Legal Protection for Fictional Characters: Balancing Public and Private Interests for many more cases and examples of the idea-expression dichotomy in action with respect to fictional characters. | There are no laws requiring that any company must publish all opinions from its customers. I'll admit it's fundamentally dishonest to only publish the positives, but there's no prohibition against it either. Look at movie advertisements, for example. They'll paraphrase or selectively quote a review, citing only what seems to be positive, yet if you read the review and quote in context, you'll understand the review quite differently. How exactly would you police it if you were to require companies to publish all reviews? Would you have some kind of litmus test to determine whether the critique is justified and fair? How often do people post false reviews (good or bad), and how would you account for them? Company web sites offering reviews form their own customers are doing nothing more than using the web as an extension of their marketing, so one has to expect some manipulation of the information in order to present products and services in their best possible lights. Why, for example, would I tell you how much someone hates my product when my goal is to sell it to you? This is why it would be better to use independent third-party review sites that have no dog in the hunt when it comes to honest feedback about the companies they cover. | In general, using content provided by another who incorrectly posted it under a permissive license, such as a CC license, does not grant a valid license from the real copyright holder. That is, if A writes some code (or a song, or creates an image, or whatever else), it is protected by copyright. If B then posts it to the web, with a statement that it is released under a particular license, without having obtained permission from A, then B's "release" is of no value, because B had no rights to grant. If C downloads and uses this content, relying on B's license, then A could take legal action against C. C would probably be considered (in the US) an "innocent infringer" which reduces the minimum statutory damage amount, but does not otherwise change C's legal position. A could, if it chose, bring suit and possibly obtain a judgement including some damages. But to return to the practical case of code posted on one of the SE sites. Given the comparatively short code sections usually posted, and that they do not usually form a complete working program, and given further the stated educational purpose of SE, it is likely that in US law such a posting would constitute fair use, and in the law of other countries fall under one or another exception to copyright. That is a general conclusion, the details would matter. I have not heard of a case similar to that suggested in the question. I find it unlikely that an SE poster would post copyright-protected code without permission, that is valuable enough to be worth an infringement suit, and substantial enough and having enough effect on th market for the original to be outside the protection of fair use. Such a situatiion is, of course, possible, even if unlikely. Note that a cease-and-desist letter is not a court order, and is really only a threat of court action. its only legal effect is to put the recipient on notice, so that continued infringement is not without awareness of the copyright claim. To have legal effect the claimant must actually bring an infringement suit, which is not without cost. | Each episode of the show as a whole, and all the individual images in it, are protected by copyright, but the idea of a holophonor, or indeed any idea, is not. The more closely anyone else's drawing of a gadget resembles one from the show, the more likely it would be to be found to infringe copyright. The same is true of a character image. The more distinctive and original the image, and the more closely someone copies it, the more likely a finding of infringement would be. | The author of that work owns its copyright. Barring a licence that gives you the right to use it, you are infringing copyright. (I'm assuming no fair use in this case; i.e. the YouTube clip isn't actually about the audio track.) If you pay for licences, make sure the licence allows for the purpose you intend to use it for. |
Under the GDPR in Germany, is a privacy-policy required when not tracking any personal data whatsoever I have a small static personal website, where I publish some technical articles and my personal CV. Do I need to include a privacy-policy if: There are no (third- or first party) tracking services used There are no IP logs kept There are no comment fields or other features where users can enter information to be saved I do not publish information about specific persons in the articles To provide an idealized model, assume that the server is configured to forget ALL state after serving a HTTP request for the website. Nothing about the request is saved. Not even information like traffic statistics that would confirm a request happened at all. An additional concern would be that website is hosted on a root-server with a German provider (Netcup). Do I need to inform people that this provider could theoretically collect data (still nothing more than IP addresses with timestamps and encrypted TLS traffic)? | Congrats, you've done well to minimize your processing of personal data. But I think you're still processing personal data, and are subject to the GDPR. Serving a website necessarily involves processing an IP address. This IP address will typically be personal data. While you are not storing the IP address, the GDPR's definition of “processing” extends beyond storage and pretty much covers doing anything with that IP address. As far as I know this is not an entirely settled matter, but it's better to err on the side of caution and to assume that you are in fact performing a processing activity. Even a static web page can easily lead to additional relevant processing of personal data, for example if the HTML embeds resources from third party domains. Since your website is clearly targeted at the public, it does not fall under the GDPR's exception for “purely personal or household” purposes. So I think you do need a (minimal) privacy notice that contains at least the items mentioned in Art 13 GDPR. The main reason why some people try to avoid posting a privacy notice is because it must disclose your identity and contact details. But in Germany, that information has to be provided anyway due to the Impressumspflicht. As part of your GDPR compliance obligations, you must protect how data is processed by others on your behalf. A hosting provider will typically act as your data processor. For this to be legal, you need a contract / data processing agreement that fulfills the conditions in Art 28 GDPR. This contract binds the data processor to only use the data as instructed by you, and not for their own purposes. European hosting providers sometimes include the necessary terms in their terms of service / AGB, but you should check to make sure. Netcup expects you to accept their data processing amendment in your account settings. In the hypothetical case that you were not processing any personal data at all, the GDPR would not apply and it wouldn't require you to post a privacy notice. Other laws might still have information obligations, notably the German TMG and TTDSG. | It seems like some law must have been breached during the sharing of this information? Possibly, even probably. The scrutiny of your personal account in order to glean personal data (your IP address) and then using that personal data to match accounts may contravene Recital 50 of the GDPR: The processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. If the website terms which you agreed to don't include this data matching, then that processing is not lawful. The rest of Recital 50 is relevant and worth quoting in full: If the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Union or Member State law may determine and specify the tasks and purposes for which the further processing should be regarded as compatible and lawful. Further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be considered to be compatible lawful processing operations. The legal basis provided by Union or Member State law for the processing of personal data may also provide a legal basis for further processing. In order to ascertain whether a purpose of further processing is compatible with the purpose for which the personal data are initially collected, the controller, after having met all the requirements for the lawfulness of the original processing, should take into account, inter alia: any link between those purposes and the purposes of the intended further processing; the context in which the personal data have been collected, in particular the reasonable expectations of data subjects based on their relationship with the controller as to their further use; the nature of the personal data; the consequences of the intended further processing for data subjects; and the existence of appropriate safeguards in both the original and intended further processing operations. It seems to me that an anonymous account could reasonably expect that the "further processing" of data matching is not in the public interest, an exercise of official authority, scientific or historical research or statistical. There is no link between the data matching exercise and the purpose for which IP addresses are normally collected: the operation and physical security of the website. Now, it may well be that the website terms do allow this data matching to discover links between accounts, or in any case prohibit having two accounts and allow reasonable methods to discover such links. It's also possible that a court has ordered the processing (as Iñaki Viggers has mentioned. We don't have that information; but ostensibly one wouldn't normally expect a personal account to be examined in this way, and certainly wouldn't expect any link discovered to be relayed to a third party. | Disclaimer: Links are in German. My German is quite rough. Quoted translations provided by Google Translate. Turns out the question "Do I need an Impressum?" is complicated. I'll start with examining the case for companies, then work down to the average private citizen. Impressum requirement The requirement for an online Impressum comes from the Telemediengesetz (TMG) § 5: 1) Service providers are obliged to keep the following information readily available, readily accessible and constantly available for commercial, usually paid telemedia: the name and address under which they are established [...] Applicability based on country of origin The applicability of the TMG is described in §§ 2a, 3. Thankfully, there is a 2013 court case focused on these sections, involving an Egyptian company marketing cruises and not having a proper Impressum on their website. Also thankful is that law firm mth Tieben & Partner summarized this decision, because as it turns out, I cannot read judicial German. Summarizing their summary, §§ 2a, 3 sets the standard that the required information is based on a country of origin principle (Herkunftslandprinzip), where if that country of origin is Germany, § 5 applies. However, this principle is rooted in EU directives, and as such is not applicable to non-EU countries. For these, the law falls back on the older principle of market location (Marktortprinzip). If the non-EU company advertises in Germany and thus participates in the German market, then it must have a valid Impressum. I'll note that, the TMG considers Germany to be the "country of origin" if the company is either registered in or has significant operations in Germany (see the given sections for specifics). This is not the same "country of origin" as is found in copyright law. Applicability to private website hosts As it turns out, an Impressum is not required for private non-commercial websites. However, as pointed out by this Anwalt article, the wording of the TMG makes it such that omitting an Impressum may often be illegal. In particular, the definitions section of the TMG provides very broad definitions of "Service provider" (Diensteanbieter): Service provider shall mean any natural or legal person who provides his own or third-party telemedia for use or provides access to use; in the case of audiovisual media services on demand, service providers shall mean any natural or legal person who effectively controls the selection and design of the content offered, and "commercial communication" (kommerzielle Kommunikation): Commercial communication means any form of communication which serves the direct or indirect promotion of the sale of goods, services or the appearance of an undertaking, other organization or a natural person engaged in trade, trades or crafts or a liberal professions; [...] Conclusion In terms of variables like the one you suggest, the proper "variable" for companies is the country of origin. For private web hosts, I would argue that residency is the closest analogue to country of origin as defined in TMG §§ 2a, 3. Location of server doesn't matter, and I don't think citizenship does either. With that in mind, the values would be: Germany: Required EU: Not required Rest of world: Required if advertised/directed in/towards Germany. with the caveat that truly private non-commercial websites never require an Impressum. | In the question, you write: The GDPR requires consent of the subject for collection or storage of personal data (in this case, IP addresses in a log file). No, it does not. To quote Miss Infogeek: GDPR DOES NOT MAKE CONSENT A MANDATORY REQUIREMENT FOR ALL PROCESSING OF PERSONAL DATA. Consent (Article 6 (1)a) is indeed one of conditions that can be used to comply with the GDPR requirement that processing must be lawful, but it is not the only condition available to the controller to ensure lawful processing – there are alternatives (before the list of conditions it says that "at least one of the following" must be satisfied). All the conditions for lawfulness of processing are spelled out in Article 6 of the GDPR. One of alternatives are Article 6 (1)f. It says says it is legal to process personal data if processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. (my emphasis) As noted in the question, logging IP addresses for the purpose of security is an extremely widespread practice. It is a legitimate interest to comply with standard security practices. It is the default, and most (all?) web-sites do this. I.e. it is legal to do this without consent (if this is not the case, I am pretty sure the outcry had been heard all over the Internet by now). | When you make a request based on the GDPR, Art. 12(6) GDPR applies. 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. As you can see, this only applies when the data controller (Blizzard) has reasonable doubts about your identity. If I understand it correctly, Blizzard provides services (games) which requires you to login with a username and password. So they have no doubts about your identity when you use their (paid) services with just a username and password. So there should also be no reasonable doubts when you make other requests when you are able to login to their website. A copy of your government ID seems unnecessary. Recital 57 also confirms that identification does not require a government ID: Identification 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. A copy of your id, includes a photograph. The photograph could show health, religious, racial or ethnic information. That kind of personal data has much stricter rules defined in Art.9 . Most governmental IDs contain a national identification number. EU Member States can limit processing of those identification numbers even further. For example in the Netherlands processing of the identification number is only allowed when a specific law exists. So Blizzard is not allowed to process a Dutch national identification number. There are also ID convers] which hide sensitive information like document numbers and photographs in case you do need a copy of an ID. Also note that identification is only possible by comparing existing personal data with the provided personal data. I assume you did not provide a copy of your ID when registering. So many things which are shown on the ID do not make sense to sent to Blizzard. It does not know your place of birth, so it cannot verify it. Art. 5 requires 'data minimisation' for personal data. So they are not allowed to process more data than required. So you also do not need to send you more data than required. You should get an answer on your request within 30 days. However, since you ask to delete your account, the answer also might be that they will deny your request. They have to explain why they will not delete your account. | Think of a website that has gives no option for the users to delete what they have posted -but still the users can delete their account completely. That's easy - this is exactly how all StackExchange sites (including this one) work :-). See for example: How does deleting work? on meta.SE. Is it against the right to erasure mentioned here as a part of GDPR? No, it is not (otherwise StackExchange would be in rather big trouble). The "right to be forgotten" is subject to limitations. Most importantly, it only applies to personal data. Personal data is defined as (GDPR, art.4): any information relating to an identified or identifiable natural person (‘data subject’) If what you posted contains no personal information about you, it is not "relating to" you. The details are complicated (as usual, see e.g. The GDPR: What exactly is personal data?), but "personal data" is things about you (your name, your address, your sexual history, maybe even your IP address). On the other hand, if someone asks how to solve a programming problem, and you write an answer explaining what API to call, that answer is not personal data. In addition to that, even personal data may be retained if the data controller has a need to retain that information. This is also covered in article 4. For example, the controller may retain information "for the establishment, exercise or defence of legal claims" - otherwise you could buy something online without paying, and then ask the seller to forget about your purchases so they cannot collect the outstanding payment. So, in summary: A website will need to allow users to delete or hide personal data that they posted - such as their user profile information, or personal information in their posts. That does not mean they are allowed to delete entire posts - it is enough if personal information is redacted or anonymized. The website may be allowed to retain that information (hidden) if they can show legitimate interest - for example billing information, or posts that are the subject of a lawsuit. The StackExchange network, for example, covers this by allowing users to: disassociate posts from their account delete their account entirely (thus effectively disassociating all posts from personal information) asking a moderator for redaction of personal data | It may be legal or it may not For example, if any of the users are in the European Union, then the GDPR applies and the person storing the information is a data controller and has legal obligations. These include, having a legitimate reason for storing them, storing them only for as long as necessary for that reason, notifying the individuals that the data is being stored and why, deleting it upon a users request etc. | There’s no definitive list of what is or isn’t personal data, so it all comes down to properly interpreting the GDPR’s definition: ‘[P]ersonal data’ means any information relating to an identified or identifiable natural person (‘data subject’). — Article 4(1) In other words, any information that is clearly about a particular person. But just how broadly does this apply? The GDPR clarifies: [A]n 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. — Article 4(1) This means that because you say that coordinates and anticheat logs are linked to the cheaters ingame username and unique id, if there is a record of who that username and/or unique id belongs to, even if it is just an IP or email address, it is considered personal data because the information relates to an identifiable natural person. Personal data includes any data which can be linked to information where a person can be identified From CommentsIf the online username and unique id is not linked to the actual human (no stored real name, no home address, no IP), can the natural person actually be identified? The records and anticheat logs are linked to the unique id and username, however the unique id and username are (from my POV) not actually linked to the real human Only you can answer that question as it stands because we have no access to your data. From what you have told us, even though the coordinates and anticheat logs are linked to the cheaters ingame username and unique id, that alone doesn’t fall under the GDPR’s scope of personal data, as, in all likelihood, the usename and unique id could relate to anyone in the world. The issue comes if elsewhere you have a record of the person's name, IP, date of birth etc. which when combined with the anticheat logs could link that data to identifiable people. You might think that someone’s name is always personal data, but it’s not that simple, as the UK’s Information Commissioner’s Office document what is personal data (PDF) explains: “By itself the name John Smith may not always be personal data because there are many individuals with that name. However, where the name is combined with other information (such as an address, a place of work, or a telephone number) this will usually be sufficient to clearly identify one individual.” Note: A name which is much less common could be personal data as the likelihood of it relating to others deminishes. John Smith is a common name all over the UK, but what about a particular polish/czech/hungarian/french.... name (let's say) living in Nottingham, UK? What is the likelihood of another person of the same name in Nottingham, UK? Add a middle name or double barrelled surname, and it becomes even more likely that it is personal data. If you’re unsure whether the information you store is personal data or not, it’s best to err on the side of caution. This means making sure data is secure, reducing the amount of data you store, collecting only as much data as necessary to complete your processing activities, keeping data for only as long as it meets its purpose, and ensuring only authorised people are able to access the data. |
Bypassing trademarks by changing words if a name is a combination of multiple words It is possible to avoid trademarks by changing them slightly, such as replacing words if a name is a combination of multiple common language words? I have seen various media (video games, films) re-using names from other media and changing words of such names. (Them call this as "pop culture references". And the owners/creators of such media don't disclose if they have gotten authorization to do this). Example of a such change: "Blackrock" to "Bluerock" or similar. | The legal standard, evaluated on a case by case basis, when one firm uses a trademark that is similar to another firm's trademarks to market its goods or services in the same industry is whether the trademark is "confusingly similar" and in some cases whether it "dilutes" the first in time famous trademark. Many people writing fictional media, or making academic hypotheticals, make changes to an existing famous mark along the lines of those described in the question, in the hope of making a popular culture reference, while avoiding a feared exposure to trademark infringement and defamation liability. But that fear is mostly misguided. A trademark is not a right to have monopoly use of the mark in writing or other media. "Nominative use" of a mark is legal and does not expose the person making nominative use of a mark to liability. What is prohibited is using the protected mark to market goods or services in commerce, in a market where the trademark one fears being infringed currently exists and is being used to market goods or services of that trademark owner, to give the false impression of an association, affiliation, or endorsement by the trademark owner. The gravamen of a trademark infringement lawsuit is fraud and deception perpetrated on consumers to the detriment of the trademark owner. This is almost never a real risk in a fictional work. To the extent that there is a legal concern at all about distinguishing a fictional firm from a real one, the bigger legal exposure is to defamation liability. In other words, the bigger concern is the risk that the fictional work is viewed as making a thinly veiled false factual statement about the real world firm that damages its reputation (e.g. if it were to depict a fictional analogy of the real world firm "Taco Bell" making tacos out of horse meat as the real world firm has often, falsely, been accused of doing in real life because its prices are so low). | No, this is not true. Copyright can be enforced selectively. You are confusing copyright with trademark. Company can lose its trademark if they aren't protecting it. All the meanwhile they can choose to ignore some copyright infringement while enforcing their rights on others with no legal problems what-so-ever. In order to illustrate the difference: for example, if someone would make a clone of Super Mario and would call their clone as well "Super Mario" and maybe even would call themselves "Nintendo", even if they have programmed the whole game by themselves from scratch and the art and music would be all different, they wouldn't be infringing the copyright but challenging protected trademarks. In your case, the naming was identical, the art and everything was too similar to the original and therefore the clone was challenging the trademark that needs constant protecting. | There is already any number of other pages that are named kleinanzeigen, just with different top level domains (probably sprung into existence after the plan for the renaming became public). But if you are a Website operating in Germany that owns the kleinanzeigen.de domain, that probably does not worry you too much (you could probably fight others over the use of the word for a specific purpose such as a classifieds website, because sometimes specific uses might be protected; but that would be an uphill battle, since as pointed out the name is the literal description of the business model). What might worry you is that somebody is tricked into confusing kleinanzeigen.eu or kleinanzeigen.biz with your valuable property. The way to avoid that is to register a "Wort-Bild-Marke", a combination of your name with one or more distinctive graphic elements. You will notice that the "kleinanzeigen" name on the website is rendered in a specific font and is preceded by what on closer inspection turns out to be a stylized letter "k". That is something that can be protected by law. Nobody else is allowed to be too close to that design, so that minimizes the danger that visitors confuse a competitor's page with the "original" kleinanzeigen page. Since the question alludes to eBay's business, kleinanzeigen is no longer a part of eBay - for some three years now they belong to Adevinta, a Norwegian conglomerate that runs classified portals in various countries. So keeping "ebay" in their name was not really an option (and all alternatives to "kleinanzeigen" were probably worse). | Obviously you may end up voiding warranties, losing on-going support from the manufacturer, or there may be a contract you agreed to stating that you won't do it, but assuming none of that is relevant (e.g. a salvaged Tesla doesn't get support/warranty anyway) is there any law preventing you from modifying your property to remove the limits placed on it? This assumes away one of the biggest issues, which is doing this is almost certainly a breach of contract unless the contract term is void as against public policy (which it probably isn't). So, the manufacturer can sue you for money damages probably equal to the difference in value between the limited and unlimited hardware in the marketplace. The manufacturer might also be able to obtain an injunction against this practice, which could result in the incarceration of someone who knowingly violated this court order for contempt of court, once an injunction is secured from a court to enforce the contract. There is also an anti-hacking statute in the United States, whose plain language appears to prohibit taking actions that override a digital system's security features. Unlocking these hardware features would appear to violate this statute. This is part of the Digital Millennium Copyright Act (DMCA) and is codified at United States Code Title 17, Section 1201. As Wikipedia explains: 17 U.S.C. 1201 is often known as the DMCA anti-circumvention provisions. These provisions changed the remedies for the circumvention of copy-prevention systems (also called "technical protection measures") and required that all analog video recorders have support for a specific form of copy prevention created by Macrovision (now Rovi Corporation) built in, giving Macrovision an effective monopoly on the analog video-recording copy-prevention market. The section contains a number of specific limitations and exemptions, for such things as government research and reverse engineering in specified situations. Although, section 1201(c) of the title stated that the section does not change the underlying substantive copyright infringement rights, remedies, or defenses, it did not make those defenses available in circumvention actions. The section does not include a fair use exemption from criminality nor a scienter requirement, so criminal liability could attach to even unintended circumvention for legitimate purposes. The statute is quite lengthy and full of technical definitions and narrow exceptions and exceptions to exceptions to the general rule. These legal issues have mostly gained media attention in the context of farmers who seek to hack into the built in software of their farm machinery in order to repair it where the manufacturing companies have not cooperated. There have been legislative fixes proposed that would make these prohibition void as against public policy for some specific purposes like doing repairs. There have also been efforts to characterize this kind of business practice as an anti-trust violation. But, none of that legislation has passed in the United States, to the best of my knowledge and belief. But, I am not aware of any high profile legal precedent that has addressed this point but I wouldn't rule out the possibility that there is one. The closest case I could find on point (from the High Court in Australia) is Stevens v. Sony, which holds "that a device allowing PlayStations to play games with a different region code did not violate the anti-circumvention laws, because the mechanism in the PlayStation did not directly prevent the infringement of copyright." I am not personally familiar with non-U.S. law on this topic. Wikipedia reviews some of the applicable law in the E.U. and Australia. According to this Wikipedia entry, pursuant to European Directive 2001/29/EC of the European Parliament and of the council of May 22, 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, E.U. member nations must adopt domestic anti-circumvention statutes that meet certain minimum E.U. standards set forth in the directive. Also according to the same Wikipedia entry: "Australia prohibits circumvention of "access control technical protection measures" in Section 116 of the Copyright Act." In Australia, "Penalties for violation of the anti-circumvention laws include an injunction, monetary damages, and destruction of enabling devices." | It depends on how much you "copy" (including translate). If you were to have a list of 250 or even 1000 challenging words that appear in the movie, and even list the words in the order that they first appear in the movie, then there is no question of infringing on their copyright. If you create a transcription or translation of any part of the movie, then you are potentially infringing (a transcription being where you write down the spoken English dialogue). There are circumstances, pertaining to "fair use", whereby you could defend yourself in a lawsuit, but you would really need to engage a copyright attorney to advise you where the limit is. The purpose of the "fair use" defense is to make it possible for someone writing a review of a movie to actually quote short bits of dialogue. From the perspective of what would be useful for language learning (i.e. the amount of text that you would need to copy), providing a translation would almost certainly constitute infringement. In listing words which occur in a movie, you would not need to limit yourself to just single words, because there are idiomatic expressions like "down with that" or "kick the bucket", which involve a number of words but function as single units. When it comes to text, the copyright holder does not own the specific words, but he owns the "expression". The closer your product is to replicating that text, the more likely it is that the product will be found to infringe (this is why my example involved just listing the words once: and it should not be the 25,000 most difficult words, since that would amount to near-literal copying for a substantial initial part of the movie). If the movie is also released with e.g. Arabic subtitles (which would involve a licensing agreement), then greater caution would be advised in providing a word-list of difficult words that appear in the movie, because of the "effect on market" consideration. | Fair use does not apply to Trademark Fair Use is only available for copyright material. Trademarks are solely for determining the source of goods or services and not subject to Fair Use. Trademark allows Nominative Use Nominative use is naming the mark. It does not allow to use the mark itself. A flashlight for a Gameboy may say "For GameBoy(TM)", akin to the NAKI Action Light: A replacement oil filter may say "Fitting for Nissan Almera Tino (v10) 2000-2006 115 PS Diesel", or rather, they usually specify the exact OEM numbers and car models, like in the following excerpt: NEITHER may use the Nintendo, Gameboy, Nissan or Almera picture marks for the advertising. Do note, that NAKI didn't cover up the marks on their model Game Boy, which might or might not be a problem. | 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. | Reviewing https://stackexchange.com/legal/trademark-guidance shows the following: The logos associated with Stack Exchange Inc. and any Stack Exchange site are a trademark. The purpose of trademark law is to prevent consumers from being misled as to the origin of a product. So if you were making a product, and you used a Stack Exchange name or logo in your product (or in its advertising) in such a way that would mislead someone into thinking that your product was owned by, operated by, endorsed by, or in any way part of Stack Exchange Inc., you would be violating the trademark and this would not be legal. Our logo images and site names are copyrighted. Any content on the Stack Exchange Network not contributed by users is copyrighted. Copyright is different than trademark. Ordinarily you couldn't copy it. But if you were writing a news story or blog post about a Stack Exchange site, reproducing the logo image would almost certainly be considered "fair use" and allowed under trademark law because you were not using it "in trade." So the answer to your question is yes, you would need to seek the permission of the trademark holder. |
Are projects produced as pre-conditions for employment interviews sole work or work-for-hire? It is a somewhat common practice to ask prospective software development employees to produce small-size projects which perform according to certain specifications. If the spec is not a run-of-the-mill type of project, the work can turn out to be unique enough that its equivalent may not be found, or easily found, among public domain projects, or even among open source projects, out there. Would the copyright of the project be assigned to the prospective employer or would the prospective employee retain it? The prospective employee would, after all, (quite literally) receive a consideration, by being considered for an employment position, in exchange for their work. | Ideally a specific contract for the limited purpose of the interview would determine this. Such a contract could assign such "test" works to either the prospective employer or to the prospective employee, as the parties choose. In the absence of a specific written agreement (to effect a transfer of copyright, an agreement must be in writing and signed) the copyright on such a work will belong to the prospective employee under 17 USC 201 (a) unless the work counts as a work made for hire. 17 USC 201 reads in relevant part: (a) Initial Ownership.—Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work. (b) Works Made for Hire.—In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. According to 17 USC 101 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 ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. ... Since we are assuming the absence of a written agreement, only part (1) of this applies. Thus the status of the work depends entirely on whether the programmer is an "employee". The mere fact that a person recessives compensation does not make that person an employee. For copyright purposes, agency law applies. Specifically: The US Copyright office Circular 09 "Works Made for Hire" states: To help determine who is an employee, the Supreme Court in Community for Creative Non-Violence v. Reed identified factors that make up an “employer-employee” relationship as defined by agency law. The factors fall into three broad categories. Control by the employer over the work. For example, the employer determines how the work is done, has the work done at the employer’s location, and provides equipment or other means to create the work. Control by employer over the employee. For example, the employer controls the employee’s schedule in creating the work, has the right to have the employee perform other assignments, determines the method of payment, or has the right to hire the employee’s assistants. 3 Status and conduct of employer. For example, the employer is in business to produce such works, provides the employee with benefits, or withholds tax from the employee’s payment. These factors are not exhaustive. The Court left unclear which of these factors must be present to establish the employment relationship under the work-for-hire definition. Moreover, it held that supervision or control over creation of the work alone is not controlling. However, all or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise). Examples of works made for hire created in an employment relationship include: A software program created by a staff programmer within the scope of his or her duties at a software firm [Emphasis added] ... The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment will be a work made for hire. But because no precise standard exists for determining whether a work is made for hire under part 1 of the definition in section 101 of the copyright law, consultation with a lawyer may be advisable. If a work is made for hire, the employer or other person for whom the work was prepared is the author and should be named as the author on the application for copyright registration. Respond “yes” to the question on the application about whether the work is made for hire The Wikipedia article aboutCommunity for Creative Non-Violence v. Reed 490 U.S. 730 (1989) describes the case, in whioh a charity hired a sculptor to produce " statue that depicted the plight of homeless people for a Christmas pageant in Washington DC". CCNV claimed that the statute's copyright was theirs as a work made for hire (WMFH). Sculptor Reid claimed the copyright as being the author Justice Thurgood Marshall wrote in the majority opinion [Footnotes omitted]: The Copyright Act of 1976 provides that copyright ownership "vests initially in the author or authors of the work." 17 U.S.C. § 201(a). As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. § 102. The Act carves out an important exception, however, for "works made for hire." < ... [Page 490 U. S. 740] In the past, when Congress has used the term "employee" without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common law agency doctrine. See, e.g., Kelley v. Southern Pacific Co., 419 U. S. 318, 419 U. S. 322-323 (1974); Baker v. Texas & Pacific R. Co., 359 U. S. 227, 359 U. S. 228 (1959) (per curiam); Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84, 237 U. S. 94 (1915). Nothing in the text of the work for hire provisions indicates that Congress used the words "employee" and "employment" to describe anything other than "the conventional relation of employer and employe.'" Kelley, supra, at 419 U. S. 323, quoting Robinson, supra, at 237 U. S. 94; ... On the contrary, Congress' intent to incorporate the agency law definition is suggested by § 101(1)'s use of the term, "scope of employment," a widely used term of art in agency law. See Restatement (Second) of Agency § 228 (1958) (hereinafter Restatement). ... We thus agree with the Court of Appeals that the term "employee" should be understood in light of the general common law of agency. ... [Page 490 U. S. 751-2] In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. See Restatement § 220(2) (setting forth a nonexhaustive list of factors relevant to determining whether a hired party is an employee). No one of these factors is determinative. See Ward, 362 U.S. at 362 U. S. 400; Hilton Int'l Co. v. NLRB, 690 F.2d 318, 321 (CA2 1982). Conclusion An applicant being given a "test project" as part of an employment interview is probably not an employee under agency law. Thus the work is not a WMFH, an, in the absence of a written agreement to assign the work created as part of the test to the prospective employer, the copyright would belong to the prospective employee. I have not found a case specifically relating to this interview fact pattern, and it could be that a court would rule otherwise in this specific pattern. | 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 ... | Unknown based on what you have posted in your question. But answer lies in the terms under which the source code is made available or licensed. The most common scenario is that such "sample" source code is provided as help to the purchaser of their product and you'll often see things that permit its use in conjunction with the hardware product. You'll also often see disclaimers that say the code is for demonstration purposes only and it not warrantied to do anything at all. But again, you'll need to review the actual language under which the code is provided and then understand and follow its terms and conditions. | However, this uses the text "rights in an invention"; does that cover copyright? Yes. (Is this the correct law?) It certainly seems to be. Does "Relate … to the employer's business" cover the entirety of software engineering, or just the particular software engineering my employer does? Imagine that you work for a company that writes trading software. In your spare time, you develop a photo editing tool. Do you think a court would find that your project "related to the employer's business"? I do not. Or does my employer own copyright on everything down to the love letters I write? Google does not own everything their employees create; they only claim to. If someone challenged them on it, a court would decide, and probably not in their favor. | This could be a problem if the consultancy agreement contains a provision that assigns to the client any copyright in any code created by the consultant. That is why there should be no such provision. In the absence of such a provision, the consultant owns the copyright in the code, so it would be impossible for the consultant to infringe that copyright. Even so, copyright protects a particular expression of an idea, not the idea itself. The idea of an "analyze data" class containing a "read data" function is not itself subject to copyright protection. It could potentially be patentable as a "process," but it would fail to meet the criterion of novelty. It would also fail to meet the criterion of non-obviousness. On the other hand, a software developer cannot (without permission) copy source code that is protected by copyright simply by changing the names. Changing the names would constitute the creation of a derivative work, and the right to create derivative works is also protected by copyright. | You are probably an employee Answer these questions: Can you say “no” when the University offers you work? Or vice-versa, can they say “no” when you want to work? Can you subcontract the work? That is, can you hire someone to do what the University hired you to do? Do you control how and when you work? For example, when you break University rules are you subject to University discipline or is this treated as a breach of contract? Do you provide your own tools and equipment? Can you make a profit or loss (if you get paid by the hour the answer is “no”)? Do you take out your own public liability and/or professional indemnity insurance? If the answers to most of these questions are “no”, you’re an employee. | Basically, "in the course of your employment" means "while you are working, or should be working, for the employer". If you're not using company resources or time to create or acquire the works in question, and the works are unrelated to company business, they're quite unlikely to become the company's property. (Particularly since the company almost certainly doesn't have an interest in controlling the distribution of your vacation photos.) When you let your personal side projects and the company's stuff get intertwined, that's where the troubles begin. Works made on company time, or using company resources, or to do company-related things, may be claimed by the company, and this agreement basically says you'll cede ownership of the works to them, patents and all, for whatever amount of money they decide it's worth paying you. | Provided you are in one of the 170+ countries signatory to the Berne Convention (the current 10 non-signatories are, exhaustively: Eritrea, Marshall Islands, Nauru, Palau, San Marino, Iran, Iraq, Ethiopia, Somalia, and South Sudan), then copyright comes into existence at the moment a work is fixed in a tangible medium, not when it is published. The initial copyright owner is the author of the work. In cases of employment, the "author" might be the natural person who authored the work, or the corporate person who employed the natural author. To clarify your thinking about registration: copyright registration is a public record of authorship (or copyright ownership). Registration does not create a copyright, but is merely a recording of the copyright that was automatically created at the moment of original authorship. Depending on circumstances and jurisdiction, Alan might have a legitimate claim to copyright on his own work. However, he will be quite hard-pressed to find a convincing theory of law that allows him to publish the unpublished copyrighted work of other people without their permission. This leaves him either to admit defeat -- he cannot possibly own the copyright of his coworkers' code, so he cannot have legally reproduced it -- or else make the baldfaced lie that the code has no other authors other than Alan himself. For your company to disprove such a claim, you may employ sworn testimony of your coworkers, you may employ code analysis to show differing coding styles (suggestive of multiple authors), or you may show code backups or version control history showing the progressive authorship of the work over time by many people. (Sure, a Git history is possible to fake, but a realistic history with feature branches, "whoops, undid the typo in the last commit" messages, etc. would lend significant weight to your company being the original authors.) |
Intellectual property with hiring minor as software engineer I'm currently running a startup in California, and I'm looking to hire a few minors as paid software engineering interns. Since minors are unable to sign contracts, will I run into any issues with owning the intellectual property (software) that they end up developing? | Voidable Contracts First of all, it is not generally correct that "minors are unable to sign contracts". However, in many cases, minors can disaffirm contracts. (This is also called "voiding the contract, and such contracts are called 'voidable".) This means that, up until the minor becomes an adult, and for a limited time after that, the minor can cancel the contract and cease to be bound by it. There are some kinds of contracts to which this does not apply. Under the traditional common law, the major exception was contracts for the purchase of "necessities" for the minor or the minor's family. The term "necessities" included food, clothing, and shelter. Contracts for "necessities" could not be disaffirmed. In addition, contracts to purchase goods that had later been sold to a third party for value, and the goods delivered to that third party could generally not be disaffirmed. However, many US States and other jurisdictions have modified these rules by statute. California, for example, has specific laws governing contracts for minors engaged in art, film, and entertainment work and in professional sports. These laws spell out procedures that must be followed to make such contacts not subject to disaffirmance, including a court hearing and payment of a part (15%) of the earnings into a trust. See the Findlaw page "Is It Legal to Sign a Contract With a Minor?" which states: For most contracts, the general rule is that while it's not illegal to enter into a contract with a minor, the contract is voidable at the discretion of the minor. Voidable contracts are usually valid contracts and are binding unless the child cancels it. On the other hand, if the minor turns 18 and doesn't cancel the contract within a reasonable period of time, the contract could become binding and enforceable. The page goes on to mention some specific state provisions in Texas, New York, and California, none of which seem to be relevant to the situatiin described in the question. The page "Can a Minor Enter Into a Contract?" from HG Legal Services states: Many people who are under the age of 18 have some type of employment. Additionally, there are many children in the entertainment industry. Both California and New York have passed legislation that limits such a minor’s right to disaffirm the contract. Some laws allow courts to first approve the contract so that the infant cannot later attempt to void it. Additionally, contracting with the infant’s parent rather than directly with the infant can bind the child in some cases. Some states allow infants to work so long as they acquire a work permit. (Note that in legal usage "infant" means the same as "minor", that is, a person not yet adult. It does not mean a baby.) Note that if a minor disaffirms a contract, the entire contract is undone. The minor cannot pick and choose which sections to disaffirm (cancel). Goods or money received by either party under the contract must be returned, for example. When a transaction cannot lawfully be undone, then it may not be possible for the minor to void the contract. The possibility of disaffirmance means that one cannot rely on a contract with a minor in the same way one can rely on a contract with an adult. If it is important to have a binding agreement, such as an NDA, with a minor working as an intern or employee, one would need to take steps to ensure that the contract is binding. In some cases having a custodial parent approve such a contract might be useful. The specific steps that would accomplish this in a particular jurisdiction, if it is possible at all, are something that a lawyer could advise on. Labor law In addition to the issue of possible disaffarmance, in many jurisdictions child labor laws restrict and regulate any employment of a minor, and this will probably include a position as an intern. A work permit may be required, and the hours of work may be limited, particularly during the school term. Employee Status The question reads: I'm looking to hire a few minors as paid software engineering interns. [emphasis added] A paid intern is an employee. Minimum wage laws will apply, unless there is a specific exception 29 U.S. Code § 203 (part of the US Federal Fair Labor Standards Act (FLSA)) defines an "employee" in subsection (e) as "the term “employee” means any individual employed by an employer." with exceptions and different definitions for government workers, farm workers, volunteers, and certain other cases which do not seem tol apply here. Subsection (g) reads "“Employ” includes to suffer or permit to work." The US Department of labor "Fact%Sheet%#13:%Am%I%an%Employee?" further defines "employee" and gives tests for whether a persron is an employee or an independent contractor. It states that "most workers are employees". It gives various factors to consider in deciding whether a worker might be a contractor or an employee. These include: Work that is integral to an employers business is usually done by employees, not contractors. If a worker exercises managerial skills, and if so, if these affect the worker's chance of profit or loss, the worker is more likely a contractor The relative investment by the worker in facilities and equipment. If there is little, the worker is more ;likely an employee. Workers who must use independent business judgement are more likely to be contractors. Detailed control of hours of work and methods indicates that the relationship is more likely one of employment. Employment Under Copyright Law 17 USC 102 states that: 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 ... It part (1) of this definition that is relevant here The US Copyright office Circular 09 "Works Made for Hire" states: To help determine who is an employee, the Supreme Court in Community for Creative Non-Violence v. Reed identified factors that make up an “employer-employee” relationship as defined by agency law. The factors fall into three broad categories. Control by the employer over the work. For example, the employer determines how the work is done, has the work done at the employer’s location, and provides equipment or other means to create the work. Control by employer over the employee. For example, the employer controls the employee’s schedule in creating the work, has the right to have the employee perform other assignments, determines the method of payment, or has the right to hire the employee’s assistants. 3 Status and conduct of employer. For example, the employer is in business to produce such works, provides the employee with benefits, or withholds tax from the employee’s payment. These factors are not exhaustive. The Court left unclear which of these factors must be present to establish the employment relationship under the work-for-hire definition. Moreover, it held that supervision or control over creation of the work alone is not controlling. However, all or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise). Examples of works made for hire created in an employment relationship include: A software program created by a staff programmer within the scope of his or her duties at a software firm [Emphasis added] ... The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment will be a work made for hire. But because no precise standard exists for determining whether a work is made for hire under part 1 of the definition in section 101 of the copyright law, consultation with a lawyer may be advisable. If a work is made for hire, the employer or other person for whom the work was prepared is the author and should be named as the author on the application for copyright registration. Respond “yes” to the question on the application about whether the work is made for hire Given all this, it seems likely that "paid interns" in the situation described in the question will be employees for purposes of copyright law, and their works in the course of employment will be works madwe for hire, with the employer being legally the author. This conclusion does not depend on an employment contract, adn an action by the intern to later void such a contract will not change the copyright status of the work. Conclusion The copyright of works (including software) produced by such interns is likely to be a work made for hire, with the employer being the author and initial copyright holder. This is true regardless of any contract, because a contract is not the key factor which makes a person an employee under US law, rather the nature of the relationship is. It would be wise to consult a lawyer with experience in employment law and the laws governing minors in the relevant jurisdiction before entering into such an arrangement. | This answer is limited to United States law. The situation in other countries is definitely different. Under United States law, the owner of a lawfully made copy of a copyrighted work has, as a right of the physical possession of that work, the right to the work's ordinary use. Licenses grant you additional rights such as the right to make derivative works, the right to make copies beyond what's needed for ordinary use, and so on. A pure license doesn't ask for anything in return, it just gives you new rights. Those rights may be conditional, but the conditions are just things you have to do to get new rights. They're not conditions imposed on any existing rights you had. A contract is an agreement between two parties. Both parties must agree to a contract for the contract to be enforceable. Contracts can take away rights you otherwise have. You don't need a license or contract to use a copyrighted work if you lawfully possess a copy of that work. Say you download a copy of a work covered by the GPL. You can refuse to accept the GPL license and you can still use that work. Why? Because no law prohibits you from doing so and there is no civil cause of action for using a lawful copy of a work under US law. But now say you want to give a copy of that work to your friend. This is illegal under US law because 17 USC 106 restrict that right to the copyright holder and there's no applicable exception since that's not part of the ordinary use. For a work covered by the GPL, the license offers to give you that right, a right you wouldn't otherwise have. It imposes conditions on you that are specifically in exchange for the grant of the new right. If you do accept the GPL, it functions as a contract. You got in exchange a right you didn't have before and if you don't comply with the GPL's terms, you don't have the copyright holder's permission to exercise those rights which is required under the law. By contrast, a click-through or EULA takes effect when you agree to it and such agreement is a condition for using the software. That's a pure contract and usually doesn't give you any rights you wouldn't have in the absence of such an agreement other than the use of the software. | Tricky. First, what is better for you? You usually start an LLC to protect yourself (the person) from liability in case things go wrong. Worst case, you lose all the assets of the LLC. So if the LLC owns the copyright, that is an asset, which can be lost if the LLC goes bankrupt. So I'd say it's better for your protection if you own the copyright personally. If you created the software in your own time, before the LLC was started, then you own the copyright. You should create a proper contract saying that the LLC has the non-exclusive right to market the software and keep profits from the sale of the software, and that this agreement can be cancelled by you at any time. Signed by you, as a private citizen, and by the director of the LLC, which happens to be you as well, on behalf of the LLC. That will give you maximum personal protection. On the other hand, investors won't be willing to invest in your LLC, because it basically owns nothing of any value. So if you want investments, then you may be less able to protect your assets, because the investors want to protect their assets as well. | Is this work for hire? There is an arguable case to be made that you are an employee for copyright law purposes and, if so, the copyright belongs to the company. The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment will be a work made for hire. But because no precise standard exists for determining whether a work is made for hire under part 1 of the definition in section 101 of the copyright law, consultation with a lawyer may be advisable. Second, if you do own the copyright, there is clearly an implied licence with the company to allow them to use it. It is arguable that the licence is exclusive since the software is bespoke and made specifically for the company. Can you sign an agreement now Yes, but … It is clear that the purpose of signing the agreement is to screw the company over (with the compliance of 2 of the directors). That’s a contract entered into in bad faith and possibly for an illegal purpose and would likely be found invalid. You need to understand that the company is a distinct legal entity from its owners and it has its own rights. People make the mistake of thinking the owners are the company: they aren’t. The two rebel founders are on dangerous legal ground. Assuming they are the directors of the company, they have a fiduciary duty to act in the best interests of the company. That is, they must put the company’s interests ahead of their own. It is clearly not in the company’s interest to have a rival business start so they cannot plan to do that while they are directors - they need to resign first. You are not so much at risk - as an employee/contractor your duty is to follow the directions of the company (the company - not a faction within the company). However, if you aid the other two in what might be a crime, you could be in trouble. | Sure, you can. But if you, from the US, contract with and pay someone outside the US and then use the results of that effort - the reverse-engineered code, either directly in violation of copyright or to find workarounds - within the US, you may not be culpable in a criminal sense (depending on different jurisdictions and trade/IP agreements), but you certainly would be liable in a civil sense. If the US based software developer (I assume a US-based software company, as you said "outside the US") tracks you down, they can open a civil action against you for any damages they want to claim, including theft of IP, loss of profits, EULA violations, and on and on, because you posses and are using reverse engineered code. How much money do you have to lose? | Adults are bound to contracts with minors The technical term is that a contract with a minor is that it is voidable by the minor unless it is subject to the exemptions - a contract for necessities or a contract of benefit to the minor (e.g. a reasonable mobile phone contract). Until the minor chooses to void it, it is binding on everyone involved. They can do this anytime before they reach majority or within a reasonable time after that providing the contract is not complete. That means, for one and done transactions, the contract cannot effectively be voided because the contract is complete - think of a child buying an ice cream, riding a bus or going to the movies. If it is voided, the minor is obliged to return whatever consideration they received and that is still in their possession. So, for the mobile phone contract, if it included a handset, they must return that providing they still have it. | The companies really need to speak to an IP lawyer as this question is seeking specific advice which this site is loathe to give out for fear of compouding issues. The answer would depend on the license agreements and enforceability in various jurisdictions. According to https://social.msdn.microsoft.com/Forums/vstudio/en-US/0368d7ee-0eb3-4e3e-a143-4410969a15bb/eula-for-vs2010?forum=vssetup Microsoft says you cant rent out the software - but this applies to the "Pro" version - I could not find anything on the "Premium" version - so most likely Microsoft to have some clam. The flipside is how enforceable this EULA is - and this would probably vary from jurisdiction to jurisdiction. It would be a very, very good idea to speak to a lawyer before letting Microsoft come onto the premises - as "inviting them" to do this is almost certainly not going to improve the Asians company's case and will allow Microsoft to go fishing further and make it easier for them to expand on and collect evidence should they decide to pursue the matter. | Bulgaria is one of many countries in which intellectual property can be protected with a single international patent filing, in lieu of a Bulgarian specific filing. In generally, you should assume that any patented idea likely to have international application, such as Internet based software, which is patented in the U.S. is also the subject of international patent protection, unless you specifically know that this is not the case. Virtually all patent lawyers know how to make this filing and most would recommend doing so in this case. So, yes, it is something you should worry about, and the better practice, by far, would be to obtain permission from the patent owner if the app is likely to have any meaningful commercial value. Now, if you were sued, there is a good chance that it would be in Bulgarian courts under Bulgarian patent law, which may be somewhat less harsh in some respects like damages awards than U.S. patent law. But, the basis for patent liability for an infringement in Bulgaria would be very similar. |
Could a country be formed in Antarctica if the new country didn't sign the Antarctic act? If somebody left their country with a few hundred or even thousand others, took supplies and all materials needed to start there, could somebody form a country in Antarctica? The first answer is obviously not, the Antarctic act prevents land ownership, but if the new country chose to rebel from this, and make their own land ownership laws, and persist with force, could they declare a sovereign nation? | The Antarctic Treaty does not nullify claims or prevent land ownership, and most of Antarctica is claimed by one of a handful of countries. However, these claims are not recognized by most countries. There are many entities that are not universally recognized, including the Republic of Somaliland which is recognized by no-one (January 2022). One should include declaration-only micronations such as Liberland. In other words, you can say whatever you want, declaration does not make it so. A new nation could, in principle, can be created as it was done in the case of East Timor and South Sudan, which underwent processes of self-determination. These were lands that had permanent populations, unlike Antarctica. Such a process of peaceful nation-creation would, without doubt, involve the intervention of the UN to determine if this new nation represented "the will of the (resident) people". | It is almost certainly illegal. I was unable to find UK provisions but the penalties for stealing an Australian passport are 10 years imprisonment or a fine of up to 1,000 penalty units (at time of writing a penalty unit was $170 so, $170,000) (Section 32(4) of the Australian Passports Act 2005). Under this law, the crime is knowingly having it in your possession when you know it isn't yours. Obviously, normal familial relationships would not be prosecuted (i.e. one member of the family carrying all the family's passports). Certainly, if the true owner asked for it and the possessor refused, that would trigger the crime. Furthermore, it is completely pointless - all the original owner has to do is report it stolen and apply for another one. | The original country laws by default, but that can change. Once a country(let's say Elbonia) takes unconstested control of a town/region(let's say Silvania), it becomes an occupying power and has the obligation of ensuring the safety and well-being of its population. It usally also has the practical need of ensuring that the zone does not plunge into chaos, as it is usually detrimental to using that zone resources to support the war effort and may force the occupying force to deploy troops needed elsewhere. To that effect, an Elbonian occupation authority is established and usually a proclamation issued and distributed informing the inhabitant of the new authority and its decisions1. While by default the original laws will be in effect2, the occupying force has the ability to issue new laws and to enforce them in order to conduct its activities.3 The paramount example would that of treason: a Silvanian citizen caught acting against the Elbonian occupation forces can be tried and punished by the Elbonian authorities, even if Silvanian laws allowed or even asked for Silvanian citizens to attack Elbonian forces. At a practical level, if Elbonia follows the rules of war then the occupation of the zone is temporal (as wars of conquest are forbiden) and it is usually easier to let civilians handle themselves as long as it does not affect the war. In any case, a situation of war is often traumatic enough that even without occupation its effects will be felt; in your example Silvania's government could just decree a 90 kph speed limit in order to save fuel, establish fuel rationing, or even require government authorization to use highways in order to free them for military transports, setup checkpoints every few kms... And of course, remember that for some people inter arma enim silent leges. 1There are some explicit prohibitions against laws forcing the inhabitants to directly support the occupying power, like forcing the civilians to enrol in its army or to build military equipment. 2Art 64 of the Fourth Geneva Convention: The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them. 3Art 65 of the Fourth Geneva Convention: The penal provisions enacted by the Occupying Power shall not come into force before they have been published and brought to the knowledge of the inhabitants in their own language. The effect of these penal provisions shall not be retroactive. This answer the "how would one know if one has been conquered?" part of your question. | Before the election, can a lawsuit prevent the amendment question from being put on the ballot? No. Generally speaking, the constitutionality of an otherwise procedurally proper ballot initiative is not ruled upon until after it has passed (eliminating the need to rule unnecessarily on the constitutionality of failed initiatives). Of course, if someone tried to put it in the ballot when the existing law conditions for putting it on the ballot were not met (e.g. because a deadline for doing so wasn't met) that could be challenged in court by a party with standing to do so. If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional? Probably not. The constitution as newly adopted doesn't sound like it would forbid doing that. This seems to be the whole point of the constitutional amendment in the first place and it the amendment to the constition is approved, that requirement is gone. | Depends on where you are, and what law would be broken and why. In germany, there is the concept of rechtfertigender Notstand (justifying emergency). If there is a present danger to a Rechtsgut (legally protected interest), one can take necessary and proportional steps against another legally protected interest. Say I walk through a winter landscape and there is a person who has broken through the ice of a lake (a present danger of the loss of life). Nearby is a yard with a ladder leaning on a shed. I would be allowed to enter the yard (normally trespas) and take the ladder (normally theft) in the rescue attempt (life counts for more than a ladder, using a ladder is necessary/appropriate for an ice rescue). The details are, as usual for Law SE, complicated. | There is a relevant rule, the "posting rule", according to which an acceptance is effective once posted (this is a quirk of acceptances). This would be as soon after 7 May 2016 as Bobby sent his letter, presumably well before the deadline. So yes, a professional lawyer would be needed. If Bobby is in Australia, it might be more complicated; if Bobby is in Norway, it's simpler because they don't have the posting rule. | The Facebook forum doesn't prevent a contract from being formed. But, for a contract to be formed there must be an affirmative agreement, not silence (at least in cases that aren't between merchants). If they later decide to work together without reaching an agreement on the details, the draft contact could be considered, but the Facebook forum for its delivery and that fact that it wasn't expressly assented to might reduce its weight as part of the evidence in an attempt to determine what the terms of their oral or implied agreement to work together involved. It would be very unusual for a broker not to get a signed agreement in writing to pay his fees, although an oral or unsigned agreement to pay a broker is not necessarily barred by a statute of frauds. A finder of fact would be quite skeptical of a broker's claim to have an agreement in those circumstances and often the professional regulatory provisions related to brokerages would require that fee agreement must be signed and in writing even if contract law does not require that this be done. | Probably not Maryland gave consent by ceding the land that became DC back when DC was first formed. Virginia had originally ceded a matching piece of land, which would have made the district a neat square 10 miles by 10 miles. Decades later, the Virginia General Assembly voted (in February 1846) to request the return of Alexandria in a process known as retrocession. On July 9, 1846, Congress voted to return all the area that had been ceded by Virginia. Since then, the district has consisted only of the land originally ceded by Maryland. When Article IV Section 3 says "by the junction of two or more states, or parts of states" it means by joining two states into one new one, or by cutting off parts of two of more states and making them a state -- doing either of those requires the consent of the states involved, but not an amendment. Article I Section 8 could be satisfied by creating a smaller district, perhaps just the Mall and the public buildings surrounding it, including the White House and the Capitol, but no residential areas. In any case nothing in Article I Section 8 mandates the creation or retention of a Federal district. It could be argued that making DC a state would require the consent of Maryland, which once included that land. Or it could be argued that Maryland's original cession left it with no further authority over that land (I favor the latter view). But no consent of Virginia would be needed, because none of its original land is included in the current district. In any case, Article IV Section 3 seems to give Congress this power, with no need for an amendment, only possibly for Maryland approval. So it appears that the primary body that would have to approve statehood for DC would be Congress. Whether approval from Maryland would also be needed is unclear -- probably not. No other body would need to approve. However, there is no case law on the matter, and such a move might well be challenged by those who would not want DC to elect two senators. |
Did Djokovic receive judgments from Australia's Federal Circuit Court, then Federal Court, more speedily than average? I quote Paul Daly, University Research Chair in Administrative Law & Governance at the University of Ottawa (Faculty of Law, Common Law Section). Educated at University College Cork (BCL, LLM), the University of Pennsylvania Law School (LLM) and the University of Cambridge (PhD), he was previously Senior Lecturer in Public Law, University of Cambridge and, before that, Associate Professor and Associate Dean at the Faculté de droit, Université de Montréal. Novak Djokovic and the Value of Administrative Law Hardly any immigrant has Djokovic’s resources and will receive the Cadillac justice he has been receiving. I am not referring to Djokovic's wealth that lets him afford Australian solicitors and Queen's Counsel barristers. I am asking about the Australian courts' treatment of him. How did the Australian justice system furnish him "the Cadillac justice he has been receiving"? For example, was his case heard by the Federal Circuit and Family Court, then the Federal Court, more speedily than usual? | Courts do prioritise cases that need urgent resolution, regardless of the parties' nobility or net worth. The process of prioritising is not open to the public though: it is hard to prove that nobility/net worth do not play a role. In any event, the Djokovic's cases did need urgent resolution for obvious reasons: he had his visa cancelled and was liable for immediate detention and expedited deportation. As to whether anyone else needed justice more urgent than he got it — go figure. | Under U.S. law, a U.S. court can assert jurisdiction sufficient to enter a binding judgment (called "long arm personal jurisdiction") if the events giving rise to the lawsuit took place in the state where the state or federal court in which the suit is brought is located. Generally speaking, modern U.S. law allows the service of the summons and complaint that gives the court jurisdiction over the defendant if the events giving rise to the suit took place in the state, to be served anywhere in the world (or even in outer space, for that matter). But, the practical reality is that serving someone with process from a U.S. court in another country would be difficult and expensive, and enforcing the judgment if you win could likewise be difficult. There are also a couple of other problems specific to small claims court: Many small claims courts do not have the full jurisdiction that the U.S. Constitution allows them to have by virtue of the statutes that authorize them and their contemplation that proceedings take place predominantly or entirely in person. It isn't uncommon for the statute authorizing a small claims court to limit its jurisdiction to defendants that live in the same county. Most small claims courts are only allowed to enter money judgments subject to some very narrow and idiosyncratic exceptions. Most small claims courts do not have jurisdiction to order specific performance of a contract to sell a car, even though they could award money damages for breaching the contract to sell the car if those money damage could be demonstrated convincingly. These barriers particular to small claims court could be solved by filing suit in another state court that has broader jurisdiction. (The federal courts would probably not have jurisdiction over this case even if there was "diversity of citizenship" between the parties because the amount in controversy would probably be less than $75,000 unless it was a very fancy car indeed to be worth that much used.) Different consideration would apply if these facts and circumstances arose outside the United States, depending upon the jurisdiction in question. | When people talk about the "American rule," they usually mean a system where every party pays their own legal costs, and the winner is not compensated in any way for the costs of litigation. Using that as your basis, the American system itself is actually a "hybrid." The details change a bit from jurisdiction to jurisdiction. But in general: The loser in many American civil cases is required to pay the actual court costs. These are not as substantial as the attorney's fees, but they can easily run into hundreds or thousands of dollars. These costs are for things like filing fees, process servers, witness fees, court recorders and transcripts, and other costs that, generally speaking, are going to be the same no matter how much your lawyer charges. (Again, what specifically is included in costs depends on your jurisdiction). This imposes a non-trivial expense on the loser of a lawsuit, without allowing the other side to run up the costs to an outrageous figure by hiring huge teams of expensive lawyer, as is possible under the pure English system. While the "American rule" is the default rule in most or all American jurisdictions, there are generally rules that allow the Court to shift part or all of a prevailing party's legal fees to the other side under certain circumstances. For example: in many courts, if you bring a frivolous motion, or a motion designed primarily to inflate the costs of the suit, the court can require you to immediately pay any attorneys' fees expended in responding to that motion, even if you eventually win the lawsuit as a whole. This is a more specific and targeted penalty for misconduct than the English rule. Similarly, if the Court finds that the entire lawsuit you brought – or the defense you presented – was frivolous, or presented in bad faith, or under certain other circumstances, the Court can include attorney's fees in the final damage award, just as would have been done under the English rule. The result is a hybrid system. The benefit of this hybrid system, at least in theory, is that frivolous lawsuits are discouraged, but lawsuits that have some merit – even if they are ultimately unsuccessful – do not have to worry about the imposition of massive costs. However, the disincentive is not as much as it might be, since the standards courts use to judge a motion or lawsuit "frivolous" are generally quite stringent. | The distinction being made here is far more subtle than it is made out to be in the article. There is a whole cottage industry of case law in almost every state (and under federal law) to determine which deadlines are jurisdictional and which are not. The case law is not uniform nationwide, and often, it isn't even consistent in seemingly analogous circumstances in a single state. The analysis is also more results driven than it is logical. And, it isn't unheard of for a state supreme court to decide that a deadline that lower courts have called jurisdictional for decades, but that the state supreme court has never had an occasion to consider, isn't jurisdictional after all and can be tolled. I've seen it happen more than once (although I don't have citations to those cases easily at hand). There may be practical importance to a parole officer deciding that the deadline has run. This might prevent the issue from ever being litigated. But, the person quoted in the article on that point is a non-lawyer government civil servant who isn't the person who will make the final call if the issue were ever litigated, something that would instead be handled by a senior lawyer in the California Attorney General's office. The author, like a lot of IT professionals and engineers, expects the law to be more consistent, logical, and predictable than it really is, and it so happens that this time he got lucky in his own case, so he thinks he's an expert. | It isn't worth litigating a $60 fine for a non-moving violation that isn't likely to recur. You have a less than 50-50 chance of prevailing (something that is almost always true when you are appealing the decision of a judicial officer in a context like this one), you have no real long term harms as you would in the case of "points" for a moving violation, and you are even less likely to get costs of litigation or attorneys' fees if you prevail, so not having to pay a $60 fine would be a pyrrhic victory from an economic perspective. Even if it is free (and it probably isn't) it would easily take many hours to litigate that isn't worth you time. Any lawyer who would take the case would be cheating you because they would only leave you worse off than you are to start with due to their fees. | Canada's local court systems and procedural rules vary, especially at the lowest level, by province. So, I'm just stating some general principals. General speaking legal arguments are limited to closing arguments of the parties after all of the evidence has been presented by both sides (because this limits legal arguments to those with evidentiary support rather than merely hypothetical arguments). Opening arguments are usually supposed to be limited to a recitation of what the facts in the case will show. Presentation of evidence and examination of witnesses is also not a time for this to be done. Some courts in some jurisdictions allow a defendant to make a "half-time motion" at the close of the prosecution's case, arguing that the prosecution has failed to meet their burden of proof to establish grounds for a conviction before the defense presents the defense's evidence. But, such formalities are often dispensed with in traffic court. Some courts allow post-trial motions to be made after a verdict within a certain number of days set by court rule asking the court to reconsider its decision or overturn a jury verdict, although these aren't always available in a traffic court case. Sometimes these issues are also raised in a pre-trial trial brief or in motion practice prior to trial. The amount of time allowed for closing, and discretion to consider arguments at times other than time usually allowed are in the discretion of the trial judge. Usually, courts are more lenient regarding formalities when a non-attorney is arguing a case. Usually, there is less opportunity to raise legal arguments following a trial if the traffic court is not a court of record and appeal is by trial de novo in a higher court, and there is more opportunity to do so if the trial is in a "court of record" in which a transcript is maintained and if the trial is a jury trial (although in a jury trial, the legal arguments are made out of the presence of the jury in a hearing over jury instructions, rather than before the jury). In a traffic case in a court of record, in front of a judge, five or ten minutes, at most, would be typical and trial briefs would rarely be considered, but the judge might listen longer or take the case under advisement and ask for further briefing, if the judge thinks that there is merit to a legal argument and wants to do further research (which would be extremely unusual in a traffic case). | Yes Ideally a case will be conducted by the same judge throughout, however, there are a multitude of personal, professional and administrative reasons why this might not happen - litigation can take years and like every other workplace people come and go, have changing family circumstances, sickness, vacations etc. A litigant should not be alarmed and trust that the new judge has got themselves up to speed. For most people, litigation is a rare and confusing experience, for judges it’s just another day at the office. | This was asked and answered by KPD on the Politics stackexchange. This issue came up in a decision from an appeals court, with a judge dying before the opinion was released, leading to the following SCOTUS opinion. The short of the answer: that Judge's vote is voided. If the result of negating the deceased Justice's vote is a 4-4 tie, then the usual procedure for a 4-4 tie is invoked, which is addressed in the Q&A you link. Of course this assumes that SCOTUS will apply this to themselves, but the issue appears to be non-controversial, as it was a fairly recent decision with no dissents noted. So this assumption seems safe. |
What is "Intention to relinquish U.S. Citizenship"? I was a Sri Lankan citizen who acquired US citizenship via naturalization about a year ago. This automatically voided my Sri Lankan citizenship. However, I got to know that I can apply to resume my Sri Lankan citizenship which would give me dual citizenship. However this page on the department of State website says "obtaining naturalization in a foreign state after the age of 18 (Sec. 349 (a) (1) INA)". as a "Potentially Expatriating Act". It also says " if they perform certain specified acts voluntarily and with the intention to relinquish U.S. nationality" I am definitely not doing this with an intention to relinquish my U.S. nationality, but I am not sure what exactly constitutes 'intention'. While I understand this is not an actual legal forum, I just want to get a pulse on what people's experience has been in similar situations. I definitely plan to reach out to a lawyer to confirm before I proceed, but thought this might be a good thing to discuss in a public forum for the sake of general knowledge also. | "Intention to relinquish" means you actually meant to stop being a US citizen. In practice, the US assumes that normal people doing normal things don't want that. As described on the page you linked, there's an "administrative presumption" that you don't mean to give up US citizenship when you: become a citizen of another country, declare your allegiance to another country, join the military of a country that isn't at war with the US, or take a non-policy-level job with a foreign government. That means the State Department will assume you wanted to keep your citizenship unless you "affirmatively, explicitly, and unequivocally" say that you did not. In practice, if the issue comes up then the State Department will just ask you what your intention was and take you at your word. Unless you actually go to a US embassy or consulate and fill out a form saying "I do not want to be a US citizen any more," you don't really have to worry about it. | 18 USC 960 provides a disincentive against such actions. Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined under this title or imprisoned not more than three years, or both Also see 18 USC 959, covering enlistment. "At peace" is not statutorily defined, so it is not obvious whether the US is "at peace" with Ethiopia (Tigray war) or Russia (various offenses). A formal state of war has not existed between the US and another nation for 70 years. | Short answer: You find a country who is willing to recognize you as stateless, and issue you travel papers. At that point you can enter the U.S. by applying for a visa. The USA really does not want to create stateless people. They are laboring diplomatically to eradicate statelessness. As such, the State Department will want to see that you are secure in another country's citizenship before they will repudiate your US citizenship. Otherwise, they are very reluctant. The State Department will insist you do the repudiation in a foreign country at a US embassy. If you want to become stateless with your feet in the United States, you'll likely have a legal fight on your hands. Regardless, it will cost you $2300 in filing fees (plus, all your back taxes) :) At that point, you become the problem of the foreign country. You aren't anyone to the USA, and you have to apply for a visa just like anyone else. When a stated person enters the US, immigration's pivotal concern is whether you'll leave the US consistent with the terms of your visa, i.e. return to your country of citizenship. Being stateless increases this risk, and being a USA expat increases that risk further, since you are so familiar and comfortable in the US. If you found yourself in the kind of piccadillo that would qualify a foreigner for refugee or asylum status, the US would consider it just the same as others, since those statuses include right of residency. Some countries manufacture stateless people, e.g. Syria will not grant citizenship to a non-Muslim born there. | Yes, the Fourteenth Amendment makes a person born on U.S. soil a U.S. citizen at the moment of birth. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. This is not a "loophole," because it is exactly what the drafters of the Fourteenth Amendment were trying to achieve. There are narrow exceptions because of the "subject to the jurisdiction thereof" clause: The children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince. ... Thus the children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens. Inglis v. Trustees of Sailor's Snug Harbour, 28 U.S. 99, 155-56 (1830). | When can I re-apply for the citizenship, there is no date mentioned on the letter received. You can reapply as soon as you meet the criteria. If you don't move again to another state or USCIS district, and if you don't spend so much time outside the US that you fail to meet the physical presence requirement, then you can reapply on the three-month anniversary of your move to your current place of residence. The criteria are available at USCIS's Naturalization Information page: Naturalization Eligibility Requirements Before an individual applies for naturalization, he or she must meet a few requirements. Depending on the individual’s situation, there are different requirements that may apply. General requirements for naturalization are below. Be at least 18 years old at the time of filing Form N-400, Application for Naturalization. Be a permanent resident (have a “Green Card”) for at least 5 years. Show that you have lived for at least 3 months in the state or USCIS district where you apply. Demonstrate continuous residence in the United States for at least 5 years immediately preceding the date of filing Form N-400. Show that you have been physically present in the United States for at least 30 months out of the 5 years immediately preceding the date of filing Form N-400. Be able to read, write, and speak basic English. Have a basic understanding of U.S. history and government (civics). Be a person of good moral character. Demonstrate an attachment to the principles and ideals of the U.S. Constitution. | When the person has been naturalised, that is, when the US government officially recognises them as a US citizen. There are many pathways to citizenship and the ones on the linked page are pretty typical across the world although the details vary: residence for a period with or without marriage to a citizen service descent. | Yes. A multi-nation citizen who has US citizenship has equal US citizenship with every other citizen; therefore the answer to this binary question is "Yes". The citizenship(s) of anyone who does not have US citizenship is irrelevant to this question; thus, the answer to this binary question is "No". Yes. The main point here is to determine if you have the relevant documents and permissions to be legally present in the US. If you are a US citizen, a) this makes the process easier for you and b) avoids any possible issues if evidence is found of citizenship from another country, which will make immigration think that A) you are not a US citizen and b) you lied to them. Most people have only a single citizenship. That is the default mindset of immigration. There's no downside for you to inform them; there may be additional difficulties, delays, and scrutiny if you do not. If you are not a US citizen, most of the same applies. Additionally, lying (even by omission) can be grounds to have your legal status revoked. In summary, if you have the legal right to be in the US (e.g. US citizen, legal resident) being fully honest cannot hurt you, and can make the process smoother. If you have legal permission to be in the US, being fully honest will help prevent that permission from being revoked. | At least one such person was naturalized, according to Wikipedia, in 1868, a time at which I believe naturalization was conferred by district court judges. Although this doesn't perhaps constitute a court case, as asked by the question, it does show that formerly enslaved people who has been born outside the United States were not automatically granted US citizenship. Wikipedia says: Although native-born American former slaves became citizens upon the passage of the Fourteenth Amendment to the United States Constitution in July 1868, this change in status did not apply to the members of the Clotilda group, who were foreign-born. Cudjo Kazoola Lewis became a naturalized American citizen on October 24, 1868. The passage cites Dreams of Africa in Alabama: The Slave Ship Clotilda and the Story of the Last Africans Brought to America by Sylviane A. Diouf |
How long should I wait for a Data Access Request in Ireland A few weeks ago I made a Data Access request to an Irish company I've been doing business with for just over 10 years. I've not received any sort of response - not even an acknowledgment of my e-mail. Ignoring mails isn't unusual for this company but it is increasingly becoming a problem for me. This is why I have decided to get my data and go somewhere else. I've been told that I have a right to this data. Some people mentioned GPDR as a reason. Other people have talked about the Freedom of information act. How long do I need to wait? Do I have to send them reminder letters? If so, how many? What do I do if they continue to ignore me? I need this data to move on, and the Taxman will certainly need some of it | According to The official government page "Freedom of information (FOI)" FOI only applies to FOI bodies. These are mostly bodies that are publicly funded (for example, government departments). If you want to apply for records that are held about you by a private organisation, you can apply under data protection laws. FOI allows the public to have information about what the Government is doing and it is often used by journalists, campaigners and opposition parties. ... Organisations that are covered by FOI FOI laws apply to public bodies unless they are exempt. FOI bodies include: Government departments Bodies that were set up by an Act of the Oireachtas (for example, the Consumer and Competition Authority was set up by the Consumer and Competition Protection Act 2014), or established by a Minister or the Government A company where the majority of the shares are held by or on behalf of a Minister of the Government, or any of its subsidiaries A higher education institute that is publicly funded Some non-public bodies that get a lot of public funding Unless the company you are dealing with is an "FOI Body" it seems that the Irish FOI will not apply. The official Irish Government page on "How to access your personal data under the GDPR" states: Make your request in writing Ask as soon as possible and in writing. This can either be by letter or email. Seeking your personal data is known as making an access request or a data subject access request. You should state in the letter or email that it is an access request. This means that both you and the data controller will have a record of the request and its content if an issue later arises. Some large companies allow you to automatically download your personal information directly through their website. Contact the relevant data protection officer Many large organisations have a Data Protection Officer (or DPO) and they are generally the best person to contact about your request for information. You should be able to find their contact details in the privacy policy or ‘contact us’ section of the organisation’s website. Where there is no specific email address for a data access request, you should use the organisation’s general contact details. ... How will the company or organisation deal with my request? The data controller must respond to your request within one month. However, if you complain to the Data Protection Commission, the organisation may be given some extra time if it missed the deadline as a result of COVID-19. If the request is complex or involves a large amount of information, the data controller can extend the time to respond by a further two months. You should receive a written explanation for any extension within the initial one-month period. If your request is very broad and requires the data controller to provide a large amount of information and documents, you may be asked to reduce the number of documents containing personal data requested. However, you can insist on receiving all the information and documentation held. If you do, it may take longer to comply with your access request. In general, the data controller should respond to your access request in the same format the request was made, or in the way in which you specifically asked for a response. For example, if you emailed your request, the data controller should provide the information by email, unless you request otherwise. ... What can I do if I am unhappy with the outcome of an access request? If you are unhappy with the way your access request was processed, you can make a complaint to the Data Protection Commission (DPC)](https://www.dataprotection.ie/). The DPC is Ireland’s independent authority with responsibility for upholding the right of people in the EU to have their personal data protected. It monitors compliance with GDPR and other data protection legislation and deals with complaints in relation to data protection breaches. The DPC website contains helpful explanations of data protection law. You may be unhappy with the way your request was handled because: There was no response or a delayed response to your access request The response to the request was incomplete You believe the data controller wrongly relied on exemptions to not share your personal data with you How do I make a complaint? Complete the DPC’s online complaint form. You will be asked to provide evidence to support your complaint. This includes: Evidence of your access request Correspondence between you (or your legal representative) and the data controller and information in support of your belief that the data controller holds your personal Information The GDPR provides the right of access to one's personal information under Article 15, but leaves the details of times for response and handling of complaints to the national data protection authority and to national law. In the case of Ireland this is the Irish DPC. The GDPR dos not provide a right of private action (that is the right to bring an individual lawsuit) to enforce its data access provisions.That can only be done through a complaint to a national data protection authority. | Your analysis so far seems correct. You must comply with all applicable laws. The GDPR's Art 6(1)(c) legal basis clarifies that having to provide personal data is no excuse: that legal obligation is all the legal basis you need for sharing the personal data in accordance with your obligations. However, that legal basis doesn't generally excuse you from your other data controller obligations. For example, you should still inform the data subjects about the processing as per Art 13(3). | Yes, it also applies. However, an employment implies they agree to having employment related data stored and processed (e.g., to be paid). When there are performance related bonuses in the contract, this will likely (but IANAL) imply they agree to performance data being collected and stored appropriately. Furthermore I would assume most of such data processing (such as knowing who is responsible for a certain change, who created a file, modified it etc.) falls into "legitimate interests" of the employer, as this information may be necessary for operations. I'd assume (still IANAL) that much of the consequence wrt. GDPR is the right to have your data erased. So a company should be prepared to remove such data when an employee leaves the company, e.g., by clearing the responsible person fields upon request. At least for data where there is no legal requirement to have such data provenance. But: consult your lawyer for a proper legal opinion! | That is private. Who you work for is not information that is disclosed publicly by any state actor in Germany, just like your taxes. In fact, that or who you are employed at is often regarded as personal and private information. Nigh impossible through agencies Public agencies like the Fiskus (tax), Agentur für Arbeit, and immigration are not allowed to give any information about a person to anyone but that person or another agency that has the right to that information. Yes, (generally speaking) the tax office may not even say that a person exists (or doesn't) and what their tax number is to anyone but the person in question. | The information in telephone books is public. so are postal change-of-address records. So are records of the ownership of real estate. So are vital statistics such as birth records. So are voter registration lists -- i myself purchased a voter registration list (in digital form) for a municipality which showed people's names, addresses, and the years when they voted, when I was a political candidate for local office in NJ. It cost about $100. I believe that many states also make driver's license information available for a fee to marketers. Credit records are available for certain limited purposes, also. No doubt there are other public sources I haven't thought of. If such a site relies on public records, or other publicly available data, it is not illegal. Many such sites offer to remove names on an opt-out basis, but there is no legal requirement that sites do so. This kind of information is not considered nto be "private facts" under US tort law. Aside from opting out, if the sites provide that option, I don't think you have any recourse. One could ask the local legislature to pass a law prohibiting such sites, or making them require consent, similar to the GDPR that the EU has. But I don't know of any such law in the US to date. | You probably can't refuse to use such services. The relationship between you and these services is very different when you interact with them as a consumer, versus when these services are provided on behalf of your employer. In the latter case, the service is (or at least should be) bound as a data processor who can only* use your personal data as instructed by the data controller, your employer. Thus, it is your employer who determines for what purposes your data will be used, not the cloud service. Your employer has a legitimate interest in providing a modern and secure productivity suite to its employees, and in requiring you to use such services for efficient communication and collaboration. Of course it would be possible to provide some such services on-premises, but the GDPR doesn't really discriminate between self-hosted and third party services, as long as the third party service is contractually bound as a data processor. To a large degree, this is of course a legal fiction. The cloud services deploy new features all the time, and all that your employer can really do is agree to those changes, including agreeing to new ways for how to process your data. Also, the service provider may act both as a data processor on behalf of your employer for some purposes, but as their own data controller for others. E.g. in Google Workspace (formerly GSuite, formerly Google Apps for Business) Google collects analytics data about how you use their Docs product, and they use it for their own purposes. However, they would only process the document itself as a data processor. This is quite different in the consumer version where Google can use personal data for their own purposes, although within the limits of their privacy policy. Within your work account, you do have some privacy controls, similar to a consumer account. While your employer can set defaults and restrict features, you are not forced to share all data. E.g. in a Google Account, you can “pause” web and app activity (i.e. browsing history) that would otherwise be collected from Chrome browsers while logged in with your work account, or from Android devices that are managed by your employer. This data would potentially be used by Google for Ads, even with a Workspace account (I'm not sure). However, Google Workspace services generally do not feature ads themselves, e.g. the paid Gmail version does not feature ads. The largest real issue with the use of such services by an European employer is the international transfer of data to a non-EU jurisdiction, especially into the U.S. The GDPR offers many alternatives for how such transfers can be protected. In the past, the EU and US had used the Privacy Shield mechanism. However, it was found to be invalid in the 2020 Schrems II ruling, due to concerns about US mass surveillance. Subsequent guidance from supervisory authorities explained that it's not sufficient to use “standard contractual clauses” as an alternative protection, but that additional safeguards have to be implemented, which would effectively deny the personal data to actors in the US. Both Google and Microsoft offer some “data sovereignty” choices that prevent international transfers into the US. However, those have to be configured appropriately by your employer. Thus, instead of asking “can these services be used?” to which the answer is yes, it might be better to ask “is my employer using these services in a compliant manner?”. If you have concerns about such issues, you can contact your employer's data protection officer | I'm not aware of any cases on point, but as a rule legal fig-leaves don't play well in court. If the webmaster simply puts up a banner saying that EU residents are not permitted but takes no other action to exclude them, then that is going to be considered irrelevant. The webmaster is still very likely required to comply with the GDPR. On the other hand if the webmaster takes other steps to exclude EU residents, such as using a geolocation service to block connections known to be in the EU, validating email addresses and blocking those from EU domains, and ejecting anyone who mentions that their residence is in the EU, then that is more likely to be seen as a good-faith attempt to avoid being subject to the GDPR. It will also have the practical effect of greatly reducing the number of actual EU residents. All these controls can be evaded, but it would be much harder for any data subjects to claim that they acted in good faith or that the webmaster acted in bad faith. Note that validating an email address or logging an IP is itself processing of personal data, so anyone implementing such a system still can't ignore the GDPR completely, but it would greatly limit the scope and make it easy to delete any such data after a short time. (Note: the term "EU resident" above is an approximation of the territorial scope). | 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. |
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